                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3634
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                           James Bruguier, also known
                              as James Bruguier, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                             Submitted: June 14, 2012
                            Filed: December 13, 2012
                Filed with dissenting opinion: December 21, 2012
                                  ____________

Before MURPHY, BRIGHT, and COLLOTON, Circuit Judges.
                           ____________

MURPHY, Circuit Judge.

      James Bruguier was convicted after a jury trial of sexual abuse of an
incapacitated person, sexual abuse of a minor, aggravated sexual abuse, and burglary.
The district court1 sentenced him to 360 months imprisonment, the bottom of his
guideline range of 360 months to life, and five years of supervised release. He
appeals his conviction and sentence, arguing that the district court gave improper jury
instructions, that there was insufficient evidence to sustain the burglary conviction,
and that the district court erred in calculating his guideline range. We affirm.

                                          I.

      Bruguier was charged with two counts of aggravated sexual abuse and one
count of attempted aggravated sexual abuse, 18 U.S.C. § 2241(a), sexual abuse of an
incapacitated person, 18 U.S.C. § 2242(2), burglary, S.D.C.L. § 22-32-1, and sexual
abuse of a minor, 18 U.S.C. § 2243(a). The charges stemmed from separate events
involving four different victims: Crystal Stricker, Vicki Johnson, T.S., and K.S.
Bruguier is an American Indian and all of the incidents occurred in Indian country.
See 18 U.S.C. § 1153. After a three day trial, the jury found Bruguier guilty of sexual
abuse of an incapacitated person, Crystal Stricker, sexual abuse of a minor, K.S.,
aggravated sexual abuse of T.S., and burglary. It acquitted him of aggravated sexual
abuse of Crystal Stricker and attempted aggravated sexual abuse of Vicki Johnson.

       The charges against Bruguier involving Crystal Stricker, for sexual abuse of
an incapacitated person and for aggravated sexual abuse, arose from events in January
2011. Witnesses testified that Crystal had been consuming large amounts of alcohol
one night at the house where she lived with her boyfriend Mike Miller before leaving
for her sister Helen's house. Crystal continued drinking there. Bruguier, Helen's
boyfriend, was also in the house. Some time after 3 a.m. Helen took Crystal home.
While Crystal and Mike's sister were talking in the kitchen, Bruguier came to the door
and Crystal let him in. Mike had gone to bed but his sister spent a short time in the


      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.

                                         -2-
living room with Bruguier and Crystal before returning to the kitchen. Crystal later
testified that she was so intoxicated that night that she did not even remember
returning home from Helen's house.

        A loud noise caused Mike and his sister to rush to the living room where they
saw Crystal lying on the floor with Bruguier on top of her. Bruguier had told the
sister to "shut up" when she had yelled for her brother. She and Mike testified that
Crystal was not moving when they got to the living room. Her head was slanted
against the wall, and her eyes were closed. According to Mike, she was "laying like
she was knocked out." Mike grabbed Bruguier and told him to leave. Mike saw that
Bruguier's penis was erect and that Crystal did not have any pants on and had semen
between her legs. When he began to shake Crystal, she opened her eyes. At trial
Crystal testified that she remembered Mike waking her up and that she believed that
Bruguier had raped her. She waited until the following day to call the police to make
sure she was "in [her] right mind to give a statement." A sexual assault exam of
Crystal revealed vaginal bruising and semen matching Bruguier's DNA.

      Bruguier testified that he had not intended to go to Crystal's house that night
but had gone for a drive and then got stuck in the snow in her driveway. He testified
that Crystal came to the door and told him to "shut up and get in here." According
to him, Crystal began making sexual advances when he went inside the house, and
they had consensual sexual intercourse on the living room floor. He also testified that
the two had had consensual sex once before. The jury acquitted Bruguier of the
aggravated sexual abuse charge related to this incident, but it convicted him for the
sexual abuse of an incapacitated person.

      The sexual abuse of a minor charge involved 13 year old K.S. She testified that
she "lost [her] virginity" to Bruguier in her grandmother's basement and that they
again had sex several weeks later. Bruguier admitted having had sex with K.S. two



                                         -3-
times when she was in the sixth grade. The jury found him guilty of sexual abuse of
a minor.

        The charges of burglary and aggravated sexual abuse of T.S. involved an
incident in the summer of 2010 at her home. T.S. was then a teenager, and she
testified that she had woken up in the middle of the night after hearing a noise and
thought that someone was crawling through her bedroom window. She then saw
Bruguier standing in her bedroom and told him to get out. Bruguier asked her why
she was with her boyfriend and not him. T.S. told him again to leave, but instead
Bruguier hit her on the head with a can of hair spray and raped her. T.S. told several
friends and a youth counselor about the attack. One testified that T.S. had told her
that Bruguier had come in through the bedroom window and asked T.S. why she
wanted to be with her boyfriend since he "could take [her] other places better." The
jury found Bruguier guilty of both burglary and aggravated sexual abuse of T.S.

       After the verdict was returned, Bruguier moved for a new trial and for a
judgment of acquittal on the charges of sexual abuse of an incapacitated person,
burglary, and aggravated sexual abuse of T.S. The motions were denied. A
presentence investigation report (PSR) calculated his guideline range to be 360
months to life, based on his criminal history category II and the total offense level of
41. Bruguier objected to proposed sentencing enhancements for a vulnerable victim
and for a pattern of sexual misconduct against minors. He also objected to the PSR's
failure to credit his acceptance of responsibility for sexual abuse of a minor.

       The district court overruled his objections and adopted the PSR calculations.
It imposed concurrent 360 month sentences on Bruguier's convictions for sexual
abuse of an incapacitated person and for aggravated sexual abuse of T.S., as well as
statutory maximum sentences of 300 months for the burglary and 180 months for the
sexual abuse of a minor, to run concurrently. He also received five years of
supervised release. The district court considered and rejected Bruguier's arguments

                                          -4-
for a downward variance when it imposed this sentence at the bottom of the guideline
range. The court concluded that the sentence was necessary to "protect society as a
whole" and to reflect the seriousness of Bruguier's offense, given the evidence
regarding its negative impact on the victims, the fact that there were multiple victims
including a 13 year old, and the fact that two of the sexual assaults had occurred in
the victims' own homes.

       Bruguier appeals his convictions and sentences, contending that the district
court improperly instructed the jury, constructively amended the indictment on the
sexual abuse of an incapacitated person charge, and erred in calculating his guideline
range. He argues in addition that there was insufficient evidence to sustain the
burglary conviction.

                                          II.

                                          A.

       We first examine Bruguier's challenges to the jury instruction on the charge of
sexual abuse of an incapacitated person. Bruguier argues that the district court erred
by not including as an element of the offense that he had to know that Crystal was
physically incapable of consent. He also claims that the jury instruction
constructively amended the indictment. We review the district court's jury
instructions for an abuse of discretion and will affirm if the "instructions, taken as a
whole, fairly and adequately submitted the issues to the jury." United States v.
Lalley, 257 F.3d 751, 755 (8th Cir. 2001). Reversal is appropriate only if the failure
to instruct properly was prejudicial. United States v. Mitchell, 613 F.3d 862, 867 (8th
Cir. 2010).




                                          -5-
      The sexual abuse statute criminalizes in relevant part "knowingly":

      (1) caus[ing] another person to engage in a sexual act by threatening or
      placing that other person in fear . . .; or
      (2) engag[ing] in a sexual act with another person if that other person is–
          (A) incapable of apprising the nature of the conduct; or
          (B) physically incapable of declining participation in, or
          communicating unwillingness to engage in, that sexual act . . . .

18 U.S.C. § 2242. Bruguier was indicted under subsection 2, and the jury instruction
listed four elements: (1) that he "did knowingly cause or attempt to cause Crystal
Stricker to engage in a sexual act"; (2) that Crystal was "physically incapable of
declining participation in and communicating unwillingness to engage in that sexual
act"; (3) that Bruguier is an Indian; and (4) that the offense happened in Indian
country.

       Bruguier argues that a fifth element should have been added to the instruction
to require a finding that he had known that Crystal Stricker was physically incapable
of declining or communicating her unwillingness to participate. He concedes that
there is no authority in this circuit for extending the "knowingly" requirement but
argues that the Seventh Circuit "tacitly approved" such an instruction. See United
States v. Peters, 277 F.3d 963, 968 (7th Cir. 2002). He also cites several Supreme
Court cases interpreting different criminal statutes, but applying the "knowingly"
requirement to words other than just the immediately following verb. See, e.g.,
United States v. X-Citement Video, 513 U.S. 64, 72 (1994) (noting that "presumption
in favor of a scienter requirement should apply to each of the statutory elements that
criminalize otherwise innocent conduct"); Arthur Andersen LLP v. United States, 544
U.S. 696, 706 (2005) (construing statute to limit its reach to those conscious of
wrongdoing).



                                         -6-
       The district court's jury instruction accurately conveyed the law. Neither the
statute nor the case law supports Bruguier's proposed additional requirement. See,
e.g., United States v. Betone, 636 F.3d 384, 387 (8th Cir. 2011); United States v.
Wilcox, 487 F.3d 1163, 1169 (8th Cir. 2007). The "most natural grammatical
reading" of the statute suggests that "knowingly" only modifies the surrounding verb,
which in this case is the phrase "engages in a sexual act." See X-Citement Video, 513
U.S. at 68; United States v. Yielding, 657 F.3d 688, 714 (8th Cir. 2011). The Seventh
Circuit case on which Bruguier relies is distinguishable. There, the court examined
the sufficiency of the evidence to support a § 2242(2) conviction for which the
district court had given an uncontested instruction like the one Bruguier seeks here,
but the propriety of the instruction was not before the court. Peters, 277 F.3d at 968.

      Bruguier cites X-Citement Video and Andersen to support his position that
"knowingly" should apply to the disability element, not merely to the verb, but those
cases did not examine sexual abuse statutes. While courts may "ordinarily" read
"knowingly" to modify each element of a criminal offense, "the inquiry into a
sentence's meaning is a contextual one." Flores-Figueroa v. United States, 556 U.S.
646, 652 (2009). There are some contexts in which courts do not read "knowingly"
to modify all elements of an offense. See id. at 660 (Alito, J., concurring). In fact the
Court noted in X-Citement Video that the common law mens rea presumption
"expressly excepted 'sex offenses, such as rape, in which the victim's actual age was
determinative despite defendant's reasonable belief that the girl had reached age of
consent.'" 513 U.S. at 72 n.2 (citing Morissette v. United States, 342 U.S. 246, 251
n.8 (1952)). That makes sense because in such a context the "perpetrator confronts
the underage victim personally and may reasonably be required to ascertain that
victim's age." Id. Similarly, where an individual has sex with someone physically
incapable of consent as here, he "confronts the . . . victim personally" and it is
reasonable to require him to ensure that consent has been given. See id.




                                          -7-
       For the court to add a fifth element to the required proof for a § 2242(2)
violation would run contrary to congressional intent. In drafting § 2242(2), Congress
elected not to make lack of consent an element of the offense or to require the
prosecution to introduce any evidence regarding whether the victim consented. H.
Rep. No. 99-594, at 16 (1986). Congress reasonably decided that the best way to
prevent sexual assault on persons who are mentally or physically unable to resist was
to put the obligation on the instigator of the sexual act to confirm the other's ability
to consent. This was a practical resolution given the type of acts and circumstances
which § 2242(2) is regulating. Sexual encounters where one partner is even arguably
unable to consent to the activity represent conduct that a "reasonable person should
know is subject to stringent public regulation." United States v. Collins, 949 F.2d
1029, 1031 (8th Cir. 1991).

       This regulation is of particular concern in Indian communities which have
unfortunately experienced much sexual violence.2 There is evidence that one in three
American Indian women have been raped or experienced an attempted rape, with a
rate of sexual assault twice the national average. See Patricia Tjaden & Nancy
Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Violence
Against         Women,           at     22     (2000),        available           at
https://www.ncjrs.gov/pdffiles1/nij/183781.pdf; see also Amnesty International,
Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence
in the USA, at 2 & n.9 (2007) (citing the DOJ report)
(http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf); United States v. Deegan,
605 F.3d 625, 662–65 & nn. 32–34 (8th Cir. 2010) (Bright, J., dissenting) (appendix



      2
       Appeals filed since last fall in cases charging § 2242(2) violations in Indian
Country include: Nos. 11-3039 United States v. Rouillard; 11-3634 United States v.
Bruguier; 12-1831 United States v. Villarreal; 12-1193 United States v. Chasing
Hawk; 12-2057 United States v. Birdhorse; 12-2750 United States v. Medicine Bird
Morsette; 12-3031 United States v. Dustin Morsette; 12-3687 United States v. Ford.

                                          -8-
to dissent entitled “Lifting the Curtain on Assaults Against Women and Children in
Indian Country”).

       The case before the court illustrates a paradigmatic predator victimizing
women. Here, Bruguier took advantage of three women unable to resist his violent
acts, including a thirteen year old girl, a teenager asleep in her own bedroom, and a
passed out intoxicated woman. In a society that is plagued with these sorts of crimes,
Congress reasonably imposed the obligation on a defendant either to be sure that his
partner is capable of and has provided consent to the sexual act or to assume the risk
of conviction if she could not. See X-Citement Video, 513 U.S. at 76 n.5.

      Given all these considerations and based on the record in this case, we
conclude that the instruction "fairly and adequately submitted the issues to the jury."
Lalley, 257 F.3d at 755.

                                           B.

        Bruguier also argues that the instruction constructively amended the
indictment. Constructive amendment occurs "when the essential elements of the
offense as charged in the indictment are altered in such a manner . . . that the jury is
allowed to convict the defendant of an offense different from or in addition to the
offenses charged in the indictment." United States v. Whirlwind Soldier, 499 F.3d
862, 870 (8th Cir. 2007). The question is whether "the jury instructions created a
'substantial likelihood' that the defendant was convicted of an uncharged offense."
Id. (citations omitted). Since Bruguier failed to raise this argument before the district
court, the parties agree that plain error review applies. Under that standard, reversal
is required only if Bruguier could show that "a constructive amendment affects his
substantial rights and the fairness, integrity or public reputation of judicial
proceedings." United States v. Lara-Ruiz, 681 F.3d 914, 923 (8th Cir. 2012).



                                          -9-
       The indictment charged that Bruguier "did knowingly engage in and attempt
to engage in a sexual act with Crystal Stricker" while she was incapable of declining
participation. The jury instruction first recited the language of the indictment and
then listed the first element of the offense as "James Bruguier did knowingly cause
or attempt to cause Crystal Stricker to engage in a sexual act" while she was
incapable of declining participation. The instruction's use of the verb "cause" does
not appear in the indictment or in § 2242(2) but mimics language in § 2242(1), which
imposes criminal liability for knowingly "cau[sing] another person to engage in a
sexual act by threatening or placing that other person in fear."

      Bruguier argues that although the instruction correctly required that Crystal be
incapable of declining participation, its requirement that he "cause[d] . . . Crystal
Stricker to engage in a sexual act" rather than that he "engage[d] in . . . a sexual act
with Crystal Stricker" amounts to a constructive amendment. He contends that these
two formulations are materially different because a defendant could cause someone
to engage in a sexual act without actually engaging in it himself. He offers the
hypothetical example of a defendant threatening harm to someone's child unless that
parent would have sex with the defendant's friend.

      It is clear that the evidence before the jury bore no relation to the hypothetical
Bruguier offers on appeal. Bruguier has not shown a reasonable probability that he
would have been acquitted but for this alleged error as required for plain error review.
See Lara-Ruiz, 681 F.3d at 924. The exact language of the indictment, which also
tracked the language of § 2242(2), was read to the jury and minimized any prejudice.
See United States v. Gavin, 583 F.3d 542, 547 (8th Cir. 2009). Furthermore, the
government presented substantial evidence that Bruguier engaged in a sexual act with
Crystal so that there is "no reasonable probability that [he] would have been
acquitted" without the alleged error. Id.




                                         -10-
                                          III.

       We turn next to Bruguier's argument that there was insufficient evidence to
sustain his burglary conviction. While the government suggests that our review
should be for plain error, we conclude that Bruguier sufficiently preserved this issue
by moving for a judgment of acquittal on his burglary conviction. See United States
v. May, 476 F.3d 638, 640 (8th Cir. 2007). We review challenges to the sufficiency
of the evidence de novo, viewing the evidence in the light most favorable to the
verdict and drawing all reasonable inferences that support it. United States v.
Causevic, 636 F.3d 998, 1005 (8th Cir. 2011). Following South Dakota's first degree
burglary statute, the jury instructions directed that Bruguier was guilty of this offense
if he had unlawfully entered or remained in the home occupied by T.S. at night "with
the intent to commit the crime of sexual assault," that Bruguier is an Indian, and that
the offense took place in Indian country. See S.D.C.L. § 22-32-1; 18 U.S.C. § 1153.
Bruguier argues that there was insufficient evidence for the jury to find that he
entered or remained in the home with the intent to assault T.S. sexually. According
to him, the evidence only established that the assault occurred on impulse without
predetermined motive.

       We conclude that there was sufficient evidence for the jury to find that
Bruguier entered or remained in the home of T.S. with the intent to assault her
sexually. Under South Dakota law, specific intent "need not be directly or positively
proved and . . . may be inferred from the circumstances." State v. Peck, 150 N.W.2d
725, 728 (S.D. 1967). Here, the evidence shows that Bruguier crawled through T.S.'s
bedroom window uninvited in the middle of the night and woke her up. He began to
talk to her about her boyfriend, suggesting she should be in a relationship with him
instead because he could take her "other places better." After she told him to leave,
he hit her on the head with a can of hair spray and raped her. This evidence was more
than sufficient for a reasonable jury to find Bruguier guilty of burglary beyond a
reasonable doubt. Moreover, the jury acquitted Bruguier of two other counts,

                                          -11-
showing that it "carefully weighed all of the evidence, and took seriously its duty not
to convict [Bruguier] of counts the government did not prove beyond a reasonable
doubt." United States v. Plumman, 409 F.3d 919, 930 (8th Cir. 2005).

                                         IV.

        We finally examine Bruguier's challenges to his sentence. In reviewing a
sentence, we first consider whether any procedural error was committed such as
improperly calculating the guideline range. Gall v. United States, 552 U.S. 38, 51
(2007). We review the district court's application of the guidelines de novo and its
factual findings for clear error. United States v. Davidson, 437 F.3d 737, 739–40 (8th
Cir. 2006). We then review the sentence for substantive reasonableness under an
abuse of discretion standard. Gall, 552 U.S. at 51. Bruguier argues that the district
court made three procedural errors in calculating his guideline range of 360 months
to life. We address each in turn.

       Bruguier challenges the way in which the district court applied a five level
enhancement for a pattern of covered sex offenses under U.S.S.G. § 4B1.5(b)(1).
That guideline provision applies "[i]n 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." § 4B1.5(b). A "covered sex
crime" includes certain offenses committed against minors. § 4B1.5 cmt. n.2. If the
defendant qualifies, the provision directs that "the offense level determined under
Chapters Two and Three" should be increased by 5 levels. § 4B1.5(b)(1). The parties
agree that Bruguier's convictions for sexual abuse of the minors T.S. and K.S. are
"covered sex crimes," although the other two counts of conviction are not.

       Bruguier argues that the district court erred in adding the 5 level enhancement
to his combined offense level instead of applying it to the two "covered sex crime"
counts. That would have resulted in a lower guideline range. Chief Judge Schreier

                                         -12-
cited U.S.S.G. § 1B1.1 in explaining how she calculated the advisory guideline range.
She noted that the provision directs that the sentencing court first determine the base
offense level for each crime of conviction, then apply Chapter 3 to determined a
"single-offense level that encompasses all the counts of which the Defendant is
convicted." Only thereafter are Chapter 4 enhancements applied to the combined
offense level. See U.S.S.G. § 1B1.1(a)(6).

       Bruguier concedes that the district court followed the order required by §
1B1.1, but he contends that § 4B1.5 creates ambiguity as to how the enhancement
should be applied. He argues that the rule of lenity compels that any ambiguity be
resolved in his favor. See, e.g., King v. United States, 595 F.3d 844, 851 (8th Cir.
2010) (where there are "two plausible readings of a guideline provision, we apply the
rule of lenity and give the defendant the benefit of the reading that results in the
shorter sentence" (citation omitted)). He seeks a remand for application of the 5 level
enhancement to the individual covered sex crimes before the combined offense level
is determined.

        We do not find any ambiguity in the guidelines as to the proper method for
applying the enhancement, and we conclude that the district court correctly applied
it to the combined offense level rather than to individual counts. The guidelines
generally direct that multiple counts of conviction are to be grouped and a combined
offense level determined before application of any adjustments under Chapter 4 Part
B. U.S.S.G. § 1B1.1(a). The specific enhancement at issue here confirms this
reading. It clearly instructs that the 5 point increase should be added to the "offense
level determined under Chapters Two and Three." U.S.S.G. § 4B1.5(b)(1); see also
U.S.S.G. § 3D1.5 Commentary (noting that combined offense level is subject to
adjustments from Chapter 4, Part B). It follows from a plain reading of the guidelines
that the enhancement for a pattern of covered sex offenses is to be applied to the
combined offense level determined in Chapter 3, Part D. We therefore conclude that
the district court properly applied § 4B1.5 in calculating Bruguier's guideline range.

                                         -13-
See Gall, 552 U.S. at 51 (appellate court must "first ensure that the district court
committed no significant procedural error, such as . . . improperly calculating . . . the
Guidelines range").

       We next examine Bruguier's argument that the district court erred by not
granting him credit for acceptance of responsibility on his conviction for sexual abuse
of a minor. He notes that he admitted his guilt at trial and had previously offered to
plead guilty to that charge. A defendant may qualify for a 2 point reduction when he
"clearly demonstrates acceptance of responsibility for his offense." U.S.S.G.
§ 3E1.1(a). The sentencing court considers whether the defendant "truthfully
admitt[ed] the conduct comprising the offense(s) of conviction." § 3E1.1 cmt. n.1(A).
He is not eligible if he "falsely denies, or frivolously contests, relevant conduct that
the court determines to be true." Id. Bruguier argues that the district court should
have focused on his conduct in respect to K.S. alone when it concluded he was not
eligible for the reduction. He accepted responsibility for that offense, and argues that
other offenses should not have been considered on the question of acceptance because
they occurred at different times and involved different victims.

       We conclude that Bruguier was not eligible for an acceptance of responsibility
reduction. He did not admit to guilt for the other three counts which formed the basis
for his combined offense level. The guidelines state that a reduction under § 3E1.1
is only applied after grouping multiple counts under Chapter 3 Part D and
determining a combined offense level. See § 1B1.1(a); § 3D1.1 Background Note
(indicating that acceptance of responsibility adjustment is made after determining the
combined offense level); § 3D1.5 Commentary (noting that combined offense level
is "subject to adjustments from Chapter Three, Part E (Acceptance of
Responsibility)"). The other counts formed part of the "offense(s) of conviction" to
which Bruguier was required to "truthfully admit[]" in order to qualify for the
reduction. See § 3E1.1 Note 1(A). Since he did not admit to the other counts, he was
not eligible for the acceptance of responsibility reduction, and the district court

                                          -14-
properly denied it. See, e.g., United States v. Ginn, 87 F.3d 367, 371 (9th Cir. 1996)
("Because an adjustment for acceptance of responsibility is made only after the
combined offense level is computed, the Sentencing Guidelines do not 'contemplate
calculating acceptance of responsibility for each offense.'" (citation omitted)); United
States v. Hargrove, 478 F.3d 195, 199–200 (4th Cir. 2007).

       Bruguier also argues that the district court erred in applying a vulnerable victim
adjustment to his conviction for sexual abuse of an incapacitated person. That
provision allows for a 2 level increase 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). The
application note defines vulnerable victim as someone "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. The note states that the enhancement is
intended for defendants who know of the victim's "unusual vulnerability," giving the
example of a robbery where the defendant selects a handicapped victim. Id.

       Bruguier contends that it was improper to apply this enhancement to his
conviction for sexual abuse of an incapacitated person because the statute that he was
convicted under already accounted for victim vulnerability as an element of the
offense. See 18 U.S.C. § 2242(2) (requiring that victim be "physically incapable of
declining participation"). He argues that applying the enhancement added additional
consequences to a factor that had already been accounted for in assigning the base
offense level for a § 2242(2) conviction. He contends that it would only be proper
to apply the enhancement if Crystal had been "unusually vulnerable" in comparison
to other § 2242(2) victims. See United States v. De Oliviera, 623 F.3d 593, 598 (8th
Cir. 2010).

      The record supports the district court's finding that Crystal was "unusually
vulnerable" and that Bruguier "knew she was unusually vulnerable." The facts of this
case are similar to those in United States v. Betone, 636 F.3d 384, 388 (8th Cir.

                                          -15-
2011). In Betone, we upheld a vulnerable victim enhancement on a § 2242(2)
conviction where the victim had "passed out" from intoxication. Id. Here, the district
court found that Crystal had been given a ride home from Bruguier's house by her
sister because she was too intoxicated to drive. Soon after she left his house,
Bruguier drove to her home and had sex with her on her living room floor. After
witnesses heard a loud noise, they saw Crystal apparently unconscious with Bruguier
on top of her. The district court considered Crystal's testimony that she had no
memory of the sexual encounter. Because it was not clearly erroneous to find that
Crystal was unusually vulnerable at the time of the assault, we uphold the vulnerable
victim enhancement. Id.

       Moreover, any error in applying the vulnerable victim enhancement would
have been harmless. While eliminating the enhancement would have lowered the
base offense level for this count from 32 to 30, Bruguier's combined offense level
would still have been 41 under the guideline grouping rules, resulting in the same
guideline range of 360 months to life imprisonment. See U.S.S.G. § 3D1.4 (2 units
would still have been added to the highest offense level of 34 before adding the 5
point increase for pattern of sexual activity).

       In sum, the district court correctly applied the guidelines in calculating
Bruguier's guideline range of 360 months to life. We conclude that the sentence was
thus "procedurally sound." Gall, 552 U.S. at 51. Since Bruguier does not challenge
the substantive reasonableness of his sentence, we need not address that subject. See
United States v. Brown, 550 F.3d 724, 729 n.4 (8th Cir. 2008).

                                         V.

      Accordingly, the judgment of the district court is affirmed.

BRIGHT, Circuit Judge, dissenting with opinion to follow.


                                        -16-
BRIGHT, Circuit Judge, dissenting in part.

      We have a unique situation here where two opinions, based on similar factual
scenarios, filed simultaneously, have set forth directly opposite conclusions on the
same issue. The appellant in United States v. Larry Rouillard, No. 11-3039, 2012
WL 6197847 (8th Cir. Dec. 13, 2012), contends, as does Bruguier, that section
2242(2) requires the defendant to have knowledge of the victim’s capacity or inability
to consent. In my view, the Rouillard panel correctly concluded in the affirmative.

       In this case both Bruguier and Crystal were intoxicated from the effects of their
boozing. When she awoke, Crystal had no recollection of having sexual intercourse
with Bruguier the night before. Contrary to her asserted belief that she had been
raped, Bruguier claims the two had consensual sexual intercourse. On these facts,
Bruguier asked the district court to instruct the jury that to find him guilty of sexual
abuse of Crystal they had to find, as an element of the offense, that Bruguier knew
Crystal was physically incapable of consenting to the sexual act. In refusing
Bruguier’s request, the district court erred. United States v. James Bruguier, No. CR.
11-40012-01-KES, 2011 WL 4708853 (D.S.D. Oct. 4, 2011). I therefore dissent3
from the majority and adopt the analysis in Rouillard as providing the correct
interpretation of section 2242(2) and the relevant case law.

      The Government’s insistence that United States v. Betone, 636 F.3d 384 (8th
Cir. 2011), has resolved this precise issue can be dispensed with, as the Rouillard
panel has, because:

      [T]he argument that [Bruguier] raises on appeal is different than the one
      raised in Betone . . . [where] the defendant merely argued that there was


      3
       I agree with my colleagues with regard to the sufficiency of the evidence to
sustain Bruguier’s burglary conviction and the district court’s calculation of his
Guidelines range.

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      insufficient evidence to support his conviction. Here, [Bruguier]
      focuses his argument on the mens rea requirement of section 2242(2).
      . . . The legal issue raised by [Bruguier] is distinguishable from the one
      framed by Betone.

Rouillard, 2012 WL 6197847, at *3. Further, as the Rouillard panel aptly explained:

      “[S]ex crimes committed against the vulnerable, such as an unconscious
      or intoxicated individual, are particularly egregious and dehumanizing.”
      United States v. Riley, 183 F.3d 1155, 1160 (9th Cir. 1999). The harm
      experienced by a victim is not alleviated where the assailant is acquitted
      based on his claim that he did not know that the victim was
      incapacitated. However, “the presumption in favor of a scienter
      requirement should apply to each of the statutory elements that
      criminalize otherwise innocent conduct.” United States v. X-Citement
      Video, Inc., 513 U.S. 64, 71-72 (1994). Knowingly “engag[ing] in a
      sexual act with another person” is not inherently criminal under federal
      law, barring some other attendant circumstance. Thus, . . . [section
      2242(2)] is properly read as requiring defendant’s knowledge that the
      other person was incapacitated.

Id. at *4 (emphasis in original).

       Despite the majority’s position that United States v. Peters, 277 F.3d 963 (7th
Cir. 2002), is distinguishable because the district court there did not consider the
propriety of the jury instruction “like the one Bruguier seeks,” the Seventh Circuit’s
decision supports Bruguier’s contention. The district court instructed the jury that to
sustain the charge of sexual abuse in violation of section 2242(2) they needed to find
Peters knew the victim was physically incapable of declining participation in or
communicating unwillingness to engage in the sexual act. Id. at 966. As a ground
for reversal, the Seventh Circuit concluded the government failed to sufficiently
establish that Peters knowingly engaged in a sexual act with the victim when she was
physically incapable of declining participation. The court thereby adopted the
scienter requirement of knowingly to require knowledge of the victim’s inability to

                                         -18-
decline participation in the sexual act. Id. at 968. The court did not reject the validity
of the jury instructions. Although implicit, the court in essence adopted the same
instructions Bruguier requested.

       Some may assert that section 2242(2) does not appear to require the mens rea
Bruguier urges. However, where a statute is silent on the mens rea, that “silence . . .
by itself does not necessarily suggest that Congress intended to dispense with a
conventional mens rea element, which would require that the defendant know the
facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605
(1994). “[T]he existence of a mens rea is the rule of, rather than the exception to, the
principles of [our] criminal jurisprudence.” Id. (quotation omitted). Mens rea is
important in determining criminal responsibility and to avoid punishing a defendant
for something he may not have known about, such as here, where Bruguier was so
grossly intoxicated that he may not have known or realized Crystal was incapable of
declining participation in the sexual act.

       Because I believe the district court erred in instructing the jury on the charge
of sexual abuse of Crystal, I also dissent from the majority’s position that any error
in applying the vulnerable victim adjustment to Bruguier’s conviction was harmless.
Absent a guilty verdict on this charge, Bruguier’s combined offense level would be
40, not 41, and result in a guideline range of 324 to 405 months in prison. See
U.S.S.G. § 3D1.4. This difference is anything but harmless.

       Finally, I note that Bruguier should not have received a guidelines sentence.
The district court’s decision to sentence Bruguier to 30 years in prison is reflective
of the heavy sentences typically imposed on American Indians for crimes committed
on reservations as compared to sentences imposed for crimes committed by non-
Indians off the reservations. See United States v. Deegan, 605 F.3d 625 (8th Cir.
2010) (Bright, J., dissenting) (noting the disparate treatment in sentencing between
a woman on the reservation versus a woman off the reservation for the crime of
neonaticide); Native Americans and the Death Penalty, Death Penalty Information

                                          -19-
Center, http://www.deathpenaltyinfo.org/native-americans-and-death-penalty (last
visited Dec. 19, 2012) (“On average, American Indians receive longer sentences than
non-Indians for crimes. They also tend to serve longer time in prison for their
sentences than non-Native Americans.”)

      I would remand for a new trial on the charge of sexual abuse of Crystal or a
resentencing without consideration of that charge. To resolve this intra-circuit
conflict, I believe an en banc review of this issue would be appropriate. In the
meantime, I urge district courts to follow the rule of law in Rouillard.
                       _____________________________




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