United States v. John Dowell

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4576

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN STUART DOWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:11-cr-00045-MFU-1)

Argued: September 19, 2014 Decided: November 13, 2014

Before DIAZ and THACKER, Circuit Judges, and Paul W. GRIMM,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by published opinion. Judge Grimm wrote the opinion,
in which Judge Diaz and Judge Thacker joined.

ARGUED: Russell Darren Bostic, BOSTIC & BOSTIC, PC,
Harrisonburg, Virginia, for Appellant. Nancy Spodick Healey,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee. ON BRIEF: Darcy Katzin, Child Exploitation &
Obscenity Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Timothy J. Heaphy, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
GRIMM, District Judge:

John Stuart Dowell, having pleaded guilty to twelve counts

of production of child pornography and one count of

transportation of child pornography, appeals his 960-month

sentence. On appeal, Dowell argues that his sentence violates

the Eighth Amendment’s prohibition of cruel and unusual

punishment and is both procedurally and substantively

unreasonable under 18 U.S.C. § 3553(a).

We hold that the district court erred in its Guidelines

calculation when it incorrectly applied an upward adjustment for

a “vulnerable victim” pursuant to U.S.S.G. § 3A1.1(b)(1) based

upon one of the victims’ age-related cognitive development and

psychological vulnerability, factors that already were

incorporated into an upward adjustment for the young age of

Dowell’s victims pursuant to U.S.S.G. §§ 2G2.1(b)(1) and

2G2.2(b)(2). However, because we find that error to be harmless

and reject the remainder of Dowell’s challenges, we affirm.

I.

A.

The relevant facts are undisputed. In late 2010 and early

2011, John Stuart Dowell was staying at a residence in Frederick

County, Virginia. Over that time, Dowell recorded several

videos of himself engaging in escalating sexual contact with a

2
three-year-old girl (“Minor A”) and displaying the genitals of a

five-year-old girl (“Minor B”), both of whom lived in the

residence. The videos were stored on Dowell’s personal computer

and posted on the Internet, where Danish law enforcement

officers discovered them and notified the Bureau of Immigration

and Customs Enforcement of the videos’ existence in August 2011.

Around that same time, a relative of Dowell’s turned over some

of the same video clips to the Federal Bureau of Investigation

and identified Dowell, the residence, and the children in the

videos. An arrest warrant was issued and Dowell was arrested on

October 26, 2011 at his residence in California.

A forensic examination of Dowell’s computers uncovered over

70,000 pornographic images and videos, of which approximately

seventy-five percent depicted child pornography or child

erotica, and an additional ten percent comprised sexually

explicit drawings of minors. The examination also revealed

several videos of Minor A and Minor B, including depictions of

Dowell touching, licking, and kissing the genital area of Minor

A and exposing the genitals of Minor B. On December 14, 2011, a

federal grand jury initially returned an indictment charging

Dowell with one count of production of child pornography in

violation of 18 U.S.C. §§ 2251(a) and 2251(e). A superseding

indictment was returned on April 25, 2012, charging Dowell with

twelve counts of production of child pornography -- ten with

3
respect to Minor A and two with respect to Minor B -- and one

count of transportation of child pornography in violation of 18

U.S.C. §§ 2252(a)(1) and (b)(1). On October 3, 2012, Dowell

entered a plea of guilty to each count of the superseding

indictment.

B.

During a lengthy sentencing hearing lasting over seven and

one-half hours and comprising over 250 pages of transcript, the

district court heard testimony regarding the quantity and nature

of pornographic material on Dowell’s computer and viewed the

videos that he had produced of Minor A and Minor B. The court

also heard expert testimony from a psychologist, who expressed

the opinion that Dowell is a pedophile, “sexually attracted to

females, nonexclusive type” -- meaning that he is attracted to

adults as well as to children. J.A. 210. 1 The psychologist also

opined that, although the relevant evaluative measures suggested

that Dowell was a relatively low risk to reoffend, those

measures often are incomplete and pedophilia nevertheless is a

chronic condition that is unlikely to go away as Dowell ages.

The court also heard argument on certain enhancements

recommended in Dowell’s Pre-Sentence Report (the “PSR”). As

1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

4
relates to this appeal, Dowell argued against the PSR’s

recommendation to apply both a five-level enhancement with

respect to count thirteen for transportation of child

pornography because Dowell “engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor” pursuant

to U.S.S.G. § 2G2.2(b)(5) and an additional five-level

adjustment to the total offense level for “engag[ing] in a

pattern of activity involving prohibited sexual conduct”

pursuant to U.S.S.G. § 4B1.5(b)(1). J.A. 348–49; see id. at

361. Relying on the well-established principle that double

counting is authorized unless the Guidelines expressly prohibit

it, the district court applied both increases.

At sentencing, Dowell also challenged the PSR’s

recommendation that he receive an enhancement for a “vulnerable

victim” pursuant to U.S.S.G. § 3A1.1(b)(1) with respect to

counts one through ten and count thirteen, which was added in

response to an earlier objection to the PSR by the Government.

Dowell contended that, because the age of the victims already

was accounted for by enhancements for victims under twelve years

of age contained in U.S.S.G. §§ 2G2.1(b)(1)(A) and 2G2.2(b)(2),

the vulnerable victim adjustment could not be applied simply

because Dowell’s victims were considerably younger than twelve.

Relying on United States v. Jenkins, 712 F.3d 209 (5th Cir.

2013), and United States v. Wright, 373 F.3d 935 (9th Cir.

5
2004), the district court concluded that, “though the

characteristics of being an infant or toddler tend to correlate

with age, they can exist independently of age, and are not the

same thing as merely not having attained the age of 12 years.”

J.A. 171. Accordingly, the district court applied the

vulnerable victim enhancement with respect to Minor A based on

her cognitive development and “unique concerns about the moral

and psychological development of the child” that, though related

to her age, can exist independently of age and “recognize a

vulnerability beyond age per se.” Id.

Following the testimony, arguments from counsel, and

Dowell’s allocution, the court calculated Dowell’s Guidelines

range as follows:

With respect to counts one through twelve, the court

adopted the recommendations of the PSR, applying a vulnerable

victim enhancement to counts one through ten relating to Minor

A, as well as several other sentencing enhancements that are not

challenged on appeal. This yielded a total offense level of 40

with respect to seven counts (counts one to three, five to

seven, and ten); a total offense level of 42 with respect to

three counts (counts four, eight, and nine); and a total offense

level of 38 with respect to two counts (counts eleven and

twelve). For count thirteen, the court rejected the PSR’s

recommendation for an enhancement for distribution of child

6
pornography under § 2G2.2(b)(3)(F), but otherwise adopted the

PSR’s findings, including a vulnerable victim adjustment because

of Minor A’s extremely young age and an enhancement for a

pattern of activity involving the sexual abuse of a minor

pursuant to § 2G2.2(b)(5), yielding a final offense level of 42

for that count.

Pursuant to the Sentencing Guidelines’ provisions for

multiple counts, § 3D1.4, the court applied a five-level

increase. The court then decreased the offense level by three

levels for acceptance of responsibility under § 3E1.1(a)–(b),

yielding an offense level of 44. The court then applied an

additional five-level increase under § 4B1.5(b)(1) for a pattern

of activity involving prohibited sexual conduct, yielding a

final total offense level of 49, which pursuant to Chapter 5,

Part A of the Sentencing Guidelines, is treated as a level 43,

the highest possible offense level. For all criminal history

categories, the Guidelines range for level 43 is life

imprisonment.

Both the Government and the PSR recommended a total

sentence of 4,560 months, calculated by adding the statutory

maximum for each count consecutively pursuant to U.S.S.G.

§ 5G1.2. However, the district court found the recommended

sentence to be unrealistic and not required by § 5G1.2, and, in

light of Dowell’s age, determined that a sentence of 960 months

7
was tantamount to a life sentence. As the district court

explained, “under this guideline range the defendant will be 127

years [old] when this term runs out . . . . Given his age,

there’s no practical reason, no reason under the guidelines or

the case law, to calculate the guidelines to run any additional

sentences consecutive beyond the 960 months.” J.A. 308.

After considering the Sentencing Guidelines and the factors

set forth in 18 U.S.C. § 3553(a), the court imposed what it

characterized as a Guidelines sentence of 960 months’

imprisonment, calculated as “the extent necessary to produce a

combined sentence equal to the total punishment of life.” J.A.

307. In explaining its reasoning, the court said, “[a]s regards

that three-year-old child, this crime is predatory. This crime

is premeditated. This crime is calculated. This crime was

designed to get that child to a point where she, in her young,

young, young, and undeveloped cognitive state, became interested

in this behavior,” id. at 311, and noted as well that the videos

that Dowell made in Virginia had been distributed as far away as

Denmark. The court also found that “this defendant spent ten

years involved in child pornography, touched these children,

molested this one girl, videoed it, and kept right on viewing it

until he was arrested. To protect the public from Mr.

Dowell . . . demands a life term.” Id. at 313. Dowell

appealed.

8
 II.

Dowell challenges his sentence as a violation of the Eighth

Amendment’s prohibition of cruel and unusual punishment on the

grounds it is disproportionate to the severity of his crimes.

We review de novo constitutional claims, including whether a

sentence is proportional under the Eighth Amendment. United

States v. Myers, 280 F.3d 407, 416 (4th Cir. 2002).

The Eighth Amendment states: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. “The concept

of proportionality is central to the Eighth Amendment. Embodied

in the Constitution’s ban on cruel and unusual punishments is

the ‘precept of justice that punishment for crime should be

graduated and proportioned to [the] offense.’” Graham v.

Florida, 560 U.S. 48, 59 (2010) (quoting Weems v. United States,

217 U.S. 349, 367 (1910) (emendation in original)).

Accordingly, a disproportionate sentence may be cruel and

unusual even if it is not “inherently barbaric.” Id.

[A] court’s proportionality analysis under the Eighth
Amendment should be guided by objective criteria,
including (i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii)
the sentences imposed for commission of the same crime
in other jurisdictions.

Solem v. Helm, 463 U.S. 277, 292 (1983). A defendant may raise

two types of Eighth Amendment challenges to his sentence: He may

9
raise an “as-applied” challenge on the grounds that “the length

of a certain term-of-years sentence [is] disproportionate ‘given

all the circumstances in a particular case,’” or he may raise a

“categorical” challenge asserting “that an entire class of

sentences is disproportionate based on ‘the nature of the

offense’ or ‘the characteristics of the offender.’” United

States v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014) (quoting

Graham, 560 U.S. at 59–60).

Dowell raises only an as-applied challenge to his sentence.

In the context of an as-applied challenge, the
[Supreme] Court has explained that the “narrow
proportionality principle” of the Eighth Amendment
“does not require strict proportionality between crime
and sentence,” but “forbids only extreme sentences
that are grossly disproportionate to the crime.”
Before an appellate court concludes that a sentence is
grossly disproportionate based on an as-applied
challenge, the court first must determine that a
“threshold comparison” of the gravity of the offense
and the severity of the sentence “leads to an
inference of gross disproportionality.” In the “rare
case” that a reviewing court concludes that such an
inference may be drawn, the court is required to
compare the defendant’s sentence: (1) to sentences for
other offenses in the same jurisdiction; and (2) to
sentences for similar offenses in other jurisdictions.
If this extended analysis validates the threshold
determination that the sentence is grossly
disproportionate, the sentence is deemed “cruel and
unusual” punishment under the Eighth Amendment.
Id. (internal citations omitted).

This “‘extensive proportionality analysis’ is required

‘only in those cases involving life sentences without parole,’

or, alternatively, in cases involving ‘terms of years without

10
parole’ that are functionally equivalent to life sentences

‘because of [the defendants’] ages.’” Id. at 578 (quoting

United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir. 1985)

(emendations in original)); cf. Rhodes, 779 F.2d at 1028–29

(requiring only “simple matching” of facts against Solem

principles where the sentence is for a term of years). As the

First Circuit has observed, “instances of gross

disproportionality will be hen’s-teeth rare,” United States v.

Polk, 546 F.3d 74, 76 (1st Cir. 2008), and the Supreme Court has

held a sentence of life without parole to run afoul of the

Eighth Amendment only once, in Solem, where the defendant had

pleaded guilty to uttering a “no account” check for $100. 463

U.S. at 281–84, 295 (noting that Helm was convicted of “‘one of

the most passive felonies a person could commit’”); see also

Cobler, 748 F.3d at 575–76.

Importantly, we recently addressed and rejected a nearly

identical challenge to a lengthy sentence in United States v.

Cobler. Cobler, who was twenty-eight years old, pleaded guilty

to three counts of production of child pornography, one count of

transportation of child pornography, and one count of possession

of child pornography. Id. at 574. The district court imposed a

Guidelines sentence of 1,440 months, or 120 years. Id. On

appeal, this Court began by considering “whether a threshold

comparison of the gravity of Cobler’s offenses and the severity

11
of his sentence leads us to infer that his sentence is grossly

disproportionate to his crimes.” Id. at 579–80. We rejected

Cobler’s as-applied proportionality challenge, saying:

Given the shocking and vile conduct underlying these
criminal convictions, we hold that Cobler has failed
to substantiate the required threshold inference of
gross disproportionality. Even assuming, without
deciding, that Cobler’s 120-year term of imprisonment
is functionally equivalent to a sentence of life
imprisonment without the possibility of parole, we
conclude that Cobler’s multiple child pornography
crimes are at least as grave as [possession of 672
grams of cocaine] in [Harmelin v. Michigan], which the
Supreme Court deemed sufficiently egregious to justify
a similar sentence. See 501 U.S. at 996.

Cobler, 748 F.3d at 580 (footnote omitted).

As Dowell’s counsel acknowledged at argument, this case is

indistinguishable from Cobler. In Cobler, we noted that “Cobler

possess[ed] large quantities of child pornography”; “created

depictions of his own sexual exploitation, molestation, and

abuse of a four-year-old child”; and “was aware that his sexual

contact with the child could have caused the child to contract

Cobler’s serious communicable disease.” 748 F.3d at 580.

Although Dowell did not expose his victims to the risk of

disease, he nevertheless possessed tens of thousands of images

of child pornography, abused extremely young victims –- aged

three and five –- and was convicted of many more counts than

Cobler had been. Dowell has advanced no reason, and we see

12
none, to depart from the analysis of Cobler, and therefore we

reject Dowell’s Eighth Amendment challenge.

Moreover, even were we not bound by our recent case law,

Dowell has not shown that his sentence is so grossly

disproportionate as to run afoul of the Eighth Amendment. As in

Cobler, we may assume, without deciding, that Dowell’s eighty-

year sentence -— lasting until he is 127 years of age -— is the

functional equivalent of a life sentence without the possibility

of parole. 2 However, Dowell has not shown that he can survive

even a “threshold comparison” between the severity of his crime

and his punishment. See Graham, 560 U.S. at 60.

Dowell argues that his punishment is disproportionate

because his crimes were nonviolent. According to Dowell, “the

child was never placed in any danger”; was “not physically

injured in any way, shape, or form”; and was not penetrated, and

therefore Dowell has been given an unduly severe sentence for a

2
In so assuming, we note that the district court expressly
stated its intent to craft a life sentence without the
possibility of parole in accordance with the Guidelines’ range
of life and rejected the Government’s request to impose a
sentence of 4,560 months, or 380 years, because it made “no
practical sense” in relation to the defendant’s life expectancy.
J.A. 193. Because neither party has objected to the district
court’s characterization of its sentence, we also will treat it
as a life sentence for Guidelines purposes. We express no view
on the district court’s interpretation of U.S.S.G. § 5G1.2 to
reach a Guidelines range of 960 months instead of 4,560 months
because that issue has not been raised on appeal.

13
nonviolent crime. Appellant’s Br. 10. We reject out of hand

the notion that the sexual abuse of a child can be considered

nonviolent merely because it does not lead to physical or life-

threatening injuries. Simply put, Dowell’s acts of abuse

inflicted injuries that may run deeper and last longer than any

physical injuries, and the notion that, in abusing his victims,

he did not expose them to danger lacks any rational basis. This

particularly is so where, as here, the videos Dowell made of his

young victims were posted on the Internet, exposing them to

future embarrassment, humiliation, and psychological injury.

“It has been found that sexually exploited children are unable

to develop healthy affectionate relationships in later life,

have sexual dysfunctions, and have a tendency to become sexual

abusers as adults.” New York v. Ferber, 458 U.S. 747, 758 n.9

(1982) (citations omitted). The mere fact that Dowell’s acts of

abuse did not inflict immediate physical injury does not render

his sentence disproportionate. Because Dowell has not raised an

inference of gross disproportionality -- and because he likely

could not do so in light of Cobler -- we conclude that his 960-

month sentence does not constitute cruel and unusual punishment

under the Eighth Amendment.

III.

The reasonableness of a sentence under 18 U.S.C. § 3553(a)

is reviewed under an abuse of discretion standard, irrespective

14
of whether the sentence imposed is within or outside of the

Guidelines range. Gall v. United States, 552 U.S. 38, 51

(2007). This reasonableness review has both a procedural and a

substantive component. United States v. Boulware, 604 F.3d 832,

837 (4th Cir. 2010). This analysis requires us to

first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines range as mandatory,
failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence –- including
an explanation for any deviation from the Guidelines
range. Assuming that the district court’s sentencing
decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion
standard.
Gall, 552 U.S. at 51. In reviewing the application of the

Sentencing Guidelines, “[i]f the issue turns primarily on a

factual determination, an appellate court should apply the

‘clearly erroneous’ standard.” United States v. Daughtrey, 874

F.2d 213, 217 (4th Cir. 1989). However, a question relating to

the legal interpretation of the Guidelines is subject to de novo

review. United States v. Schaal, 340 F.3d 196, 198 (4th Cir.

2003).

A.

Dowell first argues that the district court impermissibly

double-counted when it applied both U.S.S.G. § 2G2.2(b)(5) and

§ 4B1.5(b)(1), both of which provide for five-level increases

15
for a pattern of unlawful sexual conduct. “Double counting

occurs when a provision of the Guidelines is applied to increase

punishment on the basis of a consideration that has been

accounted for by application of another Guideline provision or

by application of a statute.” United States v. Reevey, 364 F.3d

151, 158 (4th Cir. 2004). “[T]here is a presumption that double

counting is proper where not expressly prohibited by the

guidelines.” United States v. Hampton, 628 F.3d 654, 664 (4th

Cir. 2010).

There is no question that the Guidelines provisions in

question account for similar conduct. Section 2G2.2(b)(5)

provides for a five-level increase above the base offense level

for, inter alia, transportation of child pornography where “the

defendant engaged in a pattern of activity involving the sexual

abuse or exploitation of a minor.” Section 4B1.5(b) states:

In any case in which the defendant’s instant offense
of conviction is a covered sex crime, . . . and the
defendant engaged in a pattern of activity involving
prohibited sexual conduct:
(1) The offense level shall be 5 plus the offense
level determined under Chapters Two and Three.

In United States v. Schellenberger, an unpublished panel

opinion, we held that applying both of these provisions to the

same conduct was permitted because it was not expressly

prohibited by the Guidelines. 246 F. App’x 830, 832 (4th Cir.

2007). Further, we observed that Ҥ 4B1.5(b)(1) states that the

16
five-level enhancement is to be added to the offense levels

determined under Chapters Two and Three. Thus, the guidelines

intend the cumulative application of these enhancements.” Id.

Dowell has cited no case law to the contrary, nor has he

provided any support for his position other than to argue that

both provisions cover the same conduct in this case. But this

is not a sufficient basis to find impermissible double-counting.

See Hampton, 628 F.3d at 664. And in any event, though covering

similar conduct, § 2G2.2(b)(5) and § 4B1.5(b)(1) serve

distinctly different goals. Whereas § 2G2.2(b)(5) provides an

enhancement for offense-specific conduct as it relates to

Dowell’s child pornography offenses, § 4B1.5(b)(1) is located in

Chapter Four of the Guidelines under the provisions covering

“Career Offenders and Criminal Livelihood.” This placement is

explained by the background commentary, which states that

§ 4B1.5(b)(1) “applies to offenders . . . who present a

continuing danger to the public,” and is derived from

congressional directives “to ensure lengthy incarceration for

offenders who engage in a pattern of activity involving the

sexual abuse or exploitation of minors.” § 4B1.5(b)(1) cmt.

background. That is to say, § 4B1.5(b)(1) aims not merely to

punish a defendant for the specific characteristics of the

offenses of conviction, as does § 2G2.2(b)(5), but to allow a

district court to impose an enhanced period of incarceration

17
because the defendant presents a continuing danger to the

public. These distinct aims further support our conclusion that

the application of both Guidelines sections does not constitute

impermissible double counting.

B.

Dowell next contends that the application of a “vulnerable

victim” enhancement under § 3A1.1(b)(1) was improper where the

district court already applied enhancements under

§§ 2G2.1(b)(1)(A) and 2G2.2(b)(2) for victims under the age of

twelve. Whether the vulnerable victim enhancement applies in a

case such as this is a question of first impression in this

circuit.

Section 2G2.1(b)(1) of the Guidelines provides for a four-

level enhancement with respect to, inter alia, the production of

child pornography “[i]f the offense involved a minor who had (A)

not attained the age of twelve years,” and a lesser enhancement

if the victim had “attained the age of twelve years but not

attained the age of sixteen years.” U.S.S.G. § 2G2.1(b)(1).

Section 2G2.2(b)(2) provides for a two-level enhancement with

respect to, inter alia, trafficking in child pornography “[i]f

the material involved a prepubescent minor or a minor who had

not attained the age of 12 years.” U.S.S.G. § 2G2.2(b)(2).

Chapter Three of the Guidelines provides for an additional,

two-level upward adjustment with respect to any conviction, not

18
just those involving child pornography, “[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). The Guidelines

commentary defines a “vulnerable victim” as “a person (A) who is

a victim of the offense of conviction and any conduct for which

the defendant is accountable under §1B1.3 (Relevant Conduct);

and (B) who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly susceptible

to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2.

Importantly, however, the commentary directs:

Do not apply subsection (b) if the factor that makes
the person a vulnerable victim is incorporated in the
offense guideline. For example, if the offense
guideline provides an enhancement for the age of the
victim, this subsection would not be applied unless
the victim was unusually vulnerable for reasons
unrelated to age.

Id.

At sentencing, the district court relied on recent case law

from two of our sister circuits, United States v. Wright, 373

F.3d 935 (9th Cir. 2004), and United States v. Jenkins, 712 F.3d

209 (5th Cir. 2013), and adopted the PSR’s recommendation to

apply the vulnerable victim adjustment to each of counts one

through ten -- relating to the production of child pornography

with respect to Minor A -- and to count thirteen. The court

declined to apply the adjustment to the counts involving Minor

19
B. As we explain, the district court erred in applying the

adjustment.

In Wright, the defendants were convicted of producing child

pornography involving their eleven-month-old son, as well as

other victims. The district court applied the vulnerable victim

adjustment based on “the extremely young age of some of the

children involved, the extremely small physical size, the

extreme vulnerability of these children, and the fact that they

were made available to [another individual] as well.” 373 F.3d

at 942 (internal quotation marks omitted). On appeal, the Ninth

Circuit held that the vulnerable victim adjustment was

appropriate “because the victims’ vulnerability [was] not fully

‘incorporated’ in the victim-under-12 adjustment.” Id. at 943.

Specifically, Wright found that whereas “[m]ost children under

12 are well beyond the infancy and toddler stages of childhood,”

the under-twelve enhancement does not account for

these especially vulnerable stages of
childhood . . . , so there is no double-counting of
age in considering infancy or the toddler stage as an
additional vulnerability. Though the characteristics
of being an infant or toddler tend to correlate with
age, they can exist independently of age, and are not
the same thing as merely not having “attained the age
of twelve years.”

Id. According to the court, “[t]he extreme youth and small

physical size factors . . . account for traits and

characteristics -– such as an inability to communicate, an

20
inability to walk, and . . . increased pain upon sexual

penetration -- that roughly correlate with age, but are not

necessarily related to age,” and “can exist independently of

age.” Id. Thus, the Ninth Circuit approved of the application

of the vulnerable victim enhancement on the basis of the

district court’s factual findings.

Subsequently, the Ninth Circuit extended the reasoning that

applied to infants in Wright to reach toddlers as well, finding

that the notion that it “should distinguish Wright on the ground

that the victim in Wright was an infant, whereas [] a toddler

victim could have walked away, [was] so weak as to be

frivolous,” as a toddler also has a diminished ability to resist

that an older child might possess. United States v. Holt, 510

F.3d 1007, 1011–12 (9th Cir. 2007).

More recently, the Fifth Circuit adopted the holding of

Wright in Jenkins. Jenkins was charged with several counts

arising out of his possession and distribution of child

pornography primarily involving seven- to ten-year-olds but

including a number of “infants/toddlers,” some of whom were

depicted being penetrated, visibly hurt, or bound. Jenkins, 712

F.3d at 211. Jenkins’ pre-sentence report recommended

application of a vulnerable victim adjustment based on the

existence of images “depict[ing] sexual abuse and exploitation

of young and small children who are unable to resist or object

21
to the abuse or exploit [sic], making them susceptible to abuse

and exploitation and thus, vulnerable victims.” Id. (internal

quotation marks omitted). The district court agreed with that

recommendation over Jenkins’s objection and applied the

adjustment.

The Fifth Circuit upheld the vulnerable victim adjustment,

and explained its reasoning as follows:

Consider an enhancement for a victim under the age of
twelve: A person who is unable to walk is no doubt
especially vulnerable to many crimes. Most children
under the age of twelve are able to walk. Some
children under twelve, infants, are unable to walk due
to extreme young age. Other children may be unable to
walk due to paralysis. We see no reason why a
“vulnerable victim” enhancement based on inability to
walk should be applied to paralyzed children but not
to infants. Although an infant’s inability to walk is
“related to age,” it is not accounted for by the
“victim under twelve” enhancement.

Id. at 213–14.

The Fifth Circuit found no “logical reason why a ‘victim

under the age of twelve’ enhancement should bar application of

the ‘vulnerable victim’ enhancement when the victim is

especially vulnerable, even as compared to most children under

twelve.” Id. at 214. Because the extreme youth of the victims

was not fully encompassed in the “under twelve” enhancement, the

Fifth Circuit found that it therefore was not “incorporated in

the offense guideline” as required by U.S.S.G. § 3A1.1

application note 2.

22
 Over the course of the lengthy sentencing hearing, the

district court gave careful consideration to the facts of this

case, and analyzed them thoroughly in light of Jenkins and

Wright. On the applicability of the vulnerable victim

adjustment, the court explained as follows:

Now, in this case I watched the video. And it is
clear to me -- from the video clip that we have seen
in evidence in this case, it is clear to me of how
vulnerable this child is and how -- the [three-year-
old] minor victim A, and how her cognitive abilities
just do not allow her to appreciate what is going on
with her, what is being done to her, and the
progression of this vile abuse that was inflicted on
her.
From my own viewing of the videos and looking at
what happened over the progression, seeing that she
plainly doesn’t understand what is going on here,
focusing on her cognitive development, I believe that
this victim is particularly vulnerable.
First and foremost, the concern of this Court
notes that the psychological effect of this abuse is
clear based on the progression of abuse in this case
due to the vulnerabilities of minor child A. At first
the Court notes that the child is giggling and
laughing and saying, “Stop it,” and attempting to put
her pants back on, her underpants back on, as the
defendant was beginning to groom her and begin his
abuse. And due to her cognitive state, she just
thought he was just playing with her. He was picking
her up, upside down, laughing. She’s laughing
particularly when she’s held upside down while he was
doing other things.
And it is clear from viewing this progression, as
depicted in the evidence, throughout the several
months that this happened, the child went from telling
the defendant “No” to requesting such conduct,
demonstrating the particular vulnerability
psychologically in this child.
In that regard, the Court notes what I pointed
out earlier, the different levels of abuse inflicted
on minor victim A and [five-year-old] minor victim B.
Both these children are under 12 years old. And

23
 2G2.2(b)(2) treats them the same, treats them the
same. And that points up more than anything for me
why 2G2.2(b)(2) doesn’t cover the waterfront here.
There is a stark difference in the abuse
inflicted on minor victim A and minor victim B. And
that points up the very reason why the under-12
enhancement in 2G2.2(b)(2) paints with too broad a
brush. Minor victim A is much less cognitively
capable of understanding her abuse. She’s much more
psychologically susceptible to accepting and welcoming
this conduct than an older child would be. She is, in
fact, a more vulnerable victim. And I believe the
two-point enhancement is not double counting.
The Court is persuaded on the specific facts of
this case that the Jenkins and Wright cases got it
right, and I’m going to apply it.

J.A. 172–73.

There is no question that, read alone, §§ 2G2.1(b)(1) and

2G2.2(b)(2) appear to treat the abuse of a mature and

knowledgeable eleven-year-old the same as that of an infant for

sentencing purposes. For this reason, Jenkins, Wright, and the

ruling below all hold an inherent appeal. However, the Supreme

Court has recognized that “commentary in the Guidelines Manual

that interprets or explains a guideline is authoritative unless

it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

And here, the commentary clearly states that “if the offense

guideline provides an enhancement for the age of the victim,

[the vulnerable victim adjustment] would not be applied unless

the victim was unusually vulnerable for reasons unrelated to

24
age.” U.S.S.G. § 3A1.1 cmt. n.2. Therefore, the question we

must consider is not whether Minor A was particularly vulnerable

for reasons distinct from those that would apply to, for

example, a child of twelve, but whether she was vulnerable for

reasons that do not relate to her age at all.

With this in mind, we find that, although the district

court made detailed and careful factual findings, its ultimate

reasons for applying the vulnerable victim adjustment relied on

age-related factors. Most importantly, the court noted that

Minor A’s “cognitive abilities just do not allow her to

appreciate what is going on with her, what is being done to

her,” J.A. 172, as compared with Minor B, who was better able to

understand the abuse to which she was exposed because she was

two years older. And it specifically found that Minor A was

“much more psychologically susceptible to accepting and

welcoming this conduct than an older child would be.” Id. at

173. This justification unavoidably rests on the extremely

young age of Minor A, because the record is devoid of any facts

that would suggest that Minor A’s cognitive ability and

psychological state was a product of anything other than her

age. These reasons simply are not “unrelated to age,” but focus

closely on the differences between a three-year-old and an older

child under twelve. Accordingly, it was error to apply the

vulnerable victim adjustment on the basis of these findings.

25
 To the extent that Wright and Jenkins can be read to

approve of applying the adjustment for conditions that, like

Minor A’s cognitive development or psychological susceptibility,

necessarily are related to her age, we respectfully disagree

with those cases. Because Minor A’s characteristics were

“related to [her] age,” we find that their consideration is

foreclosed by the application note to § 3A1.1.

This is not to say that conditions that make a three-year-

old more vulnerable than an eleven-year-old cannot support the

application of the vulnerable victim adjustment allowed by

§ 3A1.1(b)(1), provided that they are unrelated to age. See,

e.g., United States v. Grubbs, 585 F.3d 793, 805–06 (4th Cir.

2009) (upholding adjustment based on defendant giving higher

grades, gifts, and promises of a scholarship to certain children

and gaining the trust of another victim’s ill single mother);

see also United States v. Willoughby, 742 F.3d 229, 241 (6th

Cir. 2014) (approving of adjustment for sixteen-year-old based

on her status as “a homeless runaway with a history of abuse and

neglect”); United States v. Irving, 554 F.3d 64, 75 (2d Cir.

2009) (affirming application of adjustment based on the fact

that the child victims were homeless, impoverished, and without

“parental or other appropriate guidance”); United States v.

Gawthrop, 310 F.3d 405, 412 (6th Cir. 2002) (affirming

adjustment with respect to defendant’s three-year-old

26
granddaughter on the basis of familial relationship, not age).

But in this case, where Minor A’s vulnerability was based on her

cognitive and psychological development and intimately was

linked to her age, the adjustment does not apply.

Our view is buttressed further by the fact that, although

the Guidelines provisions relating to production of child

pornography provide offense-specific enhancements for victims

under the age of sixteen, § 2G2.1(b)(1)(B), and Guidelines

provisions relating to various child pornography convictions

provide offense-specific enhancements for victims under the age

of twelve, §§ 2G2.1(b)(1)(A) and 2G2.2(b)(2), the Sentencing

Commission has not defined a younger age bracket (such as

children under the age of four) that would merit an additional

enhancement. Although the Government speculated at argument

that this is because the Guidelines have not yet caught up to

changes in the patterns of abuse that have occurred over the

last decade, the distinction between the inherent vulnerability

of an eleven-year-old child and a toddler is not new. In

placing the relevant line at twelve years of age, the Sentencing

Commission divided the abuse of a prepubescent child from the

abuse of a pubescent or post-pubescent child, and implicitly

precluded courts from drawing additional lines below that point.

We read this not as a statement that three-year-olds and eleven-

year-olds are the same for all purposes, but that, in weighing

27
the proper level of punishment for child pornography offenses,

the considered judgment of the Sentencing Commission is that,

once the offense involves a child under twelve, any additional

considerations based solely on age simply are not appropriate to

the Guidelines calculation. We will not upset the comprehensive

and delicate balancing by the Sentencing Commission in crafting

the Guidelines. 3

Although the vulnerable victim enhancement should not have

been applied, “sentencing error is subject to harmlessness

review. Sentencing ‘error is harmless if the resulting sentence

[is] not longer than that to which [the defendant] would

otherwise be subject.’” United States v. McManus, 734 F.3d 315,

318 (4th Cir. 2013) (quoting United States v. Mehta, 594 F.3d

3
The Fifth Circuit purported to recognize an inherent flaw
in our reading of § 3A1.1(b)(1) that, “[f]or example, the
specific offense guidelines for some crimes provide enhancements
based on the young age of the victim but do not provide
enhancements based on the old age of the victim.” Jenkins, 712
F.3d at 213. According to the Fifth Circuit, a literal reading
of the Guidelines commentary language would “seemingly prohibit
a court from applying the ‘vulnerable victim’ enhancement where
a victim of one of these crimes was especially vulnerable due to
extreme old age.” Id. However, if a Guideline provides an
enhancement for youth but not for old age, we cannot see how the
age of an elderly victim “is incorporated in the offense
guideline,” U.S.S.G. § 3A1.1 cmt. n.2, and so we see no problem
with applying the vulnerable victim adjustment for an elderly
victim pursuant to §3A1.1(b)(1) in such circumstances. In any
event, because the offenses at issue here are child pornography
offenses, the old age of a victim cannot be an aggravating
factor under the relevant Guidelines provisions.

28
277, 283 (4th Cir. 2010) (alterations in original)). A review

of the record shows that the application of the vulnerable

victim adjustment did not affect the ultimate Guidelines range

or Dowell’s sentence.

The district court applied the vulnerable victim

adjustments to counts one through ten and count thirteen,

yielding seven counts with a total offense level of 40 and four

with a total offense level of 42. J.A. 340–48. Without the

vulnerable victim adjustment, each of these offense levels would

be decreased by two, resulting in seven counts with an offense

level of 38 and four with an offense level of 40, to be added to

counts eleven and twelve with a total offense level of 38. 4 This

lowers the highest offense level from 42 to 40, but leaves

unchanged the number of units to be accounted for under U.S.S.G.

§ 3D1.4, yielding the same five-level increase to a combined

offense level of 45. Adding the five-level enhancement under

§ 4B1.5(b)(1) and subtracting three levels for acceptance of

responsibility under § 3E1.1, we arrive at a final offense level

4
The PSR indicated that the images of child pornography on
Dowell’s computer included images of “a prepubescent girl bound
and blindfolded,” J.A. 347, which may have been a reason
unrelated to age sufficient to support a vulnerable victim
adjustment with respect to count thirteen. However, the only
basis for the adjustment articulated by the district court was
the vulnerability of Minor A and therefore we do not apply the
vulnerable victim adjustment to count thirteen in the
harmlessness analysis.

29
of 47, which still is above the maximum Guidelines offense level

of 43. Accordingly, even without the vulnerable victim

enhancement, Dowell’s Guidelines calculation would remain

functionally identical, and the error in applying the vulnerable

victim adjustment was harmless.

C.

Finally, Dowell argues that his sentence is substantively

unreasonable and “failed to comply with the objectives of the

Federal Sentencing Statute,” 18 U.S.C. § 3553(a). Appellant’s

Br. 15. “As we have held repeatedly, a sentence within a

properly calculated advisory Guidelines range is presumptively

reasonable. [A] defendant can only rebut the presumption by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.” United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006). Section 3553(a) requires a

district court to impose a sentence that is “sufficient, but not

greater than necessary, to comply with the purposes” of the

statute, considering, inter alia:

(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and

30
 (D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner; [and]
. . . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have
been found guilty of similar conduct . . . .

“A sentence that does not serve the announced purposes of

§ 3553(a)(2) is unreasonable. . . . Likewise, a sentence that is

greater than necessary to serve those purposes is unreasonable.”

United States v. Shortt, 485 F.3d 243, 248 (4th Cir. 2007).

Dowell primarily argues that a sentence of 960 months

necessarily is unreasonable for a first offense that is not a

homicide. See Appellant’s Br. 15–20. But as a threshold

matter, the 960-month sentence imposed by the district court was

within the Guidelines range of life. J.A. 306. It therefore is

presumptively reasonable on appeal. Rita v. United States, 551

U.S. 338, 347 (2007); Cobler, 748 F.3d at 582.

Further, the record in this case demonstrates that the

district court meticulously considered the § 3553(a) factors in

crafting a sentence that, in the court’s opinion, was sufficient

but not greater than necessary to punish Dowell’s conduct, deter

future crimes, and prevent him from being able to reoffend. See

J.A. 311–15. We found a similar sentence to be reasonable in

Cobler, 748 F.3d at 582, and Dowell has provided no reason to

upset the judgment of the district court here.

31
 Accordingly, we conclude that the district court’s sentence

properly considered the applicable Guidelines range, the nature

and the circumstances of the offenses, and the other necessary

factors under § 3553(a), and that the sentence therefore is

substantively reasonable.

IV.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

32