                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3971
                                   ___________

United States of America,               *
                                        *
            Plaintiff/Appellee,         *   Appeal from the United States
                                        *   District Court for the District of
            v.                          *   South Dakota.
                                        *
Donroy Brings Plenty,                   *
                                        *
            Defendant/Appellant.        *

                                   ___________

                             Submitted: May 14, 2003
                                Filed: July 8, 2003
                                   ___________

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP1, District
Judge.
                              ___________

SMITH CAMP, District Judge.

       On August 28, 2002, a jury found Defendant Donroy Brings Plenty guilty of
first degree burglary while in Indian country in violation of S.D. Codified Laws
§ 22-32-1(3) and 18 U.S.C. § 1153. Brings Plenty entered the victim’s home in the

      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska sitting by designation.
evening, after she had fallen asleep, and assaulted her. At sentencing, the district
court enhanced the Defendant’s offense level on two bases, finding that the victim
was unusually vulnerable and that she had been physically restrained. Brings Plenty
appeals from these enhancements. Because we find that the district court provided
factually supported, principled reasons for the application of the enhancements, the
sentence of the district court is affirmed.

       After returning home from an evening of socializing, Sherri Black Bear
climbed in bed with three of her children who ranged in age from 5 to 12 years. She
went to sleep. She woke to someone hitting her in the face with his fist. The attack
occurred in the dark. She looked up after the initial blow and saw the person whom
she identified as Brings Plenty. Brings Plenty continued to hit Black Bear and then
dragged her by the ankle off the bed and into the living room. She resisted by trying
to hold onto something that would prevent her movement. Brings Plenty continued
to drag her by the hair to the doorway of the house, while he continually struck her
and kicked her. At one point, one of Black Bear's children tried unsuccessfully to
intervene.

      At the time of the burglary, Black Bear lived with her stepfather, Richard
White Calf, who woke from his sleep and came into the living room. White Calf told
Brings Plenty that he had called the police, and Brings Plenty left the residence.
Black Bear testified that she was lying in the doorway of the house when Brings
Plenty left. The following day, Black Bear went to a local hospital for treatment.

      The district court’s imposition of the enhancements is based on factual findings
subject to review for clear error. United States v. Moskal, 211 F.3d 1070, 1073 (8th
Cir. 2000). The district court's interpretation of the United States Sentencing
Guidelines and application of those Guidelines to the facts of the case are reviewed

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de novo. United States v. Blanton, 281 F.3d 771, 775 (8th Cir. 2002).

      Brings Plenty was convicted by a jury of first degree burglary on August 28,
2002. Because there is no federal burglary statute, South Dakota law was used to
define the elements of the offense. South Dakota Codified Laws § 22-32-1(3)
defines first degree burglary as the unlawful entry into a structure with the intent to
commit a crime therein, when the offense is committed “in the nighttime." See
Goodroad v. Solem, 406 N.W.2d 141, 146 (S.D. 1987) (holding that the “nighttime”
component aggravates the offense.)

       The trial court enhanced Brings Plenty’s base offense level by two points
pursuant to (2001) U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) (“U.S.S.G.”),
relating to vulnerable victims. The district court found the victim's state of being
asleep "diminished her capacity to resist the defendant or to cry out, and essentially
rendered her unable to resist his physical advance and unable to express any
objection; unable to really do anything until after the act was already under way or
completed." Sentencing Transcript at 9.

        Brings Plenty argues that the district court erred in treating a sleeping victim
as being unusually vulnerable given that an element of the crime for which Brings
Plenty was convicted was that it occur “in the nighttime.” Brings Plenty argues that
it is not “unusual” for a victim of a burglary that occurs during the nighttime to be
asleep. Brings Plenty also contends that the district court's failure to make a
particularized finding that Black Bear’s vulnerability was “unusual” when compared
to other victims of nighttime burglaries is grounds for reversal.

       The district court properly acknowledged that under U.S.S.G. § 3A1.1(b)(1),
an offense level may be enhanced “[i]f the defendant knew or should have known that


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a victim of the offense was a vulnerable victim.” Application Note 2 defines a
"vulnerable victim" as a person who is the victim of the offense and who is
"unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct." To establish the importance of the
"unusualness" component of the definition, Brings Plenty relies on United States v.
Paige, 923 F.2d 112, 113-14 (8th Cir. 1991) (holding that young, Caucasian clerks
who appeared to be inexperienced and naive were not unusually vulnerable) and
United States v. Ravoy, 994 F.2d 1332, 1335 (8th Cir. 1993)(holding that the victims
of an equity skimming scheme were not unusually vulnerable based on their financial
situations where the evidence did not demonstrate that they were coerced or that the
selling prices used by defendant were below the fair market values.) The Court is not
persuaded that the distinctions made in those cases are particularly instructive in this
case.

       Brings Plenty also refers to United States v. Wetchie, 207 F.3d 632 (9th Cir.)
cert. denied 531 U.S. 854 (2000), which contains a quotation regarding burglary from
Black’s Law Dictionary that supports the proposition that victims of burglary are
often sleeping. The Wetchie case also acknowledges, however, that we “are at our
most vulnerable when we are asleep, because we cannot monitor our own safety or
the security of our belongings." Id. at 636 citing Minnesota v. Olsen, 495 U.S. 91, 99
(1990).

       The government relies on Wetchie as support for the district court's imposition
of the vulnerable victim enhancement. The Ninth Circuit Court in Wetchie affirmed
a district court's imposition of the vulnerable victim enhancement on the sole basis
that the victim was asleep at the time the offense commenced, stating:

      As the district court found, the victim's being asleep "diminished [her]

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      ability to resist the Defendant or cry out, [rendering her] essentially
      unable under any circumstances to resist his physical advance, unable
      to express any objection, unable to cry out, unable to do really anything
      until after the act was already underway or completed.

Id. at 634.

       The unusual vulnerability addressed in Wetchie is also present in this case. We
find that the district court’s stated reasons for enhancing Brings Plenty’s offense level
on the basis of the victim’s vulnerability were sufficiently particularized and
remarkably similar to the district court’s justification that was affirmed in Wetchie.

       We conclude that the district court properly imposed the vulnerable victim
enhancement in this case. Black Bear was asleep when Brings Plenty entered her
residence and when the assault began. She did not have the ability to phone law
enforcement, to run away, to move the location of the assault away from her children,
or to fight back. Under the South Dakota burglary statute, a victim of first degree
burglary need not be in the structure and need not be sleeping. The fact that Black
Bear was sleeping, and that upon Brings Plenty’s initial observations of her he knew
or should of known that she was sleeping, establishes that Black Bear was unusually
vulnerable as used in the sentencing guidelines. For all these reasons, the district
court’s enhancement under U.S. S.G. §3A1.1(b)(1) is affirmed.

      Brings Plenty also contends that the district court erred in enhancing Brings
Plenty's offense level by two points pursuant to U.S.S.G. § 3A1.3 for restraining
Black Bear. Section 3A1.3 provides, “If a victim was physically restrained in the
course of the offense, increase by 2 levels.” Brings Plenty argues that the actions that
he took against Black Bear were part of the underlying offense, the assault, and
therefore no enhancement should have been imposed. Brings Plenty contends that

                                           -5-
the restraint-of-victim enhancement must be for conduct taken in the course of the
offense and not for conduct that is part of the offense itself.

       The district court found that "the victim was grabbed by her ankle, pulled off
of the bed, pulled from her bedroom into the living room. She tried to stop from
being pulled by grabbing onto something and was kicked so that she couldn't stopped
[sic] her forward movement. She was pulled into the living room where she was
kicked further." Sentencing Transcript at 14. The district court concluded that this
conduct constituted physical restraint "in the sense that the victim's arms were held,"
and likened the conduct to "being bound by something." Id. at 15. Upon these
findings, the district court concluded that enhancement for physical restraint should
be applied.

       The definition of "physically restrained" is found in the Commentary to
Section 1B1.1(h): “the forcible restraint of the victim such as being tied, bound, or
locked up.” The Eighth Circuit has stated that the words "such as" within that
definition are illustrative examples and "do not limit the type of conduct that may
constitute a physical restraint.” Arcoren v. United States, 929 F.2d 1235, 1246 (8th
Cir. 1991) quoting with approval United States v. Stokley, 882 F.2d 114, 116 (4th Cir.
1989)(“a victim need not be tied or bound up so that his movement is completely
restricted.") See also, United States v. Kime, 99 F.3d 870, 886 (8th Cir. 1996)
(affirming imposition of physical restraint enhancement where victim was pulled into
a van, beaten severely, and held down while one of the defendants attempted to cut
him.)

       Brings Plenty relies heavily on United States v. Checora, 175 F.3d 782, 789-90
(10th Cir. 1999), in support of his argument that the dragging of Black Bear was part
of the underlying offense - the assault, and that dragging does not rise to the level of

                                          -6-
forcible restraint required by the guideline. The district court in Checora imposed the
two-level enhancement for victim restraint on the basis that the defendants had
dragged the victim from the place where they had beat him to the place where they
eventually killed him. Id. at 790. The Tenth Circuit Court of Appeals upheld the
enhancement, but not based on the dragging of the victim. Rather, the appellate court
affirmed on the alternate ground that the defendants physically restrained the victim
when, to prevent the victim's escape, the defendants chased and tackled him to the
ground. Id. at 791.

       Brings Plenty would have this Court interpret Checora as support for the fact
that dragging Black Bear was part and parcel of the underlying offense. Contrary to
the inference suggested by Brings Plenty, Checora does not stand for the proposition
that dragging is an insufficient basis for finding forcible restraint. Although the
Tenth Circuit Court relied on alternate factual grounds - the chasing and tackling of
the victim to prevent his escape - as the basis for the victim restraint enhancement,
the court apparently did so because the facts demonstrated that before the defendants
began to drag the victim to the place where they eventually killed him, the victim
already had been so badly beaten that he was unconscious and it was not necessary
for the defendants to forcibly restrain him to prevent his escape. Id. at 787.

        Relying on Black Bear’s testimony, the district court found that Black Bear
attempted to resist the forward dragging movement by grabbing onto something.
Brings Plenty was exercising control over Black Bear that prevented her freedom of
movement, prevented her escape, and facilitated the assault by allowing him to
continue to kick and strike her. This Court concludes that as Brings Plenty dragged
Black Bear off the bed and through the house, he was forcibly restraining her, and the
district court’s decision to enhance the offense level on the basis of physical restraint
is affirmed.

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For all these reasons, the sentence imposed by the district court is affirmed.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHT CIRCUIT.




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