USA v. Black

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Jason Douglas Black
Case No. 3:18-cr-00125-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter pending before the Court is the Imposition of Sentence for Defendant Jason Douglas
Black. To aid in sentencing, the Court ordered that the Parties provide supplemental briefing on
whether Black’s United States Sentencing Guideline (U.S.S.G.) calculation should include a two-
level enhancement under U.S.S.G. § 3A1.1(b)(1) for having committed an offense against a
“vulnerable victim.”1 The Parties have submitted their briefing on the issue.2 The “vulnerable
victim” analysis requires the Court to examine the totality of the victim’s characteristics and
circumstances to determine whether they are “less able to resist than the typical victim of the offense
of conviction.”3
The United States contends that because the victim in this case “was a woman living in a remote,
primarily Inupiat Eskimo village of less than 700 people that was only accessible by air and had no
local law enforcement aside from an unarmed [Village Police Officer] whom Black had also
previously threatened to shoot,” she was a vulnerable victim within the meaning of U.S.S.G.
§ 3A1.1(b)(1).4 In support of its argument, the United States has submitted numerous reports and
articles, which examine the well-known problem of violent crime in rural Alaskan communities and
the frequent lack of law enforcement in those communities.5
In his filings, Black has not directly addressed whether or not the victim’s characteristics or
circumstances establish that she was a “vulnerable victim.” Instead, Black argues that the United
States failed to raise the vulnerable victim enhancement in its initial objections to the presentence
report and, therefore, has waived any argument that the enhancement ought to apply in this case.6
Moreover, Black moves to strike the United States’ argument in favor of the enhancement from the
1 Dkt. 78 (Minute Entry for Status Conference).
2 Dkts. 79 (Black’s Supplemental Memorandum), 80 (United States’ Supplemental Memorandum).
3 United States v. Castaneda, 239 F.3d 978, 980‒83 (9th Cir. 2001) (internal quotation marks
omitted) (reversing the district court’s application of the vulnerable victim enhancement because
typical victims of human trafficking suffered from the common vulnerabilities of “indebtedness, low
income, and lack of financial resources or other options that would permit [the victims] to support
themselves or pay for their passage back [home].”). See also United States v. Wetchie, 207 F.3d 632,
634 (9th Cir. 2000); United States v. Luca, 183 F.3d 1018, 1027 (9th Cir. 1999) (stating that the
district court must point to facts that made the victim “less able to defend [herself] than a typical
victim”).
4 Dkt. 80 at 6.
5 Dkts. 80-1, 80-2, 80-3, 80-4, 80-5, 80-6, 80-7, 80-8, 80-9, 80-10.
6 Dkt. 79 at 5.
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record.7 However, the Court has an independent duty to ensure that Black’s sentencing guideline
range is accurately calculated based on the relevant facts.8 Therefore, the United States may raise
any argument which aids the Court in making an accurate calculation. Accordingly, Black’s motion
to strike at page 5 of docket 79 is DENIED.
The question pending before the Court is not inconsequential. It concerns one of the most pressing
crises within this Court’s jurisdiction: violent crime and victimization in rural Alaska. In order to
adequately address this issue as it pertains to Black’s sentence, the Court finds the record
underdeveloped. Specifically, to make its finding, the Court requires additional evidence on how
the geographic remoteness of the offense and a lack of access to meaningful law enforcement
impacts a victim’s vulnerability to assault.9 Therefore, the Court HEREBY ORDERS as follows:
1. 	An evidentiary hearing be held on the following issues:
a. 	Whether evidence, such as recent data or expert testimony, tends to prove or
disprove that the remoteness of rural Alaskan communities or lack of access to
meaningful law enforcement makes victims “less able to resist than the typical
victim” of assault.10
b. 	Whether evidence, such as recent data or expert testimony, tends to prove or
disprove that any other factors present in this case that make a victim “less able to
resist than the typical victim” of assault.11
2. 	A status conference shall be held on February 10, 2020 at 11:00 AM during which the
Parties will report on their progress toward securing witnesses and estimating the length of
time the Parties need to put on their evidence. The Parties shall also provide the Court with
three alternative dates and times the Parties and their witnesses are available.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: January 17, 2020.
7 Id.
8 18 U.S.C. § 3553. See also United States v. Carty, 520 F.3d 984, 990–91 (9th Cir. 2008) (“All
sentencing proceedings are to begin by determining the applicable Guidelines range. The range
must be calculated correctly.”).
9 See United States v. Weischedel, 201 F.3d 1250, 1254 (9th Cir. 2000) (considering geographic
remoteness); United States v. Johnson, 860 F.3d 1133 (8th Cir. 2017) (same).
10 Castaneda, 239 F.3d at 980.
11 Id.
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