Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding DC No. CR 11-008 DWM
The opinion of the court was delivered by: Tashima, Circuit Judge:
Argued and Submitted April 10, 2012-Seattle, Washington
Before: Dorothy W. Nelson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Callahan
William Nielsen appeals the sentence imposed following his guilty plea to coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). Nielsen contends that the district court erred when it calculated the Sentencing Guidelines range for his offense. Specifically, Nielsen contends that the district court erred in imposing a two-level upward adjustment pursuant to the "vulnerable victim" provision of U.S.S.G. § 3A1.1. He also contends that the district court should not have applied a "repeat and dangerous sex offender" enhancement pursuant to U.S.S.G. § 4B1.5(a), on the basis of his adjudication as a delinquent youth. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate Nielsen's sentence and remand for resentencing.
In December 2010, Nielsen began communicating with A.J., a 12-year-old girl,*fn1 on an adults-only sex chat line. The two exchanged phone numbers and engaged in phone sex and "sexting." Nielsen told A.J. that he could provide her with drugs and invited her to visit him in Montana. A.J. purchased a Greyhound bus ticket to visit Nielsen, using money she took from her parents. Before she left Wyoming, she informed Nielsen of her age. He told her that he was already a registered sex offender.
When A.J. arrived by bus in Montana, Nielsen met her at the station and brought her back to his apartment, where he gave her marijuana. Over the next four days, he had sex with A.J. numerous times, engaging her in bondage and sadomasochistic activity. While she was at Nielsen's apartment, A.J. had full use of her phone, which she used to send text messages to her friends and to Nielsen while he was out of the apartment. After four days, A.J.'s parents, who were divorced, tracked her to Nielsen's apartment and retrieved her.
Before meeting Nielsen, A.J. had used drugs and engaged in sexual conduct with older men. She described herself to police as mature for her age. In order to access the adults-only chat line where she met Nielsen, A.J. misrepresented her age.
In January 2011, Nielsen pled guilty to coercion and enticement of a minor, a violation of 18 U.S.C. § 2422(b). The district court applied a two-level upward adjustment to Nielsen's offense level pursuant to U.S.S.G. § 3A1.1, based on its conclusion that Nielsen knew or should have known that A.J. was unusually vulnerable as compared to other minors. The court also applied a "repeat and dangerous sex offender" enhancement, based on its conclusion that Nielsen's juvenile adjudication for sexual assault qualified as a prior "sex offense conviction" within the meaning of U.S.S.G. § 4B1.5(a).
Nielsen objected to the applications of § 3A1.1 and § 4B1.5(a); the district court overruled both objections. Based on the district court's calculations, the Guidelines range for Nielsen's offense was 235 to 293 months in prison. The court sentenced Nielsen to an above-Guidelines sentence of 480 months, as requested by the government. Nielsen contends that the length of his sentence is substantively unreasonable.
We review the district court's construction and interpretation of the Sentencing Guidelines de novo. United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007); United States v. Allen, 153 F.3d 1037, 1040 (9th Cir. 1998). We review the court's factual findings for clear error. Holt, 510 F.3d at 1010.
A. Vulnerable Victim Adjustment
 The Sentencing Guidelines provide for a two-level upward adjustment to a defendant's offense level "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim . . . ." U.S.S.G. § 3A1.1(b). A "vulnerable victim" is a person who is "unusually vulnerable due to age, physical or mental condition, or who is ...