1 The Honorable Mark W. Bennett, United St ates 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. *

___________ Submitted: January 9, 2007 Filed: April 13, 2007

___________ Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Bruce Anthony Myers pled guilty to one c ount 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 court 1 sentenced Myers to eighty-two months’ imprisonment and fifteen years of supervised releas e. The government appeals from Myers’s sentence, contending that the district c ourt should have applie d a vulnerable victim sentencing enhancement under United States Sentencing Guidelines (U.S.S.G.) §2 The 2005 Guidelines Manual was applied in this case.

3 Doe told Myers that she ha d a terrible home life and thatshe 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).
-2- 3A1.1(b)(1) (2005) and an undue influe nce enhancement pursuant to U.S.S.G. § 2G1.3(b)(2)(B) (2005). 2We 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 acc ounts, 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 intere st in Mohammed and threatened to run away with him. Doe’s mother spokewith 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 rema ined interested. Although Doe’s mother ordered Doe not to chat with adults on line and placed parental controls on their computer that were designed to restrict Doe’s internet access to age-appropriate content, these controls were easily circ umvented and Doe continued chatting with adults online. One of these adults incl uded 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 onlin e and over the telephone for about three weeks. Doe claims to have fallen in lovewith 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.-3- On April 19, 2005, Myers, accompanied by a friend, Belinda Twining, and Twining’s ten-year-old daughter, travel ed by van from Kentucky to Iowa. That afternoon, Doe packed up some of her things a nd, 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 convenien ce store near Doe’s home, whereupon they departed for Kentucky. Doe was told that if anyone appr oached 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 e ngaged in vaginal intercourse , anal intercourse, and oral sex that morning as well as the follo wing evening. On April 21, 2005, law enforcement agents knocked on the door of th e 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 sentenci ng enhancement pursuant to § 3A1.1(b)(1) of the Guidelines and an undue influen ce enhancement under § 2G1.3(b)(2)(B). At the sentencing hearing, the government argue d 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) provi des that some measure of undue influence can be presumed when the de fendant 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 distri ct court used the wrong standard when it declined to apply the vulnerable victim enhancement. The government also argues4 The government asserts that the districtcourt 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 analyzi ng 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.

-4- that the enhancement was warranted becau se 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 offens e “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” § 3A 1.1, 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 enhancemen t 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 predi cate 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 c onditions renders a victim vulnerable for purposes of § 3A1.1(b)(1). 4

The government suggests that the districtcourt neglected to consider whether Myers should have known that Doe suffered from ADHD and considered only whether Myers had actual know ledge of the condition. The government’s argument is based on the following exchange at the sentencing hearing:5 The balance of the districtcourt’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, th at the section of the PSR addressing the parties’ objections states that the vulne rable victim enhancement is inapplicable because, inter alia , “it is uncertain that the de fendant knew or should have known [Doe] had ADHD.” (PSR at 22).
-5- THE COURT: Well, how do you establis h that? You have an obligation to prove that the defendant knew orshould have known of the victim’s vulnerability based on something other than her age. MR. LAMMERS: Based on the unobjected-t o sections in regards to the presentence report. The victim is described as having ADHD, and the specific fact sections of the report di scuss the context of the contacts that the defendant had with he r and the chat with her and also their contacts between here and Kentuc ky. And that’s how we would establish that, Your Honor.

. . . . THE COURT: Well, is there anythi ng 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 evid ence 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 kne w 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 wh en 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 appl ying the enhancement, the court opened the above-quoted exchange with a complete statement of the legal standard. We find-6- it unlikely that the district court, having correctly articulated the relevant legal standard, either forgot or chose to disreg ard 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 co rrect legal standard and that the comments to which the government refers were eitherslips 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 evid ence, 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 r ecord suggest that Do e’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 shoul d have known of Doe’s condition and states that the facts in Janis “are very similar” to those in th is case. We disagree. The victim in Janis had an I.Q. of sixty-five, was diagnos ed 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 se vere and, in all likelihood, far less noticeable that those suffered by Janis’s victim. Moreover, Janis had “regularcontact” with his victim because the victim lived with Janis’s family, id. at 311, in contra st to Myers’s more limited contact with Doe. Co mparing 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 gove rnment referred in its sentencing brief6 The government did briefly refer to Do e’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.
-7- to Doe’s troubles at home as a basis for an enhancement, it did not present this as a basis for the vulnerable victim enhan cement at the sentencing hearing itself. 6 At the hearing, the discussion pertaining to the vulnerable victim enhancement focused exclusively on Doe’s ADHD. Afte r the district court rendered its oral findings and rulings on the enhancement, the governmentneither mentioned the alternate ground nor asked the court to make findings and ru lings 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 submitte d 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 obj ections were waived). Accordingly, we need not consider whether Doe’s troubled home life made her a vulnerable victim.

III.

The government contends that the distri ct court applied the wrong standard in assessing the undue influence enhancement as well, arguing thatthe enhancement should have been applied because My ers presented insufficient evidence to countervail the guideline’s rebuttable presump tion that, due to the disparity in their ages, Myers unduly influenced Doe.

Section 2G1.3(b)(2)(B) provides for a tw o-level enhancement if the defendant “unduly influenced a minor to engaged in prohibited sexual c onduct.” 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 rebuttabl e presumption, for purposes of subsection (b)(2)(B), that such participant unduly influe nced the minor to engage in prohibited sexual conduct.” § 2G1.3(b). cmt. n.3. The application note also states that “[i]n-8- determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whethe r 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.” Un ited States v. Stewart , 462 F.3d 960, 963 (8th Cir. 2006).

The government suggests first that the di strict court applied the wrong standard because the court determined that the pr esumption standing al one would be legally insufficient to support a finding of undue influence and thus improperly placed the burden on the government to pr esent 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 th e 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 becau se 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 reco rd – 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 c ourt 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 distri ct 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 a nd had contemplated running away with Mohammed. Moreover, in he r deposition, Doe characterizedthe plan for her to run away and marry Myers as “bot h of [their] ideas,” agreed that Myers “didn’t have to7 Our affirmance renders moot the governme nt’s request that it be allowed to revisit on remand Myers’s sentencing reduction for acceptance of responsibility.
-9- do anything to convince [her] to go to Kentuc ky,” 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, desp ite 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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