What Is a Year?: Engaging in a Pattern of Activity Involving Sexual Abuse

What constitutes a year - exactly? In United States v. Doutt, this Sixth Circuit addressed the Guideline § 2G2.2(b)(5) enhancement, which applies where a defendant engaged in a "pattern of activity involving the sexual abuse or exploitation of a minor." Specifically, sexual abuse requires  sexual activity with a minor between the ages of twelve and sixteen "if the perpetrator was at least four years older than" the minor. 18 U.S.C. § 2243(a).

Mr. Doutt, in relationship to a child pornography charge, told law enforcement during a polygraph that he had a sexual relationship with a neighbor when he was 16and the neighbor was 11 or 12. The district court determined that was a difference of 4 years or more and applied the enhancement.

The Sixth Circuit reversed and remanded for resentencing because the district court employed the wrong legal standard in finding the enhancement applied. Authoring Judge Thapar points out that year - traditionally 365 days - does not account for the fact that the sexual abuse could have taken place when Mr. Doutt had just turned sixteen or when the victim and was at the end of his twelfth year or anywhere in between. Depending on where in the year the offense conduct occurred relative to their ages, the gap could be as many as five years to as few as three years. Employing the district court's methodology would apply the enhancement in all of those situations, making imposition of the enhancement "random and somewhat meaningless."

Instead, the Sixth Circuit held that a days-and-months standard should be applied in which to qualify for the enhancement the victim must have been 1,461 days or 48 months younger than the perpetrator. In Mr. Doutt's case, there was no evidence of the parties' birthdays, just Mr. Doutt's basic statement. The Sixth Circuit concluded, "That statement is simply not enough to conclude that Doutt was 'at least four years' older than M.R." On remand, the government could introduce further evidence regarding birthdays if it desired.