IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51277

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ERIK D. JENKINS, a/k/a Erik Jenkins

Defendant - Appellant

Appeal from the United States District Court for the

Western District of Texas

Before KING, SOUTHWICK, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Defendant - Appellant Erik D. Jenkins (“Jenkins”) appeals his conviction

and sentence for various offenses concerning child pornography. Jenkins argues

that the district court erred in applying a two-level sentence enhancement

pursuant to U.S.S.G. § 3A1.1(b)(1). Jenkins also argues that his sentence of

twenty years imprisonment is substantively unreasonable. For the following

reasons, we AFFIRM the judgment of the district court.

BACKGROUND

Jenkins was charged with one count of receiving child pornography in

violation of 18 U.S.C. § 2252(a)(2); two counts of distributing child pornography

in violation of 18 U.S.C. § 2252(a)(2); two counts of possessing child pornography

United States Court of Appeals

Fifth Circuit

F I L E D

March 20, 2013

Lyle W. Cayce

Clerk

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in violation of 18 U.S.C. § 2252(a)(4)(B); one count of receiving obscene material

depicting sexual abuse of a child in violation of 18 U.S.C. § 1466A(a)(1); and one

count of possessing obscene material depicting sexual abuse of a child in

violation of 18 U.S.C. § 1466A(b)(1). These charges arose from Jenkins’ use of

his personal computer to upload and download images and videos through an

internet peer-to-peer file sharing program. Jenkins pleaded guilty to all counts

without the benefit of a plea agreement.

The presentence report (“PSR”) stated that thirty-six image files and 110

video files depicting child sexual exploitation were found on Jenkins’ computer. 

The PSR described the images and videos as follows:

The images and videos were of prepubescent children, a majority

between the ages of 7 and 10 and a small number of them were

infants/toddlers. The images and videos reflected the penetration

of an adult penis into a child’s vagina or anus, which would cause

considerable amount of pain and physical damage. A few of the

children’s vaginas were red, swollen, and obviously irritated. In a

small number of images the children were bound, their hands and

feet tied together or to a bed or a chair with their legs apart

exposing their genitalia.

ThePSR recommended a two-level specific offense enhancement pursuant

to U.S.S.G. § 2G2.2(b)(2), which applies “[i]f the material involved a

prepubescent minor or a minor who had not attained the age of 12 years.” The

PSR noted that numerous videos and images downloaded and distributed by

Jenkins depicted prepubescent minors or minors under the age of twelve. The

PSR also recommended a four-level specific offense enhancement pursuant to

U.S.S.G. § 2G2.2(b)(4), which applies “[i]f the offense involved material that

portrays sadistic or masochistic conduct or other depictions of violence.” The

PSR found this enhancement to be applicable because the majority of the videos

and images found on Jenkins’ computer “portrayed an erect, adult male penis

penetrating the vagina or anus of a prepubescent child[,] inflicting pain on the

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child.” The PSR also recommended a two-level victim-related enhancement

pursuant to U.S.S.G. § 3A1.1(b)(1), which applies “[i]f the defendant knew or

should have known that a victim of the offense was a vulnerable victim.” The

PSR noted that the children depicted in the videos and images “rang[ed] from

being toddlers to early teenagers,” and explained that “several . . . images depict

sexual abuse and exploitation of young and small children who are unable to

resist or object to the abuse or exploit [sic], making them susceptible to abuse

and exploitation and thus, vulnerable victims.” The PSR also recommended a

two-level enhancement for distribution, a two-level enhancement for use of a

computer, and a five-level enhancement because the offense involved more than

600 images.1

 See U.S.S.G. §§ 2G2.2(b)(3)(F), 2G2.2(b)(6) & 2G2.2(b)(7)(D).

Jenkins objected to the section 3A1.1(b)(1) “vulnerable victim”

enhancement. Jenkins argued that because any child pornography offense

would seemingly involve a “vulnerable victim,” this factor is adequately

addressed by the specific offense guideline. More specifically, Jenkins argued

that the vulnerability of the victims in this case was accounted for by the

“prepubescent minor” and “depictions of violence” enhancements. The

government argued that the enhancements account for distinct harms, and

maintained that this court had explicitly rejected a similar argument in the past. 

The district court “agree[d] with the Government based on Fifth Circuit

precedent” and overruled Jenkins’ objection.

Based on Jenkins’ total offense level of 36 and criminal history category

of IV, the Guidelines range of imprisonment was 262 to 327 months. However,

because this range was above the statutory maximum of twenty years

imprisonment, the statutory maximum sentence became the advisoryGuidelines

1

In calculating the total number of images, each video is considered to

contain seventy-five images. U.S.S.G. § 2G2.2 cmt. n.4(B)(ii).

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sentence. See U.S.S.G. § 5G1.1(a). Jenkins moved for a below-Guidelines

sentence, arguing that the advisory Guidelines sentence was excessive for

several reasons. The government moved for an above-Guidelines sentence of

thirty years imprisonment,2arguing that the advisory Guidelines sentence was

inadequate for several reasons. The district court rejected both motions and

sentenced Jenkins to 240 months imprisonment. Jenkins timely appealed.

DISCUSSION

I. Sentence Enhancement

On appeal, Jenkins argues that the district court erred in applying the

section 3A1.1(b)(1) “vulnerable victim” enhancement “based on the age of the

children portrayed in the child pornography” because the specific offense

guideline already takes into account the ages of the children. Jenkins does not

contend that the children were not in fact vulnerable, but rather that the district

court erred in applying a section 3A1.1(b)(1) enhancement based on an agerelated vulnerability. Jenkins also argues that although the children were

especially vulnerable to the crime of production of child pornography, they were

not especially vulnerable to the specific crimes he committed. 

We “review the district court’s interpretation of the guidelines de novo; we

review a finding of unusual vulnerability for clear error and to determine

whether the district court’s conclusion was plausible in light of the record as a

whole.” United States v. Robinson, 119 F.3d 1205, 1218 (5th Cir. 1997). 

“[C]ommentary in the Guidelines Manual that interprets or explains a guideline

is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.

United States, 508 U.S. 36, 38 (1993).

2 Such a sentence could have been imposed using consecutive sentencing on one or more

counts.

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“If the defendant knew or should have known that a victim of the offense

was a vulnerable victim,” the offense level is increased by two. U.S.S.G.

§ 3A1.1(b)(1). The application notes define a “vulnerable victim” as a person

“who is a victim of the offense of conviction,” along with any relevant conduct,

and “who is unusually vulnerable due to age, physical or mental condition, or

who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G.

§ 3A1.1 cmt.2. The application notes also state that the “vulnerable victim”

enhancement should not be applied “if the factor that makes the person a

vulnerable victim is incorporated in the offense guideline. For example, if the

offense guideline provides an enhancement for the age of the victim, [the

enhancement] would not be applied unless the victim was unusually vulnerable

for reasons unrelated to age.” Id.

Although the government and the district court seemingly believed that

Jenkins’ challenge was foreclosed by circuit precedent, we have had no occasion

to consider application of the section 3A1.1(b)(1) enhancement in addition to the

section 2G2.2(b)(2) enhancement. In United States v. Wright, 373 F.3d 935, 942-

44 (9th Cir. 2004), the Ninth Circuit held that a section 3A1.1(b)(1) “vulnerable

victim” enhancement was appropriate, along with a section 2G2.2(b)(2)

enhancement based on prepubescent/younger-than-twelve children, where the

victims ranged in age from eleven months to four years. The Ninth Circuit

explained that “the victims’ vulnerability is not fully ‘incorporated’ in the victimunder-12 adjustment” because “[m]ost children under 12 are well beyond the

infancy and toddler stages of childhood during which they are the most

vulnerable.” Id. at 943. The Ninth Circuit further explained that “[t]hough the

characteristics of being an infant or toddler tend to correlate with age, they can

exist independently of age, and are not the same thing as merely not having

‘attained the age of twelve years,’ the criterion for the 4-level increase in” section

2G2.1(b)(2). Id.

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Jenkins cites two cases from other circuits in which the courts, rejecting

challenges to the application of the section 3A1.1(b)(1) enhancement, noted that

the victim was vulnerable for reasons unrelated to age. United States v.

Gawthrop, 310 F.3d 405, 412 (6th Cir. 2002) (“[T]he granddaughter was

unusually vulnerable, not because of her age since that factor had already been

considered by the guidelines, but because of her familial relationship.”); United

States v. Snyder, 189 F.3d 640, 649 (7th Cir. 1999) (“[T]he district court premised

the enhancement on Doe’s history of molestation, a factor that is ‘unrelated to

age.’”). Jenkins suggests that these statements show that “other circuits require

something more than just the young age of the child as the vulnerability factor”

when a section 2G2.1(b)(2) enhancement is also applied.

The example provided in the commentary to U.S.S.G. § 3A1.1 may be fairly

read to state that if a specific offense guideline provides any enhancement based

on the age of the victim, the “vulnerable victim” enhancement can never be

applied to account for a vulnerability that is “related to age.” Jenkins appears

to support such an interpretation. However, we reject such an interpretation as

plainly illogical and unreasonable. For example, the specific offense guidelines

for some crimes provide enhancements based on the young age of the victim but

do not provide enhancements based on the old age of the victim. See, e.g.,

U.S.S.G. § 2A3.1. The commentary language would seemingly prohibit a court

from applying the “vulnerable victim” enhancement where a victim of one of

these crimes was especially vulnerable due to extreme old age. Such an outcome

would be odd; although the vulnerability is certainly “related to age,” it is in no

way accounted for by the specific offense guidelines and presents no risk of

“double counting” the same vulnerability.

The same problem also occurs in more subtle ways. Consider an

enhancement for a victim under the age of twelve: A person who is unable to

walk is no doubt especially vulnerable to many crimes. Most children under the

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age of twelve are able to walk. Some children under twelve, infants, are unable

to walk due to extreme young age. Other children under twelve may be unable

to walk due to paralysis. We see no reason why a “vulnerable victim”

enhancement based on inability to walk should be applied to paralyzed children

but not to infants. Although an infant’s inability to walk is “related to age,” it

is not accounted for by the “victim under twelve” enhancement.

Accordingly, we do not ascribe undue significance to the example provided

in the Guidelines commentary. Rather, we believe the inquiry should focus on

whether “the factor that makes the person a vulnerable victim is incorporated

in the offense guideline.” U.S.S.G. § 3A1.1 cmt. 2. In this case, we do not see

any logical reason why a “victim under the age of twelve” enhancement should

bar application of the “vulnerable victim” enhancement when the victim is

especially vulnerable, even as compared to most children under twelve. We

agree with the Ninth Circuit that in such a case, the victim’s vulnerability is not

fully incorporated into the offense guideline by the “under twelve” enhancement. 

Jenkins also argues that although the young age of the victims may have

made them especially vulnerable to production of child pornography because

they were unable to resist, their young age does not make them especially

vulnerable to the crimes for which he was convicted – receipt, distribution, and

possession of child pornography. We have previously held that “the children

depicted in child pornography may be considered to be the victims of the crime

of receiving child pornography.” United States v. Norris, 159 F.3d 926, 929 (5th

Cir. 1998). In that case, we rejected the defendant’s argument that “the [only]

victimization of the children occurred at the time the pornographic images were

produced,” stating:

Unfortunately, the “victimization” of the children involved does not

end when the pornographer’s camera is put away. The consumer,

or end recipient, or pornographic materials may be considered to be

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causing the children depicted in those materials to suffer as a result

of his actions in at least three ways.

Id. Here, it is clear that the children depicted were the victims of Jenkins’ crime,

and that at least some of these children were especially vulnerable to sexual

abuse and exploitation. We agree with the Ninth Circuit that this is sufficient;

there is no need to show that the particular vulnerabilities of the victims

actually facilitated the commission of Jenkins’ crimes. See United States v.

Lynn, 636 F.3d 1127, 1138-39 (9th Cir. 2011). We therefore conclude that the

district court did not err in applying the section 3A1.1(b)(1) enhancement.

II. Substantive Reasonableness

Jenkins also argues that his within-Guidelines sentence of twenty years

imprisonment is substantively unreasonable. The substantive reasonableness

of a sentence is reviewed under an abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed within a

properly calculated guidelines range is presumptively reasonable.” United

States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). “The

presumption is rebutted only upon a showing that the sentence does not account

for a factor that should receive significant weight, it gives significant weight to

an irrelevant or improper factor, or it represents a clear error of judgment in

balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th

Cir. 2009). “[T]he sentencing judge is in a superior position to find facts and

judge their import under § 3553(a) with respect to a particular defendant,”

Campos-Maldonado, 531 F.3d at 339.

Jenkins first argues that his sentence is substantively unreasonable

because the child pornography guideline, section 2G2.2, lacks an empirical basis

and therefore fails to distinguish between the least culpable and the most

culpable defendants. However, Jenkins recognizes that this argument is

foreclosed by our precedent in United States v. Miller, 665 F.3d 114, 121 (5th Cir.

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2011), and raises the argument only to preserve the issue for Supreme Court

review. Jenkins also argues that his culpability was mitigated by his personal

characteristics and history, specifically his diagnosed behavioral and learning

disorders as a child and his Army service in Iraq. As the transcript of the

sentencing hearing demonstrates, Jenkins presented these facts to the district

court for consideration. Despite these mitigating factors, the district judge noted

that Jenkins “show[ed] a lot of characteristics that really concern[ed]” her. We

find no reason to conclude that the district judge abused her discretion in

applying and balancing the sentencing factors, and therefore hold that Jenkins

has not shown his sentence to be substantively unreasonable.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court.

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