     Case: 17-11399      Document: 00514600607         Page: 1    Date Filed: 08/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 17-11399                                FILED
                                  Summary Calendar                        August 15, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MATTHEW MCGAUGH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-105-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM: *

       Matthew McGaugh pleaded guilty to sexual abuse of a ward pursuant to
18 U.S.C. § 2243(b), based on multiple sexual acts with an inmate assigned to
the mental health unit of a federal corrections center while McGaugh was the
inmate’s case manager. McGaugh’s offense level was computed including a
two-level “vulnerable victim” enhancement. U.S.S.G. § 3A1.1(b). McGaugh
appeals the application of this enhancement. He argues that the district court

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-11399

relied on an insufficient record to conclude the victim was unusually
vulnerable.
      The base offense level may be increased by two levels if “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). For the enhancement to apply, the victim must
be “unusually vulnerable due to age, physical or mental condition,” or other
characteristics rendering the person “particularly susceptible to the criminal
conduct.” § 3A1.1 cmt. n.2. Whether a victim is unusually vulnerable is a
factual finding best suited for the district court and will be reviewed only for
clear error. United States v. Wilcox, 631 F.3d 740, 753-54 (5th Cir. 2011) (citing
United States v. Burgos, 137 F.3d 841, 842 (5th Cir. 1998)). This court will
affirm a finding of unusual vulnerability when plausible upon review of the
record on the whole. United States v. Myers, 772 F.3d 213, 220 (5th Cir. 2014);
United States v. Jenkins, 712 F.3d 209, 212 (5th Cir. 2013).
      McGaugh does not challenge the fact that the victim suffered from a
mental condition that led to self-mutilation through cutting.        As her case
manager, McGaugh knew of her condition and knew she was being treated by
the mental health unit’s chief psychologist. The district court did not clearly
err in finding that McGaugh’s victim was unusually vulnerable because she
was in a medical unit being treated by a doctor for a history of cutting. That
symptom suggests significant trauma, rendering the victim particularly
susceptible to the defendant’s advances, even if the record does not name her
specific mental condition. See Burgos, 137 F.3d at 844; United States v. Brown,
399 F. App’x 949, 951-52 (5th Cir. 2010).
      McGaugh’s reliance on United States v. Angeles-Mendoza, 407 F.3d 742
(5th Cir. 2005), is misplaced. In that case, the victims’ vulnerabilities had
already been considered in setting the base offense level. Id. at 747-48. But



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                                 No. 17-11399

here, as the Government points out, the crime of sexual abuse of a ward does
not require the victim be a person with a mental condition. See 18 U.S.C. §
2243(b). Thus, the “unusual vulnerability” of McGaugh’s victim is not already
accounted for in the base offense level. Accord United States v. Garza, 429 F.3d
165, 173 (5th Cir. 2005) (distinguishing Angeles-Mendoza and holding base
sentencing level of mail fraud offense did not take victims’ undocumented
status into account).
      The victim’s conduct in preserving evidence of the incident and reporting
McGaugh does not make her less vulnerable. This court does “not require that
the victim be completely incapacitated or incapable of performing certain
functions.” United States v. Futterman, No. 92-9105, 1993 WL 391465, 2 (5th
Cir. Sept. 23, 1993); see also 5TH CIR. R. 47.5.3 (“Unpublished opinions issued
before January 1, 1996, are precedent.”).       It is plausible that the victim,
suffering from mental health issues, was exploited based on her vulnerability,
yet knew the act was improper and so reported McGaugh.
      The district court did not clearly err because the record on the whole
indicates McGaugh knew or should have known the victim was unusually
vulnerable.
      AFFIRMED.




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