Double Counting: The Appropriate Application of the Vulnerable Victim Enhancement for Child Sex Offenders

I. INTRODUCTIONWhat is the appropriate punishment for those who commit unimaginable crimes? Can the sentence for an individual who records himself sexually abusing a three-year old girl ever be too harsh? While such acts should indeed be duly punished, it is important to restrain judicial discretion in imposing criminal sentences. To that effect, safeguards exist to prevent the unjust double sentencing of criminals for the same offense.1 However, these safeguards fail when statutorily ambiguous language allows judges to impose an additional sentence based on a factor of a crime that has already been accounted for in the underlying base sentence.2The interpretation of an ambiguous statute was the central issue before the United States Court of Appeals for Fourth Circuit, which had to decide whether the district court appropriately applied the vulnerable victim sentencing enhancement in addition to applying a sentencing enhancement for crimes committed against victims under the age of twelve years old.3 In United States v. Dowell, a case involving the production and transportation of child pornography, the Fourth Circuit held that the district court erroneously applied the vulnerable victim enhancement because the victim's age had already been accounted for in the victim under twelve years old enhancement.4 The Fourth Circuit departed from the Fifth and Ninth Circuits, which had upheld the application of the vulnerable victim enhancement in child pornography cases, creating a circuit split.5This Comment argues the Fourth Circuit correctly held that the vulnerable victim enhancement should not be applied when the underlying offense has already accounted for the victims' age. Part II explains the Sentencing Guidelines Manual and the vulnerable victim enhancement.6 Part II also presents the competing arguments of the Fourth Circuit and the Fifth and Ninth Circuits.7 Part III of this Comment argues that the district court in Dowell erred in finding that a young child's cognitive underdevelopment is sufficiently distinct from young age.8 Part III also argues that the Fourth Circuit correctly held that factors like the cognitive and psychological development of a three-year old are intimately linked with age itself; Part III also presents case law from sister circuits to support the Fourth Circuit.9 Finally, Part III concludes by arguing that the district court in Dowell could have alternatively applied the vulnerable victim enhancement because the victims were vulnerable, not due to their age, but because they were left without parental supervision and were assaulted multiple times in their own residence.10II. BACKGROUNDA. Understanding the U.S. Sentencing Guidelines ManualThe U.S. Sentencing Guidelines Manual sets out a uniform sentencing policy for defendants based on the relationship between the offense conduct and the defendant's criminal history. The Manual provides several victim-related upward enhancements for categories such as hate crime motivation, vulnerable victims, and serious human rights offenses, which can increase a defendant's sentence.11 The Sentencing Commission provides further guidance by releasing Official Commentary to the Guidelines Manual.12 The U.S. Supreme Court has ruled that the Commentary in the Guidelines Manual, which interprets or explains a guideline, is authoritative unless it violates the U.S. Constitution, is inconsistent with, or is a plainly erroneous reading of, that guideline.13 Thus, the Commentary serves as more than a mere guideline for interpretation and actually operates as binding law.14B. Understanding the Vulnerable Victim EnhancementThe Guidelines Manual states that the defendant's sentence will increase if the defendant knew or should have known that a victim of the offense was a vulnerable victim.15 The Guidelines Manual defines a vulnerable victim as a person who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. …