                                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 “§ 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
