March 24, 2019

Tenth Circuit: Two Incidents of Producing Child Pornography Satisfy “Pattern of Activity” Requirement for Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Evans on Thursday, April 2, 2015. The Tenth Circuit originally issued its opinion in Evans on March 3, 2015, as an unpublished opinion, but granted Evans’ petition to publish.

In 2012, authorities found 4,800 images of child pornography in Jesse Evans’ possession, at least 100 of which depicted his own minor daughters and his minor niece. He eventually pled guilty to production of child pornography, and admitted in his plea that he had produced child pornography of two minor victims between January 2010 and November 25, 2011. Over Evans’ objection, the district court applied a five-point sentence enhancement pursuant to Guidelines § 4B1.5(b), specifically finding that Evans had produced child pornography on November 5, 2011 and November 25, 2011, satisfying the “pattern of activity” element of 4B1.5(b). Evans’ Guidelines range was 360 months, and the judge varied downward and sentenced him to 252 months.

Evans appealed, arguing § 4B1.5(b) does not apply to him because the “pattern of activity” requirement was not met, and also the district court erred because the government did not request the sentence enhancement so it should not have been applied in the interest of fairness. The Tenth Circuit first found that Evans had preserved his objection at the sentencing hearing, then evaluated the language of the application notes to § 4B1.5(b), finding Evans’ conduct clearly satisfied the criteria for a “pattern of activity.” The Tenth Circuit similarly rejected Evans’ argument that the district court should not have applied the sentence enhancement in the interest of fairness, noting the court was not bound by Evans’ plea agreement.

The Tenth Circuit affirmed Evans’ sentence, and granted his motion to permanently seal Attachment B to the government’s opening brief.

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