                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-1997

United States v. Cruz
Precedential or Non-Precedential:

Docket 96-1325




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          _________________

                             NO. 96-1325
                          _________________

                           UNITED STATES,
                                   Appellee

                                 v.

                            ANDRE CRUZ,
                       a/k/a ANTHONY TORRES,
                        a/k/a ANTHONY ZAYAS

                            Andre Cruz, Appellant

           __________________________________________

         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                   D.C. Crim. No. 95-cr-00532
           __________________________________________

                      Argued: December 10, 1996

            Before:    BECKER, MANSMANN, and GREENBERG

                   (Filed: February 13, 1997)


THOMAS R. QUINN, ESQUIRE (ARGUED)
12 South 12th Street
2940 PSFS Building
Philadelphia, PA 19107

Attorney for Appellant
MICHAEL R. STILES, ESQUIRE
United States Attorney
WALTER S. BATTY, JR., ESQUIRE
Assistant United States Attorney
Chief of Appeals
J. ALVIN STOUT, III, ESQUIRE
Assistant United States Attorney
ROBERT K. REED, ESQUIRE (ARGUED)
Assistant United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

Attorneys for Appellee


                                 1
                    __________________________

                       OPINION OF THE COURT
                   ____________________________

BECKER, Circuit Judge.


          The sentencing appeal of defendant Andre Cruz,

following his conviction pursuant to a plea of guilty to

carjacking, 18 U.S.C. § 2119, requires us to construe two facets

of the vulnerable victim provisions of § 3A1.1(b) of the

Sentencing Guidelines.   First, we must determine whether the

vulnerable victim enhancement applies to harm caused by the

defendant to someone who was not the victim of the offense of

conviction.   Second, we must decide whether the adjustment can be

made if the defendant did not target (or commit the offense

because of) the vulnerable status of the victim.

          Although the latter determination must be made in this

case, because it contributed to a two-level increase in Cruz’s

base offense level, it has little precedential import because the

Sentencing Commission has recently amended the commentary to §

3A1.1 to make clear that there is no targeting requirement.     For

the reasons that follow, we conclude that the vulnerable victim

enhancement applies here even though the victim was only a

passenger in the carjacked vehicle and even though the crime was

not committed with a view to her vulnerability.    We will,

therefore, affirm the judgment of the district court.1
     1
      Cruz also claims that he was denied the effective
assistance of counsel at sentencing because his lawyer failed to
object to his criminal history category. He bases his argument
on the contention that the district court incorrectly assessed an
additional point under U.S.S.G. § 4A1.1(e), which directs


                                2
                                  I.

             The relevant facts are shocking and gruesome.   Stated

succinctly, Cruz, brandishing a semi-automatic pistol, entered

the right front passenger door of the car driven by twenty-six

year old Maribel Nunez.    Twelve-year old Brenda Torres was her

passenger.    Cruz put the gun to Torres’s head, and told them to

give him their money.    After Nunez gave Cruz twenty dollars, he

(..continued)
sentencing courts to add criminal history points if the defendant
committed the offense of conviction within two years of release
from a prior sentence or while the defendant was on escape status
from that sentence. The guideline provides:
Add two points if the defendant committed the instant offense
          less than two years after release from confinement on
          a sentence under [§ 4A1.1(a) or §       4A1.1(b)] or
          while in imprisonment or escape status on such a
          sentence. If 2 points are added for item [§
               4A1.1(d)] add only 1 point.
Past sentences of imprisonment are assigned criminal history
points under two different provisions: if the defendant served a
sentence of incarceration for an adult conviction, points are
assigned under § 4A1.1(a), (b), and (c), depending on the length
of the sentence, but if the defendant was incarcerated for a
juvenile adjudication, points are assigned under § 4A1.2(d).
Cruz makes the technical argument that the enhancement was based
on the fact that he had escaped from incarceration for a juvenile
robbery adjudication, which was counted under § 4A1.2(d), and
that an adult conviction, which would be counted under § 4A1.1(a)
or (b), is the necessary basis for a § 4A1.1(e) enhancement by
the terms of the provision. This raises, on an adequate record,
a purely legal question, cognizable on direct appeal. See United
States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
          Even though the past offense was assigned criminal
history points under § 4A1.2(d) because it was a juvenile
offense, rather than § 4A1.1(a) or (b), a juvenile offense can
clearly provide the basis for a § 4A1.1(e) enhancement. Section
4A1.2(d) requires that two points be assigned for certain
juvenile offense and specifies that these points are added "under
§ 4A1.1(b)." Hence, criminal history points for juvenile
adjudications are indirectly assigned under § 4A1.1(b) and it
would strain plain meaning to say that an additional point could
not be added under § 4A1.1(e). See, e.g., United States v.
Allen, 64 F.3d 411, 413 (8th Cir. 1995); United States v. Unger,
915 F.2d 759, 763-64 (1st Cir. 1990). Cruz's agument is thus
patently meritless.



                                  3
patted down Torres looking for more money to no avail.

Threatening to kill them if they did not cooperate, he ordered

Nunez to drive, keeping the gun pointed at Torres’s head.

           Cruz then ordered Nunez to stop the car, and to get in

the back seat, leaving Torres alone with him in the front seat.

Nunez begged Cruz to leave Torres alone, and told him that "she's

just a little girl," only twelve or thirteen years old.     Cruz

responded, "I don't care," and told Nunez "to shut up.”    He then

raped Torres.    Cruz ordered Nunez and Torres to switch places,

and then raped Nunez and forced her to perform oral sex.    After

raping Nunez, Cruz again raped Torres.

           The episode ended when Nunez jumped out of the moving

car onto the pavement, and Cruz eventually stopped the car and

fled.   As might be expected, there was testimony at the

sentencing hearing as to the traumatic effect on Torres of the

carjacking and sexual assault.    Cruz admitted the carjacking but

denied the rapes.    The district court sentenced him to 240 months

incarceration.    Included in the Guidelines calculation was a two-

level upward adjustment under U.S.S.G. § 3A1.1(b) because Brenda

Torres was a vulnerable victim.

                                 II.

           The vulnerable victim enhancement, U.S.S.G. § 3A1.1(b),

provides:
If the defendant knew or should have known that a victim of the
          offense was unusually vulnerable due to age, physical
          or mental condition, or that a victim was particularly
          susceptible to the criminal conduct, increase by two
          levels.


The application note to the 1995 Guidelines further provides that


                                  4
§ 3A1.1 "applies to offenses involving an unusually vulnerable

victim in which the defendant knows or should have known of the

victim's unusual vulnerability."       1995 U.S.S.G. § 3A1.1,

commentary, application note 2.2

          Cruz contends that Torres must be a victim of the

offense of conviction (carjacking) for the enhancement to be

applied to him.   The carjacking statute, 18 U.S.C. § 2119,

subjects to criminal conviction anyone who
with the intent to cause death or serious         bodily injury
          takes a motor vehicle that has been transported,
          shipped, or received in interstate commerce from the
          person or presence of another by force and violence or
          by intimidation, or who attempts to do so . . . .


Because Cruz took the automobile from the “person or presence” of

Nunez not Torres, the argument continues, Torres cannot be the

victim of the carjacking, and the enhancement was therefore

impermissible.    Cruz concedes that, except for the Sixth Circuit,

all of the circuits that have considered this issue have held

that the vulnerable victim does not have to be the victim of the

offense of conviction.    See United States v. Echevarria, 33 F.3d

175, 180-81 (2d Cir. 1994); United States v. Bachynsky, 949 F.2d

722, 735 (5th Cir. 1991); United States v. Callaway, 943 F.2d 29,
31 (8th Cir. 1991); United States v. Haggard, 41 F.3d 1320, 1326

(9th Cir. 1994); United States v. Lee, 973 F.2d 832, 833-34 (10th

Cir. 1992); United States v. Yount, 960 F.2d 955, 957-58 (11th

Cir. 1992).

     2
      While Cruz relies on the 1994 pre-amendment commentary for
his second claim on appeal, he does not challenge the application
of the 1995 commentary with respect to this issue.



                                   5
          Pointing out that the language of § 3A1.1(b) itself

does not require that the vulnerable victim be a victim of the

offense of conviction, these (majority) courts have reasoned that

a sentencing court should not read § 3A1.1(b) narrowly, and thus

may look to the defendant’s underlying conduct to determine

whether the enhancement may be applied.   Haggard, 41 F.3d at 1326

(“[C]ourts may look beyond the four corners of the charge to the

defendant’s underlying conduct in determining whether someone is

a ‘vulnerable victim’ under section 3A1.1.”); Yount, 960 F.2d at

957 (same).   They have relied on § 1B1.3(a)(3), which directs the

sentencing courts to look at “all harm” that results from the

defendant’s conduct in determining his base offense level and

applying relevant adjustments.3

          Cruz instead must rely on the minority position, that

of the Sixth Circuit in United States v. Wright, 12 F.3d 70 (6th

Cir. 1993), the only court to have held that § 3A1.1 applies only

if the victim is a victim of the offense of conviction.   In that

case, the court held that the language of § 3A1.1(b) itself

requires that result.   It drew on Hughey v. United States, 495

U.S. 411 (1990), in which the Supreme Court defined “victim” for

     3
      Unlike the case before us, however, none of these cases,
including the Sixth Circuit case, have considered this question
in the context of a violent offense. These cases instead
involved crimes such as fraud, obstruction of justice, or money-
laundering, where an institution such as a bank, the government,
or society at large was the victim, but the enhancement was
applied because vulnerable people (e.g., elderly people) were
part of the conduct underlying the offense in some way (e.g.,
bank accounts, Medicare fraud). Despite this difference, we see
no reason why we should not be guided by these cases in the
disposition of the case at bar.



                                  6
purposes of the victim restitution provisions of the Victim and

Witness Protection Act (“VWPA”) as covering only those who are

harmed by the conduct that is the basis of the offense of

conviction.   Wright, 12 F.3d at 73.

          The Wright court held that § 1B1.3(a)(3) does not

provide otherwise because its commentary specifies that §

1B1.3(a) “‘provides a rule of construction by specifying, in the

absence of more explicit instructions in the context of a

specific guideline, the range of conduct that is relevant to

determining the applicable offense level . . . .’” Id. at 74

(quoting U.S.S.G. § 1B1.3, commentary, background).    Because the

court determined that § 3A1.1(b) provided explicit instructions

itself, it held that § 1B1.3 did not allow a court to apply §

3A1.1 when the victim was not the victim of the offense of

conviction.   Id.

          Cruz submits that Torres, the twelve-year old, was not

clearly a victim of the carjacking under the explicit terms of

the carjacking statute because she was not the driver of the car.

 By the same token, because Cruz ordered Nunez to drive while

pointing a gun at Torres, it is arguable that Torres was a victim

of the carjacking itself.   These points are unclear, but we need

not decide them.    That is because, believing that the position

taken by the majority of the circuits to be the better one, we

find unpersuasive the claim that the Sixth Circuit’s

understanding of the term “victim” was what the Sentencing

Commission had in mind in drafting § 3A1.1.    We conclude, as did

the other courts, that neither § 3A1.1(b) nor the application


                                 7
note explicitly requires that we read "victim" narrowly and that,

under § 1B1.3, we may look at all the conduct underlying the

offense of conviction.   The gruesome facts of the carjacking

described above make it clear beyond cavil that Torres was a

victim for purposes of § 3A1.1 under this standard.

                                 III.

          Effective November 1995, the Sentencing Commission

amended the commentary to § 3A1.1, while the text of the

commentary itself remained the same.    Cruz’s second claim on

appeal is that he must be sentenced according to the application

note that was in force when the crime was committed, the 1994

version, rather than the provision in effect at the time of

sentencing, the 1995 version.    The relevant part of the 1994

application note reads: “This adjustment applies to offenses

where an unusually vulnerable victim is made a target of criminal

activity by the defendant.”     1994 U.S.S.G. § 3A1.1, commentary,

application note 1.   Cruz contends that this commentary requires

that there be evidence that Cruz targeted Torres because of her

age, which he clearly did not, citing cases from other circuits.

See United States v. Smith, 39 F.3d 119, 124 (6th Cir. 1994);
United States v. Cree, 915 F.2d 352, 353-54 (8th Cir. 1990);

United States v. Sutherland, 955 F.2d 25, 26 (7th Cir. 1992);

United States v. Singh, 54 F.3d 1182, 1190-91 (4th Cir. 1995).

          The government's response is bifurcated.    First, it

contends that the cases just cited are incorrectly decided, even

under the 1994 commentary, and that the better rule (and the one

we should follow) is that expressed by the Second and Ninth


                                  8
Circuits, and most recently, the First Circuit.   Pointing to the

text of the guideline itself, which the Commission has not

amended and which provides that the enhancement is required if

the defendant “knew or should have known” of the victim’s

vulnerability, these circuits have concluded that a targeting

requirement would be inconsistent with this language.

          In United States v. Hershkowitz, 968 F.2d 1503 (2d Cir.

1992), for example, a detainee was assaulted by a prison guard

while the other guards failed to intervene.   The Second Circuit

there affirmed the two-level increase due to the victim's

vulnerability under the circumstances, relying on the language of

the guideline itself to reject the defendant's contention that

the enhancement should not apply because he had not

"’specifically sought out’ the victim."   Id. at 1506.   The Ninth

Circuit has consistently used this approach, holding that the

government must only show that the defendant had actual or

constructive knowledge of the victim’s vulnerability, see United

States v. O'Brien, 50 F.3d 751, 755 (9th Cir. 1995); United

States v. White, 974 F.2d 1135, 1140 (9th Cir. 1992); see also

United States v. Caterino, 957 F.2d 681, 683 (9th Cir.), cert.
denied, 506 U.S. 843 (1992); United States v. Boise, 916 F.2d

497, 506 (9th Cir. 1990), and the First Circuit has recently

followed suit, holding in a post-amendment case that the pre-

amendment guideline did not contain a targeting requirement,

United States v. Gill, 99 F.3d 484, 488 (1st Cir. 1996).4
     4
      The Gill opinion clarified First Circuit law on this issue,
and specifically noted that United States v. Rowe, 999 F.2d 14,
16-17 (1st Cir. 1993), which contained some confusing language,



                                9
           Second, the government points out that there is no

targeting requirement applicable to Cruz's sentence because the

Sentencing Commission, effective November 1, 1995, amended the

commentary to § 3A1.1 to clarify the application of the

guideline.   The commentary on which Cruz relies and which was in

effect on December 8, 1994, the date of the carjacking, stated in

full:
This adjustment applies to offenses where an unusually vulnerable
          victim is made a target of criminal activity by the
          defendant. The adjustment would apply, for example, in
          a fraud case where the defendant marketed an
          ineffective cancer cure or in a robbery where the
          defendant selected a handicapped victim. But it would
          not apply in a case where the defendant sold fraudulent
          securities by mail to the general public and one of the
          victims happened to be senile. Similarly, for example,
          a bank teller is not an unusually vulnerable victim
          solely by virtue of the teller's position in a bank.


1994 U.S.S.G. § 3A1.1, commentary, application note 1 (emphasis

added).

           In its November 1, 1995 clarification, the Commission

deleted the first sentence of the pre-November 1, 1995

commentary, including the reference to "target," and replaced it

with:   “Subsection (b) applies to offenses involving an unusually

vulnerable victim in which the defendant knows or should have

known of the victim's unusual vulnerability.”   1995 U.S.S.G. §

3A1.1., commentary, application note 2.   In amending the

guideline as such, the Commission explained:
Although the Commission found that the current guidelines
          generally provided adequate penalties in these cases,
          it noted some inconsistency in the application of §
          3A1.1 regarding whether this adjustment required proof
(..continued)
did not hold that § 3A1.1 had a targeting requirement. Gill, 99
F.3d at 487.




                                10
            that the defendant has "targeted the victim on account
            of the victim's vulnerability." This amendment revised
            the Commentary to § 3A1.1 to clarify application with
            respect to this issue.


U.S.S.G. Appendix C, Amendment 521, at 429-30.

            Thus, explicitly noting that there had been some

"inconsistency" in the application of § 3A1.1(b), the Commission

clarified that inconsistency by deleting the reference to

"target."   After the amendment to the commentary, the only

requirement for applying the two-level enhancement is that the

defendant knew or should have known of the victim's

vulnerability.   See United States v. Feldman, 83 F.3d 9, 16 (1st

Cir. 1996).

            If Cruz would fare worse under the amended guideline

than the one in effect at the time of his offense, ex post facto

considerations would prevent us from applying the amendment.       See

United States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991) (holding

that while defendants are generally sentenced under the

Guidelines in effect at the time of sentencing, the Guidelines in

effect at the time of the commission of the offense govern if

they result in a less severe penalty); see also United States v.
Stover, 93 F.3d 1379, 1386 (8th Cir. 1996) (applying targeting

requirement even after amendment to the commentary because of an

ex post facto concern).      Of course, if we were to follow the

precedent in the First, Second, and Ninth Circuits, whose case

law conforms with the amendment, there would be no ex post facto

problem.    We do so here.

            There is no Third Circuit case law interpreting the



                                   11
1994 application note, and we cannot consider the Sentencing

Commission’s clarification of the application note to resolve how

the Third Circuit would have interpreted it.   See United States

v. Menon, 24 F.3d 550, 567 (3d Cir. 1994); United States v.

Bertoli, 40 F.3d 1384, 1407 & n.21 (3d Cir. 1994).5   We simply

find the cases holding that there was no targeting requirement

under the 1994 guideline to be more persuasive.    More

specifically, the purpose of § 3A1.1, as we see it, is simply to

acknowledge that, while most crimes are committed for other

motives, in many instances defendants know or should know of

their victim's particular vulnerability and are therefore more

blameworthy for knowingly or even negligently harming them.

          The text of the guideline itself, see supra p. 5, which

was not amended in 1995, directs that it be applied in any case

where the defendant “knew or should have known” of the victim's

     5
      Arguably, our decisions in United States v. Astorri, 923
F.2d 1052 (3d Cir. 1991), and United States v. Seligsohn, 981
F.2d 1418 (3d Cir. 1992), are in accord with the First, Second,
and Ninth Circuit views. At the least, they are not inconsistent
with them.
           In Astorri, this Court approved the vulnerable victim
enhancement where a corrupt broker took advantage of his
girlfriend's parents. To reach this holding, we upheld the
district court’s finding that the parents were vulnerable, 923
F.2d at 1055, without mentioning any requirement that Astorri
have targeted his girlfriend’s parents because of their
vulnerability.
           Similarly, in Seligsohn, this Court affirmed an upward
departure where the defendants defrauded elderly victims by
selling unnecessary roofing repairs at excessive prices. The
district court enhanced the sentence of the lead defendant
because the elderly victims were vulnerable due to their age, and
this Court affirmed without mentioning a targeting requirement.
981 F.2d at 1426 (“There was adequate evidence in the record to
sustain a finding that the defendants preyed on those
particularly vulnerable individuals.”).



                               12
susceptibility. We agree with the Hershkowitz court that:
[b]y its own terms, § 3A1.1 governs cases in which the defendant
          “knew or should have known” of the victim's unusual
          vulnerability. It is of no consequence        therefore
          whether Hershkowitz actually was conscious of
          Campbell's increased vulnerability when he assaulted
               him in the corridor and later in the holding cell.


Id. at 1506.   We conclude that, if we were to hold that the 1994

commentary to the guideline required a finding of targeting, we

would undermine the plain language of § 3A1.1 and impose a higher

level of scienter than is required by the provision.   See Stinson

v. United States, 113 S. Ct. 1913, 1918 (1993) ("If . . . the

commentary and the guideline it interprets are inconsistent in

that following one will result in violating the dictates of the

other, the Sentencing Reform Act itself commands compliance with

the guideline.").   Moreover, we are not persuaded that the 1994

commentary is to the contrary as it, too, does not require that

the defendant targeted the victim because of his or her

vulnerability.   1994 U.S.S.G. § 3A1.1, commentary, application

note 1 (applies where a vulnerable victim is “made a target of

criminal activity by the defendant” and does not require that the

victim be targeted because of his or her vulnerability).
            In sum, the argument that the enhancement can be

assessed only where a defendant purposefully targets a victim

because of his or her vulnerability cannot be reconciled with the

plain language of § 3A1.1 that there should be an enhancement

even in cases where the defendant does not have actual knowledge

of the vulnerability.   The facts here surely meet the applicable

standard.   Cruz at the very least should have known of the



                                13
twelve-year old Torres's vulnerability.   The vulnerable victim

enhancement was therefore properly applied.

                               IV.

          The judgment of the sentence will be affirmed.6




     6
      Cruz's alternative argument that the rule of lenity
requires resentencing is without merit. The rule of lenity "is
always reserved . . . for those situations in which a reasonable
doubt persists about a statute's intended scope even after resort
to 'the language and structure, legislative history, and
motivating policies' of the statute." Moskal v. United States,
498 U.S. 103, 108 (1990); accord United States v. Bass, 404 U.S.
336, 347 (1971) (reliance on the rule of lenity should occur only
if "[a]fter 'seiz[ing] every thing from which aid can be
derived,'" a court is left with an ambiguous statute). Given the
plain meaning of § 3A1.1(b) and its commentary, the rule of
lenity is inapplicable.



                               14
