### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 E rik D. Jenkins (“Jenkins”) appeals his conviction and sentence for various offenses concerning child pornography. Jenkins argues that the distr i c t 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 i s sub s t a n t iv ely unreasonable. For the following reasons, we AFFIRM the judgment of the district court. BACKGROUND Jenkins was charged with one count o f r e ceiving child pornography in violation of 18 U.S.C. § 2252(a)(2); two counts of distributing child p ornography in violation of 18 U .S.C. § 2252(a)(2); two counts of possessing child p ornography U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

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in violation o f 18 U.S.C. § 2252(a)(4)(B); one count of receiving obscene material depicting s exual abuse of a child in violation of 18 U.S.C. § 1466A(a)(1); and one count o f possessing obscene materi a l d e p i c t ing s exual abuse of a child in violation o f 1 8 U .S.C. § 1 466A(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 f ound o n Jenkins’ computer. The PSR described the images and videos as follows: The images and videos were of prepubescent child ren, a majority between the ages of 7 and 10 a n d a s m a l l number o f them were infants/toddlers. The images and videos reflected the pe n e t ration of an adult penis into a child’s vagina o r anus, which would cause considerable amount o f pain and p hysical damage

. A few of th e children’s vaginas were red, swollen, and obviously irritated. In a small number of images the children were bound, their h ands and f e e t tied together or to a b ed or a chair with their l e g s a p a r t exposing their genitalia. Th e P S R recommended a two-level specific offense enhancement pursuant to U.S.S.G. § 2G2.2(b)(2), which applies “[i]f the material i nv o lved a prepubescent minor or a minor who had not attained the a ge o f 12 years.” The PSR n oted that numerous videos and images downloaded and distributed by Jenkins depicted prepubescent minors or minors u nder the age of twelve. The PSR also r ecommended a four-level specific o ffense e n h a n c e ment pursuant to U.S.S.G. § 2G2.2(b)(4), which a p plies “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” T he PSR found this enhancement to be applicable because the majority of the videos and i mages found on Jenkins’ computer “portrayed an erect, adult male penis penetrating th e vagina or anus of a prepubescent child[,] inflicting pain on the

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child.” The P SR also recommen d ed a two-level victim-related enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), which applies “[i]f the d e fendant k new or should have known that a victim of the offense was a vulnerable victim.” The PSR no t e d t h a t the children depicted in the videos and images “rang[ed] from being toddlers to e arly teenagers,” and explained that “several

. . . images depict sexual abuse and e xploitation of young and s m a l l children who are u nable to resist o r object to the abuse o r exploit [sic], making them susceptible to abuse and exploitation and thus, vulnerable victims.” The PS R a l so recommended a two-level enhancement f or distribution, a two-level enhancemen t f o r u se of a computer, and a f

ive-level enhancement because the o ffense involved more than 600 images. 1 SeeU.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) “vulnerabl e vi ctim” enhancement. Jenkins argued t h a t b ecause any child p ornography offense would s eemingly involve a “vulnerable victim,” this factor is adequately address e d b y t h e specific offense guideline. More specifically, Jenkins argued that the vulnerability of the victims in this case was accounted for by the “pr e p ub e scent minor” and “depictions o f violence” enhancements. The go v ernment argued that the enhancements account f or distinct harms, and maintained that this court had explicitly rejected a s i milar argument in the past. The district c ourt “agree[d] with t h e 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 r ange o f imprisonment was 262 to 3 27 months. H owever, because this range was above the s ta t u t ory maximum of tw e nty years i m p ri s o n m e nt, the statutory maximum sentence b e c a m e th e a dvi s o ry Gui d e lin e s

1 I n c a l c u l a ting the total number of images, each video i s considered to contain seventy-five images. U.S.S.G. § 2G2.2 cmt. n.4(B)(ii). 3 Case: 11-51277 Document: 00512181199 Page: 3 Date Filed: 03/20/2013No. 11-51277

sentence. Se e U .S.S.G. § 5G1.1(a). Jenkins m oved for a below-Guidelines sentence, arguing that the advisory Guidelines sentence was excessive for several r easons. The government moved for a n above-Guidelines s entence of thirty years i mprisonment, 2 arguing that the advisory Guidelines sentence was inadequate for several r e a s ons. The district court rejected both m otions and sentenced Jenkins to 240 months imprisonment. Jenkins timely appealed. DISCUSSION I. Sentence Enhancement On appeal, J enkins argues that the d i s t r i c t court erred in applying the section 3A1.1(b)(1) “vulnerab l e victim” enhancement “based on the a ge of the children portrayed in the child pornography” becau s e t h e specific offense guideline already takes i nto account the ages of the children. Jenkins does not contend that the children were not in fact vulnerable, but rather that the district

c o u rt erred in applying a section 3A1.1(b)(1) enhancement b ased on an a g e related 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 c ourt’s interpretation o f the guidelines de novo ; we

re vi e w a f

inding of unusual vulnerability for c lear error a nd to determine whether the district court’s c onclusion was plausible in light of the record as a whole.” United S t a t e s v . Robinson , 119 F .3d 1205, 1218 (5th Cir. 1997). “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative u nless it violates the Constitution o r a federal s t a t u t e , o r is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States , 508 U.S. 36, 38 (1993).

2 Such a s entence could have been im p os ed us ing cons ecutive s entencing 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 l e v e l is increased by two. U.S.S.G. § 3 A 1.1(b)(1). The application notes define a “vulnerable victim” as a per s o n “who is a victim of the offense of conviction,” along with any relevant conduct, and “who i s unusually vulnerable due to age, physical or mental condition, or who i s otherwise particularly susceptible to the c riminal co n d u ct.” U.S.S.G. § 3A1.1 cmt.2. The app l i c a t i o n notes also state that the “vulnerable victim” enhancement should not be applied “if the factor that makes the p erson a

v u lnerable victim is incorporated in the offense guideline. For e xample, i f t h e

o f f e n s e gu ideline 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 t h e g o v e rnment and the district court seemingly believed that Jenkins’ challenge was foreclosed by circuit precedent, w e have had no occasion to consider application of the s ection 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 e leven months t o fou r y e a rs. The Ninth Circuit explained that “the victims’ vulnerability is n ot fully ‘incorporated’ in the victimunder-12 adjustment” because “[m]ost children under 12 are well b e y o n d the infancy and toddler stages of childhood during which the y a re the most vulnerable.” Id. at 943. The Ninth Circuit further explained that “[t]hough the characteristics o f being an infant or toddler t e nd to correlate with age, they can exist independentl y o f age, and are not the same thing a s merely not having ‘attained the age of twelve years,’ the criterion f or 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 o f the section 3A1.1(b)(1) enhancement, noted that the victim w as vulnerable for reasons unrelated t o age. United States v. Gawthrop , 310 F.3d 405, 4 12 (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 f amilial r elationship.”); United States v. Snyder , 189 F.3d 640, 649 (7th Cir. 1999) (“[T]he district court premised t h e e nhancement o n Doe’s history o f molestation, a f actor 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 e x a m p l e p rovided i n the commentary to U.S.S.G. § 3A1.1 may be fairly read t o state that if a s pecific o ffense guideline provides any enhancement based

o n t he a ge of the victim, the “vulnerable victim” enhancement can never be applied to account for a vulnerability that is “related to age.” J enkins appears to support such an interpretation. However, we reject such a n interpretation as plainly illogical a nd unreasonable. For example, the specific offense guidelines for some crimes provide enhancements based on the young age of the victim but do not provide en h a n c e m ents based on the old age of the victim. See, e.g. , U.S.S.G. § 2A3.1. The commentary language w ould seemingly prohibit a court from applying the “vulner ab l e victim” enhancement where a victim of one of these crimes was especially vulnerable due t o extreme old a ge. Such a n outcome would be odd; although the vulnerability is certainly “related to age,” it is in no way accou n t e d for b y the s pecific o ffense guidelines and presents no risk of “double counting” the same vulnerability. The same p roblem also o ccurs in mo r e s ubtle ways. Consider an enhancement for a victim under the age of twelve: A perso n w h o i s u nable to walk is n o 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, i nfants, are unable to walk due t o extreme young age. O ther children under twelve may be unable to walk due to paralysis. We see no reason why a “vulner ab l e vi c t i m” enhancement based on inability to walk should be applied t o paralyzed children but not to infants. Alth o u gh an infant’s i nability t o walk i s “related to age,” it is not accounted for by the “victim under twelve” enhancement. Accordingly, we do not a scribe undue significance t o the example p rovided in the Guidelines commentary. Rather, we believe the inquiry should focus on whether “the factor that makes the person a vulnerable victim is i ncorporated i n t h e offense guideline.” U.S.S.G. § 3A1.1 c mt. 2. I n this case, we d o n o t s e e any logical reason why a “victim under the age of twelve” enhancement should bar a pplication of the “v u lnerable victim” e nhancement when the victim is especially vulnerable, e v e n a s compared t o most children under twelve. We agree with the Ninth Circuit that in such a case, the victim’s vulnerability is not fully incorporated i nto the offense guideline by the “under twelve” enhancement. Jenkins also argues that although the young age o f the victims may have made them e specially vulnerable to p roduction of child po rnography 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 r eceiving child pornography.” United States v. N orris , 159 F.3d 926, 929 (5th Cir. 1998). In that case, we rejected the defendant’s argument that “the [only] victimization of the children o ccurred at the time the pornographic images were produced,” stating: Unfortunately, the “victimization” of the children involved does n ot end when the pornograph e r ’ s c a mera is put away. The consumer, or end recipient, o r pornographic materials may be considered to be

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causing the children depicted in those materials to suffer as a r esult of his actions in at least three ways. Id. Here, it is c lear that the children depicted were the victims of J enkins’ crime, and that at least some o f these children were especially vulnerable t o s e xual abuse and exploitation. We agree with the Ninth Circuit th at this is s ufficient; there is no need to show that the particular vulnerabil i t i e s of the victims actually facilitated the commission of J e n k i n s’ crimes. See U nited States v. Ly n n , 6 36 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 d i s cretionary sentence imposed within a properly calculated guidelines range is presumptively rea s onable.” United States v . Campos-Maldonado , 5 3 1 F

. 3d 337, 338 (5th Cir. 2008). “The presumption is rebutted o nly upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant w eight to

an irrelevant o r improper factor, or it represents a clear error of j udgment in balancing sentencing factors.” Uni t ed States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). “[T]he sen t e n c i n g j udge is in a superior position to find facts and judge their i m p ort under § 3553(a) with respect to a particular defendant,” Campos-Maldonado , 531 F.3d at 339. Jenkins first a r gues that his sentence is substantively unreasonable because the child pornography guideline, section 2 G2.2, lacks an empirical basis and therefore f

ails to distinguish between t h e l e a s t culpable and the most culpable defendants. However, Jenkins recognizes that this argument is foreclosed by o ur p recedent 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 i ssue f or S upreme Court review. J enkins also argues that his culpability was mitigated by his personal characteristics and history, specifically his diagnose d b ehavioral and l earning disord ers as a child and his Army service in Iraq. As the transcript of the sentencing hearing demonstrates, Jenkins p r esented th ese facts to the district court for consideration. D e s p it e these mitigating f actors, the di strict judge noted that Jenkins “show[ed] a lot of characteristics that r eally concern[ed]” her. We find no reason to conclude that the district judge abus e d h e r discretion in applying and balancing the sentencing f actors, and therefore hold that Jenkins has not shown his sentence to be substantively unreasonable. CONCLUSION For the reasons stated above, we AFFIRM the judgment o f t he district court.

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