1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-2565

___________

United States of America, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the

* Northern District of Iowa.

Bruce Anthony Myers, *

*

Appellee. *

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Submitted: January 9, 2007

Filed: April 13, 2007

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Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Bruce Anthony Myers pled guilty to one count of interstate transportation of a

minor with the intent to engage in criminal sexual activity, a violation of 18 U.S.C.

§ 2423(a). The district court1

 sentenced Myers to eighty-two months’ imprisonment

and fifteen years of supervised release. The government appeals from Myers’s

sentence, contending that the district court should have applied a vulnerable victim

sentencing enhancement under United States Sentencing Guidelines (U.S.S.G.) §
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The 2005 Guidelines Manual was applied in this case. 

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Doe told Myers that she had a terrible home life and that she feared her family.

Doe’s mother testified in her deposition that Doe was unhappy, but that Doe’s

behavioral problems were “not any more abnormal than any other teenager.” (Doe’s

mother’s dep. at 31). 

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3A1.1(b)(1) (2005) and an undue influence enhancement pursuant to U.S.S.G. §

2G1.3(b)(2)(B) (2005).2

 We affirm. 

I.

The following facts are drawn from the presentence investigation report (PSR)

and the deposition of the victim (whom we refer to as Doe) and her mother, which

were exhibits at the sentencing hearing. Doe, a fifteen-year-old girl, lived with her

mother and her mother’s boyfriend in Iowa and, by all accounts, had an unhappy

home life.3

 In the fall of 2004, Doe engaged in online conversations with various

adults, including an individual from the Gaza Strip and another man, Mohammed,

from Egypt. Doe developed a serious interest in Mohammed and threatened to run

away with him. Doe’s mother spoke with Mohammed, however, and the two

apparently agreed that Mohammed would wait until Doe turned eighteen, after which

time Doe could go with him if she remained interested. Although Doe’s mother

ordered Doe not to chat with adults online and placed parental controls on their

computer that were designed to restrict Doe’s internet access to age-appropriate

content, these controls were easily circumvented and Doe continued chatting with

adults online. One of these adults included Myers, whom Doe met on the “Wheel of

Fortune” website. At the time, Myers was thirty-seven-years-old and lived in

Kentucky. Myers and Doe conversed online and over the telephone for about three

weeks. Doe claims to have fallen in love with Myers during this time, and the two

decided that Doe would leave home and marry him. It was eventually settled that

Myers would come to Iowa to “kidnap” Doe and take her back to Kentucky. 
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On April 19, 2005, Myers, accompanied by a friend, Belinda Twining, and

Twining’s ten-year-old daughter, traveled by van from Kentucky to Iowa. That

afternoon, Doe packed up some of her things and, in an effort to throw her mother off

her trail, left a note saying that she had left with Mohammed. At around 2:30 p.m.,

Myers met Doe at a convenience store near Doe’s home, whereupon they departed for

Kentucky. Doe was told that if anyone approached them, she was to refer to Twining

as “Mom.” They reached Twining’s trailer in Kentucky around 4:30 the following

morning. Myers and Doe engaged in vaginal intercourse, anal intercourse, and oral

sex that morning as well as the following evening. On April 21, 2005, law

enforcement agents knocked on the door of the trailer, whereupon Doe, at Myers’s and

Twining’s direction, hid in a closet. Myers was taken into custody and Doe was

eventually found and returned to her home. 

As noted above, Myers pled guilty to one count of interstate transportation of

a minor with the intent to engage in sexual activity. The government sought the

imposition of a vulnerable victim sentencing enhancement pursuant to § 3A1.1(b)(1)

of the Guidelines and an undue influence enhancement under § 2G1.3(b)(2)(B). At

the sentencing hearing, the government argued that the vulnerable victim enhancement

was appropriate because Doe suffers from attention deficit/hyperactivity disorder

(ADHD). The government argued that the undue influence enhancement was

warranted because § 2G1.3(b)(2)(B), cmt. n. 3(B) provides that some measure of

undue influence can be presumed when the defendant is at least ten years older than

the victim (as was the case here). The district court declined to apply either of these

enhancements.

II.

The government contends that the district court used the wrong standard when

it declined to apply the vulnerable victim enhancement. The government also argues
4

The government asserts that the district court may have concluded that Doe

was vulnerable because of ADHD because the district court found it necessary to

determine Myers’s knowledge of this condition. We believe it is more likely that the

district court, rather than analyzing whether Doe’s ADHD made her vulnerable,

assumed arguendo that she was vulnerable and opted instead to engage in a more

straightforward inquiry: whether Myers knew or should have known about the ADHD.

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that the enhancement was warranted because Myers knew or should have known that

Doe suffered from ADHD and had a troubled home life. 

Section 3A1.1(b)(1) provides for a two-level enhancement “[i]f the defendant

knew or should have known that a victim of the offense was a vulnerable victim.” A

vulnerable victim is defined as a victim of the offense “who is unusually vulnerable

due to age, physical or mental condition, or who is otherwise particularly susceptible

to the criminal conduct.” § 3A1.1, cmt. n.2. If age is already incorporated into the

offense guideline, however, it cannot serve as a basis for the enhancement. Id. “The

district court’s determination that a vulnerable victim enhancement is deserved turns

on a factual finding subject to review for clear error.” United States v. Moskal, 211

F.3d 1070, 1073 (8th Cir. 2000). The predicate facts supporting an enhancement must

be found by a preponderance of the evidence. United States v. Hernandez-Orozco,

151 F.3d 866, 870 (8th Cir. 1998). We will assume for the sake of argument that

ADHD unaccompanied by other limitations or conditions renders a victim vulnerable

for purposes of § 3A1.1(b)(1).4

 

The government suggests that the district court neglected to consider whether

Myers should have known that Doe suffered from ADHD and considered only

whether Myers had actual knowledge of the condition. The government’s argument

is based on the following exchange at the sentencing hearing:
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The balance of the district court’s remarks on this topic include a reference to

the presentence investigation report (PSR), which also states that Myers did not know

of the ADHD. It bears mention, however, that the section of the PSR addressing the

parties’ objections states that the vulnerable victim enhancement is inapplicable

because, inter alia, “it is uncertain that the defendant knew or should have known

[Doe] had ADHD.” (PSR at 22). 

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THE COURT: Well, how do you establish that? You have an obligation

to prove that the defendant knew or should have known of the victim’s

vulnerability based on something other than her age. 

MR. LAMMERS: Based on the unobjected-to sections in regards to the

presentence report. The victim is described as having ADHD, and the

specific fact sections of the report discuss the context of the contacts that

the defendant had with her and the chat with her and also their contacts

between here and Kentucky. And that’s how we would establish that,

Your Honor.

. . . .

THE COURT: Well, is there anything in the presentence report that

indicates that the defendant knew about that?

MR. WICHSER: No, there isn’t.

THE COURT: Well, I didn’t think so.

MR. WICHSER: He didn’t know about it.

THE COURT: Well, there’s no evidence that the defendant knew about

it, so I don’t find that there’s sufficient evidence in the record for the

Court to find that the defendant knew that this was a vulnerable victim

other than by her age, and that’s already taken care of in another

enhancement.5

(Sent Tr. at 25-26). The government argues that because the district court referred

only to Myers’s lack of actual knowledge when it declined to apply the enhancement,

the district court neglected to consider the alternative “should have known” basis for

enhancement. We disagree. Although the district court spoke of Myers’s lack of

actual knowledge as the reason for not applying the enhancement, the court opened

the above-quoted exchange with a complete statement of the legal standard. We find
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it unlikely that the district court, having correctly articulated the relevant legal

standard, either forgot or chose to disregard it mere seconds later (and, we observe,

without comment or protest by the government). Accordingly, we conclude that the

district court recognized and applied the correct legal standard and that the comments

to which the government refers were either slips of the tongue or an abbreviated

articulation of the dual-based standard stated in full by the district court only moments

earlier. 

We also reject the government’s argument that Myers should have known of

Doe’s ADHD. There is nothing in the record that would so much as suggest, let alone

demonstrate by a preponderance of the evidence, that Myers should have known about

Doe’s condition. The record does not indicate how the ADHD may have manifested

itself in Doe’s behavior. Nor does the record suggest that Doe’s ADHD arose (or was

likely to arise) as a topic of conversation between Myers and Doe. 

The government cites United States v. Janis, 71 F.3d 308 (8th Cir. 1995), in

support of its contention that Myers should have known of Doe’s condition and states

that the facts in Janis “are very similar” to those in this case. We disagree. The victim

in Janis had an I.Q. of sixty-five, was diagnosed with fetal alcohol syndrome, had a

learning disability, attended individualized educational programs, had severe attention

deficit and hyperactivity disorder, and had received social security benefits because

of her disability. Id. at 310-11. In this case, by contrast, Doe appears to suffer from

limitations that are far less severe and, in all likelihood, far less noticeable that those

suffered by Janis’s victim. Moreover, Janis had “regular contact” with his victim

because the victim lived with Janis’s family, id. at 311, in contrast to Myers’s more

limited contact with Doe. Comparing this case to Janis underscores the fact that there

is little reason to believe that Myers should have known about the ADHD. 

The government’s argument that Doe was vulnerable due to her unhappy home

life is likewise unavailing. Although the government referred in its sentencing brief
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The government did briefly refer to Doe’s home life at the sentencing hearing

and even mentioned that it made her a “more vulnerable victim,” but did so only in the

context of arguing for the undue influence enhancement.

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to Doe’s troubles at home as a basis for an enhancement, it did not present this as a

basis for the vulnerable victim enhancement at the sentencing hearing itself.6

 At the

hearing, the discussion pertaining to the vulnerable victim enhancement focused

exclusively on Doe’s ADHD. After the district court rendered its oral findings and

rulings on the enhancement, the government neither mentioned the alternate ground

nor asked the court to make findings and rulings on the matter. We therefore consider

the issue waived. See United States v. Hester, 140 F.3d 753, 761-62 (8th Cir. 1998)

(holding that although the defendant submitted various objections to the PSR, because

he addressed only one of these objections during the sentencing hearing and did not

ask for a ruling on the others, these latter objections were waived). Accordingly, we

need not consider whether Doe’s troubled home life made her a vulnerable victim. 

III.

The government contends that the district court applied the wrong standard in

assessing the undue influence enhancement as well, arguing that the enhancement

should have been applied because Myers presented insufficient evidence to

countervail the guideline’s rebuttable presumption that, due to the disparity in their

ages, Myers unduly influenced Doe. 

Section 2G1.3(b)(2)(B) provides for a two-level enhancement if the defendant

“unduly influenced a minor to engaged in prohibited sexual conduct.” The relevant

application note states that “[i]n a case in which a participant is at least ten years older

than the minor, there shall be a rebuttable presumption, for purposes of subsection

(b)(2)(B), that such participant unduly influenced the minor to engage in prohibited

sexual conduct.” § 2G1.3(b). cmt. n.3. The application note also states that “[i]n
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determining whether subsection (b)(2)(B) applies, the court should closely consider

the facts of the case to determine whether a participant’s influence over the minor

compromised the voluntariness of the minor’s behavior.” Id. “We review for clear

error the district court’s fact-findings related to the calculation of an advisory

Guidelines sentence.” United States v. Stewart, 462 F.3d 960, 963 (8th Cir. 2006). 

The government suggests first that the district court applied the wrong standard

because the court determined that the presumption standing alone would be legally

insufficient to support a finding of undue influence and thus improperly placed the

burden on the government to present evidence in addition to the presumption. This

argument is based on the district court’s comment that “[t]here’s no other evidence in

the record [of undue influence] other than the presumption.” (Sent Tr. at 28). Again,

we believe that the government is taking the district court’s remarks out of context.

Immediately prior to the district court’s comment, Myers’s counsel argued that Myers

could not have unduly influenced Doe because Doe had already contemplated running

away with another man (Mohammed) before Myers had even entered the picture. In

light of this exchange, we interpret the district court as having asked the government

whether there was any evidence in the record – other than the presumption – that

would rebut Myers’s evidence that he did not exert an undue influence over Doe. The

government’s contention that the district court used the wrong standard is therefore

unavailing. 

We also reject the government’s argument that the district court clearly erred

in concluding that the facts did not support an undue influence enhancement. Myers

presented sufficient evidence for the district court to determine that Myers had not

“compromised the voluntariness of [Doe’s] behavior.” § 2G1.3, cmt. n.3. The

depositions indicate that Doe had already possessed some inclination to leave home

before she even encountered Myers and had contemplated running away with

Mohammed. Moreover, in her deposition, Doe characterized the plan for her to run

away and marry Myers as “both of [their] ideas,” agreed that Myers “didn’t have to
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Our affirmance renders moot the government’s request that it be allowed to

revisit on remand Myers’s sentencing reduction for acceptance of responsibility. 

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do anything to convince [her] to go to Kentucky,” and stated that she anticipated that

she would at some point have sex with Myers. Given this evidence, the district court

did not clearly err in concluding that, despite the difference in their ages, Myers did

nothing that compromised Doe’s volition, however misguided it may have been.

The judgment is affirmed.7

 

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