Sentencing Guidelines – U.S.S.G. § 4B1.5(b)(1) does not require multiple victims and can be applied to a defendant who engages in a “pattern of prohibited sexual conduct” with the same minor.
The Court affirmed the district court’s application of U.S.S.G. § 4B1.5(b)(1) to increase the defendant’s offense level based on his having “engaged in a pattern of activity involving prohibited sexual conduct.”
The defendant was convicted and sentenced after pleading guilty to one count of sexually exploiting a minor through the production of child pornography. However, he was initially charged based on outcries by both of his step-granddaughters, who both told investigators that the defendant had molested them and photographed them engaged in sexual activity with him.
Under § 4B1.5(b)(1), a pattern of activity involving prohibited sexual conduct includes a defendant engaging in sexual conduct with a minor on at least two separate occasions. The defendant argued that the enhancement can only apply when there are multiple victims, and he had only pleaded guilty to photographing one of his step-granddaughters.
Citing other circuits, the Eleventh Circuit held for the first time that § 4B1.5(b)(1) can be applied to a defendant who engages in a pattern of prohibited sexual conduct with the same minor. The Court also held that the enhancement applies when the sexual acts in question are related, rejecting the defendant’s argument that a pattern must constitute multiple unrelated acts. Accordingly, the defendant’s repeated sexual exploitation of one of his grand-daughters was sufficient to justify the enhancement.
Appeal from the Northern District of Florida
Opinion by Martin, joined by Tjoflat and Traxler (by designation from the 4th Cir.)