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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 3: 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 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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