United States v. Evans, No. 14-1142 (10th Cir. 2015)
Annotate this CaseIn 2012, authorities discovered 4800 child-pornography videos and images in defendant Jesse Evans' possession, 100 of which depicted his own minor daughters and his minor niece. Evans was charged with five counts of production, distribution, and possession of child pornography. He eventually entered a guilty plea to an added sixth count of production of child pornography. Over Evans's objection, the district court applied section 4B1.5(b) of the United States Sentencing Guidelines, which provided for a five-point sentence enhancement if "the defendant's instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual conduct." The district court specifically found that Evans had produced child-pornography videos on November 5, 2011, and November 25, 2011, thus satisfying the "pattern of conduct" element of 4B1.5(b). The resultant Guidelines sentencing range was 360 months. The district court granted Evans's motion for a downward variance, and sentenced him to 252 months in prison. On appeal of the sentence, Evans argued that 4B1.5(b) did not apply to him because the "pattern of activity" requirement was not met. He also argued that the district court erred in applying 4B1.5(b) because the government did not request it, and he claimed the enhancement should not have been applied "in the interest of fairness." Finding no reversible error, the Tenth Circuit affirmed the sentence.
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