United States v. Gibson, No. 16-1393 (8th Cir. 2016)
Annotate this CasePlaintiff pleaded guilty to sex trafficking of a child and was sentenced to 144 months in prison. The court concluded that the district court did not err by applying a two-level enhancement because USSG 2G1.3(b)(3)(B) (using a computer to solicit customers to engage in prohibited sexual conduct with a minor) itself expressly covers defendant's conduct. The court joined its sister circuits in holding that Note 4 is inconsistent with the guideline itself. The court also concluded that the district court did not err by applying a five-level enhancement under USSG 4B1.5(b) (engaging in a pattern of activity involving prohibited sexual conduct) because defendant's arguments are foreclosed by the court's precedent in United States v. Rojas. In Rojas, the court held that subsection (b) may apply where there is no prior sex offense conviction and the only pattern of conduct is conduct involved in the present offense of conviction. Accordingly, the court affirmed the judgment.
Court Description: Per Curiam. Before Wollman, Bright, and Kelly, Circuit Judges] Criminal Case - sentence. District court did not err in applying two-level enhancement under Guidelines sec. 2G1.3(b)(3)(B), as comment Note 4 of Guidelines is inconsistent with the Guidelines and Gibson's conduct was expressly covered by section 2G1.3(b)(3)(B). Objections to application of the five-level enhancement under section 4B1.5(b) is foreclosed by our precedent in United States v. Rojas and pattern of conduct may include conduct involved in the present offense of conviction.
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