United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge.
matter is before the court on objections to the Presentence
Investigation Report (PSR) filed by the United States and the
defendant and upon the motion for a downward departure by the
defendant pursuant to U.S.S.G. § 5K2.16 for voluntary
disclosure. The parties presented evidence and argued the
objections and the motion for departure at a sentencing
hearing held June 13, 2018. The hearing was continued pending
the court's ruling on these matters.
Daniel Arbaugh, the defendant, pleaded guilty to a violation
of 18 U.S.C. § 2423(c) and (e). He admitted that, in or
about 2016 and as a U.S. citizen, he traveled to Haiti and
engaged in illicit sexual conduct, as defined in 18 U.S.C.
§ 2423(f), with Minor Victim #1 (MV1). He admitted in
his factual proffer that MV1 was under the age of twelve at
the time. He told agents that MV1 was approximately five
years old at the time defendant touched MV1's genitals
with his fingers and maybe his mouth and that the touching
was skin to skin. He also told agents that he had sexual
contact with approximately 21 male minors between the years
2010 and 2017.
calculated the base offense level under U.S.S.G. §
2G1.3(a)(4) at 24. Pursuant to U.S.S.G. §
2G1.3(b)(4)(A), two levels were added for sexual contact.
Because MV1 was approximately five years old (so clearly
under the age of twelve), eight levels were added pursuant to
U.S.S.G. § 2G1.3(b)(5). Because undue influence was used
with regard to a minor, pursuant to U.S.S.G. §
2G1.3(b)(2)(B), two levels were added. Finally, the PSR lists
a role enhancement pursuant to U.S.S.G. § 3B1.3 of two
levels because Arbaugh was a missionary on behalf of his
church, was fluent in speaking the Haitians' language,
was friends with MV1's father, and violated the
public's trust by acting on behalf of the church. These
calculations resulted in an adjusted offense level of 38.
applied U.S.S.G. § 2G1.3(d)(1) and separated Count One
into 21 different groups as if each victim had been contained
in a separate count of conviction (pseudo-counts). This
resulted in an adjusted offense level of 38. The level was
then increased by five levels because there were more than
five units for a combined adjusted offense level of
Chapter Four enhancement for engaging in a pattern of
activity (U.S.S.G. § 4B1.5(b)(1)) resulted in another
five level increase, and three levels were subtracted for
acceptance of responsibility (U.S.S.G. § 3E1.1). The
total offense level was calculated to be 43 because anything
over 43 is reduced to 43 pursuant to Chapter Five, Part A
of Multiple Counts (Pseudo-Counts)
applied pseudo-counts pursuant to U.S.S.G. § 2G1.3(d),
which applies “[i]f the offense involved more than one
minor.” In order to be applicable, then, his actions
toward the other minors must constitute relevant conduct.
Defendant objects to the use of multiple counts, or
pseudo-counts, noting that Arbaugh's offense is not one
for which § 3D1.2(d) requires grouping. It is not listed
and does not fit within the offenses described in the
subsection. Additionally, he argues that the offense involved
different victims, in different timeframes, and the aggregate
harm cannot be quantitatively measured. See §
3D1.2(d) cmt. 6. For this reason, the “same course of
conduct or common scheme or plan” language regarding
relevant conduct does not apply. U.S.S.G. § 1B1.3(a)(2).
Furthermore, the other sexual contact did not occur a) during
the offense of conviction; b) in preparation for that
offense; or c) in the course of attempting to avoid detection
or responsibility for that offense. Thus, the sexual contact
with minors other than MV1 is not relevant conduct pursuant
to U.S.S.G. § 1B1.3(a)(1)(A). At the hearing, the United
States agreed with defendant.
consultation with the Sentencing Commission, the Probation
Office also agreed that the multiple counts should not be
applied in this case. The court also agrees and will not
apply multiple counts. This results in a reduction of five
levels as there is now no increase for more than five units.
United States initially objected to the PSR's failure to
include a vulnerable victim enhancement (plus two levels)
pursuant to U.S.S.G. § 3A1.1(b)(1), but it conceded at
the hearing that its earlier objection is untenable. It
admits now that United States v. Dowell, 771 F.3d
162 (4th Cir. 2014), controls. In Dowell, the Fourth
Circuit made clear that the vulnerable victim enhancement
cannot apply if the factors relied upon are age-related
factors, even if the court finds that an infant, toddler, or
young child is more vulnerable than an older child who is
under twelve. Dowell, 771 F.3d at 174. The Fourth
Circuit did note that other conditions that make a younger
child more vulnerable could support application of the
enhancement, such as familial relationships, homelessness,
and gaining the trust of a single mother. Id. at
174-75. It appears, however, that the government does not
argue factors other than age. Thus, the court will not apply
the vulnerable victim enhancement.
of Cross Reference to U.S.S.G. § 2A3.1 in U.S.S.G.
parties disagree about the application of U.S.S.G. §
2G1.3, which contains a cross reference to U.S.S.G. ...