U.S. v. Nielsen, No. 11-30189 (09-12-12) (Tashima with Nelson; dissent by Callahan).
The 9th vacates and remands an enticement case because the court erroneously applied an "unusually vulnerable" adjustment and a "repeat offender" for a juvenile adjudication. The case involved the defendant convincing a "precocious" 12-year old from a broken home, bored, and with an apparent marijuana habit to steal away from her home, take a bus, and visit him, a registered sex offender. The court, in assessing vulnerable victim, looked to the class of all minors; the 9th reasoned that the class should be those minors who are victims of this sex offense. To get a vulnerable victim adjustment, the minor has to be unusually vulnerable within that class, such as mental competency and so forth. There were not facts to support it here. The application of a repeat sex offender was also error because the prior was a juvenile adjudication, and the Guideline adjustment specifically states that it must be a conviction. USSG 4B1.5(a). This also comports with the rule of lenity. In dissent, Callahan argues that there were sufficient facts supporting the adjustment and that the repeat offender was intended to apply. Deference should be given to the district court.