United States v. William Nielsen

I. BACKGROUND

A. Factual Background

In December 2010, Nielsen began communicating with A.J., a 12-year-old girl,1 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 regis- tered 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 sadomas- ochistic activity. While she was at Nielsen’s apartment, A.J. had full use of her phone, which she used to send text mes- sages 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…

Opinion by Judge TASHIMA; Dissent by Judge CALLAHAN.

OPINION

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. § 4B 1.5(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.

I. BACKGROUND

A. Factual Background

In December 2010, Nielsen began communicating with A.J., a 12-year-old girl, 1 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…

dissenting:

I respectfully dissent. William Nielsen coerced a seventh-grade girl to abscond from her home, take ■ an overnight bus from Wyoming to Montana, do illegal drugs, and engage in four days of sadomasochistic sex with a man she knew was a registered sex offender. It strains credulity to say, as the majority does, that a child who can be coerced into doing those things is not unusually vulnerable. What is worse, by holding that a vulnerable victim adjustment under Sentencing Guidelines § 3A1.1 was unavailable in this case, the majority makes the adjustment unavailable for all but the most defenseless victims of sexual coercion. There is no indication the Sentencing Commission intended § 3A1.1 to be such a toothless watchdog.

The district court did not err in enhancing Nielsen’s sentence under Sentencing Guidelines § 4B1.5(a). Nothing in that Guideline excludes juvenile adjudications from the definition of “sex offense conviction.” We must rely on the Guidelines’ plain language, rather than insert words it does not contain or look to irrelevant state law. Even if the district court erred in applying § 4B1.5(a), that error was harmless because Nielsen qualified for a…