Pattern Of Activity

GUIDELINES LANGUAGE

USSG § 2G2.2(b)(5):
“If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.”
The Commentary defines “pattern of activity involving the sexual abuse or exploitation of a minor” as “any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.” [1]

The Commentary also includes an upward departure provision stating that if the defendant engaged in sexual abuse or exploitation of a minor at any time, regardless of whether or not it occurred during the offense or resulted in a conviction, and (b)(5) does not apply, an upward departure may nevertheless still be warranted. An upward departure may also be warranted if the defendant received an enhancement under (b)(5) but it does not adequately reflect the seriousness of the sexual abuse or exploitation involved.

History

• Nov. 27, 1991: § 2G2.2(b)(4) added to guidelines: “If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.”
• Nov. 1, 2004: Changed to § 2G2.2(b)(5) [2]

[1]USSG § 2G2.2 Commentary

[2]“The History of the Child Pornography Guidelines,” United States Sentencing Commission (2009)

APPLICATION

Circuits have applied this enhancement in instances where defendants have prior convictions for sexual abuse of a minor.[3] This enhancement applies regardless of whether the earlier abuse is related to the current offense.[4]

The First Circuit found that this enhancement has no temporal limit, and therefore applies regardless of when the underlying pattern of activity occurred and opted to apply it to a defendant who sexually abused a minor more than 35 years ago.[5]

The Tenth Circuit found that the five-level increase is mandatory rather than discretionary for qualifying cases because it does not use permissive language.[6]

The Guideline is not limited to conduct that constitutes a violation of federal law, but includes similar offenses under state law.[7]

[3] United States v. Cover, 800 F.3d 275, 281 (6th Cir. 2015); United States v. Grimes, 888 F.3d 1012, 1017 (8th Cir. 2018)

[4] United States v. McCaffrey, 437 F.3d 684, 687 (7th Cir. 2006); United States v. Ashley, 342 F.3d 850, 852 (8th Cir. 2003); United States v. Anderton, 136 F.3d 747 (11th Cir. 1998)

[5] United States v. Lucero, 747 F.3d 1242 (10th Cir. 2014)

[6] United States v. Plotts, 347 F.3d 873, 876 (10th Cir. 2003)

[7] United States v. Gunderson, 345 F.3d 471, 473 (7th Cir. 2003)

EVIDENCE OF ABUSE

The Sixth and Eighth Circuits applied this enhancement where defendants admitted to multiple instances of sexual abuse of a minor in written statements or online.[8]

The Sixth and Eighth Circuits applied this enhancement when minor victims submitted statements, letters, or testimony detailing multiple instances of sexual abuse by the defendant that was consistent with other testimony and reports.[9]

The Seventh Circuit applied this enhancement despite inconsistent dates over when the victim told her mother of abuse, her parents’ delay in reporting said abuse because the victim was five when she gave the statement, said the abuse occurred a year or two ago, and her description of the abuse was corroborated by the defendant’s online chat and other accusations of sexual misconduct. Furthermore, there was no evidence contradicting the victim’s story.[10]

[8] United States v. Davis, 751 F.3d 769 (6th Cir. 2014); United States v. Stewart, 462 F.3d 960 (8th Cir. 2006)

[9] United States v. Pirosko, 787 F.3d 358, 373 (6th Cir. 2015); United States v. Worthey, 716 F.3d 1107 (8th Cir. 2013); United States v. Paull, 551 F.3d 516 (6th Cir. 2009); United States v. Alvarez, 478 F.3d 864 (8th Cir. 2007)

[10] United States v. Houston, 745 F.3d 863 (7th Cir. 2014)

DOUBLE COUNTING

When a defendant is convicted of an offense related to the sexual abuse of a minor, such as the production of child pornography, in addition to a child pornography offense sentenced under §2G2.2(b)(5), and the multiple convictions result in an enhanced offense level under §3D1.4, the application of two different 5-level enhancements under USSG §§2G2.2(b)(5) and 4B1.5(b) is not improper double-counting.[11]

[11] United States Sentencing Commission 2012 Report to the Congress: Federal Child Pornography Offenses; United States v. Rothenberg, 610 F.3d 621, 623–28 (11th Cir. 2010)