                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2565
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Bruce Anthony Myers,                    *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: January 9, 2007
                                Filed: April 13, 2007
                                 ___________

Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Bruce Anthony Myers pled guilty to one count of interstate transportation of a
minor with the intent to engage in criminal sexual activity, a violation of 18 U.S.C.
§ 2423(a). The district court1 sentenced Myers to eighty-two months’ imprisonment
and fifteen years of supervised release. The government appeals from Myers’s
sentence, contending that the district court should have applied a vulnerable victim
sentencing enhancement under United States Sentencing Guidelines (U.S.S.G.) §



      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
3A1.1(b)(1) (2005) and an undue influence enhancement pursuant to U.S.S.G. §
2G1.3(b)(2)(B) (2005).2 We affirm.

                                          I.

       The following facts are drawn from the presentence investigation report (PSR)
and the deposition of the victim (whom we refer to as Doe) and her mother, which
were exhibits at the sentencing hearing. Doe, a fifteen-year-old girl, lived with her
mother and her mother’s boyfriend in Iowa and, by all accounts, had an unhappy
home life.3 In the fall of 2004, Doe engaged in online conversations with various
adults, including an individual from the Gaza Strip and another man, Mohammed,
from Egypt. Doe developed a serious interest in Mohammed and threatened to run
away with him. Doe’s mother spoke with Mohammed, however, and the two
apparently agreed that Mohammed would wait until Doe turned eighteen, after which
time Doe could go with him if she remained interested. Although Doe’s mother
ordered Doe not to chat with adults online and placed parental controls on their
computer that were designed to restrict Doe’s internet access to age-appropriate
content, these controls were easily circumvented and Doe continued chatting with
adults online. One of these adults included Myers, whom Doe met on the “Wheel of
Fortune” website. At the time, Myers was thirty-seven-years-old and lived in
Kentucky. Myers and Doe conversed online and over the telephone for about three
weeks. Doe claims to have fallen in love with Myers during this time, and the two
decided that Doe would leave home and marry him. It was eventually settled that
Myers would come to Iowa to “kidnap” Doe and take her back to Kentucky.


      2
       The 2005 Guidelines Manual was applied in this case.
      3
      Doe told Myers that she had a terrible home life and that she feared her family.
Doe’s mother testified in her deposition that Doe was unhappy, but that Doe’s
behavioral problems were “not any more abnormal than any other teenager.” (Doe’s
mother’s dep. at 31).

                                         -2-
       On April 19, 2005, Myers, accompanied by a friend, Belinda Twining, and
Twining’s ten-year-old daughter, traveled by van from Kentucky to Iowa. That
afternoon, Doe packed up some of her things and, in an effort to throw her mother off
her trail, left a note saying that she had left with Mohammed. At around 2:30 p.m.,
Myers met Doe at a convenience store near Doe’s home, whereupon they departed for
Kentucky. Doe was told that if anyone approached them, she was to refer to Twining
as “Mom.” They reached Twining’s trailer in Kentucky around 4:30 the following
morning. Myers and Doe engaged in vaginal intercourse, anal intercourse, and oral
sex that morning as well as the following evening. On April 21, 2005, law
enforcement agents knocked on the door of the trailer, whereupon Doe, at Myers’s and
Twining’s direction, hid in a closet. Myers was taken into custody and Doe was
eventually found and returned to her home.

       As noted above, Myers pled guilty to one count of interstate transportation of
a minor with the intent to engage in sexual activity. The government sought the
imposition of a vulnerable victim sentencing enhancement pursuant to § 3A1.1(b)(1)
of the Guidelines and an undue influence enhancement under § 2G1.3(b)(2)(B). At
the sentencing hearing, the government argued that the vulnerable victim enhancement
was appropriate because Doe suffers from attention deficit/hyperactivity disorder
(ADHD). The government argued that the undue influence enhancement was
warranted because § 2G1.3(b)(2)(B), cmt. n. 3(B) provides that some measure of
undue influence can be presumed when the defendant is at least ten years older than
the victim (as was the case here). The district court declined to apply either of these
enhancements.

                                          II.

        The government contends that the district court used the wrong standard when
it declined to apply the vulnerable victim enhancement. The government also argues



                                         -3-
that the enhancement was warranted because Myers knew or should have known that
Doe suffered from ADHD and had a troubled home life.

       Section 3A1.1(b)(1) provides for a two-level enhancement “[i]f the defendant
knew or should have known that a victim of the offense was a vulnerable victim.” A
vulnerable victim is defined as a victim of the offense “who is unusually vulnerable
due to age, physical or mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” § 3A1.1, cmt. n.2. If age is already incorporated into the
offense guideline, however, it cannot serve as a basis for the enhancement. Id. “The
district court’s determination that a vulnerable victim enhancement is deserved turns
on a factual finding subject to review for clear error.” United States v. Moskal, 211
F.3d 1070, 1073 (8th Cir. 2000). The predicate facts supporting an enhancement must
be found by a preponderance of the evidence. United States v. Hernandez-Orozco,
151 F.3d 866, 870 (8th Cir. 1998). We will assume for the sake of argument that
ADHD unaccompanied by other limitations or conditions renders a victim vulnerable
for purposes of § 3A1.1(b)(1).4

       The government suggests that the district court neglected to consider whether
Myers should have known that Doe suffered from ADHD and considered only
whether Myers had actual knowledge of the condition. The government’s argument
is based on the following exchange at the sentencing hearing:




      4
        The government asserts that the district court may have concluded that Doe
was vulnerable because of ADHD because the district court found it necessary to
determine Myers’s knowledge of this condition. We believe it is more likely that the
district court, rather than analyzing whether Doe’s ADHD made her vulnerable,
assumed arguendo that she was vulnerable and opted instead to engage in a more
straightforward inquiry: whether Myers knew or should have known about the ADHD.


                                         -4-
      THE COURT: Well, how do you establish that? You have an obligation
      to prove that the defendant knew or should have known of the victim’s
      vulnerability based on something other than her age.
      MR. LAMMERS: Based on the unobjected-to sections in regards to the
      presentence report. The victim is described as having ADHD, and the
      specific fact sections of the report discuss the context of the contacts that
      the defendant had with her and the chat with her and also their contacts
      between here and Kentucky. And that’s how we would establish that,
      Your Honor.
                                           ....

      THE COURT: Well, is there anything in the presentence report that
      indicates that the defendant knew about that?
      MR. WICHSER: No, there isn’t.
      THE COURT: Well, I didn’t think so.
      MR. WICHSER: He didn’t know about it.
      THE COURT: Well, there’s no evidence that the defendant knew about
      it, so I don’t find that there’s sufficient evidence in the record for the
      Court to find that the defendant knew that this was a vulnerable victim
      other than by her age, and that’s already taken care of in another
      enhancement.5

(Sent Tr. at 25-26). The government argues that because the district court referred
only to Myers’s lack of actual knowledge when it declined to apply the enhancement,
the district court neglected to consider the alternative “should have known” basis for
enhancement. We disagree. Although the district court spoke of Myers’s lack of
actual knowledge as the reason for not applying the enhancement, the court opened
the above-quoted exchange with a complete statement of the legal standard. We find


      5
        The balance of the district court’s remarks on this topic include a reference to
the presentence investigation report (PSR), which also states that Myers did not know
of the ADHD. It bears mention, however, that the section of the PSR addressing the
parties’ objections states that the vulnerable victim enhancement is inapplicable
because, inter alia, “it is uncertain that the defendant knew or should have known
[Doe] had ADHD.” (PSR at 22).

                                          -5-
it unlikely that the district court, having correctly articulated the relevant legal
standard, either forgot or chose to disregard it mere seconds later (and, we observe,
without comment or protest by the government). Accordingly, we conclude that the
district court recognized and applied the correct legal standard and that the comments
to which the government refers were either slips of the tongue or an abbreviated
articulation of the dual-based standard stated in full by the district court only moments
earlier.

        We also reject the government’s argument that Myers should have known of
Doe’s ADHD. There is nothing in the record that would so much as suggest, let alone
demonstrate by a preponderance of the evidence, that Myers should have known about
Doe’s condition. The record does not indicate how the ADHD may have manifested
itself in Doe’s behavior. Nor does the record suggest that Doe’s ADHD arose (or was
likely to arise) as a topic of conversation between Myers and Doe.

         The government cites United States v. Janis, 71 F.3d 308 (8th Cir. 1995), in
support of its contention that Myers should have known of Doe’s condition and states
that the facts in Janis “are very similar” to those in this case. We disagree. The victim
in Janis had an I.Q. of sixty-five, was diagnosed with fetal alcohol syndrome, had a
learning disability, attended individualized educational programs, had severe attention
deficit and hyperactivity disorder, and had received social security benefits because
of her disability. Id. at 310-11. In this case, by contrast, Doe appears to suffer from
limitations that are far less severe and, in all likelihood, far less noticeable that those
suffered by Janis’s victim. Moreover, Janis had “regular contact” with his victim
because the victim lived with Janis’s family, id. at 311, in contrast to Myers’s more
limited contact with Doe. Comparing this case to Janis underscores the fact that there
is little reason to believe that Myers should have known about the ADHD.

        The government’s argument that Doe was vulnerable due to her unhappy home
life is likewise unavailing. Although the government referred in its sentencing brief

                                           -6-
to Doe’s troubles at home as a basis for an enhancement, it did not present this as a
basis for the vulnerable victim enhancement at the sentencing hearing itself.6 At the
hearing, the discussion pertaining to the vulnerable victim enhancement focused
exclusively on Doe’s ADHD. After the district court rendered its oral findings and
rulings on the enhancement, the government neither mentioned the alternate ground
nor asked the court to make findings and rulings on the matter. We therefore consider
the issue waived. See United States v. Hester, 140 F.3d 753, 761-62 (8th Cir. 1998)
(holding that although the defendant submitted various objections to the PSR, because
he addressed only one of these objections during the sentencing hearing and did not
ask for a ruling on the others, these latter objections were waived). Accordingly, we
need not consider whether Doe’s troubled home life made her a vulnerable victim.

                                            III.

      The government contends that the district court applied the wrong standard in
assessing the undue influence enhancement as well, arguing that the enhancement
should have been applied because Myers presented insufficient evidence to
countervail the guideline’s rebuttable presumption that, due to the disparity in their
ages, Myers unduly influenced Doe.

       Section 2G1.3(b)(2)(B) provides for a two-level enhancement if the defendant
“unduly influenced a minor to engaged in prohibited sexual conduct.” The relevant
application note states that “[i]n a case in which a participant is at least ten years older
than the minor, there shall be a rebuttable presumption, for purposes of subsection
(b)(2)(B), that such participant unduly influenced the minor to engage in prohibited
sexual conduct.” § 2G1.3(b). cmt. n.3. The application note also states that “[i]n


       6
       The government did briefly refer to Doe’s home life at the sentencing hearing
and even mentioned that it made her a “more vulnerable victim,” but did so only in the
context of arguing for the undue influence enhancement.

                                            -7-
determining whether subsection (b)(2)(B) applies, the court should closely consider
the facts of the case to determine whether a participant’s influence over the minor
compromised the voluntariness of the minor’s behavior.” Id. “We review for clear
error the district court’s fact-findings related to the calculation of an advisory
Guidelines sentence.” United States v. Stewart, 462 F.3d 960, 963 (8th Cir. 2006).

       The government suggests first that the district court applied the wrong standard
because the court determined that the presumption standing alone would be legally
insufficient to support a finding of undue influence and thus improperly placed the
burden on the government to present evidence in addition to the presumption. This
argument is based on the district court’s comment that “[t]here’s no other evidence in
the record [of undue influence] other than the presumption.” (Sent Tr. at 28). Again,
we believe that the government is taking the district court’s remarks out of context.
Immediately prior to the district court’s comment, Myers’s counsel argued that Myers
could not have unduly influenced Doe because Doe had already contemplated running
away with another man (Mohammed) before Myers had even entered the picture. In
light of this exchange, we interpret the district court as having asked the government
whether there was any evidence in the record – other than the presumption – that
would rebut Myers’s evidence that he did not exert an undue influence over Doe. The
government’s contention that the district court used the wrong standard is therefore
unavailing.

      We also reject the government’s argument that the district court clearly erred
in concluding that the facts did not support an undue influence enhancement. Myers
presented sufficient evidence for the district court to determine that Myers had not
“compromised the voluntariness of [Doe’s] behavior.” § 2G1.3, cmt. n.3. The
depositions indicate that Doe had already possessed some inclination to leave home
before she even encountered Myers and had contemplated running away with
Mohammed. Moreover, in her deposition, Doe characterized the plan for her to run
away and marry Myers as “both of [their] ideas,” agreed that Myers “didn’t have to

                                         -8-
do anything to convince [her] to go to Kentucky,” and stated that she anticipated that
she would at some point have sex with Myers. Given this evidence, the district court
did not clearly err in concluding that, despite the difference in their ages, Myers did
nothing that compromised Doe’s volition, however misguided it may have been.

      The judgment is affirmed.7
                      ______________________________




      7
        Our affirmance renders moot the government’s request that it be allowed to
revisit on remand Myers’s sentencing reduction for acceptance of responsibility.

                                         -9-
