Dеfendant-appellant Alan Lee Amirault pled guilty to possessing three items containing visual depictions of minors engaged in sexually explicit conduct.
See
18 U.S.C. § 2252(a)(4)(B) (1994) (current version at 18 U.S.C. § 2252(a)(4)(B) (Supp. IV 1998)). After the district court sentenced him to serve sixty months in prison, we vacated the sentence.
See United States v. Amirault,
I
We review departure decisions for abuse of discretion.
See United States v. Brewster,
In the case at hand, the lower court premised its upward departure on a finding that the appеllant had sexually assaulted two of his sisters-in-law during their minority. The appellant contests each of the elements of the Dethlefs inquiry. We consider those three arguments seriatim. We then confront the tag end of the appellant’s asseverational array.
II
We deal expeditiously with the appellant’s thesis that, even if the sexual assaults occurred, they cannot support an upward departure. This thesis rests on the premise that the assaults happened many years before the offense of conviction and, thus, were not “relevant conduct” under USSG § 1B1.3. This argument is a red herring.
In this case, the district court did not rest its decision on a determination that the sexual assaults were relevant conduct, but, rather, concluded that the acts warranted an upward deрarture under section 5K2.0. In doing so, the court drew an analogy to USSG § 2G2.2, the guideline that deals with trafficking in material involving the sexual exploitation of a minor. One of the specific offense characteristics of the trafficking guideline mandates a five-level increase in the base offense level “[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(4). The pattern of sexual abuse or exploitation need not occur during the commission of the offense of conviction in order to constitute this specific *12 offense characteristic. See id., comment, (n.l) (explaining that the term “ ‘[pjattern of activity involving the sexual abuse or exploitation of a minor,’ ” as used in section 2G2.2(b)(4), “means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense, (B) involved the same or different victims, or (C) resulted in a conviction for such conduct”).
This approach was sound. A sentencing court is free to make suitable comparisons and draw plausible analogies in considering whether to depart from the guideline sentencing range. So it was here: although the guideline applicable to the offense of conviction was section 2G2.4 (the possession guideline), not section 2G2.2 (the trafficking guideline),
see Amirault,
The appellant’s theory — that the district court somehow was obliged to forgo the analogy and shape any such departure around the contours of the relevant conduct guideline — is jejune. The relevant conduct guideline is not directed specifically at section 5K2.0 departures. Rather, its purpose is to determine adjustments to the base offense level, taking into account a defendant’s overall behavior.
See United States v. Sanders,
This is such a case. The sexual assaults that the sentencing court found the appellant had committed were part of a pattern of sexual exploitation of the minor sisters-in-law that included, inter alia, the taking of approximately forty nude photographs and their retention in his child pornography collection (for his sexual gratification). These snapshots not only memorialized the assaults but also meaningfully related them to the possession offense. Even if, as the appellant contends, the snapshots were not “sexually explicit” under 18 U.S.C. § 2256(2) (1994), they nonetheless demonstrated rather convincingly his prurient interest in sexualized images of children. In fact, he admitted to the police and to the court below that he kept these particular pictures secret and masturbated with them. Because the retained photographs link the appellant’s conduct during the offense of conviction to the earlier assaults, the assaults constituted an allowable ground on which to premise an upward departure.
Battling on, the appellant insists that there exists a temporal limit — in his words, a “temporal wall” — ’that precludes the use of рast conduct for sentence-enhancement purposes, and that these two-decade-old incidents are too distant in time. To further this argument, he notes that the sentencing guidelines themselves contain time limits on the use of past convictions,
see
USSG § 4A1.2(e), and cites cases that question the propriety,
in particular circumstances,
of basing sentence enhancements on unrelаted, remote convictions,
see, e.g., United States v. Aymelek,
For the crime of trafficking in child pornography, the Sentencing Commission has specifically addressed the propriety of basing an upward departure on a dated pattern or incident of sexual abuse or exploitаtion. The most pertinent guideline commentary teaches, with an exception that has no bearing here, that “[i]f the defendant engaged in the sexual abuse or exploitation of a minor at any time (whether or not such abuse or exploitation occurred during the course of the offense or resulted in a conviction for such conduct) ... an upward depаrture may be warranted.” Id. § 2G2.2, comment, (n.2) (emphasis supplied). Having accepted the district court’s analogy to section 2G2.2, we see no reason to disregard this commentary. It follows inexorably that there was no legal error in the lower court’s determination that the sexual assaults, although occurring long ago, nevertheless could bear the weight of an upward departure under section 5K2.0.
Ill
The appellant couples his challenge to the appropriateness of the departure-justifying circumstance with a challenge to the very existence of that circumstance. In this vein, he maintains that the district court clearly erred in finding that he had sexually assaulted his two sisters-in-law. The appellant bases this remonstrance primarily on the two-decade delay in the victims’ revelations and the timing of those revelations (they surfaced shortly after the commencement of his divorce proceedings). He marries this attack to an attack on the reliability of his supposed admissions to the police, noting that the reported statements were nеither recorded nor submitted to him for signature and, in all events, were made in the immediate aftermath of the turmoil engendered by his arrest.
Viewed in the abstract, these counterarguments present a plausible (although not inevitable) scenario different from that discerned by the district court. But plausibility is not enough to carry the day. We review a sentencing court’s fаctfinding deferentially, mindful of that court’s superior coign of vantage.
See Koon v. United States,
There is no principled way that we can second-guess these findings. Because the record adequately supports the court’s version of the controverted events, its rejection of the appellant’s subsequent disavowals cannot be clearly erroneous.
See United States v. Ruiz,
IV
The appellant fаrther contends that, even if the district court had an appropriate, factually acceptable basis for departing upward, the extent of the departure was excessive. Because a sentencing court possesses considerable latitude in fixing the degree of an unguided departure, contentions of this sort usually face tough sledding in аn appellate venue. This case is no exception.
The court
of
appeals will interfere in the sentencing court’s determination of the extent of an unguided departure only upon a showing that the court has committed a manifest abuse of discretion.
See Brewster,
V
The appellant has one more sheaf of arrows in his quiver. He posits that the upward departure, evеn if otherwise unim-pugnable, violated his rights under the Ex Post Facto Clause and the Due Process Clause. The government brands these claims as waived.
We need not tarry over the waiver question. The appellant raised this matched set of constitutional claims at the original disposition hearing, but to no avail. He then advanced them in his first appeal, but we found it unnеcessary to go down that road.
See Amirault,
From the appellant’s standpoint, however, this is a Pyrrhic victory. The law (or a judicial decree) violates the Ex Post Facto Clause if it “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”
Calder v. Bull,
This construct is ingenious, but incоrrect. The Supreme Court recently declared “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.”
Witte v. United States,
In a related vein, the appellant contends that the upward departure unconstitutionally deprived him of a statute-of-limitations defense and effectively increased his punishment by the use of temporally remote conduct for which he could no longer have been prosecuted. This argument is shopworn.
It is by now firmly settled that a sentencing court may consider as relevant conduct acts which could not be independently prosecuted because of the passage of time.
See United States v. Valenti
Finally, the appellant maintains thаt if the sentencing guidelines allow consideration of the sexual assaults, their application violates due process. The appellant is wrong.
From the standpoint of due process, a district court properly may consider uncharged conduct at sentencing (as long as that conduct either is admitted or reliably proved by a preponderance of the evidence).
See Witte,
*16 VI
We need go no further. Because the appellant was lawfully sentenced the second time around, the judgment below will be
Affirmed.
Notes
. The court appropriately employed the 1998 edition of the United States Sentencing Guidelines.
See United States v. Harotunian,
. The appellant’s pre-departure sentеncing range topped out at twenty-seven months (offense level sixteen; criminal history category I). The lower court departed upward by five levels and imposed a forty-six month incar-cerative sentence.
. Although the appellant phrases this argument in terms of the sentencing guidelines, we note that the adoption of the guidelines did not materially аlter a sentencing court’s historic discretion to consider " 'the fullest information possible concerning the defendant’s life and characteristics.' ”
Watts,