United States v. Ralph Herman Fox, Jr.
926 F.3d 1275
11th Cir.2019Background
- Defendant Ralph Fox Jr., then step-grandfather, sexually abused two minor granddaughters (G.P., 11; J.P., 9); one victim (G.P.) was repeatedly photographed and pornographic images were recovered from his phone.
- Fox pled guilty to producing child pornography in violation of 18 U.S.C. §§ 2251(a), (e).
- Presentence Report applied a five-level enhancement under U.S.S.G. § 4B1.5(b)(1) for a “pattern of activity involving prohibited sexual conduct,” yielding total offense level 43 and a guideline sentence of 360 months (statutory maximum).
- Fox objected, arguing the § 4B1.5(b)(1) enhancement requires multiple victims, or at least unrelated occasions, and contended his age (60) warranted a 240-month sentence (the government had recommended 240 months in the plea agreement).
- The district court overruled the guideline objection and imposed a 360-month sentence; Fox appealed contesting procedural and substantive reasonableness.
Issues
| Issue | Plaintiff's Argument (Fox) | Defendant's Argument (Gov't/District Ct.) | Held |
|---|---|---|---|
| Whether § 4B1.5(b)(1) requires multiple victims | Enhancement requires two separate minor victims; Fox pled to one victim | Application Note 4(B)(i) permits repeated conduct against "a minor" to qualify; enhancement valid | § 4B1.5(b)(1) applies to repeated prohibited sexual conduct against the same minor; enhancement affirmed |
| Whether § 4B1.5(b)(1) requires unrelated occasions | Enhancement requires two unrelated instances/events | "Separate occasions" means distinct occurrences, not necessarily unrelated; ongoing repeated abuse can qualify | Separate, distinguishable occasions suffice; unrelatedness not required |
| Whether the enhancement may be based on conduct underlying the conviction | Using the offense of conviction to enhance is impermissible | Application Note 4(B)(ii) allows occasions to be considered regardless of whether they occurred during the instant offense | Underlying offense may be part of the pattern if it involves separate occasions; enhancement allowed |
| Substantive reasonableness of a 360-month sentence given Fox's age | Age and low likelihood of surviving the term make 240 months sufficient | District court considered age but reasonably weighed the gravity of repeated child abuse more heavily | Sentence (360 months) is substantively reasonable and not an abuse of discretion |
Key Cases Cited
- United States v. Pappas, 715 F.3d 225 (8th Cir.) (repeated offenses against same minor satisfy § 4B1.5(b)(1))
- United States v. Brattain, 539 F.3d 445 (6th Cir.) (same conclusion on single-victim repeated abuse)
- United States v. Phillips, 431 F.3d 86 (2d Cir.) (pattern can be satisfied by exploitation of one minor)
- United States v. Rothenberg, 610 F.3d 621 (11th Cir.) (upheld enhancement where earlier instances joined with offense of conviction showed a pattern)
- United States v. Broxmeyer, 699 F.3d 265 (2d Cir.) (conduct underlying conviction may provide the pattern for § 4B1.5(b))
- United States v. Rojas, 520 F.3d 876 (8th Cir.) (enhancement can apply where only pattern is conduct involved in present offense)
- United States v. Joseph, 709 F.3d 1082 (11th Cir.) (deferential review of substantive reasonableness when sentence is within guideline range)