Sentencing Guidelines – District court erred in applying U.S.S.G. 2G2.2(b)(5), which enhances a sentence based on sexual abuse of a minor between 12 and 16 years old unless the defendant is within 4 years of age, when it merely subtracted the ages of the victim from the defendant without considering the precise ages as a matter of days.
Dean Doutt appealed his sentence for receiving child pornography, which was enhanced after the district court found he had engaged “in a pattern of activity involving the sexual abuse or exploitation of a minor.”
The sentencing court based the enhancement on the results from Doutt’s polygraph examination, during which he admitted that he engaged in sexual activity for several years with a neighborhood boy forty years ago, when Doutt was 16 years old and the boy was eleven or twelve.
On appeal, the Court held that the sentencing court applied the wrong legal standard under U.S.S.G. § 2G2.2(b)(5). The commentary to that provision defines “sexual abuse” by reference to other criminal statutes, such as one that forbids sexual activity with a minor between the ages of 12 and 16 “if the perpetrator was at least four years old than the minor.” The district court had merely subtracted the neighborhood boy’s age from Doutt’s, without respect to how old each of them actually were at the time of the sexual contact.
The Court explained that this was error because, given the boys’ birth dates, there could have been as little as three and as many as five years between them. Ultimately, defendant’s statement that he was 16 and the boy was “closer to 11 or 12 years of age” was simply insufficient to establish the enhancement. Instead, the Court suggested that the Government would bear the burden of proving the disputed age difference by reference to the actual number of days.
Appeal from Southern District of Ohio
Opinion by Thapar, joined by Rogers and Donald