United States v. Justyn Perez-Colon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 21-2802
____________

UNITED STATES OF AMERICA,

v.

JUSTYN PEREZ-COLON,
Appellant
____________

On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-18-cr-00108-001)
District Judge: Honorable Gene E.K. Pratter
____________

Argued on October 4, 2022

Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit
Judges.

(Filed: March 22, 2023)

Keith M. Donoghue [Argued]
Brett G. Sweitzer
Leigh M. Skipper
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant

Jennifer Arbittier Williams
Robert A. Zauzmer [Argued]
Priya Desouza
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

___________

OPINION OF THE COURT
____________

HARDIMAN, Circuit Judge.

Justyn Perez-Colon appeals his conviction and
judgment of sentence after pleading guilty to nine child-
pornography crimes. He raises three challenges to the
calculation of his total offense level under the United States
Sentencing Guidelines and takes issue with his conviction on
Count Eight. Though some of Perez-Colon’s arguments have
merit, none warrants reversal. We will affirm.

2
 I

A

Perez-Colon’s child pornography offenses included:
two counts of production in violation of 18 U.S.C. § 2251(a)
(Counts One and Two); one count of distribution in violation
of 18 U.S.C. § 2252(a)(2) (Count Three); five counts of
attempted distribution in violation of 18 U.S.C. § 2252(a)(2)
(Counts Four through Eight); and one count of possession in
violation of 18 U.S.C. § 2252(a)(4)(B) (Count Nine). 1 Almost
all of Perez-Colon’s criminal conduct involved “Minor 1,” a
female toddler; only Count Eight involved “Minor 2,” a male
toddler.

At the time of his crimes, Perez-Colon was living with
Minor 1 and her mother at a motel. He posted a Craigslist
advertisement seeking to “share real incest stories fetish stories
underage pedo stories” and stated, “I have real experiences and

1
The Judgment misidentifies Count Two as for distribution
rather than production. The District Court’s oral
pronouncements identifying Count Two as a § 2251(a)
production conviction control. See United States v. Chasmer,
952 F.2d 50, 52 (3d Cir. 1991) (recognizing the “firmly
established and settled principle of federal criminal law that an
orally pronounced sentence controls over a judgment and
commitment order when the two conflict” (citation omitted)).
The District Court may correct the apparent clerical error under
Rule 36 of the Federal Rules of Criminal Procedure.

3
pictures.” App. 50. 2 An undercover FBI agent responded to
Perez-Colon’s post and the two conversed on a messaging app.
Perez-Colon eventually sent pornographic images and videos
of Minor 1 to the agent. Those included: a picture of her in
pajamas with an adult penis in the foreground; a video of a
male masturbating near her face while she slept; and a picture
of her genitals, made visible by pulling back her diaper. A
search of Perez-Colon’s smartphone revealed that he produced
these and other similar pictures and videos at two points, three
days apart.

With respect to Count 8, Perez-Colon also attempted to
distribute an image of Minor 2’s genitals. Minor 2’s mother
took the photo and sent it to Perez-Colon to show him the boy’s
rash and Perez-Colon later attempted to distribute it to others
for malicious reasons.

B

The Presentence Investigation Report (PSR) calculated
Perez-Colon’s base offense level under the Sentencing
Guidelines as 32. The PSR recommended enhancements,
including for the age of Minor 1, the use of a computer or
interactive device, Perez-Colon’s care or supervisory control
over Minor 1, and Perez-Colon’s pattern of prohibited sexual
conduct. Because his offenses fell into two different groups
under the Guidelines, the PSR added two points. It then
deducted three points for acceptance of responsibility.

2
For clarity, we cite Joint Appendices Volumes I, II, and III as
“App.” and Joint Appendix Volume IV, which contains
pagination that conflicts with Volume III, as “Supp. App.”

4
 Although the PSR calculated Perez-Colon’s total
offense level as 50, the Guidelines maximum offense level is
43, which brings with it a recommended sentence of life
imprisonment regardless of criminal history category. See
U.S.S.G. Ch. 5, Pt. A & cmt. n.2. Perez-Colon’s statutory
maximum sentence did not allow for a life sentence. He faced
up to 30 years’ imprisonment for Counts One and Two, 18
U.S.C. § 2251(e), and up to 20 years for Counts Three through
Nine, 18 U.S.C. § 2252(b). Those statutory maximums,
running consecutively, yielded a Guidelines range of 200
years’ imprisonment. See U.S.S.G. § 5G1.2(b).

Perez-Colon unsuccessfully objected to parts of the
PSR. First, he objected to the PSR’s treatment of Guideline
§ 3D1.2, which required the District Court to group closely
related counts together when determining Perez-Colon’s
number of “units” of counts. The PSR grouped Perez-Colon’s
nine counts of conviction into two groups, separating the two
production counts, based on conduct that took place three days
apart. Perez-Colon claimed the production counts involved
“the same minor [and] the same harm,” Supp. App. 287, and
thus should have been grouped together in a single unit under
§ 3D1.2(b). That would have reduced Perez-Colon’s offense
level two points. See U.S.S.G. § 3D1.4.

Perez-Colon also contested the enhancement in
§ 2G2.1(b)(5), which imposes a two-level increase “[i]f the
defendant was a parent, relative, or legal guardian of the minor
involved in the offense, or if the minor was otherwise in the
custody, care, or supervisory control of the defendant.” The
PSR applied this enhancement because Perez-Colon was
“monitoring . . . Minor 1 in the absence of her mother,” while
they were living at the motel. Supp. App. 249. Perez-Colon
contended that the enhancement was inapplicable because he

5
committed the crimes while “Minor 1 was asleep in bed” and
the mother was showering “in the same motel room nearby.”
Supp. App. 185.

He also objected to the enhancement under § 4B1.5(b),
which prescribes a five-level increase for “a pattern of activity
involving prohibited sexual conduct.” The PSR applied this
enhancement because Perez-Colon was previously adjudicated
delinquent for sexual assault and indecent assault of a minor.3
Perez-Colon contended the categorical approach precluded this
enhancement because the state statutes he violated were
broader than their federal counterparts.

After rejecting these three arguments, granting Perez-
Colon’s objection to a two-level enhancement for use of a
computer, and denying the Government’s request for a
vulnerable-victim enhancement, the District Court fixed Perez-
Colon’s total offense level at 48 and his Guidelines range at
200 years’ imprisonment. The Court imposed a 55-year
sentence: 20 years for each of the two production counts, to be
served consecutively, and 15 years for each of the remaining
seven counts, to be served concurrently to one another but
consecutively to the production sentences.

Perez-Colon filed this timely appeal. He challenges his
sentence, claiming the District Court erred when it grouped his
counts of conviction into two units and applied enhancements
under §§ 2G2.1(b)(5) and 4B1.5(b). He also asks us to vacate
his judgment of conviction on Count Eight for attempted

3
In Pennsylvania, a juvenile is “adjudicated delinquent” when
found to have engaged in conduct that would be a crime if
committed by an adult. 42 Pa. Cons. Stat. §§ 6302, 6354.

6
distribution of child pornography. We address each argument
in turn. 4

II

Perez-Colon claims the District Court erred when it
placed his counts of conviction into two groups, which
increased his offense level two points under Guideline
§ 3D1.4. He argues that the Court should have grouped the two
production counts together under § 3D1.2(b) because they
involved substantially the same harm. Doing so would have
resulted in no offense-level increase under § 3D1.4.

The parties dispute the standard of review that applies
to this issue. The Government argues for clear error review;
Perez-Colon requests plenary review. We need not resolve the
dispute because the District Court did not err under either
standard.

The Guidelines require grouping of counts that involve
“substantially the same harm.” U.S.S.G. § 3D1.2. Counts can
involve substantially the same harm in four ways, only one of
which is relevant here: “When counts involve the same victim
and two or more acts or transactions connected by a common
criminal objective or constituting part of a common scheme or
plan.” U.S.S.G. § 3D1.2(b). Perez-Colon’s two production
counts involved two acts and the same victim, so whether they
should be grouped turns on whether the two instances of using
Minor 1 to produce pornographic images and videos, three

4
The District Court had jurisdiction under 18 U.S.C. § 3231.
We review the sentence under 18 U.S.C. § 3742(a) and the
conviction under 28 U.S.C. § 1291.

7
days apart, were connected by a common objective or
constituted a common scheme or plan.

We agree with the District Court’s determination that
the two acts against Minor 1 were not so connected. When a
child endures sexual abuse (including being used to produce
child pornography) on separate occasions, the crimes do not
involve “substantially the same harm.” See U.S.S.G.
§ 3D1.2(b). The Guideline speaks of the same harm, not the
same type of harm. Each occasion of abuse inflicts fresh harm
on the child—new fear and trauma—distinct from the prior
harm. See United States v. Bivens, 811 F.3d 840, 842–43 (6th
Cir. 2016) (“Even if the same act is repeated during an
ongoing, continuous pattern of criminality between a single
defendant and his victim, each act usually amounts to a fresh
harm the victim must face anew.”).

Perez-Colon emphasizes that his crimes involved “the
same child, the same motel stay, and the same means.” Perez-
Colon Br. 28. The first of these facts—the same victim—is a
necessary but not a sufficient condition for grouping the counts
under Guideline § 3D1.2(b). And we are not convinced that the
remaining facts show the separate productions of child
pornography were “connected by a common criminal objective
or constitute[d] part of a common scheme or plan.” U.S.S.G.
§ 3D1.2(b).

A broadly viewed “common criminal objective”—
producing child pornography—cannot satisfy § 3D1.2(b)
where the separate acts advanced distinct, narrower
objectives—producing specific images and videos—and
caused distinct harms to Minor 1. Otherwise, a defendant who
regularly abused the same victim to produce child pornography
for weeks or months would be entitled to grouping. This

8
reasoning would likewise require grouping of all the charges
against a defendant who held a victim captive in the same
location and repeatedly abused her for a long time. Doing so
would read “substantially the same harm” out of the Guideline
because that victim surely would have suffered more than a
single harm. See Solid Waste Agency of N. Cook Cnty. v. U.S.
Army Corps of Eng’rs, 531 U.S. 159, 172 (2001) (concluding
that a statutorily defined term cannot be “read[] . . . out of the
statute” and instead retains “independent significance”). For
similar reasons, that Perez-Colon committed his crimes using
the same means and during the same motel stay does not show
the crimes were part of “a common scheme or plan” under the
Guideline. 5

Our conclusion aligns us with other Courts of Appeals,
which separately group sex-crime counts involving the same
victim. See Bivens, 811 F.3d at 842–43 (production of child
pornography and related crimes); United States v. Kiel, 454
F.3d 819, 822 (8th Cir. 2006) (production of child

5
We may defer to commentary only if, among other
conditions, the Guideline is “genuinely ambiguous.” United
States v. Nasir, 17 F.4th 459, 470-71 (3d Cir. 2021) (en banc).
Though we perceive no ambiguity, we note that the
commentary reflects our conclusion. It instructs courts to group
crimes only if they “represent essentially one composite harm,”
not if they create “separate instances of fear or risk of harm.”
U.S.S.G. § 3D1.2 cmt. n.4. Production of child pornography
creates distinct instances of fear or harm and is more analogous
to the commentary’s examples of non-grouped crimes (rape
and robbery) than grouped crimes (mail and wire fraud,
conspiracy to commit extortion and extortion, and auto theft
and altering a vehicle identification number). Id.

9
pornography); United States v. Wise, 447 F.3d 440, 446 (5th
Cir. 2006) (same); United States v. Von Loh, 417 F.3d 710, 713
(7th Cir. 2005) (statutory rape); United States v. Vasquez, 389
F.3d 65, 77 (2d Cir. 2004) (sexual misconduct with an
inmate). 6

The cases Perez-Colon cites are unconvincing. First, he
describes the Sixth Circuit’s opinion in United States v. Bivens
as holding that “production of ten videos over [one] weekend
in hotel room [were] properly treated as single instance of
harm.” Perez-Colon Br. 30. But Bivens faced a single count of
production for those ten videos, so they did not pose a grouping
question. 811 F.3d at 842. And consistent with our reasoning,
the Bivens court refused to group that ten-video production
count with another count of production based on conduct that
took place a few weeks later. Id. at 843. Perez-Colon’s second
case, United States v. Ward, is inapt because “[w]hether the
counts were properly grouped [was] not at issue on appeal.”
626 F.3d 179, 181 n.3 (3d Cir. 2010).

Perez-Colon also invokes the rule of lenity. But that
doctrine applies only when “after considering text, structure,
history, and purpose, there remains a grievous ambiguity or
uncertainty.” United States v. Castleman, 572 U.S. 157, 172–
73 (2014). The Guideline involved here is not grievously
ambiguous, so the rule of lenity does not apply.

Finally, Perez-Colon argues that there must be a
limiting principle as to how close in time is too close to group
sex crimes separately. District courts are in the best position to

6
Because these cases pre-dated Kisor v. Wilkie, 139 S. Ct.
2400, 2414 (2019), they relied on Guidelines commentary. So
the analysis in those opinions differs slightly from ours.

10
draw that line based on the unique facts of each case, subject
to our review. See Buford v. United States, 532 U.S. 59, 64–65
(2001). It would be unwise for us, in the abstract, to adopt a
strict temporal limit for how close is too close, if such a limit
even exists. In this case, the District Court did not err in finding
that Perez-Colon’s two acts of producing of child pornography,
three days apart, caused separate harms justifying separate
grouping. So the Court properly applied a two-level increase to
the combined offense level under § 3D1.4.

III

Perez-Colon also challenges the District Court’s
determination that Minor 1 was in his “custody, care, or
supervisory control” at the time of the offenses. See U.S.S.G.
§ 2G2.1(b)(5).

A

The parties dispute the standard of review that applies
to this issue. After reviewing Supreme Court and Third Circuit
precedent, we hold that clear error review is appropriate.

In Buford v. United States, the Supreme Court
addressed the proper standard of review for “applying a
Sentencing Guidelines term to undisputed facts.” 532 U.S. at
64. The Guidelines provision at issue in Buford required courts
to count “related” convictions as a single prior felony under the
career-offender enhancement in U.S.S.G. § 4B1.1. Id. at 60–61
(analyzing now-amended versions of U.S.S.G. §§ 4B1.2(c)
and 4A1.2(a)(2)). The Court settled on abuse of discretion
review “[i]n light of the fact-bound nature of the legal decision,
the comparatively greater expertise of the District Court, and
the limited value of uniform court of appeals precedent.” Id. at

11
66. The Court remarked that the “deference that is due depends
on the nature of the question presented.” Id. at 63 (quoting
Koon v. United States, 518 U.S. 81, 98 (1996)).

Applying Buford, we reviewed for clear error the
application of a Guidelines enhancement under § 2C1.2 for
certain offenses by a public official in a “high-level decision-
making or sensitive position,” an analogous question to that
presented in this appeal. United States v. Richards, 674 F.3d
215, 219–23 (3d Cir. 2012). In Richards, we noted that 18
U.S.C. § 3742(e) requires appellate courts to “give due
deference to the district court’s application of the guidelines to
the facts.” Id. at 219 n.2. And we reasoned that the “legal test
. . . [was] in essence a factual inquiry” under which the district
court simply “needs to find facts that will answer—either yes
or no—whether the government official possesses ‘direct
authority to make decisions’ for a government entity or
whether the official possesses ‘substantial influence over the
decision-making process.’” Id. at 221 (quoting U.S.S.G.
§ 2C1.2(b)(3) cmt. n.3(A)). The “highly factual nature of this
inquiry, and a trial court’s relative institutional advantages in
conducting it,” together with the fact that appellate review
would be “of little help in future cases,” warranted deference.
Id. We selected clear error review over abuse of discretion
because the latter is appropriate “where there is room for
interpretation as to whether the facts satisfy an essentially legal
test, or where a district court can exercise some discretion in
deciding whether to apply particular Guideline provisions,”
that is, where the court is “choosing among different courses
of action.” Id. at 223 (quotation marks and citation omitted). 7

7
We have reviewed several other Guidelines applications for
clear error. See, e.g., United States v. Rodriguez, 40 F.4th 117,

12
 Buford and Richards dictate clear error review here.
First, the question of whether a minor is “in the custody, care,
or supervisory control” of a defendant is highly fact-specific;
it requires a case-by-case analysis of the defendant’s
relationship to the victim and the setting in which the crime
was committed. See U.S.S.G. § 2G2.1(b)(5). Second, “the
district court is in a better position than the appellate court to
decide whether a particular set of individual circumstances
demonstrates” care or supervisory control. Buford, 532 U.S. at
64. Third, whether the facts establish care or supervisory
control is not “readily resolved by reference to general legal
principles and standards alone” but instead “grows out of, and
is bounded by, case-specific detailed factual circumstances.”
Id. at 65. Finally, like in Richards, “our role is more
appropriately described as determining whether the District
Court clearly erred in its determination that the facts fit within
the meaning of [§ 2G2.1(b)(5)], rather than whether it abused
its discretion by adopting one set of factual findings instead of
another.” 674 F.3d at 223.

For these reasons, we review application of the
§ 2G2.1(b)(5) enhancement for clear error. But like in
Richards, we think our choice between clear error and abuse of

120–21 (3d Cir. 2022) (§ 2D1.1(b)(12) enhancement for
“maintain[ing] a premises for the purpose of manufacturing or
distributing a controlled substance”); United States v. Thung
Van Huynh, 884 F.3d 160, 165 (3d Cir. 2018) (§ 3B1.1(a)
enhancement for when a defendant is “an organizer or leader
of a criminal activity that involved five or more participants”
and § 2B1.1(b)(10)(A) enhancement for when a scheme is
relocated to evade law enforcement or regulatory officials).

13
discretion is “not very significant” as our analysis would be
similar under either standard. Id. 8

B

1

Turning to the merits of the § 2G2.1(b)(5)
enhancement, we begin by rejecting Perez-Colon’s view that it
requires “parent-like” authority. Perez-Colon Br. 18 (citing
United States v. Harris, 999 F.3d 1233, 1237 (9th Cir. 2021)).
Care and supervisory control require “some degree of authority
over or responsibility for” the victim, United States v.
Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)—something
more than “mere presence,” Harris, 999 F.3d at 1237. But that
standard does not require parent-like authority.

Perez-Colon relies on two canons of construction. He
starts with the canon against superfluity, arguing that the
Guidelines provision’s first clause, which applies the
enhancement to any “parent, relative, or legal guardian” of the

8
Perez-Colon cites two cases decided after Richards where we
applied de novo review to Guidelines application: United
States v. Bell, 947 F.3d 49, 54 & n.2 (3d Cir. 2020) and United
States v. Douglas, 885 F.3d 124, 129 (3d Cir. 2018) (en banc).
Bell is unavailing because it strays from Richards for the
reasons explained in Judge Chagares’s partial dissent, see 947
F.3d at 63–65 (Chagares, J., dissenting), and the prior opinion
in Richards controls. See Pardini v. Allegheny Intermediate
Unit, 524 F.3d 419, 426 (3d Cir. 2008). Douglas does not apply
because it relied on a pre-Buford line of cases without
conducting any analysis of the proper standard of review. See
885 F.3d at 129.

14
victim, would be superfluous if the “custody, care, or
supervisory control” clause applied to any type of supervision.
See United States v. Brooks, 610 F.3d 1186, 1200 (9th Cir.
2010). This argument fails because relatives and parents do not
always have custody or supervision of their minor relatives. So
the first clause maintains independent meaning even if we read
the second clause broadly.

Perez-Colon next cites ejusdem generis, which requires
us to construe “otherwise in the custody, care, or supervisory
control of the defendant” to embrace similar levels of control
as the preceding list: “parent, relative, or legal guardian.”
“Under that rule, when a statute sets out a series of specific
items ending with a general term, that general term is confined
to covering subjects comparable to the specifics it follows.”
Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586
(2008). This canon is unhelpful to Perez-Colon because his
focus on “parent” ignores “relative.” The authority exercised
by a relative can vary widely depending on the relative and is
often less than “parent-like.”

Simply put, “care[] or supervisory control” does not
require parent-like authority. 9

9
The Guidelines commentary again is consistent with our
interpretation. It states that the enhancement “includes offenses
involving a minor entrusted to the defendant, whether
temporarily or permanently” and applies, for example, to
“teachers, day care providers, baby-sitters, or other temporary
caretakers.” U.S.S.G. § 2G2.1 cmt. n.5(A).

15
 2

Having determined that parent-like authority is not
required, we conclude that the District Court’s application of a
two-level enhancement under Guideline § 2G2.1(b)(5) was not
clearly erroneous. Two facts highlighted by the District Court
are particularly convincing. First, as a toddler, the victim
required constant supervision. See Blackbird, 949 F.3d at 532
n.2 (considering age a relevant factor). Second, the mother
intentionally left the child alone in the room with Perez-Colon,
who was temporarily living there, while she showered. This
distinguishes Perez-Colon’s case from those where, for
example, the defendant found the victim “home alone.” Id.; see
also United States v. Blue, 255 F.3d 609, 611, 615 (8th Cir.
2001) (concluding a materially identical enhancement under
§ 2A3.1(b)(3)(A) did not apply when the defendant abused the
victim while the mother was in a drunken “stupor,” because
“the government failed to establish that the mother transferred
care to [the defendant]”).

On these facts, we are not “left with a definite and firm
conviction,” Sabinsa Corp. v. Creative Compounds, LLC, 609
F.3d 175, 182 (3d Cir. 2010) (citation omitted), that the District
Court erred in determining that Minor 1 was in Perez-Colon’s
“care[] or supervisory control,” U.S.S.G. § 2G2.1(b)(5).

IV

Perez-Colon also challenges his five-point increase for
“engag[ing] in a pattern of activity involving prohibited sexual
conduct.” U.S.S.G. § 4B1.5(b). The District Court applied this
enhancement based on Perez-Colon’s prior sexual abuse of a
minor. As will be explained below, the plain language of
§ 4B1.5(b) requires the sentencing court to first identify the

16
conduct in which the defendant engaged. Where, as here, the
defendant’s conduct can only qualify as “prohibited sexual
conduct” if it constituted an offense described in 18 U.S.C.
§ 2426(b)(1)(B), the court must then consider whether the
defendant’s conduct fell within one of the listed federal or state
crimes. Thus, the first part of the analysis does not call for the
application of the categorical approach. The second step of the
analysis does require a type of categorical analysis because it
requires the court to consider whether the identified conduct
falls within a state law offense that is equivalent to one of the
enumerated federal crimes. Applying this analysis, we
conclude the District Court erred, but its mistake was harmless.

A

The parties dispute whether the categorical approach
applies to the Guidelines definition of “prohibited sexual
conduct.” Reviewing that question de novo, United States v.
Dahl, 833 F.3d 345, 349 n.4 (3d Cir. 2016), we hold that the
categorical approach does not apply to Guideline § 4B1.5(b).

The Guidelines define “prohibited sexual conduct” as:
“(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.” Id. cmt. n.4(A). 10 To establish a “pattern

10
United States v. Nasir, 17 F.4th at 470–71, which generally
prohibits our deference to the commentary to unambiguous
Guidelines, presents no issue with our reliance on the
commentary in this situation. Perez-Colon’s challenge to the
enhancement, and the Government’s argument for its
application, both assume the correctness of and rely on the
commentary’s definition of “prohibited sexual conduct.” To
reach their arguments, we must too. But we state no opinion

17
of activity involving prohibited sexual conduct,” the
Government cites Perez-Colon’s 2014 Pennsylvania
delinquency adjudication of sexual assault and indecent assault
and the underlying evidence that Perez-Colon sexually
assaulted a child over the course of nearly a decade.

Perez-Colon invokes the categorical approach to argue
that the enhancement does not apply because the Pennsylvania
laws under which he was adjudicated delinquent are broader
than their federal counterparts. See generally Shular v. United
States, 140 S. Ct. 779, 783–84 (2020). The Government
concedes that the Pennsylvania offenses are broader because
they encompass reckless conduct. Even so, the Government
rightly argues that the categorical approach does not apply to
this Guidelines provision because it is triggered by prior
conduct, not a prior conviction.

We use the categorical approach to determine whether
“a defendant’s prior federal or state conviction qualifies as a
predicate offense.” Dahl, 833 F.3d at 349. It applies when
increased statutory penalties or Guidelines enhancements are
triggered by a certain criminal offense. See, e.g., Shular, 140
S. Ct. at 783; Dahl, 833 F.3d at 349. Under that approach,
“[s]entencing courts may look only to the statutory
definitions—i.e., the elements—of a defendant’s prior
offenses, and not to the particular facts underlying those
convictions.” Descamps v. United States, 570 U.S. 254, 261
(2013) (quotation marks and citation omitted). If the prior

whether “prohibited sexual conduct” as used in § 4B1.4(b) is
ambiguous, and if so whether the commentary’s definition is a
reasonable interpretation of it. See Nasir, 17 F.4th at 471.

18
offense is defined more broadly than the comparator offense, it
cannot serve as a predicate. Dahl, 833 F.3d at 355.

The categorical approach presupposes some triggering
offense. Otherwise, the sentencing court would have no
elements to consider. Here, Guideline § 4B1.5(b) asks if “the
defendant engaged in a pattern of activity involving prohibited
sexual conduct,” § 4B1.5(b) (emphasis added), which need not
result in a conviction, id. cmt. n.4(B)(ii). This language directs
courts away from the categorical approach by focusing on
whether a defendant engaged in certain conduct rather than
whether he had certain convictions. Cf. Mathis v. United States,
579 U.S. 500, 511 (2016) (“By enhancing the sentence of a
defendant who has three ‘previous convictions’ for generic
burglary—rather than one who has thrice committed that
crime—Congress indicated that the sentencer should [apply the
categorical approach].” (citation omitted)). That a defendant
happened to be convicted (or adjudicated delinquent) for the
conduct is immaterial. So the categorical approach does not
apply.

Contrary to Perez-Colon’s argument, our holding tracks
United States v. Dahl, where we held the categorical approach
applies to Guideline § 4B1.5(a), which references a prior “sex
offense conviction.” 833 F.3d at 349. Unlike that provision,
here subsection (b) of § 4B1.5 refers to conduct. Because Dahl
involved a Guidelines provision that instructs courts to look at
a prior conviction, applying the categorical approach there
made sense. Indeed, we highlighted in Dahl that “a sentencing
enhancement’s use of the phrase ‘conviction’ indicates
Congress’s intent to apply the categorical approach.” Id. at
350.

19
 Perez-Colon is correct that neither the presence of the
word “conduct” nor the lack of the word “conviction” is
outcome determinative. Still, the inquiry is a functional one,
asking whether the text requires us to examine a defendant’s
conduct or his statutory offense. We did note in Dahl that “the
‘categorical approach’ applies notwithstanding a predicate
statute’s reference to conduct.” Id. (citing Johnson v. United
States, 576 U.S. 591 (2015)). But the predicate statute
discussed there expressly required an underlying conviction—
for some “conduct”—and the central point was that “the
important textual reference for triggering the categorical
approach is ‘conviction,’ not ‘conduct.’” Id. (citing Johnson,
576 U.S. at 593); see 18 U.S.C. § 924(e)(2)(B). So Dahl
suggests that though a statute’s reference to “conduct” does not
necessarily prevent the application of the categorical approach,
nor does it mean that when a statute or Guideline addresses
only conduct—regardless of a resulting conviction—the
categorical approach applies.

As for “conviction,” it is true that the word “is hardly a
prerequisite for the categorical approach.” United States v.
Davis, 139 S. Ct. 2319, 2335 (2019). But the Supreme Court
has emphasized that “conviction” is a powerful indicator that
the approach should apply. See Mathis, 579 U.S. at 511;
Johnson, 576 U.S. at 604; see also Dahl, 833 F.3d at 358. And
Davis observed only that the word was not required—it did not
apply the categorical approach where there was no conviction
to examine. See 139 S. Ct. at 2324.

In sum, because Guideline § 4B1.5(b) asks whether a
defendant engaged in certain conduct regardless of whether it
led to a conviction, the categorical approach does not apply.

20
 B

The Government’s successful parry against the
categorical approach does not resolve this issue. We must now
consider whether Perez-Colon’s actual conduct was
“prohibited sexual conduct.” It was not.

The parties agree that Perez-Colon’s prior conduct was
neither production nor trafficking of child pornography. See
U.S.S.G. § 4B1.5 cmt. n.4(A). So to be “prohibited sexual
conduct,” it must have constituted an “offense described in 18
U.S.C. § 2426(b)(1)(A) or (B).” Id. Those statutory provisions,
which define “prior sex conviction,” apply to an offense:

(A) under this chapter, chapter 109A, chapter
110, or section 1591; or

(B) under State law for an offense consisting
of conduct that would have been an offense
under a chapter referred to in subparagraph (A)
if the conduct had occurred within the special
maritime and territorial jurisdiction of the United
States.

18 U.S.C. § 2426(b)(1).

Subparagraph (A) incorporates statutes defining certain
sex crimes for conduct in federal maritime or territorial
jurisdiction. Two of these would cover Perez-Colon’s prior
sexual abuse of a minor if committed in such jurisdiction: 18
U.S.C. § 2241(c) and 18 U.S.C. § 2243(a). In the
Government’s view, this means that Perez-Colon’s conduct
“would have violated federal statutes.” Gov’t Br. 37. But the
Government does not claim any of Perez-Colon’s conduct was

21
committed in federal maritime or territorial jurisdiction. And
because an “offense described in” subparagraph (A) includes
that jurisdictional element, Perez-Colon’s conduct in
Pennsylvania was not “an offense described in”
§ 2426(b)(1)(A).

As for subparagraph (B), it requires application of the
categorical approach through the back door. We must
determine whether Perez-Colon’s conduct constituted “an
offense described in” § 2426(b)(1)(B)—i.e., a violation “under
State law for an offense consisting of conduct that would have
been a[] [federal] offense” had it been committed in federal
maritime or territorial jurisdiction. 18 U.S.C. § 2426(b)(1)(B).
To do so requires identifying a state law that the conduct
violated (though Perez-Colon need not have been charged or
convicted of it). We have already held § 2426(b)(1)(B)
requires the categorical approach. See Dahl, 833 F.3d at 349–
51. So a state law offense cannot be “described in”
§ 2426(b)(1)(B) if the state statute is categorically broader than
the federal statutes in subparagraph (A). The Government
concedes that the Pennsylvania laws under which Perez-Colon
was adjudicated delinquent are broader than the federal
comparators, and it identifies no other law he violated that is a
categorical match. Perez-Colon’s prior conduct therefore was
not an offense described in § 2426(b)(1)(B).

To recap: The categorical approach does not apply to a
§ 4B1.5(b) enhancement for a pattern of prohibited sexual
conduct. But a defendant’s actual conduct cannot be “any
offense described in 18 U.S.C. § 2426(b)(1)(A) or (B)” unless
the conduct either violated one of the relevant federal criminal
laws or a categorical state-law equivalent. Because Perez-
Colon’s prior sexual abuse of a minor violated neither federal
law nor a state-law categorical match, it was not “an offense

22
described in 18 U.S.C. § 2426(b)(1)(A) or (B).” So the District
Court erred in applying the enhancement based on that
conduct. 11

C

Although the District Court should not have applied the
§ 4B1.5(b) enhancement, we hold its error was harmless,
largely because it did not affect Perez-Colon’s advisory
Guidelines range. See United States v. Raia, 993 F.3d 185, 195
(3d Cir. 2021). The District Court calculated a total offense
level of 48, which included the five-level pattern of prohibited
sexual conduct enhancement. Because the Guidelines
Sentencing Table sets 43 as the maximum offense level,
increases above that level are inconsequential: “[a]n offense
level of more than 43 is to be treated as an offense level of 43.”
U.S.S.G. Ch. 5, Pt. A & cmt. n.2. So the erroneous five-level
enhancement affected neither Perez-Colon’s total offense
level—which was 43 with or without the enhancement—nor
his Guidelines recommendation of 200 years’ imprisonment.
There is therefore “a high probability” the error did not affect
Perez-Colon’s sentence. See Raia, 993 F.3d at 195.

Perez-Colon disputes this reasoning, claiming the
“court attended closely to offense levels above 43” and
“memorialized its level ‘48’ finding in the Statement of
Reasons.” Perez-Colon Br. 23. True enough, but the District

11
The Government argues in the alternative that the § 4B1.5(b)
enhancement could be justified by the conduct underlying
Perez-Colon’s two production of child pornography
convictions in this case. Because we conclude that any error
was harmless, we decline to reach this argument.

23
Court recognized that applying an offense level of 43 is “the
way the Guidelines work in a case such as this.” Supp. App.
298. Perez-Colon admits as much elsewhere in his brief,
describing the Court’s three-level reduction for acceptance of
responsibility (from a total offense level of 51 to 48) as “a
nullity” that “has no effect because the Guidelines’ sentencing
grid ends at level 43.” Perez-Colon Br. 8 & n.3. The same is
true of a five-level enhancement in the total offense level from
43 to 48.

Three more facts support our harmless error conclusion.
First, the Court varied downward substantially from the
Guidelines range, which makes “an error . . . more likely to be
harmless.” United States v. Zabielski, 711 F.3d 381, 388 (3d
Cir. 2013). Second, after calculating the advisory Guidelines
range and considering all the sentencing factors under 18
U.S.C. § 3553(a)(2), the District Court “concluded that [the 55-
year sentence] is the fair, reasonable, and appropriate sentence
without regard to how the Court ruled on any given individual
issue on the Guidelines enhancements or additions or
subtractions.” Supp. App. 352; see Zabielski, 711 F.3d at 388
(“[I]t usually will be difficult for an appellate court to conclude
with sufficient confidence that the same sentence would have
been imposed absent a clear statement to that effect by the
sentencing judge.” (emphasis added) (citation omitted)). Third,
the Court rejected a two-level vulnerable victim enhancement
proposed by the Government, stating it would be “piling on”
even though the Court “underst[ood] the Government saying
that analytically this would be an appropriate time to use such
an enhancement.” Supp. App. 281–82. The Court recognized
that enhancement would be an idle exercise because 43 was the
maximum offense level.

24
 For the reasons stated, it is clear that the § 4B1.5(b)
enhancement “did not affect the district court’s selection of the
sentence imposed.” United States v. Langford, 516 F.3d 205,
215 (3d Cir. 2008). The error was harmless and remand is
unnecessary.

V

Perez-Colon challenges for the first time on appeal his
Count Eight conviction for attempted distribution of child
pornography under 18 U.S.C. § 2252(a)(2). The image charged
in Count Eight displayed the genitals of Minor 2, whose mother
had taken the picture and sent it to Perez-Colon for a benign
medical purpose—to show him the toddler’s rash. Perez-Colon
then tried to distribute the image for unrelated, evil purposes.
He argues the District Court erred in accepting his guilty plea
to this count because the image was not produced using a minor
engaged in “sexually explicit conduct,” and therefore his
conduct did not violate the statute. See 18 U.S.C. § 2252(a)(2).

We review the District Court’s acceptance of Perez-
Colon’s guilty plea for plain error. See United States v.
Lessner, 498 F.3d 185, 196 (3d Cir. 2007); Fed. R. Crim. P.
52(b). For plain error to exist, “there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’”
Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). If those
conditions are met, we may correct the error “if (4) the error
seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Id. (quotation marks and citations
omitted).

Section 2252(a)(2) prohibits knowingly receiving,
distributing, or reproducing “any visual depiction” if “(A) the

25
producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and (B) such visual
depiction is of such conduct.” “Sexually explicit conduct”
means, as relevant here, “lascivious exhibition of the anus,
genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A).
Perez-Colon’s challenge to his Count Eight conviction thus
turns on whether the “producing” of the image involved and
depicts “lascivious exhibition” of Minor 2’s genitals.

Perez-Colon argues with some force that the relevant
image originally fell outside the purview of the statute—it was
not of “lascivious exhibition” when the mother took it—and
that it cannot transform into such an image when he put it to
malicious use. In United States v. Villard, we adopted the six
“Dost factors” for analyzing lascivious exhibition, most of
which focus on the objective nature of the image and at least
three of which are not present here: a sexually suggestive
setting, an unnatural pose or inappropriate attire, and a
suggestion of coyness or willingness to engage in sexual
activity. See 885 F.2d 117, 122 (3d Cir. 1989) (citing United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)). We
also stated that “[w]hen a picture does not constitute child
pornography, even though it displays nudity, it does not
become child pornography because it is placed in the hands of
a pedophile, or in a forum where pedophiles might enjoy it.”
Id. at 125 (citation omitted).

The Government raises forceful arguments in response.
The statute defines “producing” broadly to mean “producing,
directing, manufacturing, issuing, publishing, or advertising.”
18 U.S.C. § 2256(3). The definition is not limited to “an initial
act of production, such as taking photographs,” but also
extends to acts in the chain of distribution. United States v.
Lively, 852 F.3d 549, 560 (6th Cir. 2017) (collecting cases).

26
While the mother “produced” the image for medical purposes,
Perez-Colon “intended . . . to elicit a sexual response in the
viewer,” Dost, 636 F. Supp. at 832, when he attempted to
“produce” that image to others. In addition, two other Dost
factors favor the Government: a focal point on genitalia and the
minor’s nudity. See id. at 122 (stating all six factors need not
be present).

The upshot of these competing arguments is that any
error the District Court might have made in accepting Perez-
Colon’s Count Eight guilty plea could not have been “‘clear’
or ‘obvious’” based on unambiguous statutory language,
binding precedent, or consensus among our sister courts.
United States v. Scott, 14 F.4th 190, 198–99 (3d Cir. 2021)
(quoting Olano, 507 U.S. at 734). For those reasons, we will
affirm Perez-Colon’s judgment of conviction on Count Eight
under prong two of plain-error review.

* * *

For the reasons stated, we will affirm Perez-Colon’s
judgment of conviction and sentence.

27