Pattern Of Activity Involving Prohibited Sexual Conduct

GUIDELINES LANGUAGE

USSG § 4B1.5(b):

In any case in which the defendant’s instant offense of conviction is a covered sex crime, neither § 4B1.1 [Career Offender] nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:

(1) The offense level shall be 5 plus the offense level determined under Chapters 2 and Three. However, if the resulting offense level is less than level 22, the offense level shall be 22, decreased by the number of levels corresponding to any applicable adjustment from § 3E1.1 [Acceptance of Responsibility].

(2) The criminal history category shall be the criminal history category determined under Chapter Four, Part A.

The application notes define “prohibited sexual conduct” as (i) any offense described in § 2426(b)(1)(A) or (B); (ii) the production of child pornography; or (iii) trafficking in child pornography only if the defendant sustained a felony conviction for that trafficking prior to the commission of the current offense of conviction.

The defendant engaged in a pattern of activity of prohibited sexual conduct “if on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor.”

An occasion of prohibited sexual conduct may be considered regardless of whether it (i) occurred during the course of the instant offense; or (ii) resulted in a conviction for that conduct.

PATTERN OF ACTIVITY

This enhancement applies to a pattern of prohibited sexual conduct rather than past criminal history.[1] Some circuits include unadjudicated and adjudicated juvenile conduct in determining a pattern of sexual conduct.[2]

Multiple Circuits agree that “multiple, distinct instances of abuse–whether ongoing, related, or random–meet the enhancement under § 4B1.5(b)(1).”[3] Therefore, a defendant who sexually abuses the same minor on more than one occasion is sufficient to meet the pattern of sexual activity, as unrelated instances of prohibited sexual abuse were not required.

Because the Application Notes state that an “occasion” of prohibited sexual conduct can be considered even when it “occurred during the course of the instant offense,” the enhancement applies regardless of whether the separate occasions of prohibited sexual conduct occurred during the course of the underlying offense of conviction.[4] Furthermore, circuits have concluded that the enhancement applies when the prohibited activity occurred on consecutive says as long as there were at least two separate instances of prohibited conduct.[5]

The Second Circuit held that in order to apply the enhancement, the government must explicitly state which statutory offenses constitute the “prohibited sexual conduct.”[6]

Attempt offenses are encompassed within the Guidelines language.[7]

In a case in which the California statute defining lewd or lascivious acts criminalized conduct other than the sexual acts or contact defined in the federal statute, and the facts of the defendant’s conviction under that statute did not provide an adequate basis for the enhancement, the Eighth Circuit declined to apply the enhancement.[8]

[1] United States v. Hollon, 948 F.3d 753 (6th Cir. 2020); United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010);

[2] United States v. Phillips, 431 F.3d 86, 90 (2d Cir. 2005); United States v. Nielsen, 694 F.3d 1032, 1042 (9th Cir. 2012)

[3] United States v. Fox, 926 F.3d 1275, 1280 (11th Cir. 2019); United States v. Cifuentes-Lopez, 40 F.4th 1215, 1217 (10th Cir.), cert. denied, 143 S. Ct. 467, 214 L. Ed. 2d 265 (2022); United States v. Von Loh, 417 F.3d 710 (7th Cir. 2005); United States v. Brattain, 539 F.3d 445 (6th Cir. 2008)

[4] Application Note 4(B)(ii) to § 4B1.5(b)(1); United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010); United States v. Evans, 782 F.3d 1115 (10th Cir. 2015); United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012); United States v. Rojas, 520 F.3d 876 (8th Cir. 2008)

[5] United States v. Sadeek, 77 F.4th 320, 327 (5th Cir. 2023); United States v. Telles, 18 F.4th 290 (9th Cir. 2021), cert. denied, 142 S. Ct. 1391, 212 L. Ed. 2d 339 (2022); United States v. Wandahsega, 924 F.3d 868 (6th Cir. 2019); United States v. Fleetwood, 457 F. App’x 591 (8th Cir. 2012) (unreported)

[6] United States v. Phillips, 431 F.3d 86, 94 (2d Cir. 2005)

[7] United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012); United States v. Morgan, 842 F.3d 1070, 1076 (8th Cir. 2016); United States v. Knight, No. 22-5919, 2023 WL 5338637, at *2 (6th Cir. Aug. 18, 2023)

[8] United States v. Lockwood, 446 F.3d 825, 828 (8th Cir. 2006)

EX POST FACTO

The Eighth Circuit applied the enhancement under § 4B1.5(b), which became effective on November 1, 2001, when there was testimony that one victim had suffered continuous abuse after the effective date of the provision.[9]

[9] United States v. Wright, 540 F.3d 833, 845 (8th Cir. 2008)

DOUBLE COUNTING

The Third Circuit found that the application of five-level enhancements under both §2G2.2(b)(5) and §4B1.4(b)(1) is not improper double counting, because the Guidelines allow for the simultaneous application of both enhancements even to the same conduct.[10]

The Seventh and Eighth Circuits found that the application of the five-level enhancement for §4B1.4(b)(1) and the three-level enhancement for §2G2.1(d)(1) is not improper double counting because they are not premised on the same conduct.[11]

[10] United States v. Seibert, 971 F.3d 396, 400 (3d Cir. 2020), opinion clarified, 991 F.3d 1313 (3d Cir. 2021)

[11] United States v. Schmeilski, 408 F.3d 917 (7th Cir. 2005), abrogated by United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012); United States v. Peck, 496 F.3d 885 (8th Cir. 2007)