Submitted: Nov. 22, 2013.
Mark S. Falk and Richard J. Henderson, AFPD, argued, Fargo, ND, for Appellant.
Jennifer Klemetsrud Puhl, AUSA, argued, Fargo, ND, for Appellee.
Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.
RILEY, Chief Judge.
Defendant Gregory Frohlich pled guilty to one count of transporting minors with intent to engage in unlawful sexual activity in violation of 18 U.S.C. § 2423(a). At sentencing, the district court  applied a vulnerable victim enhancement under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 3A1.1(b)(1). Frohlich appeals, claiming that, because of his own intellectual limitations, the government's evidence failed to establish he knew or should have known of the victims' vulnerability. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
Frohlich began sexually abusing his thirteen-year-old twin nieces in 2009, shortly after their adoptive mother had a stroke. This abuse continued for nearly two years. According to the twins, the abuse often happened at Frohlich's apartment in North Dakota, but at least two instances of abuse occurred when Frohlich took the twins to casinos in Minnesota.
Frohlich warned his nieces not to tell their mother about the sexual contact because she " may have another stroke and die." In April 2011, the twins' mother learned about the abuse and reported it to police. The police interviewed Frohlich about the allegations, and Frohlich later admitted inappropriately touching both girls repeatedly while they were in his care.
Frohlich pled guilty to one count of transporting minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The presentence investigative report recommended a two-level enhancement for vulnerable victims under U.S.S.G. § 3A1.1(b)(1). Frohlich opposed the enhancement, arguing the twins were not vulnerable, and, even if they were, he was not aware of their vulnerability because of his own intellectual limitations. Frohlich supported his argument by providing the district court with a psychological report indicating Frohlich suffered from borderline intellectual functioning.
At sentencing, the district court determined Frohlich knew or should have known the twins were vulnerable under the Guidelines. In reaching this determination, the district court considered two reports to which the parties stipulated. One report was an interview with the victims' mother. She stated the twins had attention deficit hyperactivity disorder (ADHD) and probable fetal alcohol syndrome (FAS), and she often had discussed the twins' problems with Frohlich. The second report was an interview with the twins' clinical social worker, who explained the victims regularly engaged in behavior inappropriate for their ages and " this would be very apparent to most people."
Based on this evidence, the district court had " little difficulty coming to the conclusion that [the] victims were vulnerable." The district court further decided the evidence established Frohlich knew the victims were vulnerable. The district court weighed the evidence and found particularly " compelling" Frohlich's warning to the twins that their mother might have another stroke and die if the twins told their mother about the sexual abuse, explaining " that's not the kind of thing that you ordinarily think you could say to a 13-year-old and modify their behavior, and I think that it's a reflection that those children were functioning at a lower-than-appropriate age level."
Frohlich requested that the district court reconsider the enhancement and presented testimony from his psychologist, Dr. Troy Ertelt, who suggested it would be difficult for Frohlich, with borderline intellectual functioning, to perceive the vulnerability of others. The district court denied Frohlich's request, but did take Frohlich's vulnerabilities into account in reducing Frohlich's sentence well below the advisory Guidelines range for his offense conduct. Frohlich only ...