PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4077

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD TODD HAAS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:16-cr-00139-REP-1)

Argued: October 29, 2020 Decided: January 27, 2021

Before WILKINSON, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson and Judge Harris concurred.

ARGUED: William Jeffrey Dinkin, WILLIAM J. DINKIN, PLC, Richmond, Virginia, for Appellant. Heather Hart Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Brian R. Hood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. RICHARDSON, Circuit Judge:

Richard Haas was convicted of attempted sex trafficking of a minor and three child-

pornography offenses. He argues on appeal that the district court erred in denying a Franks

hearing to challenge the veracity of law enforcement’s declarations in two warrant

affidavits. See Franks v. Delaware,

(1978). He also contends that the district

court wrongly permitted the attempted-trafficking count to go to the jury and incorrectly

applied two Guideline enhancements during his sentencing. We affirm Haas’s convictions.

But we vacate his sentence because one of those enhancements, a four-level increase under

§ 2G2.1, should not have applied.

I. Background

A. The sex-crimes investigation

In 2016, Haas arranged a sexual encounter with Sarah 1 at his home after seeing her

Backpage.com advertisement. This was not the first time that Haas had met Sarah. More

than four years earlier, Haas had paid Sarah for sex several times, but the two had lost

touch. The last time Haas had seen Sarah, he told her that he liked younger women and he

“wanted to talk more about it and see if [Sarah] was interested in that the next time [they]

m[]et.” J.A. 622.

So when Haas met up with Sarah in 2016, he asked if she remembered their last

conversation and was interested in “what he was talking about last time.” J.A. 625. Sarah

told Haas that she was interested. But little did Haas know, Sarah had agreed because she

1 We refrain from providing a surname to protect her privacy. intended to report Haas to law enforcement. Haas then opened his laptop and showed her

photos of young children performing sexual acts in various stages of undress. Sarah

testified that she saw “probably like 1,500” photos and that the children in the photos

appeared to range from age 4 to 12. J.A. 627.

After meeting with Haas, Sarah reached out to the FBI and was put in contact with

Special Agent Gonzalez. The agent met with Sarah, and she told him about her encounters

with Haas. To corroborate her statement, the FBI asked her to identify a photograph of

Haas and of his residence. The agents also verified that the phone number Sarah provided

was linked to Haas and that he had owned the house that Sarah identified until it was later

sold. Sarah told Agent Gonzalez of her prior prostitution-related conviction, and Agent

Gonzalez knew that she was on probation, although he did not know for what offense.

After meeting with the FBI, Sarah told Haas a made-up “story about a woman [she]

knew in Baltimore” who “had children that she could bring down from Baltimore for

[Haas] to photograph and . . . engage in sexual things with.” J.A. 634. After hearing this

story, Haas texted and called Sarah several times to ask about procuring the young girls to

create child pornography.

Sarah then arranged to meet Haas in person so that he could give her $100 to obtain

nude pictures of the children from Baltimore. But on her way to that meeting, Sarah was

pulled over by Henrico County police officers. When she saw the police car’s flashing

lights, she pulled into the grocery store parking lot where she had planned to meet Haas,

jumped out of her car, and ran to his car. Haas gave her $100, and she promised that she

would get the photos soon.

3 Upon returning to her car, Sarah was met by the police, who asked for her driver’s

license. Sarah’s license had been suspended so she gave the officer her sister’s name

instead of her own. She received three tickets in her sister’s name. A week later, Sarah

met with the FBI agent again. During this meeting, she admitted that she had lied to the

Henrico County police about her identity and “that she wanted to take care of it.” J.A.

143–44. The agent reached out to the Henrico County Police Department and arranged to

drive Sarah to her hearing a few days later so that she could resolve the false-identity issue.

At that hearing, Sarah was charged with providing false information to a law-enforcement

officer and held in jail without bail.

When Sarah was released two weeks later, the FBI gave her a recording device to

record her phone calls with Haas. She recorded two phone calls. During the second call,

the two discussed getting the two young girls from Sarah’s “friend” from Baltimore:

HAAS: You need to f****** hook it up, girl.

[Sarah]: Alright, awesome, we can do that.

HAAS: Need to hook it up, man.

[Sarah]: What’s the um, what’s the range that you like?

HAAS: Um, it ain’t so much me as it is like other, but you know, around like exactly what you were saying before, you know, give or take a little bit, you remember what you were talking about before? That is, that is like the most.

[Sarah]: I remember I said I had a 12 and a 8[.]

HAAS: Yeah that’s, the lower side of that is definitely better.

4 J.A. 371. Shortly after this phone call, the FBI learned that Haas had been accused of

molesting an eleven-year-old girl. The investigation was cut short, and Agent Gonzalez

prepared an application for a search warrant seeking evidence of child-pornography

offenses.

B. The search warrant, search, and proceedings below

The search warrant for Haas’s residence and personal vehicle was approved by a

federal magistrate judge. And the agents executed the warrant at Haas’s home the next

day, seizing two laptops. Haas had left for work, so the agents traveled to his workplace

and found him sitting in his work truck. Haas was arrested on a state warrant for the sexual

battery of the eleven-year-old, and during a protective sweep of the truck, an agent saw a

laptop bag containing a third laptop. Agent Gonzalez then obtained a second search

warrant for the truck and seized the laptop. Neither warrant affidavit included information

about Sarah’s criminal history or recent encounter with the Henrico County police.

After Haas was indicted, he sought to suppress the evidence seized from the truck.

He argued that the second search warrant lacked probable cause and requested a Franks

hearing. The district court held a probable-cause hearing, during which Agent Gonzalez

testified. Based on this hearing, the district court issued an opinion denying both the

suppression motion and the request for a Franks hearing. See United States v. Haas, No.

3:16CR139,

, at *1 (E.D. Va. May 2, 2017). Although the district court

found that the warrant lacked probable cause of a nexus between Haas’s home laptop, on

which Sarah had seen child pornography, and Haas’s work laptop found in the truck, it held

5 that the evidence collected under the warrant should not be suppressed under Leon’s good-

faith exception. Id. at *10.

More than a year later, Haas filed a second motion to suppress and request for a

Franks hearing, this time challenging the first search warrant for his residence and personal

vehicle. The two warrant affidavits were identical, except that the second mentioned the

laptop seen in the truck during Haas’s arrest. Compare J.A. 45–81 (second warrant

affidavit), with J.A. 273–309 (first warrant affidavit). The district court held another

hearing and issued an opinion that again denied suppression and a Franks hearing. United

States v. Haas, No. 3:16CR139,

, at *1 (E.D. Va. Aug. 23, 2018).

After a trial, the jury convicted Haas of attempted sex trafficking of a minor, receipt

of child pornography, and possession of child pornography. Considering Haas’s

Guidelines range, the district court imposed a life sentence. Haas timely appealed, and we

have jurisdiction under

and

(a)(2).

II. Discussion

A. Franks hearing

Haas twice moved for a Franks hearing to determine whether facts about Sarah’s

credibility were intentionally or recklessly omitted from the first and second warrant

affidavits. The district court denied both motions, relying on the same analysis for both

warrants. See, e.g., Haas,

, at *1–2 (written denial of second motion).

We assess de novo whether Haas provided enough evidence to be entitled to a Franks

hearing. United States v. Tate,

(4th Cir. 2008).

6 “A Franks hearing provides a criminal defendant with a narrow way to attack the

validity” of a search-warrant affidavit. United States v. Moody,

(4th

Cir. 2019). Along with affirmative false statements, “Franks protects against omissions

that are designed to mislead, or that are made in reckless disregard of whether they would

mislead, the magistrate.” United States v. Colkley,

(4th Cir. 1990)

(emphasis omitted).

To obtain a Franks hearing, a defendant must make a “substantial preliminary

showing” to overcome the “presumption of validity with respect to the affidavit supporting

the search warrant.” Moody,

(citations and quotation marks omitted); see

also Franks,

(defendant’s “attack must be more than conclusory and must

be supported by more than a mere desire to cross-examine”). 2 When a defendant relies on

an omission, this heavy burden is even harder to meet. Tate, 524 F.3d at 454–55. In that

situation, a defendant must provide a substantial preliminary showing that (1) law

enforcement made an omission; (2) law enforcement made the omission “knowingly and

intentionally, or with reckless disregard for the truth,” and (3) the inclusion of the omitted

evidence in the affidavit would have defeated its probable cause. Colkley, 899 F.2d at 300–

01. If the district court finds that a defendant has made this threshold showing, it must hold

a Franks hearing to develop evidence on the affidavit’s veracity.

. If after the

2 Both of the district court’s opinions purport to deny Haas’s request for a Franks hearing, Haas,

, at *1; Haas,

, at *1–2, but they incorrectly state the burden of persuasion as “preponderance of the evidence,” rather than “substantial preliminary showing,” Haas,

, at *7; Haas,

, at *2. This error is subject to a harmlessness review under Federal Rule of Criminal Procedure 52. 7 hearing the defendant establishes “perjury or reckless disregard” by a preponderance of the

evidence and shows that the inclusion of the omitted evidence would defeat the probable

cause in the affidavit, “the search warrant must be voided and the fruits of the search

excluded.” Franks,

; see also Colkley, 899 F.2d at 300–01.

Several of Haas’s claims fail at the outset. Haas contends that the warrant affidavits

omitted three categories of information: (1) information about Sarah’s criminal history,

including that she was on probation during the relevant time, was arrested for providing a

false name to Henrico County police during a traffic stop while working on Haas’s case,

and had previously been arrested for a prostitution-related offense; (2) information about

Sarah’s reliability as a confidential informant, including the (unidentified) outcomes that

resulted from her prior work with the FBI; and (3) corroborating evidence of her claim that

she saw child pornography on Haas’s laptop.

Haas’s second argument about Sarah’s reliability is “conclusory” because he does

not identify specific information, such as the actual outcomes of Sarah’s prior work as an

FBI informant, that was omitted from the affidavits. Franks,

. And

conclusory allegations fail. See Moody,

(A “defendant must provide

facts—not merely conclusory allegations—indicating that the officer subjectively acted”

improperly.). If these unidentified “outcomes” were known and consistently showed that

Sarah provided misinformation, they could have formed the basis to grant a Franks hearing.

But without that, we conclude that Haas’s second argument did not warrant a Franks

hearing.

8 The third purported omission, additional corroborating evidence, fails for a more

fundamental reason. At its core, this is an argument that the warrant affidavits lacked

probable cause, not that the omitted material was intentionally or recklessly omitted and

would have negated probable cause. There was no additional corroborating evidence that

the affiant could include that would have “defeat[ed] probable cause for arrest,” as

corroborating evidence could have only strengthened the affidavit. Colkley,

. Instead, Haas is arguing that the affidavits did not present enough evidence to meet

the probable-cause standard. But the presence (or absence) of probable cause is not the

proper subject of a Franks hearing.

This leaves us with Haas’s first category of omissions: various aspects of Sarah’s

criminal history, including her encounter with the Henrico County police. 3 But “[a]n

affiant cannot be expected to include in an affidavit every piece of information gathered in

the course of an investigation” so the “mere fact” that the agent did not include every piece

of information known about Sarah in the affidavits “does not taint the[ir] validity.”

at

300–01 (quoting United States v. Burnes,

(9th Cir. 1987)). Instead,

to satisfy Franks’s intentionality prong, law enforcement must have omitted the

information to mislead the magistrate judge or in reckless disregard of whether it would be

3 Haas tries to argue that the agent omitted the fact that Sarah was on probation for the commission of a felony offense from the warrant affidavits. But when he swore out the affidavits, the agent only knew that Sarah was on probation for a prior offense; he did not know whether it was a misdemeanor or felony because he had not yet conducted a criminal background check. So the most Haas can claim that the agent should have included in the affidavits is the fact that Sarah was on probation for an unidentified offense during the time of the investigation.

9 misleading. Tate,

; Colkley,

. An officer acts with reckless

disregard when she fails to inform the magistrate of facts she subjectively knew would

negate probable cause. Miller v. Prince George’s Cnty.,

(4th Cir. 2007).

And the mere fact that information was omitted from an affidavit cannot alone show

recklessness or intentionality. United States v. Shorter,

(4th Cir. 2003).

Haas relies on our decision in United States v. Lull,

(4th Cir. 2016). 4

There law enforcement used an informant to make a controlled buy from the defendant.

at 111–12. At the end of the deal, the informant failed to return $20 of the buy money.

. The officers searched him and found the missing $20, at which time law

enforcement “immediately determined that the informant was not reliable and terminated”

his informant status.

Law enforcement did not “think it would be an ethical thing to

do, to use someone as a confidential informant knowing full well [he] had stolen from”

them.

(alteration in original). Later that evening, the informant was arrested on a felony

charge of obtaining property under false pretenses.

Right after the arrest, the case

investigator submitted an affidavit to get a search warrant for Lull’s residence, relying in

part on the buy, but failed to disclose the informant’s actions.

at 112–13.

After Lull challenged the affidavit, the district court held a Franks hearing.

. The district court found that the investigator’s omission of the incident did not satisfy

Franks’s intentionality requirement and denied the motion to suppress.

We reversed.

4 Although Lull applied the higher preponderance-of-the-evidence standard because we were addressing a Franks motion to suppress, its principles still guide us.

10

. We determined that the investigator was reckless in omitting the relevant

information about the informant’s credibility, crediting four facts established during the

Franks hearing:

(1) the decisiveness with which the Sheriff’s Office acted in discharging and arresting the informant; (2) [the affiant’s] knowledge of the consequences of the informant’s crime; (3) the temporal proximity of the arrest to the decision to omit the information from the affidavit; and (4) the obvious impact of the informant’s misconduct on any assessment of his reliability.

.

The district court properly found Lull distinguishable. Our case differs in four

important respects. First, although Sarah’s lie to the Henrico County police occurred in

temporal proximity to the Haas investigation, the lie did not concern the investigation itself.

By contrast, in Lull, the informant’s lie about the missing $20 concerned the controlled buy

that his testimony was to establish. See Lull,

(crediting “the obvious impact

of the informant’s misconduct on any assessment of his reliability”). Second, Lull’s

holding hinged on the informant’s dishonesty to the warrant affiant himself, while here

there is no evidence that Sarah was anything but honest to the agent about the false-identity

incident. In fact, Sarah came clean to the agent the next time she saw him and expressed

that she wished to resolve things with the Henrico County police. Third, Sarah’s

misconduct did not cause the FBI to determine that she was unreliable and discharge her

from her duties as an informant, as the Sheriff’s Office did in Lull. See Lull,

;

(crediting “the decisiveness with which the Sheriff’s Office acted in

discharging and arresting the informant”). And last, the agent did not submit the first

11 warrant affidavit to the magistrate judge until a month and a half after Sarah’s encounter

with the Henrico County police, unlike the investigator in Lull who submitted the affidavit

on the same day that the informant was terminated and arrested.

(crediting “the

temporal proximity of the arrest to the decision to omit information from the affidavit”).

This gave the agent more time to evaluate Sarah’s credibility after the incident and before

filing the warrant affidavits.

Haas also argues that we should find that the agent acted at least recklessly in

omitting Sarah’s criminal history from the affidavits because a “reasonable officer” would

have known that the omission of witness credibility information violated clearly

established precedent. But that is not the test for determining whether an officer has acted

recklessly in omitting information from a warrant affidavit, and Haas provides no precedent

to the contrary. The Supreme Court has held that “[a]llegations of negligence . . . are

insufficient” to require a Franks hearing, Franks,

, and our caselaw has

considered the affiant’s subjective state of mind in assessing this prong, see Colkley,

(“The most that the record here reveals about Moore’s failure to include the

photospread information is that he did not believe it to be relevant to the probable cause

determination.”). Haas presented no evidence that the agent subjectively knew that his

failure to include Sarah’s criminal history in the warrant affidavits would mislead the

magistrate, and indeed, the record itself points to the opposite conclusion. See J.A. 143–

44 (explaining that he did not include Sarah’s encounter with the Henrico County police in

the affidavits because he “didn’t know [he] was obligated to include it”). And nothing

12 about Sarah’s unrelated criminal history so undermined her credibility that we otherwise

question the agent’s subjective intent.

Because Haas failed to make a substantial preliminary showing that the agent acted

with the requisite intent in omitting Sarah’s criminal history from the warrant affidavits,

we affirm the district court’s denial of Haas’s requests for a Franks hearing. 5 As we resolve

this case at the first prong of the Franks analysis, we need not consider whether the

purported omissions were material to the affidavits’ probable cause.

B. Motion for judgment of acquittal

At the close of the evidence at trial, Haas moved for an acquittal on all counts. The

district court denied the motion, noting for the attempted-trafficking count that “there is

clearly a credibility question that stands between conviction and acquittal. If the jury

believes [Sarah], then there’s ample evidence to convict. If they do not believe her, then

they may acquit him.” J.A. 837–38. The jury found him guilty, and Haas now appeals the

denial of his motion for acquittal on the attempted-trafficking count, which we review de

novo. United States v. Wolf,

(4th Cir. 2017).

A jury’s guilty verdict must be upheld if, “viewing the evidence in the light most

favorable to the government, substantial evidence supports it.”

(quoting United States

v. Kiza,

(4th Cir. 2017)). “[S]ubstantial evidence is evidence that a

5 We also affirm the district court’s denial of suppression based on the Leon good- faith exception. The good-faith exception to the Fourth Amendment’s exclusionary rule does not apply to warrants issued based on deliberately or recklessly false affidavits. United States v. Leon,

(1984). But because we have held that neither warrant was issued based on a deliberately or recklessly false affidavit, this exception does not apply, and Haas’s argument to the contrary fails. 13 reasonable finder of fact could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.” United States v. Burgos,

(4th Cir. 1996) (en banc). A defendant contending that there was insufficient evidence to

support his guilty verdict “must overcome a heavy burden.” Wolf,

(quoting

United States v. Hoyte,

(4th Cir. 1995)). So “[r]eversal for insufficient

evidence is reserved for the rare case where the prosecution’s failure is clear.”

(quoting

United States v. Ashley,

(4th Cir. 2010)).

Haas was charged with “knowingly attempt[ing] to recruit, entice, solicit and obtain

by any means” a person, knowing or in reckless disregard of the fact that she was younger

than age eighteen and would “be caused to engage in a commercial sex act” in violation of

and 1594. J.A. 475. To sustain this attempted-sex-trafficking-of-a-

child conviction, the government must have proven that (1) Haas knowingly attempted to

recruit, entice, obtain, or solicit by any means a person, (2) Haas knew or recklessly

disregarded that the person was under the age of eighteen and would be caused to engage

in a commercial sex act, and (3) the defendant’s conduct was in or affected interstate

commerce. Haas only challenges the sufficiency of the evidence on the first element,

attempt.

To convict a defendant of attempt, the government must prove beyond a reasonable

doubt that the defendant (1) had “culpable intent” to commit the substantive crime and (2)

took a “substantial step towards completion of the crime that strongly corroborates that

intent.” United States v. Engle,

, 419–20 (4th Cir. 2012). Accepting that he

possessed the “culpable intent,” Haas argues that his conduct did not constitute a

14 “substantial step” in furtherance of sex trafficking a minor. A substantial step “need not

be the last possible act” toward the crime’s commission but must be more than “[m]ere

preparation for the commission of a crime.” United States v. Pratt,

(4th

Cir. 2003). While words and discussions might be considered preparations for most

crimes, the very nature of a sex-trafficking-of-a-minor violation—recruiting, enticing, and

soliciting a minor—depends on the use of words and discussions. Engle,

.

So while the line between attempt and preparation is fact-intensive, speech alone will often

constitute a substantial step in furtherance of a § 1591 violation that is strongly

corroborative of culpable intent. See id.

A jury could conclude that Haas’s words and discussions stepped well over that line.

Through his discussions with Sarah, Haas “recruit[ed],” “entice[d],” and “solicit[ed]”

individuals whom he believed were under the age of eighteen knowing that they would be

caused to engage in a commercial sex act. § 1591; cf. United States v. Clarke,

, 297–98 (4th Cir. 2016) (explaining that “communications with an intermediary aimed

at . . . enticing . . . a minor to engage in sexual activity fit within [the] common

understanding of a criminal attempt” (quoting United States v. Roman,

(6th Cir. 2015))). He contacted Sarah multiple times to ask if she knew of any children he

could photograph, and upon hearing of the fictitious Baltimore children, expressed interest

in obtaining photos of them and procuring them to make child pornography. Haas later

gave Sarah $100 to procure nude pictures of the children and, in a recorded phone call,

urged Sarah to “definitely hook [a trip to Baltimore to get the children] up, man, I’m

serious” and “[g]et me some pictures too, man, because I can like set it up to where we can

15 make some money beforehand,” J.A. 371; see also

(“[T]he lower side of [8 and 12] is

definitely better.”); J.A. 372 (“[H]ook that s*** up, dude, and make some money, man.”).

Haas’s words strongly corroborated his intent to recruit, entice, or solicit children

to engage in commercial sex acts. And so there is no doubt that substantial evidence

supported his attempt conviction.

C. Sentencing Guidelines enhancements

The district court applied two Guideline enhancements that Haas challenges on

appeal. The first was a four-level enhancement under § 2G2.1(b)(1)(A) because one of the

fictitious minors Haas attempted to traffic had “not attained the age of twelve years.” The

second was a five-level enhancement under § 4B1.5(b) for being a repeat and dangerous

sex offender against minors based on his repeated sexual abuse of the eleven-year-old girl.

When evaluating a district court’s Guidelines calculations, we review factual findings for

clear error and legal conclusions de novo. United States v. Strieper,

(4th

Cir. 2012).

1. Definition of “minor” in § 2G2.1

A defendant convicted of attempted sex trafficking receives a four-level

enhancement under the Guidelines if the offense “involved a minor who had [] not attained

the age of twelve years.” U.S.S.G. § 2G2.1(b)(1). The district court applied this

enhancement because one of the fictitious minors Haas solicited Sarah to procure was eight

years old. Haas argues that the enhancement applies only if the minor was real, not

fictitious.

The application note to § 2G2.1(b)(1) defines “minor” to mean:

16 (A) an individual who had not attained the age of 18 years;

(B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or

(C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

U.S.S.G. § 2G2.1 cmt. n.1 (paragraph breaks added). The government argues that this case

falls within subparagraph (B), with Sarah standing in the shoes of law enforcement as a de

facto law enforcement agent. In the alternative, the government contends that

subparagraph (A) applies because a fictitious minor can support applying the enhancement

when the offense of conviction is attempted sex trafficking. The district court refused to

apply subparagraph (B) but found that subparagraph (A) applied because Haas was

“attempting to obtain a real child.” J.A. 1007–08.

But the definition of “minor” in subparagraph (A) does not include fictitious

individuals. We interpret the Guidelines “using standard canons of statutory

interpretation,” United States v. Medina-Campo,

(4th Cir. 2013), which

caution against interpreting this provision as the district court did. The canon against

superfluity, see Roberts v. Sea-Land Servs., Inc.,

, 110–11 (2012), warns

against reading the term “individual” in subparagraph (A) to include both real and fictitious

individuals, as this would render the modifying phrase “fictitious or not” in subparagraph

17 (B) superfluous. 6 And the canon of expressio unius est exclusio alterius (expressing one

item of an associated group excludes another left unmentioned) advises that when language

is used in one part of a Guidelines provision and not in another, the exclusion is presumed

intentional. United States v. Curtis,

(4th Cir. 1991); see also Tarrant

Reg’l Water Dist. v. Herrmann,

(2013). Because the term “individual”

is modified in subparagraph (B) by the phrase “fictitious or not,” while the same modifier

is not present in subparagraph (A), we must presume that the exclusion was intentional.

See United States v. Fulford,

(11th Cir. 2011). The government’s

argument that an attempt crime demands a different reading of this provision is not

supported by the Guidelines’ text. Accepting that argument would require us to rewrite

the Guidelines to bring about a certain result. We, like other circuits that have addressed

this issue, decline to do so. See

; United States v. Vasquez,

(5th Cir. 2016).

Likewise, the term “law enforcement officer” in subparagraph (B) does not naturally

include private citizens working with law enforcement. If the Guidelines Commission had

wanted this term to be read broadly, it was more than capable of including such language.

But without broadening language, we construe terms in the Sentencing Guidelines

according to their ordinary meaning. Chapman v. United States,

, 461–62

6 If the term “individual” unambiguously included fictitious victims, we would accept that plain meaning. See Kawashima v. Holder,

, 486–87 (2012). But it does not. See Individual, 7 OXFORD ENGLISH DICTIONARY 880 (2d ed. 1989) (“A human being, a person.”).

18 (1991). The term ‘law-enforcement officer’ means a “person whose duty is to enforce the

laws and preserve the peace.” BLACK’S LAW DICTIONARY 1058 (11th ed. 2019);

(defining “law enforcement” as “[p]olice officers and other members of the executive

branch of government charged with carrying out and enforcing the criminal law”); see also

Officer, MERRIAM-WEBSTER 861 (11th ed. 2011). So because the ordinary meaning of the

term ‘law enforcement officer’ does not include private-citizen agents with no semblance

of official authority, we cannot read this provision to encompass Sarah’s conduct.

As a result, because neither subparagraph (A) or (B) of the application note defining

“minor” for § 2G2.1 encompass a situation in which a private citizen represents that a

fictitious child could be provided to engage in sexual conduct, the district court erred in

applying this enhancement.

2. Repeat-offender enhancement in § 4B1.5

A five-level enhancement is applied “[i]n any case in which the defendant’s instant

offense of conviction is a covered sex crime, neither § 4B1.1 nor subsection (a) of this

guideline applies, and the defendant engaged in a pattern of activity involving prohibited

sexual conduct.” U.S.S.G. § 4B1.5(b) (emphasis added). Haas argues that this

enhancement was improperly applied in his case because only one of his convictions was

a “covered sex crime” and the others were not.

Under the definition of “covered sex crime” provided by U.S.S.G. § 4B1.5, Haas’s

attempted-sex-trafficking-of-a-minor conviction,

, is a “covered sex

19 crime,” but his child-pornography offenses are not. 7 But Haas argues that the Guidelines

first fail to identify which offense is the “instant” offense and then fail to address how to

handle multiple offenses of conviction when some are covered and others are not. Because

of this ambiguity, he contends that the rule of lenity should apply.

First, the term “instant offense of conviction” unambiguously encompasses

convictions on multiple counts. Throughout the Guidelines, “[t]he term ‘instant’ is used in

connection with ‘offense,’ ‘federal offense,’ or ‘offense of conviction,’ as the case may be,

to distinguish the violation for which the defendant is being sentenced from a prior or

subsequent offense, or from an offense before another court.” U.S.S.G. § 1B1.1 n.1(I)

(emphasis omitted). By negative inference, this means that the term is not used, as Haas

suggests, to distinguish between a single “offense” of conviction and multiple “offense[s]”

of conviction. Circuit courts, including our own, have applied the term “instant offense,”

used in various parts of Chapter 4, where multiple charges are part of the same trial or

guilty plea. See, e.g., United States v. Summers,

(4th Cir. 1990) (applying

7 The application notes in this section define “covered sex crime”:

(A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including trafficking in, receipt of, or possession of, child pornography, or a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv)

; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (iv) of this note.

U.S.S.G. § 4B1.5 cmt. n.2.

20 enhancement under § 4A1.1, which includes the term “instant offense,” to a case involving

multiple gun and weapons convictions); United States v. Coleman,

, 565–66

(6th Cir. 1992) (not questioning that two convictions could constitute “the instant offense”

under § 4B1.1). And an application note to § 4B1.5(a) contemplates that “the instant

offense of conviction” can include “more than one count.” U.S.S.G. § 4B1.5 cmt. n.3(B)

(“In a case in which more than one count of the instant offense of conviction is a felony

that is a covered sex crime, the court shall use the maximum authorized term of

imprisonment for the count that has the greatest offense statutory maximum, for purposes

of determining the offense statutory maximum under subsection (a).”); cf.

(“In

determining the meaning of any Act of Congress, unless the context indicates otherwise--

words importing the singular include and apply to several persons, parties, or things.”).

We find no reason that the same phrase used in the next subparagraph should be interpreted

differently. Cf. Sorenson v. Sec’y of Treasury,

(1986) (“The normal rule

of statutory construction assumes that ‘identical words used in different parts of the same

act are intended to have the same meaning.’” (quoting Helvering v. Stockholms Enskilda

Bank,

(1934))).

And second, as long as one count is a covered sex crime, the “instant offense of

conviction is a covered sex crime” and the enhancement applies. U.S.S.G. § 4B1.5(b); see

United States v. Buchanan,

, 919–20 (9th Cir. 1995) (finding that although one

count met the criteria in § 4A1.1 and one did not, both were part of a single “instant

offense” under the Guideline); cf. United States v. Dowell,

(4th Cir.

2014) (not questioning the application of this enhancement when the defendant was

21 convicted of both covered and non-covered offenses). Conviction of non-covered offenses

in the same trial does not erase the covered sex offense.

Because the structure and context of the Guidelines dispel any ambiguity in the

meaning of this term, there is no need to apply the rule of lenity as Haas suggests. Reno v.

Koray,

(1995) (“The rule of lenity applies only if, ‘after seizing everything

from which aid can be derived,’ we can make ‘no more than a guess as to what Congress

intended.’” (internal citations omitted)). One count of Haas’s “instant offense of

conviction” was a covered sex crime, so the enhancement applies, even though Haas was

convicted of additional non-covered sex offenses. 8

* * *

The district court properly disposed of Haas’s pretrial motions and correctly

permitted the attempted-sex-trafficking-of-a-minor count to go to the jury. So we affirm

Haas’s convictions. But the district court erred in applying the four-level enhancement

under § 2G2.1 during Haas’s Guidelines calculations. So we vacate his sentence and

remand for resentencing. The judgment below is thus

8 The district court properly applied this five-level enhancement to the adjusted offense level for his receipt-of-child-pornography count, which is not a “covered sex offense.” The Guidelines are applied sequentially. First, the base offense level and appropriate adjustments for each count are calculated under Chapter 2. U.S.S.G. § 1B1.1(a). Then the adjustments and considerations from Chapters 3 and 4 are applied to the highest adjusted offense level, and the defendant’s Guideline range is determined by looking to Chapter 5. Id. Because Haas’s receipt-of-child-pornography count had the highest adjusted offense level after the Chapter 2 adjustments were applied, the five-level enhancement was properly added to that number, even though the receipt count itself was not a “covered sex offense” that triggered application of the enhancement.

22 AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

23