United States v. Nielsen

A juvenile adjudication for sexual assault does not constitute a “conviction” for purposes of applying the “repeat and dangerous sex offender against minors” enhancement under U.S.S.G. § 4B1.5(a).

William Nielsen appealed the sentence he received after pleading guilty to coercion and enticement of A.J., a minor, under 18 U.S.C § 2422(b). He began talking to A.J. on an adult chat line, and even after finding out that she was a minor, he invited her to visit him and offered to provide her with drugs. Nielsen was sentenced to 480 months imprisonment, exceeding the Sentencing Guidelines range of 235-293 months. The district court applied a two-level upward adjustment on the basis that A.J. was an unusually vulnerable victim under U.S.S.G. § 3A1.1, and also applied a “repeat and dangerous sex offender” enhancement under U.S.S.G. § 4B1.5(a) because of a previous juvenile adjudication. First, the Ninth Circuit noted that the upward adjustment is applied when the victim is unusually vulnerable, meaning that the victim is “less able to resist than the typical victim.” The Court acknowledged that A.J. came from a broken home, was bored, and was sexually active and interested in marijuana; however, the Court determined that the district court erred in concluding that A.J. was an unusually vulnerable victim, because it did not distinguish her from the typical victim of the offense, but instead compared her to the average minor. Therefore, the adjustment should not apply to Nielsen’s sentence. Second, the Court determined that the repeat and dangerous sex offender enhancement did not apply, because a juvenile adjudication for sexual assault does not constitute a prior “sex offense conviction.” The Court explained that similar statutes expressly state that juvenile adjudications should be considered as offenses for purpose of the Sentencing Guidelines, but § 4B1.5(a) does not refer to juvenile adjudications. Therefore, juvenile adjudication does not count as a conviction under § 4B1.5(a). VACATED and REMANDED.