                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1383
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Gregory Joseph Frohlich

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                          Submitted: November 22, 2013
                            Filed: December 13, 2013
                                  ____________

Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Defendant Gregory Frohlich pled guilty to one count of transporting minors
with intent to engage in unlawful sexual activity in violation of 18 U.S.C. § 2423(a).
At sentencing, the district court1 applied a vulnerable victim enhancement under the
United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 3A1.1(b)(1).
Frohlich appeals, claiming that, because of his own intellectual limitations, the
government’s evidence failed to establish he knew or should have known of the
victims’ vulnerability. Having appellate jurisdiction under 28 U.S.C. § 1291, we
affirm.

I.     BACKGROUND
       Frohlich began sexually abusing his thirteen-year-old twin nieces in 2009,
shortly after their adoptive mother had a stroke. This abuse continued for nearly two
years. According to the twins, the abuse often happened at Frohlich’s apartment in
North Dakota, but at least two instances of abuse occurred when Frohlich took the
twins to casinos in Minnesota.

       Frohlich warned his nieces not to tell their mother about the sexual contact
because she “may have another stroke and die.” In April 2011, the twins’ mother
learned about the abuse and reported it to police. The police interviewed Frohlich
about the allegations, and Frohlich later admitted inappropriately touching both girls
repeatedly while they were in his care.

       Frohlich pled guilty to one count of transporting minors with intent to engage
in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The presentence
investigative report recommended a two-level enhancement for vulnerable victims
under U.S.S.G. § 3A1.1(b)(1). Frohlich opposed the enhancement, arguing the twins
were not vulnerable, and, even if they were, he was not aware of their vulnerability
because of his own intellectual limitations. Frohlich supported his argument by



      1
        The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.

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providing the district court with a psychological report indicating Frohlich suffered
from borderline intellectual functioning.

       At sentencing, the district court determined Frohlich knew or should have
known the twins were vulnerable under the Guidelines. In reaching this
determination, the district court considered two reports to which the parties stipulated.
One report was an interview with the victims’ mother. She stated the twins had
attention deficit hyperactivity disorder (ADHD) and probable fetal alcohol syndrome
(FAS), and she often had discussed the twins’ problems with Frohlich. The second
report was an interview with the twins’ clinical social worker, who explained the
victims regularly engaged in behavior inappropriate for their ages and “this would be
very apparent to most people.”

        Based on this evidence, the district court had “little difficulty coming to the
conclusion that [the] victims were vulnerable.” The district court further decided the
evidence established Frohlich knew the victims were vulnerable. The district court
weighed the evidence and found particularly “compelling” Frohlich’s warning to the
twins that their mother might have another stroke and die if the twins told their
mother about the sexual abuse, explaining “that’s not the kind of thing that you
ordinarily think you could say to a 13-year-old and modify their behavior, and I think
that it’s a reflection that those children were functioning at a lower-than-appropriate
age level.”

      Frohlich requested that the district court reconsider the enhancement and
presented testimony from his psychologist, Dr. Troy Ertelt, who suggested it would
be difficult for Frohlich, with borderline intellectual functioning, to perceive the
vulnerability of others. The district court denied Frohlich’s request, but did take
Frohlich’s vulnerabilities into account in reducing Frohlich’s sentence well below the




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advisory Guidelines range for his offense conduct.2 Frohlich only appeals the
adequacy of the government’s evidence to prove whether he knew or should have
known the twins were vulnerable victims.

II.     DISCUSSION
        “Whether a defendant knew or should have known of a victim’s vulnerability
is a factual determination that we review for clear error.” United States v. Hagen, 641
F.3d 268, 271 (8th Cir. 2011) (quotation and internal marks omitted). Reversal
requires that “we have a ‘definite and firm conviction that a mistake has been made.’”
United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir. 2008) (quoting United States
v. Harry, 960 F.2d 51, 53 (8th Cir. 1992)).

      The Guidelines provide a two-level sentencing enhancement “[i]f 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). A vulnerable victim is an individual “who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise particularly
susceptible to the criminal conduct.” Id. cmt. 2.

       Frohlich analogizes his case to United States v. Myers, 481 F.3d 1107 (8th Cir.
2007). In Myers, we affirmed the district court’s refusal to apply a vulnerable victim
enhancement to the defendant’s Guidelines base offense calculation because the
government offered no evidence indicating the defendant was ever informed that his
fifteen-year-old victim had ADHD or that her disability was manifested in her
behavior. Id. at 1111. Frohlich’s reliance on Myers is misplaced.



      2
       The district court’s Guidelines calculation for Frohlich’s offense conduct was
38, yielding an advisory range of 235 to 293 months. The district court sentenced
Frohlich to 168 months incarceration. Frohlich’s 168 month sentence also is twenty
months below the advisory Guidelines range without the challenged two-level
vulnerable victim enhancement (188 to 235 months).

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       Frohlich does not dispute he was informed about and exposed to the twins’
significant disabilities shortly after they were adopted. For nearly ten years, Frohlich
regularly served as caretaker for the victims and observed them engage in behavior
that was inappropriate for their ages. For nearly two years, Frohlich actively took
steps to isolate the victims so he could abuse them, taking them away from home for
hours, including out of state. Frohlich’s substantial knowledge of the twins over
many years, and Frohlich’s conduct toward the twins, coupled with his caution to the
twins that their mother might have another stroke and die if they told her about the
abuse, together provide ample evidence Frohlich understood the twins were
vulnerable, regardless of his purported intellectual limitations. See, e.g., Hagen, 641
F.3d at 271-72 (rejecting defendant’s argument that his learning disability prevented
him from understanding that the victim’s mental disability and prior abuse history
made her vulnerable to sexual abuse); United States v. Janis, 71 F.3d 308, 311 (8th
Cir. 1995) (holding that the perpetrator who lived with the victim knew or should
have known of her vulnerability given their regular contact and the victim’s history
of ADHD, FAS, and learning disabilities). The district court did not commit clear
error in applying the vulnerable victim enhancement and did not abuse its sentencing
discretion.

III.   CONCLUSION
       For the foregoing reasons, we affirm Frohlich’s sentence.
                       ______________________________




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