F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 29 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-2013
(D. Ct. No. CR-97-285-JC)
MARLON LYLE BECENTI, (D. N. Mex.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and MURPHY, Circuit Judges.
Defendant-Appellant Marlon Lyle Becenti pled guilty to second degree
murder in violation of 18 U.S.C. § 1111. The district court sentenced him to 151
months imprisonment followed by a five-year period of supervised release. Mr.
Becenti now appeals his sentence. He argues that the district court erred when it
enhanced his sentence based on a finding that the victim was vulnerable pursuant
to § 3A1.1(b) of the United States Sentencing Guidelines. In particular, Mr.
Becenti asserts that the district court erred because it failed to make a
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
particularized finding of vulnerability sufficient to justify the enhancement. We
exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm
the sentence imposed by the district court.
On April 12, 1997, defendant and an accomplice broke into a residence on
the Navajo Nation Indian Reservation in Shiprock, New Mexico. Upon entering
the house, they beat the three occupants, Mike Yazzie, age 65, Mary Woody, age
60, and Janet Ahtcitty, age 37. They also ransacked the house looking for
valuables to steal. Finding little of value, Mr. Becenti’s accomplice, Tyson
Montoya, became frustrated and kicked over a wood stove, sending live embers
onto the floor and igniting a house fire. Mr. Becenti and Mr. Montoya fled the
burning house along with Ms. Woody and Ms. Ahtcitty. However, Mr. Yazzie
could not escape due, in part, to the injuries he sustained from the beating, and he
died of smoke inhalation.
On July 2, 1997, a federal grand jury returned a three-count indictment
against Mr. Becenti and Mr. Montoya, charging them with first degree felony-
murder in violation of 18 U.S.C. § 1111, arson, and burglary. Pursuant to a
written plea agreement with the United States, Mr. Becenti pled guilty to a one-
count information charging him with second degree murder in violation of 18
U.S.C. § 1111. Prior to sentencing, Mr. Becenti filed a timely objection to the
presentence report (“PSR”) because it included a two-level increase to his base
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offense level due to Mr. Yazzie’s status as a “vulnerable victim.” At the
sentencing hearing held on December 12, 1997, the district court overruled Mr.
Becenti’s objection to the PSR, finding that “[t]he enhancement is proper.”
Sentencing Hr’g Tr. at 2. This appeal followed.
Mr. Becenti argues that the district court erred when it enhanced his
sentence under § 3A1.1(b) of the United States Sentencing Guidelines because it
failed to make a sufficient finding of vulnerability. We review the district court’s
interpretation and application of the Sentencing Guidelines de novo. See, e.g.,
United States v. Hershberger, 962 F.2d 1548, 1550 (10th Cir. 1992). However,
the district court’s factual findings underlying a Sentencing Guideline
enhancement, including whether a victim is vulnerable for the purposes of
§ 3A1.1(b), are reviewed under the clearly erroneous standard. See, e.g., United
States v. Tissnolthtos, 115 F.3d 759, 761 (10th Cir. 1997); United States v.
Brunson, 54 F.3d 673, 676 (10th Cir. 1995). A finding is clearly erroneous only
when it is “without factual support in the record, or if after reviewing all the
evidence[,] we are left with the definite and firm conviction that a mistake has
been made.” United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990).
Section 3A1.1(b) provides for a two-level increase in the base offense level
when “the defendant knew or should have known that a victim of the offense was
unusually vulnerable due to age, physical or mental condition, or that a victim
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was otherwise particularly susceptible to the criminal conduct.” Our case law
makes clear that “[i]n order to classify a victim as ‘vulnerable,’ the sentencing
court must make particularized findings of vulnerability. The focus of the inquiry
must be on the victim’s personal or individual vulnerability.” See Brunson, 54
F.3d at 676 (internal citations and quotations omitted).
Defendant argues that because the PSR included a vulnerable victim
enhancement based solely upon Mr. Yazzie’s age and because the district court
adopted the PSR’s findings, the court did not make a particularized finding
sufficient to sustain the sentence enhancement. We disagree. While it is true that
“a victim’s elderly status, without more, is insufficient to justify a vulnerable
victim enhancement,” Tissnolthtos, 115 F.3d at 761; accord United States v.
Smith, 930 F.2d 1450, 1455 (10th Cir. 1991), here the district court, contrary to
defendant’s assertion, did not base the sentence enhancement solely upon the
victim’s age. In addition to adopting the PSR’s findings, the court stated:
The court takes judicial notice that the defendant and co-defendant
forcibly entered the home of an elderly couple with the intent to
commit a burglary. The defendant ransacked the home, battered the
three occupants and caused a fire that consumed the home. The
victim, a 65 year old man[,] was unable to get out of the fire and died
of carbon monoxide poisoning.
Sentencing Hr’g Tr. at 5. Thus, the district court independently acknowledged
that, in addition to his age, Mr. Yazzie had been beaten and was unable to escape
the burning house. As noted earlier, a district court’s finding of vulnerability for
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the purpose of § 3A1.1(b) will be upheld unless it is clearly erroneous. Here, the
district court’s finding of vulnerability is adequately supported by facts in the
record, including facts other than the victim’s age. Thus, we hold that the district
court did not err in enhancing the defendant’s sentence two levels pursuant to
§ 3A1.1(b) of the United States Sentence Guidelines. We therefore AFFIRM the
sentence imposed by the district court.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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