United States Court of Appeals
For the First Circuit
No. 03-2022
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC J. DONNELLY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Lisi*, District Judge.
Patricia A. DeJuneas, with whom Richard M. Egbert was on brief
for appellant.
Andrea Picciotti-Bayer, Attorney, United States Department of
Justice, with whom Michael J. Sullivan, United States Attorney, R.
Alexander Acosta, Assistant Attorney General, S. Theodore Merritt,
Assistant United States Attorney and Dennis J. Dimsey, Attorney,
United States Department of Justice, were on brief for appellee.
May 27, 2004
*
Of the District of Rhode Island, sitting by designation.
LISI, District Judge. Eric J. Donnelly (“Donnelly”)
appeals from a 46-month sentence imposed following his guilty plea
to conspiracy to violate the civil rights of jail detainees under
his supervision, conspiracy to obstruct justice, obstruction of
justice, and four counts of deprivation of rights under color of
law. On appeal, Donnelly argues that the sentencing court erred
when it included a two-level enhancement pursuant to U.S.S.G. §
3A1.1 (“vulnerable victim”). Because we find that the district
court committed no reversible error in its determination that one
of Donnelly’s victims was a “vulnerable victim,” we affirm the
sentence.
I. Background1
From December, 1989 through December, 1999, Donnelly was
employed by the Suffolk County Sheriff’s Department. Donnelly
worked at the Nashua Street Jail in Boston, Massachusetts, a
detention center which houses pre-trial detainees. Donnelly was an
officer and supervisor at the jail and sometimes served as the
lieutenant of the Sheriff’s Emergency Response Team.
From at least June, 1998 through February, 2001, Donnelly
and several other officers and supervisors had an unwritten
agreement to use unjustified, excessive force to punish detainees
1
Because this case was disposed of by a guilty plea, we
accept the facts as presented in the uncontested portions of the
Presentence Report and the sentencing hearing transcript. United
States v. Lagasse, 87 F.3d 18, 20 (1st Cir. 1996).
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who “disrespected” the officers, “put hands” on the officers, or
otherwise misbehaved. The agreement led to the use of excessive
force in order “to teach the inmates a lesson.” Donnelly and other
officers and supervisors assaulted at least four detainees between
April 15, 1999 and October 16, 1999. It is the factual
circumstances surrounding the assault on one of the detainees,
“L.G.,”2 which give rise to this appeal.
During September and October of 1999, L.G. was detained
at the Nashua Street Jail. L.G. suffers from Tourette’s Syndrome,
a neurological disorder which affects his ability to control his
verbal and physical acts. L.G.’s Tourette’s outbursts consisted of
repetitious and involuntary physical movements, or tics, and
uncontrollable verbal outbursts, which often included the use of
profanity.
On October 16, 1999, L.G., in violation of jail rules,
got up from his table to wash a piece of fruit. Officer William
Benson (“Benson”) admonished L.G. for getting up without
permission, but permitted him to wash his fruit before sitting back
down. What happened after L.G. returned to his seat is disputed.
One version of the story is that L.G. sat down and said of Benson,
“What an attitude.” Another officer claims that L.G. said, “You
2
The initials “L.G.” are used simply to protect the identity
of the victim.
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fat f*ck.” Regardless of what was said, L.G. was dismissed from
dinner and returned to his locked cell in the medical unit.
Once back in his cell, L.G. began to feel his Tourette’s
symptoms act up. To lessen the effects of the Tourette’s outburst,
L.G. engaged in physical activity, which consisted of shadowboxing
and bench pressing his bed. Benson, hearing the commotion,
approached L.G.’s cell and said, “Shut the f*ck up,” to which L.G.
responded, “You shut the f*ck up. You people make fun of me around
here all the time and I can’t say nothing about it. F*ck you.
No.” The exchange between L.G. and Benson prompted Donnelly, who
was in the medical unit watching a baseball game on television, to
approach L.G.’s cell. Donnelly then said to L.G., “You will not
talk to my officers that way.” Donnelly and Benson then entered
L.G.’s cell where they hit him repeatedly in the face, head, and
body. During the assault, one or both of the officers3 yelled,
“We’ll beat the Tourette’s out of you.”
On May 15, 2001, Donnelly was charged with conspiracy to
violate the civil rights of detainees being held at the Nashua
Street Jail. In particular, Donnelly was charged with seven counts
consisting of: (1) conspiring to obstruct justice, in violation of
18 U.S.C. § 371; (2) obstruction of justice, in violation of 18
U.S.C. 1512(b)(3); (3) conspiring to violate rights, in violation
of 18 U.S.C. § 241; and (4) deprivation of rights under color of
3
It is not clear who uttered these words.
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law, in violation of 18 U.S.C. § 242. The indictment contained
four individual counts of deprivation of rights under color of law,
which included the L.G. assault.
On March 3, 2003, Donnelly entered into a plea agreement
with the United States Attorney’s Office, wherein Donnelly agreed
to plead guilty to all counts with which he was charged. The plea
agreement provided that the government would take the position that
Donnelly’s total offense level was 21. The plea agreement further
provided that the government would recommend that Donnelly be
sentenced at the low end of the guideline sentencing range. In the
event of an appeal, however, the agreement preserved the
government’s “right to argue the correctness of Defendant’s
sentence and the manner in which the District Court determines it.”
At the sentencing hearing on June 6, 2003, the court
considered the Presentence Report (“PSR”), which included a two-
level enhancement under U.S.S.G. § 3A1.1 for each of the four
counts charging Donnelly with deprivation of rights under color of
law. The probation officer included the enhancement citing the
fact that Donnelly’s victims were detained in a jail cell when they
were assaulted. This fact, the probation officer believed,
supported a finding that those victims were vulnerable victims
under section 3A1.1. Accordingly, the probation officer concluded
that Donnelly’s total offense level was 23. Both the government
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and Donnelly objected to the applicability of section 3A1.1 to each
of the four counts.
The district court found that section 3A1.1 was not
applicable on the grounds set forth in the PSR by the probation
officer. Rather, the sentencing judge, relying on the PSR and his
own observations of L.G. during the trial of several of Donnelly’s
co-conspirators,4 advised the parties that he would apply the
vulnerable victim enhancement to the assault on L.G. The district
judge stated that he believed the enhancement should be applied in
L.G.’s case because “in very large part the assault on [L.G.]
occurred because he had Tourette’s Syndrome.” At Donnelly’s
request, the district court suspended the hearing to allow Donnelly
time to prepare to address the district court’s position that the
vulnerable victim enhancement be applied with respect to Donnelly’s
assault on L.G.
On July 7, 2003, the sentencing hearing was re-convened.
On that same day, just prior to the hearing, Donnelly filed an
objection to the PSR, specifically objecting to the district court
taking the statement, “We’ll beat the Tourette’s out of you,” into
account in its consideration of the applicability of section 3A1.1.
4
The sentencing judge presided over the trial of three of
Donnelly’s co-conspirators, where he observed L.G.’s Tourette’s
outbursts during L.G.’s testimony at the trial. At the sentencing
hearing, the judge informed counsel that he would take into
consideration his observations of L.G. in determining whether
section 3A1.1 should be applied to Donnelly.
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Finding the objection untimely, the sentencing judge declined to
consider it.
After hearing the arguments of counsel, the court
determined that the two-level enhancement provided for by section
3A1.1 should be included in the sentencing calculation as it
related to the L.G. incident. The court found that the assault
occurred because of L.G.’s Tourette’s Syndrome. Accordingly, the
court determined Donnelly’s total offense level to be 23, with a
guideline range of 46-57 months. Donnelly was sentenced to 46
months imprisonment. Donnelly appeals his sentence. In
accordance with the plea agreement, the government pursues its
option to argue that the sentencing court imposed the correct
sentence.
II. Standard of Review
Before reaching the merits of this appeal, we must
determine the appropriate standard of review. A sentencing court
must make two distinct and separate findings to apply section
3A1.1: (1) that the victim is a “vulnerable victim”; and (2) that
the defendant knew or should have known of the victim’s unusual
vulnerability. Both parties agree that the district court’s
findings of fact as they relate to whether or not L.G. is a
vulnerable victim, by virtue of his Tourette’s Syndrome, are
reviewed for clear error and that the legal determinations of the
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district court are subject to plenary review. See United States v.
Gill, 99 F.3d 484, 485 (1st Cir. 1996).
The government and Donnelly disagree, however, as to the
appropriate standard of review as it relates to the second element
of the vulnerable victim enhancement: whether Donnelly knew or
should have known of L.G.’s unusual vulnerability. The government
argues that, although Donnelly objected to the enhancement on the
grounds that L.G. was not a “vulnerable victim,” he did not argue
to the sentencing court that Donnelly did not know of L.G.’s
vulnerability, and therefore the issue of Donnelly’s knowledge of
L.G.’s vulnerability was not properly preserved below. The
government, therefore, urges us to review this claim for plain
error. Donnelly argues that the plain error standard does not
apply because he is not raising a new claim on appeal, but rather
that he properly preserved the issue below by arguing against the
application of section 3A1.1 generally.
We have said that an appellant must specifically raise
before the district court any issues he or she wishes to preserve
for our consideration. See United States v. Dietz, 950 F.2d 50, 55
(1st Cir. 1991) (noting that “arguments not seasonably addressed to
the trial court may not be raised for the first time in an
appellate venue”). In the court below Donnelly objected to the
imposition of the enhancement based on his assertion that L.G. was
not a “vulnerable victim.” Donnelly, however, did not argue
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specifically that the enhancement could not be applied to Donnelly
because there was no evidence to support a finding that Donnelly
knew or should have known of L.G.’s vulnerability. Donnelly’s
failure to address the second element of the vulnerable victim
enhancement requires that we review the court’s ruling on this
element for plain error. Thus, as it relates to the knowledge
element of section 3A1.1, Donnelly bears the burden of showing that
the district court committed “(1) an error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Connolly,
341 F.3d 16, 31 (1st Cir. 2003) (quoting United States v. Downs-
Moses, 329 F.3d 253, 263 (1st Cir. 2003)(internal quotations
omitted)). If Donnelly can establish plain error, he then “must
demonstrate that the error ‘seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
(quoting United States v. Matos, 328 F.3d 34, 43 (1st Cir. 2003)).
III. U.S.S.G. § 3A1.1.
Having established the standard of our review, we next
turn to Donnelly’s claims on appeal.
Section 3A1.1 of the Sentencing Guidelines provides that
a two-level upward enhancement should be applied “[i]f the
defendant knew or should have known that a victim of the offense
was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1) (Nov. 2002).
Commentary to section 3A1.1(b) defines the term “vulnerable
victim”:
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“vulnerable victim” means a person (A) who is
a victim of the offense of conviction . . . ;
and (B) who is unusually vulnerable due to
age, physical or mental condition, or who is
otherwise particularly susceptible to the
criminal conduct. . . . [The section] applies
to offenses involving an unusually vulnerable
victim in which the defendant knows or should
have known of the victim’s unusual
vulnerability.
U.S.S.G. § 3A1.1, cmt. n.2. We have interpreted the term
“susceptible to the criminal conduct” as being “primarily concerned
with the impaired capacity of the victim to detect or prevent the
crime, rather than the quantity of harm suffered by the victim.”
United States v. Fosher, 124 F.3d 52, 55-56 (1st Cir. 1997)
(quoting Gill, 99 F.3d at 486).
Focusing on the language of section 3A1.1 and the
section’s commentary, a two-prong test must be satisfied before the
enhancement is imposed: First, the sentencing court must find that
the victim of the crime was vulnerable, that is, that the victim
had an “impaired capacity . . . to detect or prevent the crime.”
Id. at 55-56 (quoting Gill, 99 F.3d at 486); and second, the
sentencing court must find that the defendant knew or should have
known of the victim’s unusual vulnerability.
On appeal, Donnelly challenges the district court’s
application of the vulnerable victim enhancement on several
grounds: (1) L.G. was not a vulnerable victim within the meaning of
section 3A1.1 because he was not particularly susceptible to the
assault; (2) the record does not support a finding, either directly
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or by inference, that Donnelly knew or should have known that L.G.
was particularly susceptible; and (3) there is no nexus between
L.G.’s vulnerability and the assault.
We begin by disposing of Donnelly’s third assignment of
error: that the district court erred in applying section 3A1.1
because it did not find a nexus between L.G.’s vulnerability and
Donnelly’s crime. Donnelly urges us to adopt the analysis set
forth in United States v. Monostra, 125 F.3d 183 (3d Cir. 1997), a
Third Circuit case which the court remanded to the district court
for further consideration of whether there was a nexus between the
victim’s vulnerability and the crime’s success.
The nexus requirement is based on the general limitation
that a sentencing court base its finding of unusual vulnerability
on individualized findings of particular susceptibility, rather
than on the victim’s membership in a large class. See United
States v. Lee, 973 F.2d 832, 834 (10th Cir. 1992) (“The language of
the guideline requires that a victim be ‘unusually vulnerable . .
.’ and the cases accordingly require that the sentencing court make
particularized findings of vulnerability. Specifically, there
should be a nexus between the victim’s vulnerability and the
crime’s ultimate success.” (emphasis in original)). “We have
discouraged sentencing courts from making an ‘unusually vulnerable
victim’ finding based solely on the victim’s membership in a
particular class,” but have recognized that “in some cases
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inferences to be drawn regarding particular class characteristics
may be so strong that ‘there can be little doubt about unusual
vulnerability of class members within the meaning of section
3A1.1.’” Fosher, 124 F.3d at 56 (quoting Gill, 99 F.3d at 487).
Since the “nexus” test is already a part of our analysis of
whether the victim is a “vulnerable victim” under section 3A1.1, we
find that it would be superfluous to incorporate a third,
independent “nexus” prong into our discussion of the applicability
of the vulnerable victim enhancement. We therefore focus on the
two-prong formulation: (1) that the victim was unusually
vulnerable, and (2) that the defendant knew or should have known of
the victim’s unusual vulnerability.
A. Unusual Vulnerability
Donnelly challenges the district court’s application of
section 3A1.1, arguing that L.G. is not a “vulnerable victim.”
First Donnelly asserts that the district court erred in applying
section 3A1.1 because the facts before the district court did not
support an individualized finding of vulnerability.5 We disagree.
5
The government contends that the sentencing court could have
found L.G. particularly susceptible without having to make an
individualized finding of particular susceptibility. See Gill, 99
F.3d at 487 (“In some cases the inference . . . may be so powerful
that there can be little doubt about unusual vulnerability of class
members within the meaning of section 3A1.1.”) Since, however, we
find that the district court did make an individualized finding of
particular susceptibility, we need not decide whether an inmate or
detainee who suffers from Tourette’s Syndrome and is the victim of
a plan to assault individuals who are disruptive or disrespectful
to persons in authority carries with it so strong an inference that
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The record below amply supports the district court’s determination
that L.G. was unusually vulnerable to the assault, that is, that he
had an “impaired capacity . . . to detect or prevent the crime.”
Fosher, 124 F.3d at 55-56 (quoting Gill, 99 F.3d at 486).
L.G. was reprimanded by Benson for breaking jail rules,
exchanged words with another officer over the incident, and as a
result, was sent back to his locked cell in the medical unit. Back
in his cell, L.G. found himself exhibiting symptoms of a Tourette’s
related outburst. To lessen the effects of his outburst, L.G.
engaged in physical activity which induced Benson, and later
Donnelly, to approach L.G.’s cell. It was the exchange between
Benson and L.G., which resulted from L.G.’s Tourette’s outburst,
which led to the assault. Thus, it is reasonable to conclude, as
did the district court, that L.G.’s condition made him particularly
susceptible to the attack.
Furthermore, these facts illustrate the individual
characteristics possessed by L.G. which distinguish him from the
other detainees: a detainee who does not suffer from Tourette’s
Syndrome can make a conscious decision not to act in ways which may
provoke jail officers to “teach him a lesson.” L.G.’s Tourette’s
Syndrome impaired his capacity to prevent the behavior which would
lead to the assault by Donnelly. We therefore find no clear error
there is little doubt as to the vulnerability of class members.
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in the district court’s conclusion that L.G. was a “vulnerable
victim” under section 3A1.1.
B. Defendant’s Knowledge of Unusual Vulnerability
We now turn to the second element of the vulnerable
victim enhancement, that Donnelly knew or should have known of
L.G.’s particular susceptibility to the assault. Before doing so,
however, there is an evidentiary matter we must consider: which
facts are properly before this Court in our consideration of this
issue. Donnelly argues that we should not consider as fact the
statement contained in the PSR and the government’s presentation of
predicate facts at the plea hearing that the officers shouted,
“We’ll beat the Tourette’s out of you,” during L.G.’s assault.
Donnelly asserts that the statement is too vague because there is
no indication as to which of the officers made the statement.
Donnelly also argues that because L.G. did not mention the
statement during his trial testimony, the court erred in finding
the statement a “fact” proven by a preponderance of the evidence.
We disagree. The sentencing judge properly took into account his
observations of L.G. when he testified at the trial of Donnelly’s
co-conspirators.6 The statements made in the PSR and the
government’s presentation of predicate facts were also properly
6
First hand observations of the sentencing judge are
sufficient for the sentencing judge to make an individualized
determination of vulnerability necessary to impose the enhancement
set forth in section 3A1.1. See United States v. Pavao, 948 F.2d
74, 78 (1st Cir. 1991).
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considered because Donnelly failed to object to the statements in
a timely manner.7 Since the sentencing court may properly adopt
the statement as fact, we find that it is proper for us to consider
the statement when addressing the matter now before this Court.
Donnelly challenges the application of section 3A1.1
arguing that the record does not support a finding, either directly
or by inference, that Donnelly knew or should have known that L.G.
was unusually vulnerable. After reviewing the record, it does not
appear that the trial judge explicitly addressed this element of
the vulnerable victim calculus. The district judge did, however,
make a general finding that the vulnerable victim enhancement
applied in this case and, by so doing, implicitly found that
Donnelly knew or should have known of L.G.’s vulnerability.
Our determination that the plain error standard must be
applied to the second prong of this analysis places a substantial
burden on Donnelly: “Where the error defendant asserts on appeal
depends upon a factual finding the defendant neglected to ask the
district court to make, the error cannot be ‘clear’ or ‘obvious’
7
Under Federal Rule of Criminal Procedure 32(f)(1), “[w]ithin
14 days after receiving the [PSR], the parties must state in
writing any objections, including objections to material
information, sentencing guideline ranges, and policy statements
contained in or omitted from the report.” Donnelly, however, did
not make a timely objection to the PSR which contained the
statement. Donnelly’s objection to the statement was made the day
of the final sentencing hearing, well after the fourteen-day time
period had passed. We also note that the same language was
included in the government’s presentation of predicate facts at the
change of plea hearing, and there too, Donnelly posed no objection.
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unless the desired factual finding is the only one rationally
supported by the record below.” United States v. Olivier-Diaz, 13
F.3d 1, 5 (1st Cir. 1993). We find that Donnelly fails to meet his
burden that the only rational conclusion supported by the record is
that Donnelly did not know of L.G.’s unusual vulnerability. The
evidence in the record which would tend to support a conclusion
that Donnelly knew or should have known of L.G.’s unusual
vulnerability includes: (1) the district judge’s own observations
of L.G., which included Tourette’s related outbursts; (2) that
during the beating of L.G., one of the officers was heard yelling,
“We’ll beat the Tourette’s out of you”; and (3) that just prior to
L.G.’s assault, L.G. said, “You people make fun of me around here
all the time and I can’t say nothing about it.” Clearly then, we
cannot conclude that a finding that Donnelly did not know or should
not have known of L.G.’s unusual vulnerability is the only finding
rationally supported by the record. While the district court’s
silence is somewhat troublesome, we reject Donnelly’s argument that
the district judge committed plain error when he found the
vulnerable victim enhancement applicable to the L.G. incident.
IV. Conclusion
For the reasons set forth herein, the sentence of the
district court is affirmed.
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