When a police officer, acting under color law, is punished more severely for sexual abuse that occurred while the victim was also in his custody than the sexual abuse committed while he was in his own custody, is it permissible double counting?

Accordingly, no impermissible double counting occurs when a police officer, acting under color of law, is punished more severely for sexual abuse that occurred while the victim was also in his custody. The additional punishment recognizes the particular harm inflicted when an individual entrusted to the care and supervision of an officer of the state is unlawfully abused by his supposed caretaker. If nothing else, abuse under these circumstances is more likely to be coercive because of the victim's legal inability to leave and the likely presence of other officers. Cf. United States v. Hershkowitz, 968 F.2d 1503, 1505 (2d Cir. 1992) ("Section 2H1.4 [now found in substance at 2H1.1(b)(1)(B)] plainly does not incorporate a victim's increased vulnerability to defendant's illegal conduct -- due to factors such as his status as a detainee and the presence of a defendant's fellow officers -- in setting the offense level.").