United States of America, Plaintiff-appellee, v. Delbert Clark, Defendant-appellant, 956 F.2d 279 (10th Cir. 1992)

Defendant-appellant Delbert Clark, while employed as a corrections officer at the Tohatchi Youth Detention Center in New Mexico, sexually assaulted a sixteen-year-old female inmate. He later pleaded guilty to one count of abusive sexual contact in violation of 18 U.S.C. §§ 1153 & 2244(a) (1). In calculating Defendant's guideline sentence, the district court imposed a two-level "vulnerable victim" upward adjustment, U.S.S.G. § 3A1.1, as well as a two-level "abuse of position of trust" upward adjustment, id. § 3B1.3. Defendant appeals the sentence, contending that (1) the district court erred in its fact findings supporting the "vulnerable victim" and "abuse of position of trust" adjustments, (2) the district court erred legally by imposing the adjustments cumulatively and (3) the district court erred in denying his request for downward departure.

U.S.S.G. § 3A1.1 provides for a two-level upward adjustment " [i]f the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct." Whether a victim is vulnerable is a question of fact, and we review the district court's finding for clear error. See 18 U.S.C. § 3742(e) (4); United States v. Creech, 913 F.2d 780, 781-82 (10th Cir. 1990). Citing Creech, Defendant argues that the district court's finding is clearly erroneous because the court focused on the victim's class--detention center inmates--rather than specific characteristics of the victim. In Creech, the defendant had used threats of violence to extort young newlyweds. Id. at 781. We held that the district court erroneously focused on the class of the victim; however, this was clear error only because we deemed young newlyweds as a class no more vulnerable to extortion than other married couples. See id. at 782 ("There is nothing in the record to suggest the concern a bridegroom has for his bride is more than that a husband longer in the tooth has for the light of his life."). This case, on the other hand, involves a vulnerable class of victim. We cannot find clear error in the district court's determination that juvenile female detention center inmates are more vulnerable than the average sexual assault victim. Nor can we find clear error in the district court's determination that Defendant, given his position as a corrections officer, should have known of this vulnerability.¹ 

U.S.S.G. § 3B1.3 provides for a two level increase " [i]f the defendant abused a position of public trust ... in a manner that significantly facilitated the commission or concealment of the offense...." Like the "vulnerable victim" adjustment, the "abuse of position of trust" determination is factual, and we review the district court's finding for clear error. See 18 U.S.C. § 3742(e) (4); United States v. Helton, No. 91-5805, 1992 WL 2425 at * 2 (4th Cir. Jan. 10, 1992); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990), cert. denied, 111 S. Ct. 788 (1991). The district court imposed this adjustment because Defendant's status as a corrections officer in a youth detention center involved a position of public trust. That is, he was required to "ensure the safety of the detainees." IV R. at 4 (Presentence Report). Defendant argues that the record does not support a finding that his position "contributed in some substantial way to facilitating the crime [as opposed to merely providing] an opportunity that could as easily have been afforded to other persons." U.S.S.G. § 3B1.3, comment. (n. 1). We find ample support in the record for the district court's conclusion that Defendant's position of authority substantially contributed to his ability to assault his victim. In an analogous situation, we stated in dictum that a pedophilic baby-sitter's position of trust and authority over his victim "plainly fall [s] within the ambit of section 3B1.3 and its Application Note." United States v. Zamarripa, 905 F.2d 337, 340 (10th Cir. 1990). On this point, we see little difference between the baby-sitter and the youth detention center corrections officer. The district court's finding is not clearly erroneous.² 

Defendant next argues that the district court impermissibly double counted his conduct by imposing both the "vulnerable victim" and "abuse of position of trust" adjustments. We review this legal argument de novo. See 18 U.S.C. § 3742(e); United States v. Florentino, 922 F.2d 1443, 1445 (10th Cir. 1990). However, we need not discuss the legal issues regarding double counting, see, e.g., United States v. Ransom, 942 F.2d 775 (10th Cir. 1991), cert. denied, 60 U.S.L.W. 3479 (U.S. Jan. 13, 1992) (No. 91-6380), because double counting did not occur in this case. The Sentencing Commission designed these adjustments to deal with two separate acts of depravity: (1) preying on an unusually vulnerable victim, and (2) abusing a position of trust. According to the findings of the district court, Defendant committed both acts. That his position as a corrections officer may have contributed to the victim's vulnerability, see Defendant's Brief at 14, makes little difference, for the district court's finding of unusual vulnerability would stand even if he had not been a corrections officer.

Finally, Defendant argues that the district court erred in denying his motion to depart downward, but he has not demonstrated that the district court misapprehended its authority to depart downward. Without such a showing, we are without jurisdiction to review the district court's discretionary decision not to depart from the guidelines. See United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.), cert. denied, 111 S. Ct. 206 (1990). Therefore, we cannot consider Defendant's final argument.

AFFIRMED.