930 F.

2d 1450

UNITED STATES of America, Plaintiff-Appellee,

v.
Stan SMITH, Defendant-Appellant.
No. 90-2017.

United States Court of Appeals,

Tenth Circuit.
April 16, 1991.

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and
Robert J. Baca, Asst. U.S. Atty., with him on the brief), Albuquerque,
N.M., for plaintiff-appellee.
William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for
defendant-appellant.
Before BRORBY, McWILLIAMS, Circuit Judges, and SPARR, * District
Judge.
BRORBY, Circuit Judge.

Defendant-appellant Stan Smith appeals the sentence imposed by the United

States District Court for the District of New Mexico upon our vacation of his
previous sentence and remand for resentencing in United States v. Smith, 888
F.2d 720 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1786, 108
L.Ed.2d 788 (1990). Because the new sentence was imposed as a result of an
incorrect application of the sentencing guidelines, we vacate the sentence and
remand the case for resentencing.

A brief recap of the events to date is useful to an understanding of the dispute.

On March 14, 1988, Mr. Smith robbed the First National Bank in Las Cruces,
New Mexico while dressed in a coat and tie and disguised by dark glasses, a
moustache, and a hat covering most of his forehead. After entering the bank,
Mr. Smith held a pellet gun to a customer's head and ordered the tellers to put
money in a bag that he was carrying. He then left the bank and drove off in the
car which he had stolen in a grocery store parking lot one half-hour before the

robbery. Smith, 888 F.2d at 721. Mr. Smith stole the car by falsely telling its
occupant that her right front tire was very low, and offering to help her. When
the car owner walked around the car to examine the tire, Mr. Smith entered the
car, backed out and drove off.
3

After indictment and a jury trial, Mr. Smith was convicted of bank robbery in
violation of 18 U.S.C. Sec. 2113. Mr. Smith was sentenced under the United
States Sentencing Guidelines (U.S.S.G.) on November 4, 1988 to a term of
eighty-four months imprisonment and three years of supervised release, and
assessed a $50 special fee.1 That sentence incorporated an upward departure
from the guideline range based upon "the force and violence used by the
defendant in committing the offense." Mr. Smith successfully appealed that
sentence to this court in Smith, 888 F.2d 720. We there held the district court's
explanation of its reasons for upward departure to be "insufficient," largely
because "the offense of which the defendant was convicted subsumes acts of
'force and violence.' " Id. at 724. We therefore vacated the sentence and
remanded the matter to the district court for resentencing including a statement
of reasons for any departure from the guidelines' recommended sentence.2 Id.

A revised presentence report was subsequently prepared for Mr. Smith. The
presentence report correctly determined a base offense level of eighteen (18) for
the charged offense. See U.S.S.G. Sec. 2B3.1 (Oct. 1987).3 In the presentence
report calculations, the probation officer added two offense levels for a value of
property taken that was greater than $10,000 but less than $50,000. See Sec.
2B3.1(b)(1)(C) (Oct. 1987). Four offense levels were added for defendant's use
of a firearm during the offense. See Sec. 2B3.1(b)(2)(B) (Oct. 1987). As no
other adjustment was made, Mr. Smith's total offense level was calculated to be
twenty-four.

In calculating the total offense level, the probation officer wrote: "15. Victim
Related Adjustment: None." (Emphasis added.) Further on in the presentence
report, however, the probation officer identified defendant's involvement "in
the taking of a motor vehicle directly from a vulnerable victim, that being an
elderly woman" as one factor among several that "would warrant consideration
for an upward departure." (Emphasis added.)

The probation officer's confusion of upward departure and offense level

adjustment led to a misapplication of the guidelines by the sentencing court.
The difference between adjustments and departures is, of course, significant. As
we discuss below, when the sentencing guidelines provide adjustments that
adequately appraise offense conduct, those adjustments cannot be passed over
in favor of departure. Departure from the guideline range is authorized only

when the circumstances found and cited by the sentencing court have not
adequately been considered--either as to kind or degree--in the sentencing
guidelines.
7

The district court resentenced Mr. Smith on January 12, 1990, to the same
sentence: eighty-four months' imprisonment followed by three years of
supervised release, plus a special penalty assessment of $50. The court reached
the same result as the presentence report in determining Mr. Smith's total
offense level to be twenty-four. The court then cited the aggravating factors of
victim vulnerability and more than minimal planning in increasing appellant's
offense level to twenty-eight. The court echoed the presentence report by
stating, "the defendant took a vehicle in the furtherance of the crime from a
vulnerable victim, that being an elderly woman." Mr. Smith now challenges the
use of victim vulnerability to enhance his punishment4 and argues the district
court exceeded the scope of this court's remand order. We address those
arguments in turn.

The district court's statement of reasons for the sentence imposed includes the
following explanation:

As to the indictment resulting in conviction for the offense of bank robbery, the
Court finds that the defendant's base offense level is 18 pursuant to Section
2B3.1 of the sentencing guidelines.

10

The defendant used a dangerous weapon, to wit, a pellet gun, during the
commission of the crime, resulting in a 4 offense level increase.

11

Further, the loss to the bank is determined to have been $28,465.00, resulting in
an additional 2 offense level increase.

12

Defendant's total offense level is found to be 24, and his criminal history
category is 1, resulting in a guideline imprisonment range for fifty-one to sixtythree months.

13

Pursuant to 18 U.S.C. Sec. 3553(b), the Court finds that aggravating

circumstances of a kind and to a degree exist in this matter that have not been
adequately considered by the Sentencing Commission in formulating the
applicable guideline range as to this defendant, and that an upward departure is
warranted.

14

The Court takes judicial notice that in preparation for the bank robbery, the

14

The Court takes judicial notice that in preparation for the bank robbery, the
defendant took a vehicle in furtherance of the crime from a vulnerable victim,
that being an elderly woman. Further, the offense conduct represented more
than minimal planning, as evidenced by both the defendant's discussion with a
government witness of his intent to commit the crime and his altered
appearance to conceal his identity at the time of the bank robbery. Therefore,
pursuant to Sec. 5K2.0, a departure is determined to be warranted based upon
relevant specific offense characteristics not utilized in the applicable guideline
range.

15

Due to the specific offense characteristics of the vulnerable victim and more
than minimal planning, the defendant's offense level shall be increased by four
levels, for an adjusted offense level of 28, which combined with a criminal
history category of 1 results in a guideline imprisonment range of seventy-eight
to ninety-seven months.

16

(Emphasis added.) The sentencing judge spoke both in terms of an upward

departure and an adjustment of appellant's offense level. The court's remarks
plainly carry forward the confusion--between offense level adjustment and
departure from the guideline range--generated by the probation officer's failure
to identify relevant adjustments in the presentence report. Both parties argued
this appeal in terms of departure. This court is unable to determine whether the
district court actually departed from the sentencing range or applied an offense
level adjustment. We consider both alternatives below.

17

The distinction between adjustment and departure is critical because sentencing

courts have no authority to depart from the sentencing guidelines "unless the
court finds that there exists an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
different from that described." 18 U.S.C. Sec. 3553(b); see also U.S.S.G. Sec.
5K2.0, p.s. This court also requires a higher degree of specificity in the
explanation of departures. See United States v. Beaulieu, 900 F.2d 1531, 1535
(10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990).

18

We review the validity of upward departures under the three-step process

explained in United States v. White, 893 F.2d 276, 277-79 (10th Cir.1990). We
reach only the first step here. Under that step, "[w]e first review de novo
whether the circumstances cited by the district court justify a departure from
the Guidelines." White, 893 F.2d at 279. In resolving that question, "we must
ascertain what circumstances the Commission has adequately considered." Id.
at 278.

19

The district court based the challenged enhancement on the alleged

vulnerability of the automobile-theft victim. Mr. Smith, basing his argument on
his perception that the sentencing court departed from the guidelines, cites
U.S.S.G. Sec. 3A1.1, "Vulnerable Victim" in arguing that "the guidelines have
already taken this factor into consideration, and there was no need for a
departure on this basis." The government counters that Sec. 3A1.1 does not
reflect adequate consideration by the Sentencing Commission in these
circumstances, because "the 'vulnerable victim' to which the Court referred was
not directly connected with the offense of conviction."

20

U.S.S.G. Chapter 3, Part A provides for "Victim-Related Adjustments." The

first of these, Sec. 3A1.1 "Vulnerable Victim," provides:

21the defendant knew or should have known that a victim of the offense was
If
unusually vulnerable due to age, physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal conduct, increase by 2 levels.
22

U.S.S.G. Sec. 3A1.1 (Nov. 1989) (emphasis added). 5

23

The district court did not specifically address U.S.S.G. Sec. 3A1.1. Despite
finding "that aggravating circumstances of a kind and to a degree exist in this
matter that have not been adequately considered by the Sentencing
Commission," the court offered no further elaboration of that finding. The court
identified victim vulnerability as an aggravating circumstance and based its
finding of vulnerability solely on the victim's status as "an elderly woman." Yet
the court did not explain what it meant by "elderly," nor why it considered
U.S.S.G. Sec. 3A1.1 inadequate to deal with that factor.

24

The court cited U.S.S.G. Sec. 5K2.0 as authority for its conclusion that "a
departure is determined to be warranted based upon relevant specific offense
characteristics not utilized in the applicable guideline range." Section 5K2.0
provides, inter alia:

25 court may depart from the guidelines, even though the reason for departure is
the
listed elsewhere in the guidelines (e.g., as an adjustment or specific offense
characteristic), if the court determines that, in light of unusual circumstances, the
guideline level attached to that factor is inadequate.
26

U.S.S.G. Sec. 5K2.0, p.s. (Nov. 1989). The quoted sentence is a corollary of
the now familiar mandate that departures can be based only on "circumstances
... not adequately taken into consideration by the Sentencing Commission." 18

U.S.C. Sec. 3553(b) (emphasis added). Adequacy is the essential consideration:

courts can depart on the basis of any factor (whether addressed by the
guidelines or not) that is not adequately considered by the guidelines. Where, as
in this case, departure is based on factors that are considered by the guidelines,
the sentencing court cannot depart unless it finds that consideration to be
inadequate in light of unusual circumstances. Under White, of course, such a
finding must be explained. 893 F.2d at 278.
27

The district court did not explain why it found the guidelines' treatment of
victim vulnerability to be inadequate. The guidelines provide a two-level
adjustment for both "vulnerable victim" and "more than minimal planning." See
Sec. 3A1.1 and, e.g., Sec. 2A2.1(b)(1). The district court cited both factors and
increased Mr. Smith's offense level by an aggregate of four levels. Although
such aggregation muddles the sentencing and appellate review process, a fair
reading suggests the court assessed two levels for each cited factor--the same
offense level increase prescribed by the guidelines.

28

The court specifically did not find a two-level adjustment to be excessive or

insufficient to address the relevant facts in this case. Thus, the court implicitly
found the guidelines do adequately address victim vulnerability and more than
minimal planning. For that reason, we cannot accept the court's justification of
its departure from the guideline range. Under these facts we hold the alleged,
age-based vulnerability is a circumstance adequately considered by the
Sentencing Commission in formulating Sec. 3A1.1.

29

Moreover, we reject the government's suggestion that departure was warranted

because the auto-theft victim was the victim of an offense other than the
charged bank robbery. Sentencing courts are authorized, under Sec. 1B1.3, to
consider a broad spectrum of relevant information in determining the guideline
range. Section 1B1.3(a)(1) specifically authorizes consideration of:

30 acts and omissions committed or aided and abetted by the defendant, or for which
all
the defendant would be otherwise accountable, that occurred during the commission
of the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense, or that otherwise
were in furtherance of that offense....
31

U.S.S.G. Sec. 1B1.3 (Nov. 1989). Because the district court found the auto
theft was committed "in preparation for the bank robbery," the court was fully
authorized to consider that conduct, and its victim, in determining the
appropriate base offense level and adjustments. Those same factors, however,
could not serve as a basis for departure under these facts, as departure is not

warranted where the guidelines adequately address relevant sentencing factors.

32

We now consider the validity of offense level adjustment on the basis of victim
vulnerability under these facts. As noted, the district court did not expressly
address Sec. 3A1.1. The parties disagree as to its applicability.

33

In its own words, Sec. 3A1.1 applies only if the victim was "unusually
vulnerable due to age, physical or mental condition," or was "otherwise
particularly susceptible to the criminal conduct." U.S.S.G. Sec. 3A1.1
(emphasis added). Whether a victim was "unusually vulnerable" is a question
of fact subject to review under the clearly erroneous standard. United States v.
Creech, 913 F.2d 780, 781-82 (10th Cir.1990). In Creech, we rejected an
argument that newlyweds are, as a class, unusually vulnerable in the meaning of
Sec. 3A1.1. Id. at 782. We further held the sentencing court's contrary finding
to be "clearly erroneous because it did not focus on the victim, but rather upon a
class of persons to which the victim belonged." Id. We also "assume[d] the
Commission adopted Sec. 3A1.1 to enhance a defendant's punishment for an
act of depravity." Id.

34

There was no finding of unusual vulnerability in this case. In sentencing Mr.

Smith, the court simply remarked that the automobile theft involved "a
vulnerable victim, that being an elderly woman." The record is otherwise silent
as to the age and physical condition of the victim. As revealed by her testimony
at trial, the victim's mental condition appears normal. The record is also silent
as to Mr. Smith's motivation in selecting this particular victim. We note Mr.
Smith perpetrated the theft through the use of trickery rather than physical
force.

35

Without more, it appears the district court equated "elderly" status with per se
vulnerability. We hold the district court's finding to be insufficient, as a matter
of law, to justify the adjustment of appellant's offense level under Sec. 3A1.1.
The label "elderly," like the label "young," is too vague, standing alone, to
provide the basis for a finding of unusual victim vulnerability. The use of Sec.
3A1.1 to enhance a defendant's punishment for the exploitation of a vulnerable
victim under Sec. 3A1.1 requires analysis of the victim's personal or individual
vulnerability. Creech, 913 F.2d at 782.

36

Accordingly, whether the court applied a departure or an adjustment, we hold

that, to the extent it was based on a finding of victim vulnerability supported by
nothing more than the victim's "elderly" status, this sentence was "imposed as a
result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec.

3742(e)(2). We therefore remand the case for further sentencing proceedings.

See 18 U.S.C. Sec. 3742(f)(1). The district court is instructed to determine the
applicability of U.S.S.G. Sec. 3A1.1 and to resentence Mr. Smith accordingly.
The court shall set forth a statement of reasons for the sentence imposed in
compliance with 18 U.S.C. Sec. 3553(c).
37

We now address appellant's second argument, as it may well resurface. Mr.

Smith claims the district court exceeded the scope of our remand by
considering new factors--victim vulnerability and degree of planning--at the
resentencing hearing. We reject appellant's argument. This court's remand for
resentencing was not, as appellant suggests, a narrowly confined request for an
explanation of the court's reasons for imposing his sentence. Compare, e.g.,
United States v. Davis, 912 F.2d 1210, 1215 (10th Cir.1990) ("We therefore
will retain appellate jurisdiction and ask the district court to explain its reasons
for the extent of departure above the guideline range.") Rather, we vacated Mr.
Smith's sentence and remanded for resentencing. Smith, 888 F.2d at 724. Such
an order directs the sentencing court to begin anew, so that "fully de novo
resentencing" is entirely appropriate. The defendant is accorded the same
procedural rights on resentencing as on the initial sentencing. See
Fed.R.Crim.P. 32(a)(1). Therefore, no prejudice results from the
reconsideration of sentencing factors under the guidelines. The law of the case
doctrine and the cases cited by Mr. Smith are inapposite, given this court's
vacation of his initial sentence.

38

Finally, we reject appellant's suggestion that the challenged sentence results

from the district court's improper punishment of Mr. Smith for prosecuting an
appeal. The argument that a resentencing to the same term of incarceration is
"more severe" because it is supported by different aspects of defendant's
conduct is simply nonsensical.

Conclusion
39

In conclusion, we hold the facts cited by the sentencing court fail to justify
either an upward departure or an offense level adjustment based on victim
vulnerability. We reverse the two level increase for victim vulnerability, and
hold that a bare finding that the victim was "elderly" is insufficient to warrant
increased punishment under U.S.S.G. Sec. 3A1.1.

40

The sentence is VACATED and the case is REMANDED for resentencing of

the defendant in accordance with the analysis set forth in this opinion.

The Honorable Daniel B. Sparr, United States District Court Judge for the
District of Colorado, sitting by designation

The sentence was imposed as an alternative in light of the court's ruling that the
Sentencing Guidelines were unconstitutional. When the guidelines were upheld
in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714
(1989), the sentence became operative. See Smith, 888 F.2d at 722 n. 2

Appellant's challenge to the underlying conviction was rejected. 888 F.2d at

723. We address only appellant's challenge to his sentence in this appeal

18 U.S.C. Sec. 3553(a)(4) directs us to apply the version of the guidelines

section in effect at the time of sentencing. Where the possibility of
retrospectively enhanced punishment raises ex post facto concerns, however,
we apply the guidelines section in effect at the time of the offense conduct. See
Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). In this
case, because amendments effective November 1, 1989 increased the offense
level applicable to the charge offense, we apply the guideline version in effect
on the date of the offense conduct--March 14, 1988

Mr. Smith has not appealed the court's use of "more than minimal planning" as
a basis for either upward departure or offense level adjustment. We do not sua
sponte raise this issue

Because the amendment to Sec. 3A1.1 which occurred between the date of
defendant's offense conduct and the date of resentencing does not
retrospectively enhance defendant's punishment, we use the version in effect at
the time of sentencing. See 18 U.S.C. Sec. 3553(a)(4), and note 3, supra