Case: 10-40088 Document: 00511533314 Page: 1 Date Filed: 07/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2011
No. 10-40088 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WELLES D. BACON
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:
Welles Bacon (“Bacon”) appeals his sentence for child pornography
possession, challenging only the district court’s application of the five-level
sentencing enhancement under United States Sentencing Guidelines
(“U.S.S.G.”) § 2G2.2(b)(5) for a pattern of activity involving the sexual abuse or
exploitation of a minor. He argues that the activities in question are too remote
as they occurred thirty years ago. We agree with our sister circuits which have
unanimously concluded that such remote-in-time occurrences may be considered
and AFFIRM the district court’s sentence.
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No. 10-40088
I. Background
Pursuant to a plea agreement, Bacon pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2252A(b)(2), and 2256(8)(A). During the preparation of the presentence
investigation report (“PSR”), a probation officer interviewed three of Bacon’s five
daughters. Two of the now-grown daughters interviewed reported that Bacon
had sexually molested them when they were children. Using the 2008
Sentencing Guidelines, the PSR included a five-level enhancement for a pattern
of activity involving the abuse or exploitation of a minor, yielding an offense
level of thirty-three.
During his sentencing hearing, four of Bacon’s daughters testified, three
claiming to have been molested as children. Bacon admitted to having molested
two of them, but denied having molested the third. Bacon objected to the
“pattern of activity” sentencing enhancement on two grounds: (1) the sexual
abuse of his daughters, having occurred over thirty years earlier, was too remote
in time to be considered, and (2) the offense of conviction was “vastly different
from the remote conduct that [was] being used for enhancement.” The district
court, noting that several other circuits have held that remote-in-time
occurrences may be considered in applying a “pattern of activity” enhancement,
overruled Bacon’s objection and applied the enhancement. The resulting
Guidelines sentence was 120 months, the statutory maximum for Bacon’s
offense. The court sentenced Bacon to the statutory maximum sentence, and
Bacon timely appealed.
II. Analysis
On appeal, Bacon renews his objection to the application of the five-level
“pattern of activity” enhancement on the ground that the molestation of his
daughters, occurring more than thirty years earlier, is too remote in time to be
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considered. We review a district court’s application of the Sentencing Guidelines
de novo. See United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010).
The commentary to U.S.S.G. § 2G2.2(b)(5) defines “pattern of activity
involving the sexual abuse or exploitation of a minor” as:
any combination of two or more separate instances of the sexual
abuse or sexual exploitation of a minor by the defendant, whether
or not the abuse or exploitation (A) occurred during the course of the
offense; (B) involved the same minor; or (C) resulted in a conviction
for such conduct.
U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 cmt. n.1 (2008). Although it is an
issue of first impression in this circuit, six other circuits have held that a
sentencing court can consider remote-in-time occurrences to establish a “pattern
of activity” under § 2G2.2. See United States v. Turner, 626 F.3d 566, 572-73
(11th Cir. 2010) (applying the enhancement where the abusive incidents
occurred 20 years prior to sentencing); United States v. Olfano, 503 F.3d 240, 243
(3d Cir. 2007) (considering convictions from 16 and 13 years earlier); United
States v. Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (involving activity
occurring “at least 35 years earlier”); United States v. Gawthrop, 310 F.3d 405,
414 (6th Cir. 2002) (considering an 11-year-old conviction); United States v.
Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002) (relying on convictions from 22 and
27 years earlier); United States v. Lovaas, 241 F.3d 900, 903-04 (7th Cir. 2001)
(involving abuse from 26 years earlier).
A district court may consider all “relevant conduct” when fashioning a
sentence. See United States v. Fowler, 216 F.3d 459, 461 (5th Cir. 2000). Bacon
argues that remote-in-time conduct that is not part of the offense of conviction
cannot be “relevant conduct.” However, the term “relevant conduct” is defined
in several ways by the Guidelines. As other circuits have noted, the plain
language of § 2G2.2(b)(5) and its commentary do not require that the “pattern
of activity” must be close in time or related to the offense of conviction. See, e.g,
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Turner, 626 F.3d at 573 (“Nothing in § 2G2.2(b)(5) or its commentary suggests
that the ‘pattern of activity’ must be temporally close to the offense of
conviction.”); Garner, 490 F.3d at 743 (“The plain language of the Commentary
to § 2G2.2 eliminates the need for any temporal or factual nexus between the
offense of conviction and any prior act of sexual abuse or exploitation.”). Rather,
the Guidelines commentary specifies that a sentencing court may consider
conduct not occurring during the course of the offense of conviction. See U.S.
SENTENCING GUIDELINES MANUAL § 2G2.2 cmt. n.1. Thus, “relevant conduct”
under § 2G2.2 is intended to be more broadly construed than the general
relevancy provisions found in § 1B1.3. See U.S. SENTENCING GUIDELINES
MANUAL app C. at 473 (2008) (Amendment 537) (“[T]he conduct considered for
purposes of the ‘pattern of activity’ enhancement is broader than the scope of
relevant conduct typically considered under § 1B1.3 (Relevant Conduct).”); see
also Lovaas, 241 F.3d at 904 & n.5.1 All that is necessary under the plain
language of § 2G2.2(b)(5) and its commentary are two or more separate instances
of sexual abuse or exploitation of a minor. See Turner, 626 F.3d at 573; Garner,
490 F.3d at 743. Bacon’s admitted molestation of two of his daughters is
therefore sufficient for the application of the “pattern of activity” enhancement,
regardless of when it occurred or whether it is “related” to his possession of child
pornography.
Bacon argues that due process and the rule of lenity counsel against an
interpretation of the Guidelines that considers conduct occurring thirty years
earlier. Because we find that the plain language of the relevant guideline is not
1
United States v. Wall, 180 F.3d 641 (5th Cir. 1999), upon which Bacon relies, is thus
inapposite. In Wall, this court determined that drug offenses which were dissimilar to the
offense of conviction and occurred four and five years afterward were not “part of the same
course of conduct or part of a common scheme or plan as the offense of conviction” under
U.S.S.G. § 1B1.3(a)(2). 180 F.3d at 645. As noted above, the conduct a court may consider
under § 2G2.2’s “pattern of activity” enhancement is broader than the conduct a court may
consider under § 1B1.3.
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ambiguous, the rule of lenity does not apply. See United States v. Hubbard, 480
F.3d 341, 350 (5th Cir. 2007) (“As considered above, the statute is not ambiguous
in this regard, and the rule of lenity is not implicated.”). Similarly, consideration
of remote-in-time conduct does not violate due process. A guideline violates due
process only if it has no rational basis or is subject to arbitrary application. See
United States v. Molina, 469 F.3d 408, 413-14 (5th Cir. 2006); see also Garner,
490 F.3d at 743 (“[The defendant] does not explain how the use of older but
admittedly relevant conduct is ‘arbitrary’ or ‘irrational.’”). This court has
frequently noted the increased risk of recidivism associated with the sexual
abuse and exploitation of children. See, e.g., United States v. Brigham, 569 F.3d
220, 234 (5th Cir. 2009) (upholding the district court’s special conditions of
supervised release because of “the reprehensibility of child pornography, the
harm to society’s children that results therefrom, and the undisputed likelihood
of recidivism”); United States v. Allison, 447 F.3d 402, 407 (5th Cir. 2006)
(upholding upward departure of lifetime supervised release because of “the
general notion that pedophiles are typically recidivists”). Therefore, the
consideration of even remote-in-time conduct is not irrational in applying the
“pattern of activity” enhancement.2
We join our six sister circuits who have held that remote-in-time conduct
is relevant to § 2G2.2’s “pattern of activity” enhancement. The judgment of the
district court is AFFIRMED.
2
Bacon also challenges the substantive reasonableness of his sentence. Because Bacon
did not challenge the substantive reasonableness of his sentence before the district court, we
must review only for plain error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir.
2007). Bacon has not shown that the district court’s sentence of ten years, which was within
the Guidelines range and therefore presumptively reasonable, was plainly unreasonable.
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