United States v. Ralph Herman Fox, Jr.
Opinion
Ralph Fox, Jr. appeals his 360-month sentence imposed after he pled guilty to one count of sexually exploiting a minor through the production of child pornography in violation of
I. FACTS
On September 12, 2016, Mr. Fox's wife reported to the police that Fox had sexually abused her two minor granddaughters, G.P., who was eleven, and J.P., who was nine. At the time, Mr. Fox was G.P. and J.P.'s step-grandfather. A Child Protection Team interviewed both G.P. and J.P. G.P. informed the interviewers that Mr. Fox had sexually abused her for about one year; had molested her "almost nightly"; had taken naked photos of her with his cell phone; had used a grey vibrator, which he kept hidden in a shed, to penetrate her vagina; and that she had observed Mr. Fox abusing J.P. J.P. reported she had not been sexually abused for as long as G.P.; Mr. Fox had also molested her "almost nightly" while her grandmother was sleeping; and she had observed Mr. Fox sexually abuse G.P. Medical examinations of G.P. and J.P. were consistent with their reported abuse.
A state search warrant was executed for Mr. Fox's home, automobile, and cell phone. The State found a grey vibrator hidden in a shed at Mr. Fox's home, which corroborated G.P.'s statements to the interviewers. A forensic examination of Mr. Fox's cell phone revealed 30 deleted images, including images of G.P.'s vaginal area and of Fox sexually abusing her. Although the photos did not show Mr. Fox or G.P.'s faces, G.P. identified Fox and herself in the photos. Mrs. Fox also identified her husband in the photos. The photos were not timestamped, but they showed G.P. in different outfits and in different positions. G.P. also told the investigators the photos were taken on different days.
Pursuant to a plea agreement, Mr. Fox pled guilty to one count of sexually exploiting a minor through the production of child pornography. The PSR calculated a total offense level of 43 and a guideline range of exactly 360 months-or 30 years. Normally, an offense level of 43 would produce a guideline range of life, but the statutory maximum for Mr. Fox's offense is 30 years. See United States Sentencing Guidelines § 5G1.1(a) ("Where the statutorily authorized maximum sentence is less than the minimum applicable guideline range, the statutorily authorized maximum sentence shall be the guideline range."). The PSR's calculation included several offense characteristic enhancements, including a five-level enhancement under guidelines § 4B1.5(b)(1) because Mr. Fox "engaged in a pattern of activity involving prohibited sexual conduct."
Mr. Fox objected to the PSR's five-level enhancement under § 4B1.5(b)(1), arguing it applied only to circumstances where there have been "two separate and distinct crimes and allegations" of prohibited sexual activity against the defendant. The District Court overruled this objection and concluded that the PSR "correctly applie[d] the increase in the offense level for a pattern of activity involving prohibited sexual conduct under § 4B1.5(b)(1)." The District Court observed that Mr. Fox had engaged in "repeated misconduct [with] two different victims" over a "substantial period of time"; his actions solely against "just one victim" would have met the enhancement under § 4B1.5(b)(1); and Mr. Fox's conduct was "the very paradigm of a situation where the increase [under § 4B1.5(b)(1) was] appropriate."
At sentencing, Mr. Fox also argued a 240-month sentence was appropriate because he was 60 years old. Mr. Fox pointed *1278 out as well that the government recommended a 240-month sentence pursuant to his plea agreement. The District Court rejected Mr. Fox and the government's recommendations and imposed a 360-month sentence. This appeal followed.
II. STANDARDS OF REVIEW
This Court reviews
de novo
the District Court's interpretation of the guidelines and its application of the guidelines to the facts.
United States v. Moran
,
III. DISCUSSION
In reviewing the reasonableness of a sentence, we follow a two-step process.
United States v. Trailer
,
Mr. Fox raises two issues on appeal. He first contends his sentence is procedurally unreasonable because the District Court improperly calculated his guideline range when it applied the five-level enhancement under § 4B1.5(b)(1). Second, he argues his 360-month sentence is substantively unreasonable because of his age. We address each of his arguments in turn, concluding that Mr. Fox cannot prevail on either of them.
A. PROCEDURAL REASONABLENESS
To interpret the guidelines, "we begin with the language of the [g]uidelines, considering both the [g]uidelines and the commentary."
United States v. Fulford
,
Section 4B1.5(b)(1) provides, in relevant part, that a five-level sentence enhancement should be applied when "the defendant engaged in a pattern of activity involving prohibited sexual conduct." USSG § 4B1.5(b)(1). Application Note 4(B)(i) to § 4B1.5(b)(1) defines "pattern of activity involving prohibited sexual conduct" for *1279 purposes of the five-level enhancement. It states that "a defendant [has] engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant [has] engaged in prohibited sexual conduct with a minor." USSG § 4B1.5 cmt. n.4(B)(i).
First, Mr. Fox argues the District Court was wrong to apply the § 4B1.5(b)(1) enhancement to his offense because the enhancement implicitly requires multiple victims and he pled guilty only to photographing one minor victim. This Court has not yet addressed this issue-that is, whether § 4B1.5(b)(1) requires multiple victims-in any published decision.
2
But our review shows that the Second, Sixth, and Eighth Circuits do have binding precedent on this issue. Each of those courts have concluded that Application Note 4(B)(i)'s use of "a minor" demonstrates that the § 4B1.5(b)(1) enhancement applies when the defendant engages in repeated prohibited sexual conduct with the same minor.
See
United States v. Pappas
,
We now join our sister circuits. Application Note 4(B)(i) explicitly states that a defendant has engaged in "a pattern of activity" if the defendant has "on at least two separate occasions" participated in prohibited sexual conduct with "
a minor
." USSG § 4B1.5 cmt. n.4(B)(i) (emphasis added). The guideline's use of "a minor" shows that repeated prohibited sexual conduct with a single victim may qualify as a "pattern of activity" for purposes of § 4B1.5(b)(1). Our Court has explained in other contexts that when followed by a modifier, "a" is synonymous with "one."
United States v. Warren
,
Because the plain meaning of Application Note 4(B)(i) is clear, it is not imperative that we examine the amendment history for additional guidance.
See
Mandhai
,
As a result, Mr. Fox's repeated sexual exploitation of G.P.-a single victim-is sufficient to meet a "pattern of sexual activity" under § 4B1.5(b)(1) as indicated by both its plain meaning and amendment history. The District Court did not err when it applied this five-level enhancement to Mr. Fox's guideline range.
Mr. Fox next contends his conduct is not covered by § 4B1.5(1)(b) because the provision requires two unrelated instances of prohibited sexual conduct.
3
Mr. Fox cites two unpublished cases in support of his argument: (1)
United States v. Syed
,
The plain language of Application Note 4(B)(i) refutes Mr. Fox's assertion that multiple, unrelated occasions of prohibited sexual conduct are necessary to meet § 4B1.5(b)(1). As set out above, Application Note 4(B)(i) explains that a defendant engages in a pattern of prohibited sexual conduct "if [he or she acts] on at least two separate occasions ." USSG § 4B1.5 cmt. n.4(B)(i) (emphasis added). An "occasion" means "an event" or "an occurrence." See Oxford English Dictionary (3d ed. 2004). And "separate" is defined as "withdrawn or divided from something else so as to have an independent existence by itself." Id. ; see also Webster's New College Dictionary 1030-31 (3d ed. 2008) (defining "separate" as "[s]et apart from others" and "[e]xisting by itself"). The plain meaning of "separate occasions" does not require two events that are unrelated. It requires only events that are independent and distinguishable from each other. Multiple, distinct instances of abuse-whether ongoing, related, or random-meet the enhancement under § 4B1.5(b)(1).
Again here, the amendment history of § 4B1.5(b)(1) supports this conclusion.
*1281 Congress specifically contemplated that the five-level enhancement under § 4B1.5(b)(1) should apply in circumstances where a minor victim is repeatedly abused by the same perpetrator on separate occasions. See H.R. Conf. Rep. No. 108-66, at 59 (2003). Interpreting § 4B1.5(b)(1) as Mr. Fox describes would not apply the enhancement to circumstances where a minor is sexually abused more than once by the same person solely because each instance of ongoing abuse is considered "related" to the others. This interpretation comports with neither the plain meaning of the guideline commentary nor Congress's stated intentions in amending Application Note 4. For these reasons, we are not persuaded by Mr. Fox's second argument that unrelated instances of prohibited sexual abuse are required for an enhancement under § 4B1.5(b)(1). Mr. Fox's ongoing, repeated abuse of G.P. therefore qualifies as the basis for the enhancement under § 4B1.5(b)(1).
Last, Mr. Fox argues § 4B1.5(b)(1) does not apply because it does not allow for the conduct underlying a conviction to be used to enhance a defendant's sentence. But again here, the plain meaning of the guidelines forecloses Mr. Fox's argument. Specifically, Application Note 4(B)(ii) to § 4B1.5(b)(1) states that an "occasion" of prohibited sexual conduct may be considered "without regard to whether the occasion ... occurred during the course of the instant offense ." See USSG § 4B1.5 cmt. n.4(B)(ii) (emphasis added). The enhancement under § 4B1.5(b)(1) therefore applies regardless of whether the separate occasions of prohibited sexual conduct occurred during the course of the underlying offense of conviction.
This interpretation is not novel. In
United States v. Rothenberg
,
And other circuits that have examined this issue have reached the same result.
See
United States v. Evans
,
Thus, the five-level enhancement under § 4B1.5(b)(1) applies to Mr. Fox's offense and the District Court did not miscalculate his guideline range during sentencing. His sentence is therefore not procedurally unreasonable.
See
Trailer
,
B. SUBSTANTIVE REASONABLENESS
Mr. Fox argues his sentence is substantively unreasonable because it is *1282 too long given his age. He says a sentence of 240 months is more appropriate. Specifically, Mr. Fox argues his sentence is "excessively harsh" and unreasonable because of the low probability he will survive his term of imprisonment.
When sentencing a defendant, a district court must consider the factors set forth in
"A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors."
Irey
,
We confronted a similar argument in
United States v. Joseph
,
The same result follows here. The District Court did not abuse its discretion in imposing Mr. Fox's sentence. At sentencing, the District Court heard from Mr. Fox that he was 60 years old and would not likely outlive a 360-month sentence. Although the District Court considered Mr. Fox's age, it ultimately determined the nature of Fox's offense outweighed any age-related concerns. It is not an abuse of discretion to afford more weight to one of the § 3553(a) factors.
See
Clay
,
AFFIRMED.
Congress made part of the Commission's mission to "periodically [ ] review and revise, in consideration of comments and data coming to its attention, the guidelines."
We have done so in an unpublished decision,
see
United States v. Batson
,
Mr. Fox specifically argues that § 4B1.5(b)(1) requires "at least two separate and distinct crimes and allegations." But he does not elaborate on this point any further. Neither did he discuss it at oral argument. Given that, and given the cases he points to on appeal, we understand his argument as an assertion that § 4B1.5(b)(1) requires two unrelated instances of prohibited sexual conduct.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Ralph Herman FOX, Jr., Defendant-Appellant.
- Cited By
- 32 cases
- Status
- Published