Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. Gerald Lee, Appellant, 141 F.3d 1171 (8th Cir. 1998)

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U.S. Court of Appeals for the Eighth Circuit - 141 F.3d 1171 (8th Cir. 1998) Submitted: March 26, 1998Filed: March 27, 1998

Appeal from the United States District Court for the District of South Dakota.

Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.


After Gerald Lee pleaded guilty to sexually abusing a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), 2246(2), and 2, the district court1  sentenced him to 21 months imprisonment and two years supervised release. On appeal, Lee argues that the district court clearly erred in applying a vulnerable-victim enhancement. We affirm.

The Guidelines provide for a two-level enhancement where the defendant "knew or should have known that a victim of the offense was unusually vulnerable due to ... mental condition." See U.S. Sentencing Guidelines Manual § 3A1.1(b) (1997). We conclude that the court did not clearly err in determining the enhancement was warranted. See United States v. Janis, 71 F.3d 308, 311 (8th Cir. 1995) (standard of review). Testimony at the sentencing hearing indicating that the minor has an I.Q. of 65, is incapable of making rational decisions, functions as a 10-year-old, and has fetal-alcohol syndrome supports a finding that Lee should have known the minor was unusually vulnerable for her age. See id. 310-11 (application of § 3A1.1 enhancement not clearly erroneous where defendant was 14, and had I.Q. around 65, fetal-alcohol syndrome, severe attention deficit, and hyperactivity disorder). Contrary to Lee's contention, neither his intention to marry the minor, their long-standing relationship, nor the fact that they have a child, precludes application of the enhancement. See U.S. Sentencing Guidelines Manual § 3A1.1(b) (1997).

Accordingly, the judgment is affirmed.

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The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota