Rob Senger v. City of Aberdeen

1The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3044
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Herbert Lyle Swallow, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 31, 2006
Filed: September 6, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Herbert Lyle Swallow appeals the sentence the district court 1 imposed after he
pleaded guilty to knowingly engaging in a sexual act with another person who was
incapable of appraising the nature of the conduct and was physically incapable of
declining participation, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A).
He argues that the district court erred in including a vulnerable-victim enhancement
in its advisory Guidelines calculation.

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-2-
We conclude that the district court did not clearly err in applying the
enhancement based on its finding that Swallow “knew or should have known” that the
victim was a “vulnerable victim.” See U.S.S.G. § 3A1.1(b)(1); United States v.
Anderson, 349 F.3d 568, 571 (8th Cir. 2003) (standard of review). A vulnerable
victim is a person “who is unusually vulnerable due to age [or] physical or mental
condition, or who is otherwise particularly susceptible to the criminal conduct.”
U.S.S.G. § 3A1.1, comment. (n.2). While Swallow argues that his intoxication and
alcoholic blackout kept him from realizing the victim’s vulnerability due to her own
intoxication, he does not deny that he had been drinking with the victim and that she
had passed out. The record supports the district court’s determination that Swallow
should have known that the victim was unusually vulnerable.
Accordingly, we affirm.
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