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.
