                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3465
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Avery Wade Schoenborn

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                             Submitted: June 12, 2015
                               Filed: July 20, 2015
                                 ____________

Before LOKEN, BYE, and KELLY, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

       A jury convicted Avery Schoenborn of sexual abuse of an incapacitated person
in violation of 18 U.S.C. §§ 1151, 1153(a), and 2242(2)B. The district court1 varied
downward from the guidelines range and sentenced Schoenborn to 84 months’


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
imprisonment. On appeal, Schoenborn challenges the sufficiency of the evidence
supporting his conviction as well as the “vulnerable victim” enhancement used in
calculating his guidelines range. Having jurisdiction pursuant to 28 U.S.C. § 1291,
we affirm the judgment of the district court.

                                   I. Background

       On the night of May 6, 2013, Schoenborn, age 25, arranged via Facebook to
meet with Fanny Joe Howard, age 21. Howard was out drinking with her friend,
Nikia Stillday, age 19. Stillday and Howard went to Schoenborn’s residence, and all
three of them sat in a car outside drinking Schoenborn’s half-gallon bottle of vodka.
Some time later, Stillday’s friend Dylan Stately joined the group. When Stately
arrived, Stillday was visibly intoxicated; she was stumbling and needed help walking.
The four decided to drive around the neighborhood and at some point in the drive,
Stillday had, according to Howard, “los[t] control of her body.” Stillday “blacked
out” and urinated on herself in the backseat of Howard’s car.

       Howard decided to take Stillday home to her house to sleep. When they
arrived at Howard’s house around 1:30 a.m., Stillday was passed out and the other
three helped to carry her into the house, lay her on a loveseat in the living room, and
cover her with a blanket. Schoenborn testified that when he arrived at Howard’s
house he was drunk; he vomited and then went to sleep on the couch in the living
room. Howard and Stately retired to bedrooms in the back of the house. Some time
after having gone to bed, Howard heard what she described as a “shuffling” and a
“small thud” coming from the living room, and she got up to investigate.

       Howard turned on the light in the living room and saw Schoenborn on top of
Stillday “going up and down. He was just on top of [Stillday] grinding on her body.”
One of Stillday’s legs was out of her pants and her shirt and bra were pushed up. She
remained unconscious. When Howard yelled “What are you doing?” Schoenborn

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jumped off and exclaimed “She let me do it.” Stately then ran into the living room
and Schoenborn ran out of the house. Howard’s grandmother, who lived in the house
as well, called the police.

        A sergeant from the Red Lake Police Department arrived at 2:00 a.m., and he
testified that Stillday’s “shirt was pushed up so her breasts were exposed. The pants
legs, there was only one leg inside of a pants. So she had one leg that was completely
out of her pants and underwear.” The sergeant could not wake Stillday, despite
pinching her arm and using sternum rubs—two techniques that are used to cause a
reaction in response to pain. An EMT also failed to get Stillday to respond to “any
painful or verbal stimuli.” Stillday was transported to the Red Lake Hospital and was
shortly thereafter transferred to a second hospital in Bemidji.

       Stillday remained unconscious until approximately noon on May 7. When she
awoke, she consented to a Sexual Assault Nurse Examination (SANE), though no
DNA or forensic evidence was presented at trial. Stillday had no recollection of the
previous night after the moment she had passed out in Howard’s car. She testified
that she never gave Schoenborn any indication that she wanted to have sexual
relations with him that evening.

       Two officers from the Red Lake Police Department questioned Schoenborn at
his home following the incident. He told them that he had been home all night, and
the officers noticed he became “agitated” and “aggressive.” He was placed under
arrest. During questioning later that day, Schoenborn admitted to having gone out
drinking with Stillday and Howard but denied having gone back to Howard’s house.
FBI Special Agent Joe Ogden testified that during a third interview on May 15, 2013,
Schoenborn said “he might have had sex with Nikiah [sic] Stillday but he couldn’t
remember.” Ogden testified that during this same interview Schoenborn “said that
she was on the couch and she looked at him. Said I want you to F me, fuck me, at
which point he took his clothes off, she took her clothes off. He got on top of her and

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inserted his penis into her vagina.” After giving this statement, Schoenborn again
asserted that he could not remember if he had sexual intercourse with Stillday.

       At trial, Schoenborn maintained that he did not have sexual intercourse with
Stillday. He admitted he was “about to” have intercourse with her but they were
interrupted before he was able to. He additionally admitted to telling Agent Ogden
that he had inserted his penis into Stillday’s vagina.

       A jury convicted Schoenborn of one count of “engaging in a sexual act [with
a person] who was physically incapable of declining participation in . . . that sexual
act” in violation of 18 U.S.C. §§ 1151, 1153(a), and 2242(2)B. Schoenborn’s
presentence investigation report recommended a Guidelines sentencing range of 121
to 151 months’ imprisonment. The range included a two-level “vulnerable victim”
enhancement under USSG § 3A1.1(b)(1). Schoenborn objected to this enhancement
on the grounds that the victim’s vulnerability was already an element of the offense.
The court overruled the objection and sentenced Schoenborn to a below-Guidelines
sentence of 84 months’ imprisonment.

                                   II. Discussion

      1. Sufficiency of the evidence

       “We review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Casteel, 717 F.3d 635, 644 (8th Cir. 2013) (quoting United States v. Teague, 646 F.3d
1119, 1121–22 (8th Cir. 2011)). This court will sustain a jury’s verdict “if any
rational jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Kelly, 625 F.3d 516, 518 (8th Cir. 2010) (quotation omitted). The
jury was presented with Schoenborn’s confession to Agent Ogden that he had

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engaged in sexual intercourse with Stillday. Schoenborn admitted to having made
this confession but retracted it at trial and maintained that he was merely “about to”
have intercourse with her. The jury rejected Schoenborn’s later statement in favor of
believing his earlier confession. This was a reasonable choice given that
Schoenborn’s claim that Stillday had been awake and had initiated the sexual contact
was contradicted by significant other evidence indicating that Stillday was
incapacitated both before and after the encounter.

      Further, Howard testified that when she walked into the living room she saw
Schoenborn’s body “going up and down. He was just on top of her grinding on her
body.” Schoenborn then jumped off and exclaimed, “She let me do it.” In his
defense, Schoenborn points to the lack of forensic evidence of sexual intercourse
found during the SANE examination. However, the nurse who performed the
examination testified that this was unremarkable and intercourse could nevertheless
have occurred without the discovery of physical evidence.

     A reasonable jury, taking the evidence as a whole, could conclude that
Schoenborn was guilty beyond a reasonable doubt.

      2. Sentencing enhancement

       Under USSG § 3A1.1(b)(1), a two-level enhancement may be applied to a
defendant’s base offense level “[i]f the defendant knew or should have known that
a victim of the offense was a vulnerable victim.” A “vulnerable victim” means a
person “who is unusually vulnerable due to age, physical or mental condition, or who
is otherwise particularly susceptible to the criminal conduct.” Application Note 2 of
the enhancement provides:

      Do not apply subsection (b) if the factor that makes the person a
      vulnerable victim is incorporated in the offense guideline. For example,

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      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.

Schoenborn objected to the inclusion of the vulnerable victim enhancement in his
presentence investigation report’s calculation of his Guideline range, arguing that
because Stillday’s intoxication was already accounted for in the base offense, the
additional enhancement resulted in double counting.

      “Double counting occurs when one part of the Guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has already been . . .
accounted for by application of another part of the Guidelines.” United States v.
Joiner, 418 F.3d 863, 870 (8th Cir. 2005) (quoting United States v. Fortney, 357 F.3d
818, 821–22 (8th Cir. 2004)). However, “the question is not whether the statute of
conviction specifically incorporates the elements of the disputed enhancement, but
whether the applicable guideline specifically incorporates it.” Id.

       In this case the applicable statute does include, as an element, the incapacity
of the victim—here, incapacity due to extreme intoxication. But the Guideline
provision used to calculate Schoenborn’s base offense level does not. Instead,
§ 2A3.1 applies to all sexual abuse offenses under 18 U.S.C. §§ 2241 and 2242. This
same guideline provision, with a base offense of 30, would also apply, for example,
to a person convicted of sexual abuse through placing another in fear. See 18 U.S.C.
§ 2242(1). Additionally, § 2A3.1 does not incorporate an enhancement for a specific
offense characteristic based on the incapacity of the victim. The commentary to
§ 3A1.1 precludes application of the vulnerable victim enhancement only “if the
factor that makes the person a vulnerable victim is incorporated in the offense
guideline.” As the victim’s vulnerability in this case was not accounted for in either
the base offense level or a specific offense characteristic, we conclude the
enhancement was appropriately applied. See United States v. Betone, 636 F.3d 384


                                         -6-
(8th Cir. 2011) (upholding the vulnerable victim enhancement to the base offense
level given under 18 U.S.C. §2242(2) when the victim was passed out after a night
of drinking).

                                 III. Conclusion

      Accordingly, we affirm the judgment of the district court.
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