What Constitutes a "Covered Sex Crime" under U.S.S.G. § 4B1.5(b)?

Is a conviction for engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) sufficient to merit a five-level increase as a "covered sex crime" under U.S.S.G. § 4B1.5(b)? In United States v. Hollon, the Sixth Circuit said yes. 

Defendant Randall Hollon pleaded guilty to engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). Prior to his sentencing, the United States Probation Office entered a Presentence Investigative Report that enhanced his sentence by five levels because it concluded his violation of § 2252A(g) was a “covered sex crime” under U.S.S.G. § 4B1.5(b). Hollon subsequently appealed this issue.

In a unanimous opinion, the Court affirmed Hollon's sentence. Hollon asserted the enhancement did not apply to him because the underlying felony violations resulting in his charge for engaging in a child exploitation enterprise were for distributing and receiving child pornography, crimes title 18 chapter 110 explicitly excluded from the definition of a "covered sex crime." Noting that the definition of a "covered sex crime" found in the application notes for U.S.S.G. § 4B1.5 specifically excluded certain crimes but did not specifically exclude "engaging in a child exploitation enterprise," the Court rejected this argument and held it could not "fashion" another exclusion to the definition in contravention of the Sentencing Commission's intent. The Court further noted that the legislative history behind U.S.S.G. § 4B1.5(b) supported its decision.

The Court next addressed Hollon's claim that the enhancement did not apply because it was his first offense, and that the Sentencing Commission intended it to apply only to repeat offenders. Examining the commentary to § 4B1.5(b), the Court held that district courts may impose the enhancement regardless of whether the prior acts resulted in convictions. The focus of the enhancement, the Court concluded, was the defendant's "pattern of prohibited sexual conduct," not his or her "past criminal history."