United States v. Chapman

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-2154

UNITED STATES,

Appellee,

v.

MICHAEL T. CHAPMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Peter B. Krupp, Assistant Federal Public Defender, for appellant.

Jeanne M. Kempthorne, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

July 25, 1995

STAHL, Circuit Judge. Appellant Michael T. Chapman
STAHL, Circuit Judge.

pled guilty to one count of transporting child pornography in

interstate commerce in violation of 18 U.S.C. 2252(a)(1)

and was sentenced to thirty-three months incarceration.

Chapman appeals his sentence, challenging the district

court's application of a five-level "pattern of activity"

enhancement under U.S.S.G. 2G2.2(b)(4).1 We vacate the

sentence imposed by the district court and remand for

resentencing.

I.
I.

From November 1993 until at least January 1994,

Chapman, of Southbridge, Massachusetts, subscribed to the

America On-Line (AOL) computer information network. During

that time, Chapman communicated via computer and telephone

with an AOL subscriber in Michigan (a cooperating witness

referred to by the government as "Dan") about Chapman's

sexual interest in children. Chapman told Dan about having

had sexual relations with children as young as seven years,

and discussed with Dan the possibility of abducting a young

girl, bringing her to Michigan where both men would have sex

with her, and then killing her. Chapman also told Dan that

he possessed a "snuff film" depicting the rape and murder of

a ten-year-old girl, as well as other child pornography.

1. All references to the Sentencing Guidelines, unless
otherwise noted, are to the 1993 Guidelines Manual.

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On December 2, 1993, Chapman sent Dan three

photographs via the computer network, each with a different

file designation. Two of the pictures depicted nude or

partially nude girls, while the third depicted a young girl

engaged in sex with a man. A nurse employed by the FBI told

investigators that in her opinion, the girl depicted in the

third photograph was less than ten years old. On December

29, 1993, Chapman told Dan that he was going to scan and send

to Dan a photograph of Chapman having anal intercourse with a

twelve-year-old girl. Chapman then sent to Dan over the

computer network a photograph depicting a man2 having anal

intercourse with a young female who an FBI nurse later stated

appeared to be under eighteen years old.

A search of Chapman's residence and computer on

February 16, 1994, pursuant to a warrant obtained by the FBI,

turned up no "snuff films," other child pornography or

scanning equipment. Chapman told investigators that his

statements to Dan about sexually abusing children and

possessing a snuff film were not true but were simply

fantasy. Investigators were unable to verify that Chapman

had actually engaged in the sexual acts with children that he

had described to Dan. Chapman admitted, however, that he had

exposed himself to minors and that he had shown a

2. The photograph showed the man's lower torso but not his
face.

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pornographic film to children, although the record does not

make clear when these events occurred.

On March 22, 1994, Chapman was indicted in the

Eastern District of Michigan on four counts, each charging

interstate computer transmission of child pornography in

violation of 18 U.S.C. 2252(a)(1). On June 17, 1994,

Chapman pleaded guilty in the District of Massachusetts to

Count One of the indictment, which involved the December 2,

1993, transmission of the photograph depicting a ten-year-old

girl in a sexually explicit act.

Following Chapman's plea, the U.S. Probation

Department prepared Chapman's presentence report (the "PSR").

In addition to the information set forth above, the PSR

stated that Chapman told investigators that he had obtained

about fifty pornographic images over the computer network,

and had engaged in sexually graphic correspondence with

hundreds of computer network subscribers over the preceding

two months. Chapman objected to these statements in the PSR,

maintaining that he had simply told investigators that he had

access to fifty pornographic images over the computer network

and that he had seen hundreds of names listed on AOL and

other bulletin boards of people interested in sexually

graphic correspondence. Chapman also claimed in response to

the PSR that he had never "downloaded" the photographs sent

to Dan, that in fact he had never viewed them himself, and

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that the December 29 photograph depicted neither him nor a

minor.

The PSR also indicated that Chapman had prior

convictions in Massachusetts for rape and for lewd and

lascivious behavior arising from acts involving young

children. In addition, in 1981, Chapman had admitted to

facts warranting a finding of guilt on a charge of indecent

exposure; that charge was continued with supervision and

eventually dismissed. Furthermore, the PSR stated that there

was credible evidence that Chapman had made a series of

obscene phone calls in 1988 to the twelve-year-old daughter

of one of his friends; Chapman disputed this allegation.

At Chapman's sentencing hearing on September 27,

1994, the only legal issue in dispute was the application of

U.S.S.G. 2G2.2(b)(4), which, under the category of

"Specific Offense Characteristics," states: "If the

defendant engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor, increase by 5

levels." The PSR recommended the application of the pattern-

of-activity enhancement to Chapman because he had transmitted

three sexually explicit photographs of minors on December 2

and a fourth on December 29. The district court agreed and

applied the enhancement to Chapman, stating that it based its

decision on "[t]he entire record, the prior record, the other

conduct, the 1988 incident, the entire record that I have

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before me, with the exception of [the December 29 photo],

which I accept [defense counsel's] argument on." The court

imposed a sentence of thirty-three months, the minimum under

the applicable guideline range.3 This appeal followed.

II.
II.

Chapman argues that the district court erred in

applying 2G2.2(b)(4) to him because the guideline does not

permit consideration of past sexual abuse or exploitation

that is unrelated to the offense of conviction, and because

the transmission of child pornography by computer is not

"sexual abuse or exploitation" within the meaning of the

guideline. Thus, Chapman challenges the district court's

interpretation of the meaning and scope of the guideline,

which we review de novo. United States v. Powell, 50 F.3d

94, 102 (1st Cir. 1995); United States v. Thompson, 32 F.3d

1, 4 (1st Cir. 1994).

We first consider whether the transmission of child

pornography by computer may constitute a "pattern of activity

involving the sexual abuse or exploitation of a minor" under

3. The district court arrived at Chapman's sentence in the
following manner: The Base Offense Level for Chapman's
offense was 15. He received a two-level increase under
2G2.2(b)(1) because one of the photographs he sent involved a
prepubescent minor, and a five-level increase under
2G2.2(b)(4). The court subtracted three levels for
acceptance of responsibility pursuant to 3E1.1(b), bringing
Chapman's adjusted offense level to 19. Chapman's criminal
history placed him in category II, making his applicable
guideline sentencing range thirty-three to forty-one months.

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2G2.2(b)(4). The commentary to 2G2.2 explains that the

quoted phrase "means any combination of two or more separate

instances of the sexual abuse or the sexual exploitation of a

minor, whether involving the same or different victims."

U.S.S.G. 2G2.2, comment. (n.4). "Sexual abuse" and "sexual

exploitation," however, are not defined in either the

relevant sentencing guidelines or their corresponding

statutory provisions. The government does not argue that

trafficking in child pornography, by itself, is sexual abuse;

the question for us to decide is whether it may be considered

sexual exploitation of a minor.

The most nearly relevant dictionary definition of

"exploitation" is "an unjust or improper use of another

person for one's own profit or advantage." Webster's Third

New International Dictionary (1986). In a broad sense,

anyone who chooses to look at child pornography has

"improperly used" the child depicted in the materials and

thus has exploited that child -- a trafficker in such

materials, whether recipient or sender, all the more so. We

do not think that Congress,4 or the Sentencing Commission,

4. The Sentencing Commission added subsection (b)(4) and
application note 4 to 2G2.2 in 1991 pursuant to a
congressional mandate. See U.S.S.G. App. C., Amendment 435;

Treasury, Postal Service and General Government
Appropriations Act of 1992, Pub. L. No. 102-141, 632. The
legislative history sheds little, if any, light on what
Congress intended the pattern-of-activity enhancement to
mean. Senators Helms and Thurmond, the amendment's sponsors,
focused on the need for higher base offense levels for

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intended for the word "exploitation" in 2G2.2(b)(4) to

carry this all-encompassing meaning. We reach this

conclusion based on the interaction of subsection (b)(4) with

other guidelines provisions, and on the Sentencing

Commission's use of "exploitation" in other contexts.

The first clue to the meaning of the phrase "sexual

exploitation" is provided by the disparate titles of the

guidelines punishing violations of 18 U.S.C. 2251-52. See

Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st

Cir. 1991) (titles may aid in construing any ambiguities in a

statute). The title of U.S.S.G. 2G2.1, applicable to

crimes related to the production of child pornography, is:

Sexually Exploiting a Minor by Production

of Sexually Explicit Visual or Printed
Material: Custodian Permitting Minor to
Engage in Sexually Explicit Conduct:
Advertisement for Minors to Engage in
Production

(emphasis added). The title of 2G2.2 is:

Trafficking in Material Involving the

Sexual Exploitation of a Minor;

Receiving, Transporting, Shipping, or

purveyors and possessors of child pornography (the base
offense levels for possessors and recipients of child
pornography were, respectively, 10 and 13 at the time), and
on the link between child pornography and sexual abuse. See

137 Cong. Rec. S10322-33 (daily ed. July 18, 1991)
(statements of Senators Helms and Thurmond). In relevant
part, section 632 of the Act ordered the Sentencing
Commission to amend 2G2.2 "to provide a base offense level
of not less than 15 and to provide at least a 5 level
increase for offenders who have engaged in a pattern of
activity involving the sexual abuse or exploitation of a
minor."

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Advertising Material Involving the Sexual
Exploitation of a Minor; Possessing
Material Involving the Sexual
Exploitation of a Minor with Intent to
Traffic.

(emphasis added). The title of 2G2.1 clearly indicates

that the acts to which that guideline applies are themselves

sexual exploitation of a minor; the title of 2G2.2 suggests

that while the material "involves" sexual exploitation of a

minor, trafficking in such material does not. If subsection

(b)(4) of 2G2.2 were meant to include the trafficking

offenses punishable by that very same guideline, one would

expect that the Sentencing Commission -- either in subsection

(b)(4) itself or in application note 4 -- would have used

language that more obviously included those offenses. For

example, application note 4 could have defined "pattern of

activity" as "any combination of two or more acts involving

the sexual abuse or sexual exploitation of a minor, or the

trafficking in, or transportation or receipt of, material

involving such exploitation." Cf. U.S.S.G. 2G2.4(b)(2)

(increasing offense level of defendants convicted of

possession of child pornography "if the offense involved

possessing ten or more books, magazines, periodicals, films,

video tapes, or other items, containing a visual depiction

involving the sexual exploitation of a minor"). By limiting

"pattern of activity" to "instances of the sexual abuse or

the sexual exploitation of a minor," in the context of a

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guideline that by its own terms differentiates itself from

another guideline that does explicitly apply to the sexual

exploitation of minors, the Sentencing Commission has

provided at least a strong initial clue that it does not

understand "exploitation" to include trafficking offenses.

The relevant statutory provisions make a similar

distinction. The title of 18 U.S.C. 2251, which applies to

persons directly involved in the production or advertisement

of child pornography, is "Sexual exploitation of children,"

while 18 U.S.C. 2252 is titled "Certain activities relating

to material involving the sexual exploitation of minors."

Thus, Congress apparently intended to draw a distinction

between those directly engaged in sexually exploiting minors

and those who were engaged in "certain activities related to

material involving" such exploitation.

The government argues that if we are going to look

to titles in interpreting the guideline, then we should look

to the title of Chapter 110 of Title 18 of the U.S. Code, in

which all of the relevant child pornography statutes are

grouped -- "Sexual Exploitation and Other Abuse of Children"

-- or to the heading of Part 2G2 of the Guidelines, under

which both 2G2.1 and 2G2.2 are grouped -- "Sexual

Exploitation of a Minor." These broad headings, the

government argues, suggest that the term "sexual

exploitation" has a broader meaning than simply those

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activities described in 18 U.S.C. 2251 or U.S.S.G. 2G2.1.

We agree that there are some activities not described in

those provisions that may be considered sexual exploitation

for purposes of 2G2.2(b)(4); we do not agree, however, that

any activity subsumed within Chapter 110, including

trafficking, necessarily constitutes sexual exploitation of a

minor. For example, the statute prescribing record-keeping

requirements for the producers of sexually explicit material,

18 U.S.C. 2257, is intended to protect minors but does not

require any involvement with minors for its violation. Yet

it is placed within Chapter 110 of Title 18, and its

corresponding guideline, 2G2.5, is placed under the broader

heading of "Sexual Exploitation of a Minor." By the

government's reasoning, violations of 2257 would constitute

"sexual exploitation of a minor" for purposes of

2G2.2(b)(4) even though the violator of that statute might

never have had any involvement with children, directly or

indirectly.

To be sure, the use of titles has its limits in

statutory interpretation,5 and we do not rely exclusively on

5. We recognize, for instance, that neither the title of 18
U.S.C. 12251A ("Selling or buying of children") nor the
title of Guidelines 2G2.3 ("Selling or Buying of Children
for Use in the Production of Pornography") expressly states
that the acts addressed by those provisions constitute the
sexual exploitation of a minor. We would be loath to say,
however, that the buying or selling of children for sexual
purposes -- whether or not for use in the production of child
pornography -- could not be considered part of a pattern of

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titles to interpret the provision at issue here. Indeed,

were there no other indicators of the Commission's intent, we

might be inclined to agree with the government. But there

are other indicators, and we find them to be dispositive.

Direct evidence that the Sentencing Commission

differentiates between sexual exploitation of a minor and

trafficking in materials depicting such exploitation is

provided by Amendment 372 to the Guidelines. That amendment

inserted a new guideline, 2G2.4, to address offenses

involving the receipt or possession of child pornography, as

distinguished from the trafficking offenses covered by

2G2.2.6 The new guideline contained, and still contains,

cross references to both 2G2.1 and 2G2.2. See U.S.S.G.

2G2.4(c)(1)-(2). The Commission explained:

Offenses involving receipt or
transportation of [child pornography] for
the purpose of trafficking are referenced
to 2G2.2 on the basis of the underlying
conduct (subsection (c)(2)). Similarly,
offenses in which the underlying conduct

is more appropriately addressed as sexual

exploitation of a minor are referenced to

that guideline (subsection (c)(1)).

U.S.S.G. App. C., Amendment 372 (emphasis added). "That

guideline" referred to in the quoted passage's last sentence

is 2G2.1; the Commission could not have been much more

activity of sexual exploitation.

6. Receipt offenses are now covered by 2G2.2, and 2G2.4
applies only to possession offenses.

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clear in distinguishing "trafficking" offenses from those

"more appropriately addressed as sexual exploitation of a

minor." Yet, the government argues that we should now

ascribe to the Commission an intention to include trafficking

offenses within the meaning of sexual exploitation for

purposes of 2G2.2(b)(4), even though the Commission has

clearly differentiated the two on a previous occasion. We

are unable to find any clear evidence that the Commission in

drafting subsection (b)(4) intended to abandon its prior

differentiation, and we therefore will not ascribe to it any

such motive.

Application note 5 to 2G2.2 delivers the defining

answer to the government's argument. It states:

If the defendant sexually exploited or
abused a minor at any time, whether or
not such sexual abuse occurred during the
course of the offense, an upward
departure may be warranted. In
determining the extent of such a
departure, the court should take into
consideration the offense levels provided
in 2A3.1, 2A3.2, and 2A3.4 most
commensurate with the defendant's
conduct, as well as whether the defendant
has received an enhancement under
subsection (b)(4) on account of such
conduct.

If we were to adopt the government's argument that the

computer transmission of child pornography is sexual

exploitation, then the first sentence of this note would mean

that a court may depart upward from the guideline sentencing

range for the very same act of "exploitation" -- i.e., the

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transmission of a photograph -- that led to the conviction.7

The Commission might as well draft a sentencing guideline

applicable to bank robberies, and then state in an

application note that "if the defendant robbed a bank at any

time, an upward departure may be warranted." This is not how

the guidelines are meant to operate; departures are permitted

only if "an aggravating or mitigating circumstance exists

that was not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines and that

should result in a sentence different from that described."

18 U.S.C. 3553(b). Yet the application note says nothing

about an aggravating circumstance; if trafficking is sexual

exploitation, then trafficking alone, without any aggravating

circumstances, permits a judge to depart upward. This makes

no sense: An offense specifically punishable under the

guideline cannot at the same time be "an aggravating . . .

7. The Commission inserted the words "exploited or" in the
first sentence of application note 5 in 1991, at the same
time it added subsection (b)(4) to the guideline. See

U.S.S.G. App. C., Amendment 435 (effective Nov. 27, 1991).
It did not amend the second clause of that sentence ("whether

or not such sexual abuse . . . "), nor did it insert in the

following sentence a reference to the guideline applicable to
sexual exploitation. One might argue that the Commission
omitted any such reference intentionally, intending for
sexual exploitation to include more crimes than those listed

in 2G2.1. We do not believe, however, that the Commission
intended to open the door for departures based on any

activity that might conceivably be labeled sexual
exploitation; it had something more specific in mind. Our
best estimate of what "something more specific" encompasses
is guided by the Commission's past usage of the term.

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circumstance . . . not adequately taken into consideration"

by the Commission; indeed, if the offense may also, by

itself, warrant an upward departure, then the guideline

serves no useful purpose. Thus, we must conclude that

"sexually exploited," as used in application note 5 of

2G2.2 to warrant an upward departure, must mean something

different than the substantive offenses punishable under that

guideline.

The government argues that the interpretation of

subsection (b)(4) that we adopt will render the pattern-of-

activity enhancement virtually useless, and that therefore we

should breathe life into it by assigning it some other

meaning. For example, a defendant convicted of a trafficking

offense, but whose offense involved a pattern of production-

related activity sufficient under our interpretation to

warrant the enhancement under subsection (b)(4), would, in

accordance with the cross reference of 2G2.2(c)(1), be

sentenced under the guideline applicable to production

offenses, 2G2.1, if his resulting offense level were

greater than that under 2G2.2. Section 2G2.1 carries a

base offense level of 25, compared to a base offense level of

just 15 under 2G2.2; the only way a trafficker could ever

receive a higher offense level under 2G2.2 than under

2G2.1 would be if his offense involved distribution (five-

level increase; 2G2.2(b)(2)) and the material involved

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portrayed sadistic or masochistic conduct (four-level

increase; 2G2.2(b)(3)), and he received the five-level

pattern-of-activity enhancement (bringing his total offense

level to 29). It is unlikely, the government argues, that

Congress intended the pattern-of-activity enhancement to have

such limited applicability, and therefore we should broaden

its applicability by construing "sexual exploitation" to

include trafficking in child pornography.

But there may well be activities that constitute

sexual exploitation, as used in subsection (b)(4), that

neither implicate the cross reference to 2G2.1 nor clearly

rise to the level of sexual abuse.8 And, in any event,

while the limited applicability of subsection (b)(4) may be

troubling, it would be more troubling to interpret the phrase

8. To offer but a single example, imagine a recipient or
sender of child pornography who, in the course of his
activities, associates with teenagers who engage in "sexually
explicit conduct" as defined at 18 U.S.C. 2256(2)(E)
("lascivious exhibition of the genitals or pubic area of any
person"), but who neither has physical contact with them nor
photographs them. This offender should not be sentenced
under 2G2.1; nevertheless, he has clearly made "improper
use" of the minors for his own sexual gratification: he has
exploited them.
The enhancement also has obvious applicability in
cases involving sexual abuse. Section 2G2.2 contains no
cross-reference for a defendant whose trafficking offense
also involved sexual abuse. While application note 5 permits
a sentencing judge to depart upward in such circumstances,
and directs his or her attention to the guidelines applicable
to sexual abuse in determining the appropriate extent of any
departure, subsection (b)(4) substantially increases the
sentence of a defendant who has engaged in two instances of
sexual abuse without requiring an exercise of discretion on

the part of the judge.

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"sexual exploitation" in a novel manner solely to give it

wider applicability. Moreover, the government's solution

would result in a subsection that, on its face, enhances

punishment for a pattern-of-activity of sexual abuse or

exploitation, but that in practice primarily enhances

punishment for traffickers. This can hardly be what

Congress, or the Commission, intended when they included the

phrase "sexual abuse or exploitation." Had they intended

such a result, they would have listed the trafficking-type

offenses. Both Congress and the Commission had opportunities

to make clear that they intended trafficking offenses to be

included in "sexual exploitation." Neither chose to do so.

Since both Congress and the Commission have distinguished

trafficking from "sexual exploitation" previously, we will

not now construe that phrase otherwise merely to give

subsection (b)(4) wider applicability.

Our interpretation of subsection (b)(4) is at

variance with the only previous reported decision

interpreting the provision. In United States v. Surratt, a

district court suggested in dictum that the pattern of

activity enhancement might apply to "a pattern of ordering

child pornography through the mail." 867 F. Supp. 1317, 1320

(N.D. Ohio 1994). We think this dictum is simply wrong, for

all the reasons discussed above.

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Having decided that sexual exploitation, as used in

subsection (b)(4), does not include the computer transmission

of child pornography, we pause to consider whether the record

would allow us to conclude that the district court applied

the pattern-of-activity enhancement based on at least two

instances of offense-related activity other than the receipt

or transmission of child pornography. Were we able to reach

this conclusion, it would not be necessary to consider

whether the activity contemplated by subsection (b)(4) must

in fact be offense-related, for the district court's

consideration of other sexual abuse or exploitation would be

harmless. A careful review of the record, however, provides

no basis for such a conclusion. While Chapman, in the course

of transmitting photographs to Dan, boasted of sexually

abusing children and discussed how he and Dan could commit

unspeakable atrocities against a young girl, the government

found no evidence that Chapman actually committed or planned

to commit such acts. Similarly, although Chapman boasted

that the December 29 photograph depicted him engaging in anal

intercourse with a young girl, the district court found that

that photograph did not even depict a minor, and the

government offered no other evidence that Chapman had

produced any child pornography. Thus, while there was

considerable evidence that Chapman had transmitted child

pornography on numerous occasions, and had engaged in

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detailed conversations about sexually abusing, and murdering,

young children, the record contains insufficient evidence to

conclude, even on a preponderance standard, that Chapman

actually sexually abused or exploited minors in conjunction

with his trafficking offense (or even during the time he was

an AOL subscriber). Consequently, we have no choice but to

consider whether the district court was correct in

considering Chapman's past activity in applying subsection

(b)(4).9 While we disagree with the Surratt court's

dictum, we fully endorse its holding that subsection (b)(4)

is inapplicable to past sexual abuse or exploitation

unrelated to the offense of conviction. See Surratt, 867 F.

Supp. at 1320. In Surratt, the defendant was convicted on

one count of receiving child pornography in violation of 18

U.S.C. 2252(a)(2); during a search of the defendant's home,

the government discovered other videotapes depicting the

defendant sexually abusing his own daughter. Id. Based on

this past sexual abuse, the government sought a pattern of

9. The government does not strongly argue that past activity
should be considered under subsection (b)(4); it maintains
instead that the district court's consideration of Chapman's
previous activity was "harmless error if error at all," in
light of Chapman's multiple computer transmissions of child
pornography. However, because we have ruled that the
transmissions themselves do not constitute instances of
sexual exploitation and that the record provides no other
basis on which the district court could have applied the
pattern-of-activity enhancement for offense-related conduct,
we must consider whether it was proper to look to previous,
non-offense-related conduct.

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activity enhancement under subsection (b)(4). The Surratt

court declined to apply the enhancement, stating:

The heading of subsection (b) is
"Specific Offense Characteristics." In
other words, enhancements included in
subsection (b) are available when, as

part of the offense of conviction, the

defendant undertakes the actions listed
therein.
The government argues that
subsection (b)(4) is different from
subsections (b)(1), (b)(2) or (b)(3)
because it does not begin with the
language "If the offense involved . . .
." This argument is unavailing. The
government appears to be suggesting that
if the defendant ever engaged in such a

pattern of behavior, whether as part of
the charged offense or at a completely
different time or place, subsection
(b)(4) should apply. This Court cannot
agree. If the Sentencing Commission had
not intended for the language of
subsection (b)(4) to be applied only to
the specific offense of conviction, that
language would not be included in
subsection (b), entitled "Specific
Offense Characteristics." The government
has pointed to no persuasive authority to
convince the Court that "specific offense
characteristic" means anything other than
characteristics specific to the offense
of conviction.

Id. (emphasis added).

We agree with this reasoning. If the Commission

intended for subsection (b)(4) to apply to any previous

sexual abuse or exploitation, while at the same time placing

the provision under "Specific Offense Characteristics," we

would expect that it would have taken efforts to resolve this

glaring contradiction. It clearly knew how to do so:

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Application Note 5 states in no uncertain terms that an

upward departure is warranted for any instance of sexual

exploitation or abuse "whether or not such sexual abuse

occurred during the course of the offense."10 Cf. U.S.S.G.

2L1.2(1)-(2) (stating clearly that defendant's base offense

level must be increased if defendant "previously" was

deported after conviction for felony or aggravated felony).

The absence of similar language in subsection (b)(4),

combined with the fact that the subsection is classified

under the rubric of "Specific Offense Characteristics,"

compels the conclusion that the application of the subsection

does require that the pattern of activity relate to the

offense of conviction.

III.
III.

For all the foregoing reasons, we vacate the
vacate the

sentence and remand for resentencing.
sentence and remand for resentencing.

10. The district court could have invoked this application
note and departed upward based on Chapman's previous sexual
abuse of minors.

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