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United States v. Arbaugh

United States District Court, W.D. Virginia, Harrisonburg Division

July 23, 2018



          Elizabeth K. Dillon United States District Judge.

         This 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.

         James 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.

         PSR Calculations

         The PSR 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.

         The PSR 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.[1] The level was then increased by five levels because there were more than five units for a combined adjusted offense level of 43.[2]

         A 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 (comment n.2).

         Applicability of Multiple Counts (Pseudo-Counts)

         The PSR 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.

         Upon 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.

         Vulnerable Victim Enhancement

         The 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.

         Applicability of Cross Reference to U.S.S.G. § 2A3.1 in U.S.S.G. § 2G1.3

         The parties disagree about the application of U.S.S.G. § 2G1.3, which contains a cross reference to U.S.S.G. ...

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