(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):
| Offense Statutory Maximum | Offense Level |
| | | |
| (i) | Life | 37 |
| (ii) | 25 years or more | 34 |
| (iii) | 20 years or more, but less than 25 years | 32 |
| (iv) | 15 years or more, but less than 20 years | 29 |
| (v) | 10 years or more, but less than 15 years | 24 |
| (vi) | 5 years or more, but less than 10 years | 17 |
| (vii) | More than 1 year, but less than 5 years | 12. |
(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.
(b) In any case in which the defendant's instant offense of conviction is a covered sex crime, neither §4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:
(1) The offense level shall be
5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level
22, the offense level shall be level
22, decreased by the number of levels corresponding to any applicable adjustment from §3E1.1.
(2) The criminal history category shall be the criminal history category determined under Chapter Four, Part A.
Commentary
Application Notes:
1.
Definition.—For purposes of this guideline, "minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
2.
Covered Sex Crime as Instant Offense of Conviction.—For purposes of this guideline, the instant offense of conviction must be a covered sex crime,
i.e.: (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including trafficking in, receipt of, or possession of, child pornography, or a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv)
18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (iv) of this note.
3.
Application of Subsection (a).—
(A) Definitions.—For purposes of subsection (a):
(i) "Offense statutory maximum" means 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.
(ii) "Sex offense conviction" (I) means any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated against a minor; and (II) does not include trafficking in, receipt of, or possession of, child pornography. "Child pornography" has the meaning given that term in 18 U.S.C. § 2256(8).
(B) Determination of Offense Statutory Maximum in the Case of Multiple Counts of Conviction.—In a case in which more than one count of the instant offense of conviction is a felony that is a covered sex crime, the court shall use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum, for purposes of determining the offense statutory maximum under subsection (a).
4.
Application of Subsection (b).—
(A) Definition.—For purposes of subsection (b), "prohibited sexual conduct" means any of the following: (i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the production of child pornography; or (iii) trafficking in child pornography only if, prior to the commission of the instant offense of conviction, the defendant sustained a felony conviction for that trafficking in child pornography. It does not include receipt or possession of child pornography. "Child pornography" has the meaning given that term in 18 U.S.C. § 2256(8).
(B) Determination of Pattern of Activity.—
(i) In General.—For purposes of subsection (b), the defendant engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor.
(ii) Occasion of Prohibited Sexual Conduct.—An occasion of prohibited sexual conduct may be considered for purposes of subsection (b) without regard to whether the occasion (I) occurred during the course of the instant offense; or (II) resulted in a conviction for the conduct that occurred on that occasion.
5.
Treatment and Monitoring.—Treatment and monitoring are important tools for supervising offenders and should be considered as special conditions of any term of probation or supervised release that is imposed.
Background: This guideline applies to offenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the public. The relevant criminal provisions provide for increased statutory maximum penalties for repeat sex offenders and make those increased statutory maximum penalties available if the defendant previously was convicted of any of several federal and state sex offenses (
see 18 U.S.C. §§ 2247, 2426). In addition, section 632 of Public Law 102–141 and section 505 of Public Law 105–314 directed the Commission to ensure lengthy incarceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors.
Section 401(i)(1)(A) of Public Law 108–21 directly amended Application Note 4(b)(i), effective April 30, 2003.
Historical Note: Effective November 1, 2001 (amendment 615). Amended effective April 30, 2003 (amendment 649); November 1, 2003 (amendment 661); November 1, 2007 (amendment 701); November 1, 2025 (amendment 835).
PART C – ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS
Notes of Decisions
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
· cites it 20× “” See U.S.S.G. § 4B1.5 cmt. background. In other contexts—specifically, racketeering—the law recognizes that two crimes can suffice to demonstrate a pattern of conduct posing a continuing danger to the public, even when the burden of proof is beyond a reasonable doubt.”
United States v. William Dahl, 833 F.3d 345 (3rd Cir. 2016).
· cites it 11× “Dahl argues for the first time on appeal that the District Comet’s application of U.S.S.G. § 4B1.5 was plain error because his prior state convictions are not categorically “sex offense convictions” under the Guidelines.”
United States v. Aaron Wikkerink, 841 F.3d 327 (5th Cir. 2016).
· cites it 9× “The PSR also found that Wikkerink was a “repeat and dangerous sex offender against minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense level of 34 and a criminal history category of V.”
United States v. Anthony Phillips, 431 F.3d 86 (2d Cir. 2005).
· cites it 12× “5 U.S.S.G. § 4B1.5 cmt. n. 4(B)(i). It further explains that an “occasion of prohibited sexual conduct may be considered .”
United States v. Jeffrey Boone, Jr., 97 F.4th 1331 (11th Cir. 2024).
· cites it 8× “2021) (affirming application of the pattern-of-activity enhancement where the defendant produced child pornography of the same victim on February 22 and February 24); U.S.S.G. § 4B1.5 cmt. n.4(B)(i) (providing that a defendant has engaged in “a pattern of activity” if the…”
United States v. William Nielsen, 694 F.3d 1032 (9th Cir. 2012).
· cites it 15× “” U.S.S.G. § 4B1.5 cmt. n.3(A)(ii). The govern- ment argues that the inclusion of the phrase “any offense” in this definition demonstrates the Sentencing Commission’s intent to count “any” prior sexual offense against a minor as a conviction, including juvenile adjudications.”
United States v. Richard Haas, 986 F.3d 467 (4th Cir. 2021).
· cites it 5× “Under the definition of “covered sex crime” provided by U.S.S.G. § 4B1.5, Haas’s attempted-sex-trafficking-of-a-minor conviction, 18 U.”
United States v. Poynter, 495 F.3d 349 (6th Cir. 2007).
· cites it 6× “U.S.S.G. § 4B1.5(a). The district court therefore increased Poynter's final offense level to 32 (including a two-level adjustment for acceptance of responsibility), see id.”
United States v. Cifuentes-Lopez, 40 F.4th 1215 (10th Cir. 2022).
· cites it 14× “” U.S.S.G. § 4B1.5. Subsection (b) provides for a five-level increase in the offense level if (1) “the defendant’s instant offense of conviction is a covered sex crime” and (2) “the 4 Appellate Case: 21-6053 Document: 010110716026 Date Filed: 07/26/2022 Page: 5 defendant engaged…”
United States v. Cerno, 529 F.3d 926 (10th Cir. 2008).
· cites it 6× “Moreover, if the Sentencing Commission did not intend the definition of "minor" included in the application note to apply to the guideline at issue, then that definition would be entirely surplusage, as "minor" is not used anywhere else in the disputed guideline.”
— U.S.S.G. §4B1.5(1) — 1 case
— U.S.S.G. §4B1.5(B)(1) — 1 case
— U.S.S.G. §4B1.5(a) — 35 cases
United States v. Aaron Wikkerink, 841 F.3d 327 (5th Cir. 2016).
“The PSR also found that Wikkerink was a “repeat and dangerous sex offender against minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense level of 34 and a criminal history category of V.”
United States v. Poynter, 495 F.3d 349 (6th Cir. 2007).
“U.S.S.G. § 4B1.5(a). The district court therefore increased Poynter's final offense level to 32 (including a two-level adjustment for acceptance of responsibility), see id.”
United States v. William Nielsen, 694 F.3d 1032 (9th Cir. 2012).
“” U.S.S.G. § 4B1.5 cmt. n.3(A)(ii). The govern- ment argues that the inclusion of the phrase “any offense” in this definition demonstrates the Sentencing Commission’s intent to count “any” prior sexual offense against a minor as a conviction, including juvenile adjudications.”
United States v. William Dahl, 833 F.3d 345 (3rd Cir. 2016).
“Dahl argues for the first time on appeal that the District Comet’s application of U.S.S.G. § 4B1.5 was plain error because his prior state convictions are not categorically “sex offense convictions” under the Guidelines.”
— U.S.S.G. §4B1.5(a)(1) — 3 cases
— U.S.S.G. §4B1.5(a)(1)(A) — 1 case
— U.S.S.G. §4B1.5(a)(2) — 7 cases
— U.S.S.G. §4B1.5(a)(l) — 2 cases
— U.S.S.G. §4B1.5(a)(l)(B) — 1 case
— U.S.S.G. §4B1.5(a)(l)(B)(i) — 1 case
— U.S.S.G. §4B1.5(b) — 98 cases
United States v. Anthony Phillips, 431 F.3d 86 (2d Cir. 2005).
“5 U.S.S.G. § 4B1.5 cmt. n. 4(B)(i). It further explains that an “occasion of prohibited sexual conduct may be considered .”
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
“” See U.S.S.G. § 4B1.5 cmt. background. In other contexts—specifically, racketeering—the law recognizes that two crimes can suffice to demonstrate a pattern of conduct posing a continuing danger to the public, even when the burden of proof is beyond a reasonable doubt.”
United States v. Cerno, 529 F.3d 926 (10th Cir. 2008).
“Moreover, if the Sentencing Commission did not intend the definition of "minor" included in the application note to apply to the guideline at issue, then that definition would be entirely surplusage, as "minor" is not used anywhere else in the disputed guideline.”
United States v. Richard Haas, 986 F.3d 467 (4th Cir. 2021).
“Under the definition of “covered sex crime” provided by U.S.S.G. § 4B1.5, Haas’s attempted-sex-trafficking-of-a-minor conviction, 18 U.”
— U.S.S.G. §4B1.5(b)(1) — 107 cases
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
“” See U.S.S.G. § 4B1.5 cmt. background. In other contexts—specifically, racketeering—the law recognizes that two crimes can suffice to demonstrate a pattern of conduct posing a continuing danger to the public, even when the burden of proof is beyond a reasonable doubt.”
United States v. Jeffrey Boone, Jr., 97 F.4th 1331 (11th Cir. 2024).
“2021) (affirming application of the pattern-of-activity enhancement where the defendant produced child pornography of the same victim on February 22 and February 24); U.S.S.G. § 4B1.5 cmt. n.4(B)(i) (providing that a defendant has engaged in “a pattern of activity” if the…”
United States v. Cifuentes-Lopez, 40 F.4th 1215 (10th Cir. 2022).
“” U.S.S.G. § 4B1.5. Subsection (b) provides for a five-level increase in the offense level if (1) “the defendant’s instant offense of conviction is a covered sex crime” and (2) “the 4 Appellate Case: 21-6053 Document: 010110716026 Date Filed: 07/26/2022 Page: 5 defendant engaged…”
— U.S.S.G. §4B1.5(b)(i) — 3 cases
— U.S.S.G. §4B1.5(b)(l) — 44 cases
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
“” See U.S.S.G. § 4B1.5 cmt. background. In other contexts—specifically, racketeering—the law recognizes that two crimes can suffice to demonstrate a pattern of conduct posing a continuing danger to the public, even when the burden of proof is beyond a reasonable doubt.”
— U.S.S.G. §4B1.5(c)(2) — 1 case
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