United States v. Bacon
2011 U.S. App. LEXIS 13868
| 5th Cir. | 2011Background
- Bacon pled guilty to possession of child pornography under 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), 2256(8)(A).
- PSR used 2008 Guidelines to apply a five-level enhancement for a pattern of activity involving abuse or exploitation of a minor, yielding Level 33.
- Three of Bacon’s five daughters were interviewed by probation; two reported molestation by Bacon when they were children.
- Four daughters testified at sentencing; Bacon admitted molesting two daughters and disputed a third.
- District court overruled objection to the enhancement, applying it based on remote conduct; sentence imposed was the statutory maximum of 120 months.
- Bacon appealed the application of the pattern-of-activity enhancement based on the age of conduct (over 30 years).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can remote‑time conduct support the pattern enhancement under § 2G2.2(b)(5)? | Bacon argues acts over 30 years old are too remote. | Bacon contends remoteness should defeat relevance for pattern. | Yes; remote conduct may be considered for pattern. |
| Does due process or rule of lenity bar considering remote conduct for pattern enhancement? | Due process/lenity require narrowing interpretation. | Plain language not ambiguous; lenity not triggered. | No; due process and lenity do not bar it. |
| Whether two or more separate instances of abuse were sufficiently proven to establish a pattern. | Admitted molestation of two daughters constitutes two instances. | Temporal distance does not negate two instances. | Yes; two instances suffice under the guideline. |
| What is the proper legal standard of review for the district court’s application of the Guideline? | De novo review of guidelines application. | Guideline text controls; district court’s interpretation should stand if reasonable. | De novo review; plain language supports application. |
| Is remoteness of conduct compatible with reasonable sentence under § 2G2.2(b)(5)? | Remote conduct indicates higher risk of recidivism justifying enhancement. | Remote conduct lacking logical nexus could be arbitrary. | Remote conduct is rationally related to increased likelihood of recidivism; permissible. |
Key Cases Cited
- Turner v. United States, 626 F.3d 566 (11th Cir.2010) (allows remote-time conduct to support pattern enhancement under § 2G2.2(b)(5))
- Olfano v. United States, 503 F.3d 240 (3d Cir.2007) (considers distant convictions for pattern enhancement)
- Garner v. United States, 490 F.3d 739 (9th Cir.2007) (pattern can cover acts well before offense; no temporal nexus required)
- Gawthrop v. United States, 310 F.3d 405 (6th Cir.2002) (recognizes broadened relevant conduct for pattern)
- Woodward v. United States, 277 F.3d 87 (1st Cir.2002) (reliance on decades-old conduct for pattern enhancement)
- Lovaas v. United States, 241 F.3d 900 (7th Cir.2001) (conduct from many years earlier may be considered)