In United States v. Spence, No. 17-14976 (May 2, 2019) (Anderson, Ed Carnes, Martin), the Court held that courts may consider extraterritorial conduct to impose an enhancement under the Guidelines.
On appeal, the defendant argued that, in light of the presumption against extraterritorial application of legislation, his distribution of child pornography videos while in Jamaica should not be used to enhance his guideline range. Joining the Seventh, Eighth, and Tenth Circuits, the Court declined to extend that presumption to a sentencing court's consideration of relevant conduct. The Court emphasized that: the defendant was not convicted for conduct outside the country, and considering conduct outside the US for sentencing purposes does not mean that he was sentenced for such conduct; and no statutory or Guidelines provision limited a court's consideration to conduct in the US. The Court acknowledged that its decision might be viewed as being in tension with decisions from the Second and Ninth Circuit but found them unpersuasive and inapplicable to this case.