Repeat And Dangerous Sex Offender Against Minors

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Chapter 9: Sentencing Guidelines

USSG § 4B1.5(a)

Repeat And Dangerous Sex Offender Against Minors


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.


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 Lousisana 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 ajudication for online solicitation of a minor and indecency with a child qualified as a sex offense convictaion 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)


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