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U.S. v. Cruz

February 13, 1997

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

Before: BECKER, MANSMANN, and GREENBERG

BECKER, Circuit Judge.

Argued: December 10, 1996

(Filed: February 13, 1997)

OPINION OF THE COURT

The sentencing appeal of defendant Andre Cruz, following his conviction pursuant to a plea of guilty to carjacking, 18 U.S.C. Section(s) 2119, requires us to construe two facets of the vulnerable victim provisions of Section(s) 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. *fn1

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 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. Section(s) 3A1.1(b) because Brenda Torres was a vulnerable victim.

II.

The vulnerable victim enhancement, U.S.S.G. Section(s) ...


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