directed at one of the few blacks living in relative racial isolation in a rural area.
This Court finds that application of the U.S.S.G. 3A1.1 vulnerable victim enhancement was properly applied to the petitioner's particular offense. As a threshold matter this court agrees with the reasoning of United States v. Long, 935 F.2d 1207, 1211-12 (11th Cir. 1991), United States v. Skillman, 922 F.2d 1370, 1377 (9th Cir. 1990), and United States v. Salyer, 893 F.2d 113, 115-116 (6th Cir. 1989), all of which hold that nothing in guideline 2H1.3, (or the analogous 2H1.2), incorporates a victim's status as a member of a racial minority into the offense guideline.
Likewise, minority status is not a prerequisite to victimization by the petitioner's offense. Skillman and Salyer both accept the proposition that the respective defendant's "knew, or should have known that [the victims] were unusually vulnerable to the threat of cross-burning because they are black," Salyer at 115, and that "the district court's determination that cross-burning is a particularly invidious act when directed against a black American, making him particularly susceptible to the commission of the offense, is not clearly erroneous." Salyer at 116.
This Court need not endorse the proposition that black americans are per se vulnerable victims to criminal conduct which employs cross-burning to find that in the petitioner's case he knew or should have known that his victim was particularly vulnerable to his terroristic behavior. Taking into account the race of the victim, his status as one of few members of a racial minority in this rural area, the presence in the home of the victim's young daughter, the fact that the petitioner chose to act at night, and the victim's status as part of an interracial marriage, marriages long seen as provocative acts worthy of terrorism and retribution by racists, this Court finds that the victim was an individual particularly vulnerable to the petitioner's offense. The "lightning rod" effect of interracial marriage alone could arguably give rise to "vulnerable victim" status whether the actual assault victim were white or black. Therefore, under the totality of the circumstances the enhancement was properly applied; Munger knew, or should have known that his victim was particularly vulnerable to his illegal conduct. U.S. v. Long 935 F.2d 1207, 1211.
(4). CROSS-BURNING AS CONSTITUTIONALLY PROTECTED BEHAVIOR.
Petitioner argues that the decision in R.A.V. v. St. Paul, U.S. , 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) has rendered his conviction unlawful because his is a "'cross-burning' case, an act which is squarely within the protection afforded by the First Amendment." Petitioner's Reply to Government's Memorandum in Opposition, at 2.
The petitioner's case is not a "cross-burning case." As fixed by the petitioner's plea to Count III of the Indictment, the petitioner stands sentenced for interference with housing rights by means of force or threat of force resulting in bodily injury, in violation of 42 U.S.C. § 3631(b)(1). That petitioner chose to burn a cross during his terroristic and racially motivated assault on the victim offers him no protection from the force of the statute. As held by Justice Scalia, "where the Government does not target conduct on the basis of its expressive content, ideas are not shielded from regulation merely because they express a discriminatory idea or philosophy." Id. at 2547.
Further, section 3631(b)(1) of Tile 42 of the United States Code is a content-neutral, narrowly tailored prohibition against the exact evil it seeks to prevent - namely, the willful and violent interference with housing on a discriminatory basis. The requirement of intent serves to insulate the statute from unconstitutional application to protected speech. United States v. Wood, 780 F.2d 955, 961 (11th Cir. 1986), cert. denied 476 U.S. 1184, 91 L. Ed. 2d 549, 106 S. Ct. 2920 (1986). Consequently, R.A.V. offers the petitioner no relief from his sentence. The petitioner's sentence was properly calculated based on his admitted criminal conduct, conduct the nature of which is not addressed in the R.A.V. v. St. Paul.
The Court, having considered the submissions of the parties, finds that there is no basis in law to grant the relief requested in the petition of Brian Scott Munger.
Therefore, it is hereby
ORDERED that the petition of Brian Scott Hunger is denied and dismissed.
IT IS SO ORDERED.
Dated at Binghamton, New York
November 27, 1992
Thomas J. McAvoy
United States District Judge