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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14800
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00113-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD ROSCOE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 23, 2021)
Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Ronald Roscoe appeals his total sentence of life imprisonment plus ten years,
imposed after he pled guilty to attempted enticement of a minor, 18 U.S.C.
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§ 2422(b), travel with intent to engage in illicit sexual conduct, id. § 2423(b),
transporting material involving the sexual exploitation of minors, id. § 2252A(a)(1)
and (b)(1), and committing a specified felony sex offense while registered as a sex
offender, id. § 2260A.
For several weeks in 2018, Roscoe communicated online with an undercover
officer posing as an eleven-year-old girl named “Emma.” During their interactions,
Roscoe offered to help Emma become sexually active, made sexually explicit
comments to her, and discussed traveling from Michigan to Florida for the purpose
of engaging in sexual activity with her. At some point, Roscoe also referenced two
prior unsuccessful attempts to make contact with “girls” he had met in chatrooms.
Roscoe was arrested in Florida on October 18, 2018, after flying there to meet
Emma. A search of his cell phone revealed images and videos of child pornography.
Based on Roscoe’s admission to Emma regarding the two prior attempts to
make contact with girls he had met in chatrooms, the district court applied sentencing
enhancements for “engag[ing] in a pattern of activity involving the sexual abuse or
exploitation of a minor,” U.S.S.G. § 2G2.2(b)(5), and for being a repeat and
dangerous sex offender, id. § 4B1.5(b)(1). Combined, these enhancements raised
Roscoe’s offense level by ten levels, resulting in a total offense level of 42 and a
corresponding guideline range of 360 months to life imprisonment.
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On appeal, Roscoe makes three arguments about these two enhancements.
First, he contends that the district court clearly erred in basing the enhancements on
his statements to Emma, which did not convey either that minors were involved or
that any illegal sexual activity was contemplated. Second, he argues that the
§ 2G2.2(b)(5) and § 4B1.5(b)(1) enhancements double-counted the same conduct.
And finally, he maintains that applying § 4B1.5(b)(1) where a defendant is also
subject to a mandatory, consecutive sentence under 18 U.S.C. § 2260A violates
“public policy.” We address each argument in turn.
I.
We “review de novo questions of law dealing with the guidelines,” and we
review any underlying factual findings for clear error. United States v. Hall, 965
F.3d 1281, 1293 (11th Cir. 2020). “For a factual finding to be clearly erroneous, we
must be left with a definite and firm conviction that the court made a mistake.”
United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). “The government
bears the burden of establishing by a preponderance of the evidence the facts
necessary to support a sentencing enhancement.” United States v. Alberts, 859 F.3d
979, 982 (11th Cir. 2017).
Under § 2G2.2(b)(5), a defendant convicted of transporting child pornography
is subject to a five-level increase to his offense level if he “engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor.” According to the
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commentary, a pattern is “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.” Id. § 2G2.2, cmt. n.1.
“Sexual abuse or exploitation” includes attempted enticement of a minor to engage
in sexual activity, 18 U.S.C. § 2422(a), and travel with intent to engage in sexual
activity with a minor, 18 U.S.C. § 2423(b). Id.
Under § 4B1.5(b), a defendant ordinarily qualifies for an additional five-level
increase if three requirements are met: (1) the “instant offense of conviction is a
covered sex crime”; (2) neither § 4B1.1 (the career-offender guideline) nor
§ 4B1.5(a) (which requires a prior sex offense conviction) applies; and (3) the
defendant “engaged in a pattern of activity involving prohibited sexual conduct.”
The prohibited sexual conduct need not have “occurred during the course of the
instant offense” or “resulted in a conviction for the conduct that occurred on that
occasion.” U.S.S.G. § 4B1.5, cmt. n.4(B)(ii). And like “sexual abuse or
exploitation,” “prohibited sexual conduct” includes conduct proscribed by § 2422
and § 2423. See id., cmt. n.4(A) (stating that “prohibited sexual conduct” means
“any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B),” which covers offenses
under chapter 117 of Title 18, including § 2422 and § 2423).
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So Roscoe’s challenge to both enhancements comes down to the issue of
whether he engaged in two or more separate instances of conduct prohibited by, as
relevant here, § 2422 and § 2423. The presentence investigation report (“PSR”) and
the district court determined that Roscoe engaged in such a pattern based on his
statements to the undercover officer posing as Emma. According to the PSR and the
underlying chat records, Roscoe tried to persuade Emma to talk with him by
telephone or video because he was “having a hard time grasping that [she] was real.”
The reason for his skepticism, Roscoe explained, was two prior instances where he
unsuccessfully tried to meet up with “girl[s]” he had met in chatrooms. The first
girl he chatted with for “almost five months” before trying to meet her twice and
driving 1,100 miles, but both times she came up with a reason why they couldn’t
meet, and he suspected that one of the pictures she sent him was fake because it was
uploaded to the internet in 2014, when she would have been “5 years old.” There
was “another girl [he] was supposed to meet” after they had “chatted for a long
time,” and she had professed her love for him, but when he drove to meet her,
“[t]here was never a girl there,” just a “lady approximately 40 years old.” Roscoe
stressed that he was not accusing Emma of doing similar things, but he “just wanted
to let [her] know” why he was “so skeptical.”
Roscoe does not dispute that he made these statements, but he maintains they
are insufficient to show that he engaged in any kind of prosecutable illegal behavior
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in those instances. He notes that the government does not have any evidence of the
communications between him and the two girls, and he asserts that his own
recollection did not contain sufficient detail to show that the communications
involved sexual enticement, that he traveled to engage in sexual activity, or that he
believed the two girls were minors.
Here, the district court did not err in applying the § 2G2.2(b)(5) and
§ 4B1.5(b) enhancements. Both the context and substance of Roscoe’s comments
support the court’s ultimate finding that Roscoe previously engaged “in two or more
separate instances of attempted coercion and enticement of a minor, as well as
traveling with intent to engage in illicit sexual conduct,” which is conduct
criminalized by 18 U.S.C. §§ 2422 and 2423. 1
As the district court stated, Roscoe recounted his previous experiences with
the two “girls” “as part of an attempt to induce an 11-year-old girl to meet and have
sex with him.” And “[h]e explicitly drew parallels between his chats with Emma
and his interactions with the other girls—saying, in essence, that he had been down
this road before and was afraid of being disappointed again.” In particular, he
1
The district court also relied on a third instance of “sexual abuse or exploitation” that
occurred in 1986, when Roscoe broke into his ex-girlfriend’s house to “see how far [he] could get”
with her 13-year-old sister, who screamed his name, which resulted in a conviction for assault with
intent to commit criminal sexual conduct involving sexual penetration. Roscoe has abandoned
any challenge to this finding on appeal by failing to address it. So only one of the two instances
described in Roscoe’s comments to Emma need qualify to trigger the pattern enhancements. In
any event, we conclude that both do.
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described meeting the girls in chatrooms and chatting online with them regularly
before attempting to meet them in person, as he did with Emma. Given this context,
the court reasonably inferred that Roscoe had described engaging in essentially the
same conduct with these two girls—sexual enticement and travel to engage in sexual
activity—that he was convicted of here.
Nor are we left with a definite and firm conviction that the district court made
a mistake in concluding that the two “girls” in Roscoe’s statements were minors.
Again, the context of the comments reflects that Roscoe was drawing parallels
between Emma, who he believed was eleven years old, and the girls in the two prior
experiences. Beyond that, Roscoe’s comments regarding one of the girls—that he
figured out a picture she sent him could not have been her because it was uploaded
in 2014, when she would have been five years old—necessarily reflected that Roscoe
believed she was a minor when he communicated with her.
Moreover, the district court’s interpretation of Roscoe’s comments was
corroborated by substantial other evidence of, as the court put it, Roscoe’s
“longstanding preoccupation with young girls and pedophilia.” See Alberts, 859
F.3d at 983 (stating that a defendant’s admission of events giving rise to a “pattern”
enhancement was “corroborated by other indicators of his long-standing
preoccupation with incest and pedophilia”). This evidence included prior
convictions for exposing his penis to an eight-year-old girl in 1999 and possessing
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child pornography involving prepubescent girls in 2006; admissions by Roscoe to
exposing himself to other underage girls and to “engaging in sexual chat with
minors” on the internet several years before the offense conduct; and images of
underage girls found on his cell phone after his arrest that were organized by each
girl’s name, location, and age.
Based on the context and substance of Roscoe’s comments to the undercover
officer, along with other corroborating evidence, the district court “did not clearly
err in finding the government proved the factual basis for the [pattern]
enhancement[s] by a preponderance of the evidence.” Alberts, 859 F.3d at 983.
II.
Roscoe next argues that the imposition of both § 2G2.2(b)(5) and § 4B1.5(b)
was based on the same conduct and so amounted to impermissible double counting.
We review double-counting claims de novo. United States v. Little, 864 F.3d 1283,
1291 (11th Cir. 2017).
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” United States v. Suarez, 893 F.3d 1330, 1336 (11th Cir. 2018)
(quotation marks omitted). Double counting is permissible where the Sentencing
Commission intended the result and each provision in question concerns a
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conceptually separate notion related to sentencing. Id. We presume that the
Commission intended to apply separate guideline sections cumulatively, even if they
are “triggered by the same conduct,” unless specifically directed otherwise. Id.; see
U.S.S.G. § 1B1.1, cmt. n.4(B).
There is no question § 2G2.2(b)(5) and § 4B1.5(b) account for the same or
similar conduct. Section 2G2.2(b)(5) provides for a five-level increase if “the
defendant engaged in a pattern of activity involving the sexual abuse or exploitation
of a minor.” And § 4B1.5(b) provides for an additional five-level increase on top of
the “offense level determined under Chapters Two and Three” where, among other
things, the defendant “engaged in a pattern of activity involving prohibited sexual
conduct.” As we’ve explained above, the same conduct may qualify as both “sexual
abuse or exploitation” and “prohibited sexual conduct.”
Nevertheless, that both provisions cover the same conduct does not alone
make their cumulative application impermissible. See U.S.S.G. § 1B1.1, cmt.
n.4(B). Double counting the same conduct is permissible if the Commission
intended the result and each provision in question concerns a conceptually separate
notion related to sentencing. See Suarez, 893 F.3d at 1336.
Here, Roscoe has not shown that the application of both enhancements
constituted impermissible double counting. The provisions themselves reflect that
the Commission intended them to apply cumulatively. Section 4B1.5(b) states that
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five levels should be added to the “offense level determined under Chapters Two
and Three,” meaning the five levels are in addition to any Chapter Two
enhancements, such as § 2G2.2(b)(5). Thus, the “plain language of the guidelines”
shows that the Commission intended for the § 4B1.5 enhancement “to apply
cumulatively to any other enhancements from Chapters 2 and 3.” United States v.
Rogers, 989 F.3d 1255, 1263 (11th Cir. 2021) (rejecting, on plain error review, a
double-counting challenge to the application of both § 2G2.2(b)(5) and § 4B1.5(b)).
These two sections also address conceptually different harms. Section
2G2.2(b)(5) addresses the fact that the offense itself involved a pattern of sexually
exploiting minors, whereas § 4B1.5 allows a district court to impose an enhanced
period of incarceration because the defendant presents a continuing danger to the
public. See U.S.S.G. § 4B1.5, cmt. background; accord United States v. Dowell,
771 F.3d 162, 170–71 (4th Cir. 2014) (“Section 4B1.5(b)(1) aims not merely to
punish a defendant for the specific characteristics of the offenses of conviction, as
does § 2G2.2(b)(5), but to allow a district court to impose an enhanced period of
incarceration because the defendant presents a continuing danger to the public.”).
The application of § 2G2.2(b)(5) and § 4B1.5(b) did not, therefore, involve
impermissible double counting. See United States v. Rothenberg, 610 F.3d 621, 624
n.4 (11th Cir. 2010) (noting that “[t]he application of the two pattern of activity
enhancements does not amount to ‘double counting’”).
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III.
Finally, Roscoe contends that the “§ 4B1.5(b) recidivist enhancement” was
improper because the “recidivism” factor was already taken into account by his
mandatory consecutive sentence of ten years for the 18 U.S.C. 2260A offense.
Although Roscoe does not cite any supporting legal authority for this claim, we treat
it as similar to a claim of double counting.
Under § 2260A, if a defendant commits a specified felony offense involving
a minor while he is under a federal or state requirement to register as a sex offender,
he must be sentenced to a ten-year sentence that “shall be consecutive” to any
sentence imposed for the underlying offense. 18 U.S.C. § 2260A. Roscoe was guilty
of § 2260A because he committed qualifying offenses under § 2422(a) (attempted
enticement of a minor) and § 2423(b) (travel with intent to engage in illicit sexual
conduct) while under a requirement to register as a sex offender.
The guideline for § 2260A offenses, § 2A3.6, states that “the guideline
sentence is the term of imprisonment required by statute.” U.S.S.G. § 2A3.6(b). It
further provides that Chapter Four of the guidelines does not apply to § 2260A
convictions. Id. & cmt. n.2. So it would have been error for the district court to
apply § 4B1.5 when calculating the guideline range for the § 2260A offense.
But that’s not what the district court did. The court correctly calculated a
guideline range of ten years for the § 2260A offense. Separately, it applied § 4B1.5
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when calculating the guideline range for the other three offenses, including the two
offenses that gave rise to the § 2260A conviction.
While Roscoe suggests that the Commission did not intend for § 4B1.5 to
apply in these circumstances, nothing in the guidelines precludes courts from
applying § 4B1.5 when calculating the sentencing range for offenses either
underlying a § 2260A conviction or charged in the same prosecution as a § 2260A
offense. See United States v. Joey, 845 F.3d 1291, 1298 (9th Cir. 2017) (“[T]he
Commission included language in § 2A3.6 expressly instructing courts not to apply
Chapter 4 when calculating the Guidelines sentencing range for § 2260A
convictions, but did not preclude courts from applying § 4B1.5 when calculating the
sentencing range for the offense underlying § 2260A.”). Without specific directions
to the contrary, we must presume that the Commission intended for § 4B1.5 to apply
when calculating the guideline range for distinct offenses underlying a § 2260A
conviction. See Suarez, 893 F.3d at 1336.
Section 4B1.5(b) and § 2260A also serve distinct penological goals. As
relevant here, § 4B1.5 increases a defendant’s offense level to account for the
commission of a new sex crime after having engaged in a pattern of prohibited sexual
conduct, whereas § 2260A punishes the commission of specified felonies involving
a minor while under a requirement to register as a sex offender. Because a pattern
can be established by conduct that does not result in a conviction or a sex-offender
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requirement, a defendant may be subject to § 4B1.5(b) but not § 2260A.
Alternatively, a defendant may violate § 2260A without being subject to the § 4B1.5
enhancement. For instance, a defendant may be required to register as a sex offender
due to convictions for possession or receipt of child pornography, but those
convictions would not count for purposes of § 4B1.5. See U.S.S.G § 4B1.5, cmt. n.4
(stating that “prohibited sexual conduct” “does not include receipt or possession of
child pornography”); see also id., cmt. n.3(A)(ii) (excluding “trafficking in, receipt
of, or possession of, child pornography” from the scope of § 4B1.5(a)’s prior
conviction trigger).
For these reasons, the district court did not procedurally err in applying the
§ 4B1.5(b) enhancement notwithstanding the separate required sentence under
§ 2260A. In our view, the court correctly treated Roscoe’s argument on this point
as tantamount to a request for a downward variance based on the 18 U.S.C. § 3553(a)
factors. Roscoe does not specifically and clearly raise a claim that his sentence is
substantively unreasonable, however, so we do not consider that issue.
In sum, we affirm Roscoe’s sentence.
AFFIRMED.
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