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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 3: Sentencing Guidelines

USSG § 2G2.1(b)(2)


Sexual Act or Contact

GUIDELINES LANGUAGE

USSG § 2G2.1(b)(2):

(Apply the greater) If the offense involved–

(A) the commission of a sexual act or sexual contact, increase by 2 levels; or
(B) (i) the commission of a sexual act; and (ii) conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.

“Sexual act” is defined in 18 U.S.C. § 2246(2) as the following:

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

“Sexual contact” is defined in 18 U.S.C. § 2246(3) as the following:

the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(A) SEXUAL ACT OR CONTACT

In response to a defendant’s claim that his sexual contact with the victim did not occur during the offense of production of child pornography, the Fifth Circuit found that the sexual contact enhancement applies when the “offense” involves sexual contact, which includes relevant conduct.[3] Furthermore, the Sixth Circuit found that the district court could make reasonable inferences based on the facts to determine whether sexual contact occurred during the production.[4]

The Third, Fifth, Sixth, Eighth, and Eleventh Circuits have maintained that ‘sexual contact’ includes the act of masturbating, and is not limited to the defendant’s conduct in touching another person. This includes both the victim masturbating and the defendant masturbating.[5]


[3] United States v. King, 979 F.3d 1075, 1083 (5th Cir. 2020)

[4] United States v. Ahern, No. 21-2938, 2022 WL 985820, at *2 (6th Cir. Apr. 1, 2022)

[5] United States v. Raiburn, 20 F.4th 416, 422 (8th Cir. 2021); United States v. Aldrich, 566 F.3d 976 (11th Cir. 2009); United States v. Shafer, 573 F.3d 267 (6th Cir. 2009); United States v. Pawlowski, 682 F.3d 205 (3d Cir. 2012); United States v. Butler, 65 F.4th 199 (5th Cir. 2023)

DOUBLE COUNTING

Application of the two-level enhancement for the commission of sexual contact and the four-level enhancement for offense involving material that portrayed sadistic or masochistic conduct is not impermissible double counting.[6]


[6] United States v. Clark, 780 F.3d 896 (8th Cir. 2015); United States v. Mouton, 481 F. App’x 96 (5th Cir. 2011) (unreported); United States v. McDade, 399 F. App’x 520 (11th Cir. 2010) (unreported)

(B) SEXUAL ACT + AGGRAVATAED SEXUAL ABUSE

18 U.S.C. § 2241 is titled Aggravated Sexual Abuse. Subsection (a) is violated when a person causes another person to engage in a sexual act by using force or threats.  Subsection (b) is violated when a person causes another person to become unconscious and then engages in a sexual act.

In a case where a defendant both used force against and threatened a minor during the course of a rape, the Eleventh Circuit held that the enhancement was warranted.[7]


[7] United States v. Cannon, No. 22-11492, 2022 WL 17069627, at *1 (11th Cir. Nov. 17, 2022)

DOUBLE COUNTING

The application notes define “conduct  described in 18 U.S.C. § 2241(a) or (b)” as:

“(i) using force against the minor; (ii) threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping; (iii) rendering the minor unconscious; or (iv) administering by force or threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct.”

Application of the four-level enhancement under § 2G2.1(b)(2)(B) and the enhancement under § 3A1.3 for physical restraint of a victim is not improper double counting because neither of the two guidelines specifically forbids it.[8]


[8] United States v. Davenport, 910 F.3d 1076, 1083 (8th Cir. 2018)

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