Sentencing enhancements; Two-level enhancement for “using a minor to commit the offense” (USSG § 3B1.4); Whether using a minor to commit the offense was already incorporated in defendant’s total offense level; § 3B1.4 cmt n2; “Double counting”; Five-level enhancement for engaging “in a pattern of activity involving prohibited sexual conduct” (§ 4B1.5(b)(1))

The court affirmed the district court’s application of the §§ 3B1.4 and 4B1.5(b)(1) sentence enhancements in sentencing defendant-Parkey. It concluded his total offense level did “not ‘incorporate[]’ using a minor in his offense,” and thus, the Guideline’s commentary limiting the § 3B1.4 enhancement did not apply. As to the five-level enhancement for “pattern of activity” under § 4B1.5(b)(1), the district court could consider activity beyond the offense of conviction. Parkey pled guilty to causing a minor to engage in sexually explicit conduct for the purpose of producing child pornography. The district court applied a two-level sentencing enhancement under § 3B1.4 for using a minor to commit the offense, and a five-level enhancement for “pattern of activity” under § 4B1.5(b)(1). It imposed a below-guidelines sentence of 270 months. Parkey first challenged the enhancement under § 3B1.4, which “does not apply if the ‘offense guideline incorporates’” using or attempting to use a person under 18 to commit the offense. The district court applied two specific-offense-characteristic adjustments to his § 2G2.1 base level – “one because the offense involved ‘a sexual act or sexual contact,’ . . . § 2G2.1(b)(2)(A), and another because it involved ‘the use of a computer . . . to . . . persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct,’ . . . § 2G2.1(b)(6)(B)(i).” The court held that his base offense level of 36, to which he did not object, did “not explicitly incorporate the ‘use of a minor’ to commit the offense. Though it accounts for a minor being a victim, it does not account for using a minor to participate in the crime—e.g., at the defendant’s direction, the minor took photographs to help the defendant produce child pornography. Nor do any of the other enhancements the district court applied to Parkey’s sentence account for this use of the minor.” The court rejected his “double counting” argument because “Parkey ‘used’ the minor in two distinct, unlawful ways: directing the minor to both (1) take the photos and (2) be the subject of the photos.” As for the enhancement under § 4B1.5(b)(1), the court held that the district court could consider activity beyond the offense of conviction under § 4B1.5 and did not err by considering 2/23 communications and the 1/23 offense.