UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4567

PETER DUDLEY ALBERTSEN, II,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-97-9-WMN)

Submitted: July 14, 1998

Decided: August 20, 1998

Before WILLIAMS and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Beth M. Farber, Chief
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Andrew C. White,
Assistant United States Attorney, Christine Manuelian, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Peter Dudley Albertsen, II, appeals his sentence following his
guilty plea to charges of knowingly mailing a videotape that con-
tained child pornography. See 18 U.S.C.§ 2252(a)(1) (1994).
Albertsen seeks vacatur of his sentence on four grounds. First, he
argues that his due process rights were violated because his sentence
exceeded constitutional limits. Second, Albertsen contends that the
district court applied the amended commentary to U.S. Sentencing
Guidelines Manual (USSG) § 2G2.2 (1995), in an inconsistent and
prejudicial manner. See USSG App. C, amend. 537 (effective Novem-
ber 1, 1996). Third, Albertsen asserts that the district court errone-
ously applied an upward adjustment under USSG § 3A1.1, and an
upward departure under USSG 5K2.3, because the district court mis-
understood the term "victim" as it is used in these Guideline sections.
Fourth, Albertsen claims that the district court committed clear error
when it found that he did not accept responsibility for his actions
under USSG § 3E1.1. For the reasons that follow, we affirm.

I.

In 1985, while working as a camp counselor, Albertsen met camp-
ers Justin and Matthew Wilke. Albertsen befriended the two campers
and continued this friendship after camp ended. Albertsen then
became a close friend of the Wilke family. On several occasions
Albertsen would stay overnight at the Wilkes' home or Justin and
Matthew would stay overnight or for the weekend at Albertsen's
home.

In 1986, during a stay at Albertsen's home, Albertsen began to
abuse eleven year old Matthew Wilke. This abuse continued for
nearly one year and consisted of approximately twelve instances of
physical molestation. Albertsen's abuse of Matthew stopped, when at

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thirteen, Matthew wrote Albertsen telling him that he did not want to
go to his home anymore.

During one of the boys' visits, Albertsen also began to abuse Mat-
thew's younger brother Justin. Justin, who was eleven years old, was
asked to undress upon Albertsen's command in front of his video
camera. At the same time Albertsen took still photographs of Justin
undressing. Thereafter, Albertsen sexually molested Justin. This
abuse continued until 1990 when Matthew advised his father that
Albertsen may be molesting Justin.

Albertsen was subsequently charged with eight counts of child
abuse and sodomy. Albertsen pled guilty to third degree sexual
assault involving Justin Wilke. Albertsen received a three year sus-
pended sentence and five years' probation on the condition that he
undergo therapy and have no contact with the Wilke boys or minor
children.

Despite this condition, Albertsen continued to contact and harass
Justin for essentially four years. In May 1995, Albertsen mailed Justin
a videotape cassette which contained depictions of minor boys
engaged in sexually explicit and masochistic conduct. Along with the
videotape, Albertsen sent letters which recounted previous instances
of sexual abuse, told Justin that he loved him, and sought to have Jus-
tin return to him as a lover.

On November 30, 1995, Justin discovered his father's body in the
family car after he had taken his life by means of carbon monoxide
poisoning. The record suggests that the boys' father was very dis-
turbed by what happened to his sons and felt guilty for not discover-
ing the abuse sooner. On February 1996, Justin was found dead, after
he too committed suicide by means of carbon monoxide poisoning.
Next to Justin's body, the police found a note which said in part, "I
hate you, Pete!" Finally, on August 15, 1996, Matthew was found
dead in a car, also the victim of self-inflicted carbon monoxide poi-
soning. In December 1996, Albertsen was arrested and subsequently
pled guilty to charges of knowingly mailing a videotape that con-
tained child pornography. See 18 U.S.C.§ 2252 (1994).

At sentencing the parties stipulated that the 1995 version of USSG
§ 2G2.2 was the controlling section of the Guidelines and Albertsen

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was assigned a base offense level of 15. The parties agreed under
USSG § 2G2.2(b)(3) to increase his offense level by four points
because the videotape contained portrayals of sadistic and masochistic
conduct. The district court then added a five-level enhancement under
USSG § 2G2.2(b)(4) because "the defendant engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor." The
district court also added a two-level enhancement pursuant to
§ 3A1.1(b) because Justin was "unusually vulnerable" to Albertsen's
actions. Finding that he lacked true remorse for his crime, the district
court denied Albertsen any credit for acceptance of responsibility.

After determining that an upward departure may be appropriate
pursuant to Application Note 5 of USSG § 2G2.2, the district court
concluded that USSG § 2A3.1(b)(2) would be most commensurate
with Albertsen's conduct because it ties into the sexual abuse of chil-
dren who were under the age of twelve at the time of the abuse.
Albertsen's base level was then reduced by five points to eliminate
any double counting by virtue of the USSG § 2G2.2(b)(4) enhance-
ment. See USSG § 2G2.2, comment. (n.5) (1995). The district court
then increased Albertsen's criminal history category because of the
likelihood of recidivism under USSG § 4A1.3. Finally, the district
court departed upward by five levels pursuant to USSG § 5K2.3
because of the extreme psychological injury suffered by Justin as a
direct result of the mailing of the videotape. Thereafter, the district
court eliminated the two-point "vulnerable victim" enhancement
under USSG § 3A1.1 because that enhancement constituted double
counting with the upward departure under USSG § 5K2.3.

Although the Guidelines range was 135-168 months' imprison-
ment, the district court sentenced Albertsen to the statutory maximum
of 120 months' imprisonment pursuant to USSG 5G1.1(a). See 18
U.S.C. § 2252 (1994). Albertsen noted a timely appeal of his sen-
tence.

II.

Albertsen contends that his due process rights were violated
because his sentence, which was predominantly based on conduct that
occurred prior to the offense in this case, knowingly mailing a porno-
graphic videotape, exceeded constitutional limits. Specifically,

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Albertsen asserts that the district court erred when it increased his
sentence from approximately three years imprisonment to the statu-
tory maximum of ten years based on a sexual abuse of minors convic-
tion which occurred six years prior to the offense of conviction. We
begin by noting that factual findings made by the district court in con-
nection with the application of an enhancement under the sentencing
guidelines are reviewed for clear error, while issues of law are subject
to de novo review. See United States v. Blake , 81 F.3d 498, 503 (4th
Cir. 1996).

Because the sentencing enhancement Albertsen received was
within the statutory plan, Albertsen's claim is without merit. See
McMillan v. Pennsylvania, 477 U.S. 79, 84-88 (1986) (noting that the
defendant's due process rights were not violated because the court's
sentence was within the range available to it for the offense of convic-
tion); United States v. Galloway, 976 F.2d 414, 424-26 (8th Cir.
1992) (pointing out that a due process violation does not occur when
a defendant receives a three-fold increase in sentence based on prior
conduct). Cf. United States v. Lombard, 72 F.3d 170, 182 & n.16 (1st
Cir. 1995) (distinguishing Lombard's situation from cases where the
defendant's sentence was within the same statutory maximum, and
thereby, holding that Lombard's due process were violated because
the court went beyond the statutory scheme). In Albertsen's case the
statutory maximum for a defendant convicted of trafficking in mate-
rial involving the sexual exploitation of a minor in violation of
§ 2252(a)(1) was ten years. Accordingly, the district court properly
adjusted Albertsen's sentence within the range available to it for the
offense of conviction and was punished for the fact that the present
offense was carried out in a manner that warrants increased punish-
ment, not for a different offense. See Witte v. United States, 515 U.S.
389, 403 (1995); McMillan, 477 U.S. at 88.

III.

Next, Albertsen claims that the district court applied the 1996 clari-
fying amendment to USSG 2G2.2(b)(4) in an inconsistent and preju-
dicial manner. We disagree.

Albertsen suggests that because the 1996 amendment deletes the
requirement that the district court consider either USSG § 2A3.1,

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2A3.2, or 2A3.4, it erred when it considered USSG§ 2A3.1 to deter-
mine whether an upward departure was appropriate under USSG
§ 2G2.2. See USSG § 1B1.11(b)(2) (1995) (codifying the one book
rule). The record on appeal fails to show that Albertsen objected to
this particular aspect of the court's implementation of USSG § 2G2.2
& § 2A3.1. Thus, we will review for plain error. See United States v.
Olano, 507 U.S. 725, 731 (1993).

We find that the 1996 amendment does not bar consideration of
these sections but simply gives the sentencing court greater flexibility
in determining the amount of the departure. Accordingly, the district
court did not commit error and thus no plain error. See id.

IV.

Albertsen also asserts that the district court's two-point upward
adjustment under USSG § 3A1.1 as well as its five-point upward
departure under USSG § 5K2.3 should be reversed because Justin
Wilke was not a "victim" as that term is used in either guideline sec-
tion. Albertsen claims that the only "victim" of his crime of mailing
child pornography in commerce in violation of § 2252(a)(1) is society
in general, or the individuals depicted in the videotape.

Under USSG 3A1.1 a "vulnerable victim" is not limited to the
offense of conviction, but may also include other individuals unusu-
ally susceptible to the harm perpetrated by the defendant's criminal
conduct. See Blake, 81 F.3d at 503-04. Therefore, we reject
Albertsen's argument. It is uncontested that Justin Wilke was the only
recipient of the video and that the tape caused him terror, shame,
embarrassment, and guilt. Further, Albertsen's stalking of Justin in
the period preceding the mailing of the videotape and his inclusion of
letters in the package along with the videotape constitute acts will-
fully caused by the defendant during the preparation of the offense.
See id. at 503. Finally, Justin was unusually vulnerable because of the
prior sexual abuse and his inability to fend off Albertsen. Conse-
quently, there is no dispute that Justin Wilke was an unusually vulner-
able "victim" and that Albertsen targeted Justin due to this
vulnerability. See id.

We further find Albertsen's contention that the district court erro-
neously applied an enhancement under USSG § 5K2.3 meritless. A

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departure for extreme psychological injury may be made if the victim
"suffered psychological injury much more serious than that normally
resulting from commission of the offense." USSG§ 5K2.3 (1995).
The evidence at trial revealed that Justin left town because he was
afraid Albertsen might kill him. He also became very agitated and
depressed following his father's suicide and blamed Albertsen for his
father's death. Finally, Albertsen's mailing of the videotape eventu-
ally led to Justin's suicide. Thus, we hold that the district court's find-
ing was not clearly erroneous, and this claim lacks merit.

V.

Finally, Albertsen asserts that the district court's factual finding
that he did not demonstrate acceptance of responsibility for his crimi-
nal conduct was clearly erroneous. Albertsen argues that his guilty
plea entitled him to a reduction in his sentence.

The record shows that on several occasions Albertsen told law
enforcement officials that child pornography was not wrong and that
he did not feel responsible for Justin's death. Based on this evidence,
we find that the trial court's decision to deny a reduction for accep-
tance of responsibility was not clearly erroneous. See United States
v. Harris, 882 F.2d 902, 905-07 (4th Cir. 1989) (noting that a guilty
plea is evidence of acceptance of responsibility but that this evidence
may be outweighed by conduct of the defendant that is inconsistent
with such acceptance of responsibility).

VI.

Accordingly, we affirm the sentencing decisions of the district
court. We deny Albertsen's request for oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

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