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United States v. Coates.

No. 22-3122. 9/18/2023. D.Kan. Judge Murphy. Presentence Investigation Report—Pattern of Activity Sentence Enhancement—US Sentencing Guidelines Commentary.

September 18, 2023

While Coates was serving supervised release for child exploitation violations, he pleaded guilty to one count of child pornography possession in violation of 18 USC § 2252(A)(a)(5)(B) and (b)(2). The presentence investigative report (PSR) recommended a pattern of activity enhancement pursuant to US Sentencing Guideline (USSG) § 2G2.2(b)(5) based on Coates’s previous child exploitation crimes. Coates objected to the enhancement, arguing for reliance on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which determined that courts can only defer to commentary accompanying executive agency regulations when the associated regulation is “genuinely ambiguous.” The district court declined to apply Kisor, and it did not otherwise believe that the commentary was inconsistent with the guideline. The court applied the enhancement and sentenced Coates to 180 months’ imprisonment, followed by 10 years of supervised release.

On appeal, Coates argued that guidelines are not ambiguous, so under Kisor, the more expansive definition of pattern included in the § 2G2.2 commentary cannot be relied upon. USSG § 2G2.2(b)(5) provides for a five-level increase if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. Although § 2G2.2(b)(5) does not define what qualifies as a “pattern,” the guideline’s commentary defines “pattern of activity” as two or more separate instances of sexual abuse or sexual exploitation of a minor, regardless of whether the abuse or exploitation occurred during the offense, involved the same minor, or  resulted in a conviction. In United States v. Maloid, 71 F.4th 795 (10th Cir. 2023), the Tenth Circuit held that Kisor does not apply to the US Sentencing Commission. Accordingly, Stinson v. United States, 508 U.S. 36, 47 (1993), which analyzed the degree to which sentencing guidelines commentary can be relied on for sentencing, controls. Under Stinson, the commentary should be relied upon unless it is plainly erroneous or inconsistent with the Constitution, a federal statute, or the guidelines.

Coates also argued that the § 2G2.2 commentary is inconsistent with the guidelines, and therefore inapplicable under Stinson, because (1) § 2G2.2(b)(5) is classified as a “specific offense characteristic,” so it cannot be interpreted to include conduct that is not specific to the underlying offense; and (2) USSG § 1B1.3(a), which governs relevant conduct for calculating sentencing ranges, does not allow the broader definition of “pattern” included in the § 2G2.2 commentary. However, Tenth Circuit precedent shows a history of harmonizing the § 2G2.2 commentary with its text despite the use of the “specific offense characteristic” heading and the existence § 1B1.3(a), which permits courts to consider additional conduct as described by § 2G2.2’s commentary. Therefore, neither guideline renders the § 2G2.2 commentary plainly erroneous or inconsistent.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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