Eleventh Circuit Court of Appeals - Published Opinions

Thursday, June 13, 2019

Fox: Upholding USSG 4B1.5(b)(1) Enhancement for a Pattern of Activity Involving Prohibited Sexual Conduct

In United States v. Fox, No. 18-10723 (June 13, 2019) (Martin, Tjoflat, Traxler), the Court upheld the defendant's 360-month sentence for production of child pornography.

First, the Court upheld a five-level enhancement under USSG 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct.  Joining every circuit to address the issue, the Court held that the enhancement does not require multiple victims; it may apply even where there is only a single victim.  The Court also rejected the argument that two unrelated instances of prohibited sexual conduct are necessary to trigger the enhancement; it requires only two separate and distinct incidents, related or not.  Lastly, the Court held that the enhancement could be based on conduct underlying the conviction.

Second, the Court held that the defendant's sentence was substantively reasonable, even though the defendant was 60 years old and unlikely to outlive his sentence.