- 18 U.S.C. § 1466A: Obscene Visual Representations of the Sexual Abuse of Children
- 18 U.S.C. § 2251(a): Production of Child Pornography / Sexual Exploitation of Children
- 18 U.S.C. § 2251(d)(1): Advertisement
- 18 U.S.C. § 2252A(a)(1) and § 2252(a)(1): Transportation of Child Pornography
- 18 U.S.C. § 2252(a)(2) and 2252A(a)(2): Receipt of Child Pornography
- 18 U.S.C. § 2252(a)(2) and 2252A(a)(2): Distribution of Child Pornography
- 18 U.S.C. § 2252(a)(4)(B) and § 2252A(a)(5)(B): Possession of Child Pornography
- 18 U.S.C. § 2252A(g): Child Exploitation Enterprise
- 18 U.S.C. § 2422. Coercion and Enticement
- 18 U.S.C. § 2423(a): Transportation of Minors
- Child Pornography Conspiracy and Attempt
- Common Terms
Repeat And Dangerous Sex Offender Against Minors
Chapter 9: Sentencing Guidelines
USSG § 4B1.5(a)
Repeat And Dangerous Sex Offender Against Minors
GUIDELINES LANGUAGE
USSG § 4B1.5(a):
(a) In any case in which the defendant’s instant offense of conviction is a covered sex crime, § 4B1.1 (Career Offender) does not apply, and the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction:
(1) The offense level shall be the greater of:
(A) The offense level determined under Chapters Two and Three; or
(B) The offense level from the table below 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 greater of: (A) the criminal history category determined under Chapter Four, Part A (Criminal History); or (B) criminal history Category V.
The application notes define “offense statutory maximum” as the “maximum term of imprisonment authorized for the instant offense of conviction that is a covered sex crime, including any increase in that maximum term under a sentencing enhancement provision (such as a sentencing enhancement provision contained in 18 U.S.C. § 2247(a) or §2426(a)) that applies to that covered sex crime because of the defendant’s prior criminal record.”
The application notes define “sex offense conviction” as any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B) against a minor. It does not include trafficking, receiving, or possessing child pornography.
OFFENSE SUBSEQUENT TO SUSTAINING SEX OFFENSE CONVICTION
The guidelines do not contain temporal limitations for the application of the enhancement. Therefore, the enhancement applies for a prior sex offense conviction more than 10 years earlier.[1]
The Ninth Circuit held that juvenile adjudications cannot count as prior convictions under § 4B1.5(a).[2]
The Eighth Circuit found that the enhancement was warranted in a defendant’s present case when then the defendant had pled guilty to a prior sex offense but had not yet been sentenced for that offense.[3]
The Fifth Circuit found that a prior Louisiana conviction for aggravated incest did not qualify as a prior sex offense conviction for guideline enhancement purposes because the Louisiana statute criminalized a broader range of conduct than the federal definition of “sex offense conviction,” which only involves sexual acts that involved force, threat, or incapacity.[4] The Fifth Circuit did find that a prior Texas deferred adjudication for online solicitation of a minor and indecency with a child qualified as a sex offense conviction and warranted the enhancement.[5]
[1] United States v. Babcock, 753 F.3d 587 (6th Cir. 2014)
[2] United States v. Nielsen, 694 F.3d 1032 (9th Cir. 2012)
[3] United States v. Leach, 491 F.3d 858 (8th Cir. 2007)
[4] United States v. Wikkerink, 841 F.3d 327 (5th Cir. 2016)
[5] United States v. Mills, 843 F.3d 210 (5th Cir. 2016)
