United States v. Bailey

United States Court of Appeals
For the First Circuit

No. 03-2632

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN BAILEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

Evan Slavitt, with whom Richard P. O'Neil and Bodoff & Slavitt
LLP were on brief, for appellant.
Wan J. Kim, Deputy Assistant Attorney General, with whom R.
Alexander Acosta, Assistant Attorney General, Michael J. Sullivan,
United States Attorney, S. Theodore Merritt, Assistant United
States Attorney, Jessica Dunsay Silver and Gregory B. Friel,
Attorneys, Department of Justice, Civil Rights Division, were on
brief, for appellee.

May 3, 2005
 HOWARD, Circuit Judge. Brian Bailey was one of seven

jailers charged with federal offenses arising from five incidents

at the Nashua Street Jail in Boston, Massachusetts, where guards

employed excessive force against pretrial detainees and then acted

to conceal their misconduct. The grand jury's superseding

indictment charged all seven defendants with conspiracy to deprive

pretrial detainees of their civil rights in violation of 18 U.S.C.

§ 241 (the “global conspiracy” charge). Bailey was also charged

with assaulting and aiding and abetting the assault of a pretrial

detainee, see 18 U.S.C. § 242; conspiring to obstruct and

obstructing a federal criminal investigation, see 18 U.S.C. §

1512(b)(3) (the witness tampering statute); and perjury (for lying

to a federal grand jury), see 18 U.S.C. § 1623.

Three of the defendants pleaded guilty to the global

conspiracy charge and to their individual substantive charges, and

the trial of the fourth defendant was severed. Bailey and the

other two remaining defendants were tried together. Bailey's two

co-defendants were acquitted on all counts. Bailey was acquitted

of the global conspiracy charge, but was convicted of the other

charges and sentenced to 41 months in prison. He now appeals his

convictions and sentence.

I.

The following facts are either uncontested, or, if

contested, are presented in the light most favorable to the

-2-
verdicts. See United States v. McCann, 366 F.3d 46, 48 (1st Cir.

2004).

Boston's Nashua Street Jail, operated by the Suffolk

County Sheriff's Department, houses pretrial detainees. On

September 24, 1999, Officer Bailey and Officer Michael Ross were

assigned to work in the jail's psychiatric unit. On that day, the

psychiatric unit housed a pretrial detainee who was on suicide

watch. In accordance with jail policy, the detainee was stripped

of his clothes and denied sheets and blankets to prevent their use

in a suicide attempt. His only covering was a paper “johnny.”

During the course of the afternoon, the detainee

complained repeatedly that his cell was cold and that he needed a

blanket. When Ross denied his request, the detainee began

screaming, swearing, and punching and kicking his cell door. He

persisted in this behavior for approximately three hours. At about

4 p.m., Bailey told Ross that “he had [had] enough” of the detainee

and that he was going to “bang him out.” Ross replied that they

should wait until later that evening.

Bailey left the unit for dinner at about 5:30 p.m. While

at dinner, he saw Officer Paul Davis, a member of the Sheriff's

Emergency Response Team. The Team is summoned to jail emergencies

by way of an electronic alarm that all officers carry. Bailey

informed Davis that he was having a problem with an inmate and that

Davis might hear his alarm go off later that night.

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 When Bailey returned from dinner, he and Ross discussed

entering the detainee's cell to “slap him around.” Since Ross and

Bailey were not ordinarily authorized to enter a detainee's cell

without permission from a superior, they fabricated a story to

justify their actions. They initially agreed to report that the

detainee had made a mess in his cell, that they had entered the

cell to clean it, and that they were attacked upon entry.

At 6:30 p.m., Officer Brian Murphy arrived at the

psychiatric unit to relieve Ross so that the latter could go to

dinner. Ross notified Murphy of the plan to enter the detainee's

cell. Murphy replied that he wanted no part of it and that they

had “better write a good report.” Undeterred, Ross and Bailey put

on gloves and entered the detainee's cell. Ross approached the

detainee and yelled at him to be quiet. When the detainee refused,

Ross slapped his face several times and then delivered multiple

“knee strikes,” driving his knee into the victim's thigh. Bailey

joined the attack by punching the detainee several times in the

ribs and shoulder. As he was being struck, the detainee cried and

complained of back pain. The detainee was then pushed down onto

his bed, and Bailey and Ross attempted to handcuff him. At no

point during the altercation did the detainee assault the officers

or make any threatening gestures. He did not fight back other than

to resist the handcuffing.

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 Bailey's alarm was activated at some point during the

melee. The Emergency Response Team, including Davis and Deputy

Anthony Nuzzo, arrived shortly thereafter. They placed handcuffs

on the detainee and strapped him in a restraint chair. While

secured in the chair, the detainee cried and complained of back

pain. Bailey informed Ross later that night that he had slapped

the detainee while he was restrained in the chair. Bailey also

bragged to Davis that he and Ross had “beat the fuck out of” the

detainee.

Shortly after the incident, Bailey consulted with Nuzzo,

who told him that the story about entering the detainee's cell to

clean up a mess was not adequate cover for the beating. Nuzzo

advised Bailey to report that he and Ross had entered the

detainee's cell because of an apparent medical emergency, only to

be attacked upon their entrance. After further discussion, Bailey

and Ross decided to go with this revised “medical emergency”

fabrication in their incident reports. They stood by this story

when subsequently questioned by Sheriff's Department investigators

who were conducting an internal inquiry. Relying in part on what

they were told by Bailey and Ross, the investigators filed a report

concluding that the officers had acted appropriately. This report,

containing the false statements, was subsequently obtained by the

FBI in connection with an investigation of a separate incident of

excessive force at the Nashua Street Jail.

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 In October 2000, Bailey was summoned to testify before a

federal grand jury about the September 24, 1999 incident. He

testified that he had entered the detainee's cell because he

thought the detainee was having a seizure, that the detainee jumped

up and attacked him, and that no one struck the detainee during the

incident. At trial, however, Bailey admitted that he had

intentionally lied to the grand jury in an effort to protect

himself and Ross.

II.

A. Obstruction of Justice

As set forth above, Bailey was convicted of violating and

conspiring to violate the federal witness tampering statute by

knowingly engaging in misleading conduct with the intent to prevent

the communication of information concerning the commission of a

federal crime to a federal law enforcement officer. See 18 U.S.C.

§ 1512(b)(3). Bailey argues that the prosecution failed to prove

the intent element of this crime, and that the jury was improperly

instructed on this point. Underlying Bailey's argument is the

premise, rejected by the district court, that the intent required

by the statute cannot be found when there was no federal

investigation extant or imminent at the time of the alleged

misleading conduct.1

1
In making this argument, Bailey also suggests that his
conduct did not fall within the statute's sweep because his
misstatements were made to Sheriff's Department investigators who,

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 Bailey's interpretation of § 1512(b)(3) is not consistent

with its plain language, which reads:

Whoever knowingly uses intimidation,
threatens, or corruptly persuades another
person, or attempts to do so, or engages in
misleading conduct toward another person, with
intent to . . . hinder, delay, or prevent the
communication to a law enforcement officer or
judge of the United States of information
relating to the commission or possible
commission of a Federal offense . . . shall be
fined under this title or imprisoned not more
than ten years, or both.

18 U.S.C. § 1512(b)(3). Nothing in this provision implies that a

federal investigation must be imminent or underway at the time of

the actus reus. To the contrary, and as several circuits have

recognized, the statutory language suggests that Congress intended

§ 1512(b)(3) not merely to safeguard the integrity of ongoing or

imminent federal investigations, but more broadly to facilitate

federal law enforcement's ability to gather information about

he argues, were not federal “law enforcement officer[s]” for the
purposes of the statute. This argument misunderstands the
government's case theory. The government did not allege that the
Sheriff's Department investigators were the federal "law
enforcement officers” to whom the statute refers; the government
alleged that the investigators were the witnesses who ultimately
relayed Bailey's misinformation to federal law enforcement
officers. See United States v. Baldyga, 233 F.3d 674, 680 (1st
Cir. 2000) (holding that the requirements of the statute are
satisfied so long as the possibility exists that the defendant's
misinformation will eventually be communicated to federal
officials). That these witnesses were themselves county law
enforcement personnel does not change the analysis. See United
States v. Veal, 153 F.3d 1233, 1245 (11th Cir. 1998) (holding that
state police investigators “become witnesses as a matter of course
in each investigation in which they are involved”).

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possible federal crimes -- including federal crimes that are not

yet under investigation at the time of the offense. See, e.g.,

United States v. Guadalupe, 402 F.3d 409, 411 (3d Cir. 2005)

(“[P]roving a violation of 18 U.S.C. § 1512(b)(3) does not depend

on the existence or imminency of a federal investigation but rather

on the possible existence of a federal crime and a defendant's

intention to thwart an inquiry into that crime by officials who

happen to be federal.”); United States v. Perry, 335 F.3d 316, 321

(4th Cir. 2003) (finding a violation of § 1512(b)(3) where the

defendant provided false information to local police intending to

prevent the initiation of a federal investigation into his status

as a felon in possession of a firearm), cert. denied, 124 S. Ct.

1408 (2004); United States v. Veal, 153 F.3d 1233, 1250 (11th Cir.

1998) (“By its wording, § 1512(b)(3) does not depend on the

existence or imminency of a federal case or investigation but

rather on the possible existence of a federal crime and a

defendant's intention to thwart an inquiry into that crime.”).2

2
Bailey argues that three extra-circuit cases interpreting §
1512(a)(1)(C) -- United States v. Emery, 186 F.3d 921 (8th Cir.
1999); United States v. Causey, 185 F.3d 407 (5th Cir. 1999); and
United States v. Bell, 113 F.3d 1345 (3d Cir. 1997) -- have
implicitly recognized that a federal investigation must be at least
imminent, if not underway, to support a conviction under the
witness tampering statute. But none of these cases implies such a
rule. They merely require the government to prove that the
defendant was at least partially motivated by a desire to prevent
communication between a witness and a law enforcement officer
concerning the commission or possible commission of a federal
offense, and that the officer was in fact a federal officer. See
Emery, 186 F.3d at 925; Causey, 185 F.3d at 421-23; Bell, 113 F.3d

-8-
Accordingly, we reject Bailey's argument that § 1512(b)(3) requires

an existing or imminent federal investigation at the time of the

defendant's misleading conduct.

In reaching this conclusion, we acknowledge Bailey's

argument that 18 U.S.C. § 1512(f)(1) supports reading a pending-or-

imminent-federal-investigation requirement into § 1512(b)(3).

Section 1512(f)(1) provides that, for purposes of certain

provisions of the obstruction of justice statute, “an official

proceeding need not be pending or about to be instituted at the

time of the offense.” Bailey would have us draw a negative

inference from Congress's explicit statement that an "official

proceeding” need not be underway or imminent -- i.e., that Congress

contemplated that a federal investigation, contrary to an official

proceeding, must be pending or about to be instituted at the time

of the offense.

Such a negative inference is not warranted. For one

thing, § 1512(f)(1) does not apply to § 1512(b)(3) because §

1512(b)(3) does not require that the proscribed conduct occur in

the context of an "official proceeding.” See Veal, 153 F.3d at

1250. And even if § 1512(f)(1) did apply, its application would

at 1348-49; see also United States v. Stansfield, 171 F.3d 806,
816-18 (3d Cir. 1999). Nothing logically precludes these statutory
elements from being satisfied where, as here, the misleading
conduct reasonably could be found to have been intended to prevent
the commencement of what would prove to be a federal investigation
into a federal offense.

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support our ruling because the federal grand jury investigation to

which Bailey's misstatements eventually led (which, per §

1512(f)(1), need not have been underway or imminent at the time of

the offense) constitutes an “official proceeding” within the

meaning of § 1512(f)(1). See 18 U.S.C. § 1515(a)(1)(A) (defining

an official proceeding for purposes of § 1512(f)(1) as, among other

things, a proceeding before a federal grand jury); United States v.

Frankhauser, 80 F.3d 641, 651 (1st Cir. 1996) (“Both a federal

trial and a federal grand jury investigation are 'official

proceedings' within the meaning of the statute.”).

Before concluding, we also acknowledge Bailey's argument

that a failure to read a pending-or-imminent-federal-investigation

requirement into § 1512(b)(3) raises due process and ex post facto

concerns because it leaves open the possibility of a prosecution

for conduct that no defendant could have understood to constitute

a federal offense at the time of its commission. We do not see how

this is so. Section 1512(b)(3) requires that the misleading

conduct affect the communication of information "relating to the

commission or possible commission of a federal offense.”

Therefore, the statute applies only to obstructive behavior that

the defendant knows could impede an investigation into conduct that

could constitute a federal crime at the time of its commission.3

3
Of course the statute does not require that the defendant
specifically know that the underlying conduct could constitute a
federal offense. See Baldyga, 233 F.3d at 681.

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Here there can be no claim that it would be unconstitutional to

apply the statute to Bailey, whom the jury reasonably found was

aware of the conduct giving rise to the eventual federal civil

rights charges at the time he misled the Sheriff's Department

investigators.

B. Aiding and Abetting

The prosecution presented two theories for conviction on

the substantive civil rights charge: that Bailey was a principal,

or, alternatively, that he aided and abetted Ross in the assault.

Bailey argues that the jury instruction on aiding and abetting was

erroneous. Because the verdict form does not specify the theory

under which the jury found Bailey guilty, and because Bailey's

claim is one of legal error rather than sufficiency of the

evidence, the availability of an alternate theory of conviction

would not save the jury's verdict. See Griffin v. United States,

502 U.S. 46, 59 (1991) (“Jurors are not generally equipped to

determine whether a particular theory of conviction submitted to

them is contrary to law.”); United States v. Boots, 80 F.3d 580,

589 (1st Cir. 1996) (general verdict that may have been grounded on

legally erroneous theory requires setting aside verdict on all

grounds). We thus assume arguendo that the guilty verdict was

grounded on the challenged aiding-and-abetting theory.

Bailey raises two issues regarding the aiding-and-

abetting instructions. Primarily, he contends that the jury was

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wrongly instructed to find him guilty if it found that he failed to

act when he had a legal obligation to do so, because, he says, an

affirmative act must be proved. Alternatively, he argues that it

was not appropriate to give a failure-to-act instruction in this

case because the prosecution presented no evidence or argument that

Bailey had a legal obligation to act. Because Bailey failed to

object to the instructions with the requisite specificity, see Fed.

R. Crim. P. 30(d), our review is only for plain error, see Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-36

(1993). A defendant alleging plain error must show that an error

occurred which was clear or obvious and which not only affected the

defendant's substantial rights, but also seriously impacted the

fairness, integrity, or public reputation of judicial proceedings.

Olano, 507 U.S. at 732-36.

Bailey has fallen well short of meeting the demanding

plain-error test. The district court provided the jury with a

seven-paragraph aiding-and-abetting instruction. Within this

comprehensive instruction, the court stated:

In order to aid and abet another to commit a
crime, a defendant must willfully and
knowingly have associated himself in some way
with the crime, and willfully and knowingly
have sought by some act to help make the crime
succeed. Participation in a crime is willful
if action is taken voluntarily and
intentionally, or, in the case of a failure to
act, with the specific intent to fail to do
something the law requires to be done.

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(emphasis added). Bailey argues that the instruction misstates the

law to the extent that it countenances criminal liability for a

failure to act. He cites a number of cases for the proposition

that an aider and abettor must have “affirmatively participated” in

the crime. See, e.g., United States v. Martin, 228 F.3d 1, 18 (1st

Cir. 2000); United States v. Indelicato, 611 F.2d 376, 385 (1st

Cir. 1979).

But the government did not allege that Bailey merely

stood by while his partner attacked the detainee. Rather, the

government's theory, elucidated in closing argument, was that

Bailey struck the detainee himself, or, at a minimum, that he

actively participated in his partner's assault by “[g]oing into a

locked cell for no legitimate reason, knowing that force was going

to be used and then assisting [Ross], whether [by] holding [the

detainee] down or really just emboldening [Ross] by preventing the

inmate from defending himself.”

Because the government did not proceed on a failure-to-

act theory, the court's instruction on that point was extraneous.

But it is highly unlikely that this extraneous reference, when read

in the context of an otherwise correct seven-paragraph instruction,

misled the jury to believe that it could convict Bailey simply for

failing to intervene in the attack. See Jones v. United States,

527 U.S. 373, 391 (1999) (“[Jury] instructions must be evaluated

not in isolation but in the context of the entire charge.”). This

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is especially so given the clarifying instruction that immediately

followed the passage to which Bailey objects:

The mere presence of a defendant where a crime
is being committed, even coupled with
knowledge by the defendant that a crime is
being committed, or the mere acquiescence by a
defendant in the criminal conduct of others,
is not sufficient to establish aiding and
abetting. An aider and abettor must have some
interest in the criminal venture.

This instruction properly safeguarded against any misapplication of

the failure-to-act instruction. See id. (holding that

instructions that may appear problematic when read in isolation

“can be cured when read in conjunction with other instructions”).4

C. Bodily Injury

Bailey next contends that the prosecution failed to

introduce evidence sufficient to permit a rational jury finding of

bodily injury for the purposes of his felony conviction under 18

U.S.C. § 242. In determining the evidentiary sufficiency of a

guilty verdict, we review the totality of the evidence in the light

4
We note, too, that the extraneous instruction was not
substantively wrong. Indeed, the language to which Bailey objects
is a standard definition of willfulness that federal courts
regularly employ in aiding-and-abetting instructions. See, e.g.,
United States v. Gordon, 290 F.3d 539, 543 (3d Cir.), cert. denied,
537 U.S. 1063 (2002); United States v. Brown, 151 F.3d 476, 486
(6th Cir. 1998); United States v. Monteiro, 871 F.2d 204, 208 (1st
Cir. 1989). It is a hornbook definition. See, e.g., 1 L. Sand, et
al., Modern Federal Jury Instructions, Instr. 11-2 (2004)
(“Participation in a crime is willful if done voluntarily and
intentionally, and with the specific intent to do something which
the law forbids or with the specific intent to fail to do something
the law requires to be done; that is to say, with a bad purpose
either to disobey or to disregard the law.”) (emphasis added).

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most favorable to the government, and then ask whether “any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Henderson,

320 F.3d 92, 102 (1st Cir. 2003) (quoting United States v.

Woodward, 149 F.3d 46, 56 (1st Cir. 1998)).

A felony conviction under 18 U.S.C. § 242 requires proof

that the defendant “willfully subject[ed] [a] person . . . to the

deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States, . . .

if bodily injury results [from such deprivation].” Although the

statute does not define “bodily injury,” the term is defined

identically in four other provisions of Title 18. See 18 U.S.C. §§

831(f)(5); 1365(h)(4); 1515(a)(5); 1864(d)(2) (all defining “bodily

injury” as “(A) a cut, abrasion, bruise, burn, or disfigurement;

(B) physical pain; (C) illness; (D) impairment of [a/the] function

of a bodily member, organ, or mental faculty; or (E) any other

injury to the body, no matter how temporary”). The Eleventh

Circuit has applied this definition in § 242 cases. See United

States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992) (noting that

“[w]hen Congress uses, but does not define a particular word, it is

presumed to have adopted that word's established meaning”) (citing

Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 813 (1989)). We

follow suit and adopt the established definition of “bodily injury”

for the purposes of § 242. The district court's jury instruction

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regarding bodily injury, although not identical, was consistent

with this definition.5

Bailey argues that the only proof of bodily injury was

the evidence that the detainee cried after the assault. He argues

that people cry for a variety of reasons, and, therefore, crying

alone could not establish physical pain. But the record reflects

that the evidence of physical pain goes beyond the detainee's post-

attack crying. The prosecution elicited testimony that the

detainee suffered multiple blows to the head, shoulder, ribs, and

thighs, and that he cried both during and after the attack.

Moreover, Ross testified that the detainee specifically complained

of back pain during and after the incident. Bailey himself stated

after the incident that he and Ross had “beat the fuck out of [the

detainee].” Taken together, the evidence above provides a

sufficient basis for a rational trier of fact to find bodily injury

for the purposes of a § 242 felony conviction.

D. Prejudicial Spillover

Bailey asserts that the majority of his trial was

centered on the government's theory that there was a global

conspiracy among the guards at the Nashua Street Jail that involved

beating detainees and then covering up their crimes by filing false

5
With no objection from Bailey, the district court instructed
the jury that a bodily injury could include “any injury to the
body, no matter how minor, slight or temporary, and includes burns,
cuts, abrasions, bruises or physical pain.”

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reports and lying to investigators. According to Bailey, when the

jury acquitted all three defendants of this global conspiracy, the

district court should have “taken a step back” to reassess the

prejudicial impact of the conspiracy evidence on the separate

substantive charges. In essence, he argues that the conspiracy

evidence tainted the jury's consideration of the substantive

charges and therefore entitles him to a new trial on those charges.

Bailey's argument is specious. As an initial matter,

Bailey had ample opportunity to seek severance prior to trial

pursuant to Fed. R. Crim. P. 14. To the extent that the prejudice

Bailey alleges could not be detected prior to trial, he could also

have moved for a mistrial, though “mistrials grounded on spillover

prejudice are rare.” United States v. Houlihan, 92 F.3d 1271, 1284

(1st Cir. 1996). Bailey raised his claim of spillover prejudice

for the first time in his motion for a new trial, and even then, in

the vaguest of terms. In this case, the record demonstrates that

the district court took appropriate measures to safeguard against

potential spillover prejudice by instructing the jury to consider

the evidence separately as to each count. Cf. United States v.

Houle, 237 F.3d 71, 76 (1st Cir. 2001) (instructions to the jury to

consider the evidence separately as to each defendant were an

adequate safeguard against the possibility of prejudicial

spillover). We presume that jurors follow such instructions. See

United States v. Freeman, 208 F.3d 332, 345 (1st Cir. 2000). And,

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indeed, the verdict in this case suggests that the jury was able to

“distinguish among the various counts.” Id. Bailey's two co-

defendants at trial, who were also charged with the global

conspiracy, were acquitted on all counts. Such a discriminating

verdict is strong evidence that the jury successfully

compartmentalized the evidence and applied the appropriate evidence

to the appropriate counts and defendants. Houle, 237 F.3d at 76;

Freeman, 208 F.3d at 345-46.

E. Sentencing

At Bailey's sentencing, the district court, applying the

then mandatory United States Sentencing Guidelines, raised the

basic offense level of twelve by six because Bailey had acted under

color of law, see U.S.S.G. § 2H1.1(b)(1), by two because Bailey had

obstructed justice, see id. § 3C1.1, and by two because the court

found by a preponderance of the evidence that the victim was

vulnerable, see id. § 3A1.1(b)(1). Bailey's enhanced offense level

of 22 yielded a sentencing range of 41 to 51 months. The court

sentenced Bailey to 41 months in prison, followed by two years of

supervised release.

In Bailey's opening appellate brief, he asserts that the

district court's vulnerable-victim finding was erroneous because

the court failed to make a particularized inquiry into the victim's

situation, instead focusing solely on the victim's generic status

as a prisoner in the psychiatric unit. In subsequent briefs,

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Bailey argues that a remand is necessary in light of the Supreme

Court's recent decisions in Blakely v. Washington, 542 U.S. ___,

124 S. Ct. 2531 (2004) (calling into question the constitutionality

of the Guidelines), and United States v. Booker, 543 U.S. ___, 125

S. Ct. 738 (2005) (severing the provisions making the Guidelines

mandatory in order to preserve the Guidelines as an advisory

system). We consider these arguments in turn.

1. Vulnerable-Victim Finding

Under U.S.S.G. § 3A1.1(b)(1), the base offense level

should be raised two levels if “the defendant knew or should have

known that a victim of the offense was a vulnerable victim.” The

Guidelines define a “vulnerable victim” as “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.”

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 the harm suffered by the

victim.'” United States v. Donnelly, 370 F.3d 87, 92 (1st Cir.

2004) (quoting United States v. Fosher, 124 F.3d 52, 55-56 (1st

Cir. 1997)).

A sentencing judge must make two separate determinations

before imposing a § 3A1.1(b)(1) enhancement: First, the judge must

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conclude “that the victim of the crime was vulnerable, that is,

that the victim had an 'impaired capacity . . . to detect or

prevent the crime.'” Donnelly, 370 F.3d at 92 (quoting Fosher, 124

F.3d at 55-56). Second, the judge must find “that the defendant

knew or should have known of the victim's unusual vulnerability.”

Id. We review the district court's “interpretation and

application” of the Guidelines de novo and its factual findings for

clear error. United States v. Savarese, 385 F.3d 15, 18 (1st Cir.

2004).

Bailey's argument is concerned solely with the first

prong of the test -- whether the victim was vulnerable. There is

overwhelming evidence in the record supporting the district court's

conclusion that he was. As the court explicitly found, the victim

was on suicide watch, was deemed a threat to himself or others, was

stripped of his clothes, was cold, and was not allowed out of his

cell even to get food. In light of these findings, we are at a

loss to comprehend Bailey's suggestion that the court failed to

make a sufficiently particularized inquiry into the victim's

situation.

2. Blakely/Booker Challenge

Bailey next contends that the vulnerable-victim finding

violated his Sixth Amendment right to have a jury find all the

facts impacting upon his sentence beyond a reasonable doubt.

Bailey did not object on these grounds below or so argue in his

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opening brief, but raised the argument for the first time in his

reply brief (which was filed after the Supreme Court's Blakely

decision). While this appeal was under advisement, the Supreme

Court issued its decision in Booker. Thereafter, Bailey and the

government filed supplemental briefs addressing whether, in light

of Booker and our subsequent circuit precedent, Bailey's case

should be remanded to the district court to determine whether re-

sentencing is necessary.

Because Bailey made no arguments in the district court

concerning the constitutionality of the Guidelines or the

application of the Guidelines to his sentence under Blakely or

Apprendi v. New Jersey, 530 U.S. 466 (2000), we review only for

plain error. See United States v. Antonakopoulos, 399 F.3d 68, 76

(1st Cir. 2005).6

Under the four-part plain error test outlined in Olano,

we grant relief only if we find (1) an error, (2) that is plain,

and that not only (3) affected the defendant's substantial rights,

but also (4) “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” Id. at 77 (quoting

6
In so framing the issue, we reject Bailey's suggestion that
his initial challenge to the vulnerable-victim enhancement was
sufficient to preserve his Booker argument for plenary review.
Although we treat “almost any colorable claim” as preserving Booker
error, see United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005), here it is clear that Bailey's objection was directed solely
to the sufficiency of the evidence supporting the district court's
finding.

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Olano, 507 U.S. at 736). The defendant bears the burden of

persuasion with respect to all four elements of the test. See

United States v. González-Mercado, 402 F.3d 294, 302 (1st Cir.

2005) (citing Antonakopoulos, 399 F.3d at 77).

The first two prongs are satisfied where, as here, the

district court treated the Guidelines as mandatory at sentencing.

See Antonakopoulos, 399 F.3d at 77. To meet the third prong of the

test Bailey must show a “reasonable probability” that the district

court would impose a more favorable sentence to Bailey under the

now “advisory” Guidelines. Id. at 75. “[W]e are inclined not to

be overly demanding as to proof of probability where, either in the

existing record or by plausible proffer, there is reasonable

indication that the district judge might well have reached a

different result under advisory guidelines.” United States v.

Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).

Bailey has failed to present us with any argument

regarding the probability of a sentence reduction in his case.

Rather, he invites us to disregard Antonakopoulos and hold instead

that the burden should rest with the government to defend the pre-

Booker sentence, at least where “there was no [guilty] plea and a

variety of sentencing issues were considered by the district

court.” Under such circumstances, Bailey argues, we should presume

that the district court would have analyzed the case differently

were it not for the mandatory nature of the Guidelines.

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 We decline Bailey's invitation to ignore Antonakopoulos.

Absent unusual circumstances not present here, panels of this court

are bound by prior circuit decisions. See United States v.

Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002).7 Because Bailey

has entirely failed to “advance any viable theory as to how the

Booker error” prejudiced his substantial rights, and because we

find nothing in the record to “suggest a basis for such an

inference,” we deny Bailey's request to remand for re-sentencing.

González-Mercado, 402 F.3d at 303.8

III.

For the reasons set forth herein, we affirm Bailey's

convictions and sentence.

7
To the extent Bailey seeks to distinguish his case from
Antonakopoulos, his effort is unpersuasive. In Antonakopoulos, as
here, the district court imposed a sentence following a jury trial
and conviction; there was no guilty plea. See 399 F.3d at 71; see
also United States v. Carpenter, ___ F.3d ___, 2005 WL 708335 at *1
(1st Cir. Mar. 29, 2005). Moreover, the district court in
Antonakopoulos arguably faced a more complex set of sentencing
issues than were presented here. See Antonakopoulos, 399 F.3d at
82 (noting that the district court had made no less than three
factual findings resulting in sentence enhancements beyond that
authorized by the jury verdict and also denied a request for a
downward departure).
8
For the same reasons we reject Bailey's request for re-
argument concerning his Booker claim.

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