Background
Defendant Kendall Moss III was convicted of sexually abusing a ten year old girl he met in a group home where he worked. The district court applied a vulnerable victim enhancement under the sentencing guidelines, increasing the advisory range. Moss argued the enhancement relied on impermissible factors already incorporated into the base offense calculation.
The court’s reasoning
The court held that even if some factors considered for the enhancement were impermissible, the error was harmless because permissible factors, such as the size difference between the defendant and victim and the victim’s unstable home life, independently justified the enhancement. Under plain error review, the defendant failed to show a reasonable probability that the court would have declined the enhancement absent the impermissible factors.
What it means going forward
Sentencing courts may rely on permissible factors to sustain enhancements even if some impermissible factors were also considered, provided the defendant cannot show the error affected substantial rights.