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.
