IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20818
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN WAYNE GRIMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(96-CR-16)
February 23, 1998
Before JOHNSON, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Nathan Wayne Grimes appeals his guilty plea conviction for
abusive sexual conduct in violation of 18 U.S.C. § 2244(a)(1) on
several grounds.
First, Grimes contends that the district court erred in
increasing his offense by two levels pursuant to United States
Sentencing Guidelines section 2A3.4(b)(3) for abuse of a position
of trust. A district court’s findings of fact in support of its
*
Pursuant to 5th CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th CIR. R. 47.5.4.
application of the Guidelines are reviewed for clear error. United
States v. Ismoila, 100 F.3d 380, 394 (5th Cir.), cert. denied, 117
S.Ct. 1712 (1997). After a careful review of the record and the
controlling authorities, this Court holds that the district court
did not clearly err in determining that Grimes’ sentence should be
enhanced for abuse of a position of trust.
Second, Grimes argues that the district court erred in
awarding him two, rather than three, reduction points for
acceptance of responsibility. A district court’s finding of
acceptance of responsibility for sentencing purposes is a fact
question that turns on the determination of credibility made by the
fact finder. United States v. Spires, 79 F.3d 464, 467 (5th Cir.
1996). The standard of review for this fact finding is “even more
deferential than clear error.” Id. Section 3E1.1(b) of the United
States Sentencing Guidelines sets forth a three part test to
determine whether a defendant is entitled to an additional
reduction point. See United States v. Williams, 74 F.3d 654, 656
(5th Cir. 1996); United States v. Mills, 9 F.3d 1132, 1136-37 (5th
Cir. 1993). After a careful review of the record, this Court holds
that the district court did not commit reversible error in denying
Grimes an additional reduction point.
Third, Grimes contends that the district court erred in
finding that his sentence should be enhanced because his victim was
unusually vulnerable. The determination of vulnerability for the
purpose of sentencing is “a complex fact dependent upon a number of
2
characteristics which a trial court could not possibly articulate
completely.” United States v. Kuban, 94 F.3d 971, 975 (5th Cir.
1996) (citing United States v. Scurlock, 52 F.3d 531, 542 (5th Cir.
1995)), cert. denied, 117 S.Ct. 716 (1997). Therefore, a trial
court’s finding of vulnerability is accorded due deference. Kuban,
94 F.3d at 975. Such a finding is reviewed to determine whether it
is plausible in light of the record as a whole. Id. After a
careful review of the record and the controlling authorities, this
Court holds that the district court did not clearly err in finding
that Grimes’ victim was unusually vulnerable and enhancing his
sentence accordingly.
Fourth, Grimes argues that the district court erred in
upwardly departing from the sentencing guidelines. A district
court’s decision to depart upward is reviewed for abuse of
discretion. United States v. Ashburn, 38 F.3d 803, 807 (5th Cir.
1994)(en banc). The sentencing guidelines expressly authorize
upward departures “[i]f reliable information indicates that the
criminal history category does not adequately reflect the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3. After a
careful review of the record, the arguments, and the controlling
authorities, this Court holds that the district court did not abuse
its discretion in departing upward.
Finally, for the first time on appeal, Grimes asserts that the
district court erred in considering rehabilitation in crafting his
3
sentence. Specifically, he argues that the district court
increased the term of his sentence so that he would qualify for the
Sex Offenders Treatment Program. Assuming Grimes’ assertions are
a challenge to the propriety of the length of his sentence,1 this
Court’s “review of a sentence imposed under the guidelines is
confined to determining whether a sentence was imposed in violation
of the law or as a result of an incorrect application of the
sentencing guidelines.” United States v. Shipley, 963 F.2d 56, 58
(5th Cir.), cert. denied, 506 U.S. 925 (1992). Even liberally
construed, Grimes’ remaining assertions fail to meet the standards
set forth in Shipley, or are addressed above. After a careful
review of the record and the controlling authorities, this Court
holds that Grimes’ remaining assertions lack merit.
Therefore, for the foregoing reasons, the judgment of the
district court is AFFIRMED.
1
Grimes asserts that the district court improperly took into
account rehabilitative concerns when determining the duration of
his sentence. However, trial courts may consider such concerns
when determining the length of a sentence within a permissible
guidelines range. United States v. Alvarez, 51 F.3d 36, 41 (5th
Cir. 1995); United States v. Lara-Velasquez, 919 F.2d 946, 956-57
(5th Cir. 1990). Grimes has not demonstrated that the district
court considered rehabilitative concerns in an improper context.
4