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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14010
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG DUGGER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cr-00014-TKW-1
____________________
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2 Opinion of the Court 21-14010
Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.
PER CURIAM:
Craig Dugger appeals his sentence of 188 months’ imprison-
ment for receipt of child pornography. He argues that the district
court erred in imposing a five-level enhancement under U.S.S.G.
§ 2G2.2(b)(5) for a pattern of activity involving the sexual abuse or
exploitation of a minor based upon a prior conviction that was un-
related to the charged conduct and occurred more than fifteen
years ago.
Because Dugger raises this issue for the first time on appeal,
we must determine whether the district court plainly erred by ap-
plying the pattern enhancement based on the commentary to §
2G2.2(b)(5), which allows prior conduct unrelated to the convic-
tion offense to substantiate the enhancement. Dugger contends
that the commentary is inconsistent with the text of the guidelines
and that the definition of “pattern” in the commentary is invalid.
We conclude that the defendant has not established plain error and
therefore affirm his sentence.
I. BACKGROUND
Dugger was convicted by guilty plea of one count of receipt
of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). His
offense carried a mandatory minimum sentence of 15 years be-
cause of a prior state conviction for lewd and lascivious conduct
involving a minor. See id. § 2252(b)(1). A probation officer
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21-14010 Opinion of the Court 3
prepared a final presentencing investigation report (“PSR”) recom-
mending a guideline range of 188-235 months’ imprisonment based
on an offense level of 35 and a criminal-history category of II. The
offense level included, among other enhancements, the five-level
pattern enhancement under § 2G2.2(b)(5). According to the PSR,
in December 2004, Dugger solicited a minor for oral sex, and on a
separate occasion, he asked the child if he (Dugger) could hold the
child’s penis. Dugger did not object to the pattern enhancement.
At sentencing, the district court adopted the PSR’s guideline range
calculations and sentenced Dugger to 188 months in prison. Dug-
ger now appeals.
II. STANDARD OF REVIEW
Ordinarily, we review legal questions about the interpreta-
tion of the guidelines de novo, factual findings for clear error, and
the application of the guidelines to the facts with “due deference.”
United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010). But
“objections made for the first time on appeal are reviewed only for
plain error.” United States v. Kushmaul,
984 F.3d 1359, 1363 (11th
Cir. 2020).
Here, we review for plain error because Dugger raises his
sentencing challenge for the first time on appeal. United States v.
Henderson,
409 F.3d 1293, 1307 (11th Cir. 2005). Under plain-error
review, we may correct an error when the defendant demonstrates
(1) an error occurred; (2) the error was plain; and (3) the error af-
fects substantial rights. Id.; United States v. Olano,
507 U.S. 725,
732 (1993). When the defendant establishes all three factors, we
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4 Opinion of the Court 21-14010
may exercise our discretion to correct the error if it (4) “seriously
affects the fairness, integrity, or public reputation of judicial pro-
ceedings.” Henderson,
409 F.3d at 1307; Olano,
507 U.S. at 732.
An error is plain when it is contrary to the applicable statute
or rule. See United States v. Lejarde Rada,
319 F.3d 1288, 1291
(11th Cir. 2003). If the explicit language of a statute or rule does
not resolve an issue, plain error lies only where Eleventh Circuit or
Supreme Court precedent directly resolves it.
Id. The error must
be “clearly established and obvious.” United States v. Hesser,
800
F.3d 1310, 1325 (11th Cir. 2015).
III. DISCUSSION
On appeal, Dugger argues that the district court plainly
erred by imposing the five-level pattern enhancement under
U.S.S.G. § 2G2.2(5) because the guideline commentary was invalid
to the extent that it authorized consideration of activity unrelated
to the offense of conviction. In his view, because the enhancement
is labeled a “specific offense characteristic” under the guidelines,
any application of it must be based on relevant conduct as defined
in U.S.S.G. § 1B1.3. Dugger also asserts that the commentary de-
fies the plain terms of the enhancement by defining a “pattern” too
broadly, and that two instances of conduct against a single minor
victim more than fifteen years ago do not establish a “pattern” un-
der the term’s ordinary meaning.
A. Interpretation of U.S.S.G. § 2G2.2(5)
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When construing the meaning of the guidelines, “we begin
with the language of the Guidelines, considering both the Guide-
lines and the commentary.” United States v. Cingari,
952 F.3d
1301, 1308 (11th Cir. 2020). We have explained that “the guideline
and the commentary must be read together,” because the com-
mentary may interpret a “guideline or explain how it is to be ap-
plied.”
Id. The commentary may at times require interpreting a
guideline in a way that the guideline text alone does not compel.
Id.; Stinson v. United States,
508 U.S. 36, 47 (1993).
The Sentencing Commission drafts the guidelines and the
commentary interpreting them, “so we can presume” the guide-
lines’ “commentary represent[s] the most accurate indications of
how the Commission deems that the guidelines should be applied
to be consistent with the Guidelines Manual as a whole as well as
the authorizing statute.” Stinson,
508 U.S. at 45. When interpret-
ing a guideline, courts should “seek to harmonize” a guideline’s
text with its commentary. Cingari, 952 F.3d at 1308.
Commentary for a guideline is authoritative “unless is vio-
lates the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline.” Stinson,
508 U.S.
at 38.
The § 2G2.2 guideline provides the offense level for receipt
of child pornography. Under the heading “specific offense charac-
teristics,” the guideline directs a five-level increase “[i]f the defend-
ant engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5).
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6 Opinion of the Court 21-14010
The commentary to this section defines a “pattern of activity
involving the sexual abuse or exploitation of a minor” as “any com-
bination 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 minor; or (C) resulted in a conviction for
such conduct.” U.S.S.G. § 2G2.2, cmt. n.1. The commentary also
specifies that “[s]exual abuse or exploitation” does not include the
receipt of child pornography. Id.
Ordinarily, specific offense characteristics must be based on
conduct relevant to the offense of conviction, “[u]nless otherwise
specified.” U.S.S.G. § 1B1.3(a). 1 The background commentary to
§ 1B1.3(a) states that subsection (a) “establishes a rule of construc-
tion by specifying, in the absence of more explicit instructions in
the context of a specific guideline, the range of conduct that is rel-
evant to determining the applicable offense level.” Id., cmt.
(backg’d).
1 In relevant part, U.S.S.G. § 1B1.3(a) states,
Unless otherwise specified . . . special offense characteristics . . . shall
be determined on the basis of . . . all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or will-
fully caused by the defendant . . . that occurred during the commission
of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that of-
fense.
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We have considered the interpretation of the § 2G2.2(b)(5)
pattern enhancement in several published cases. In United States
v. Anderton, we rejected an argument that the five-level increase
was improper because the “activities supporting the enhancement
were unrelated to the offense of conviction.”
136 F.3d 747, 750–51
(11th Cir. 1998). Relying on 1996 amendments to the commentary,
we found that “the Sentencing Commission did not intend to limit
the pattern of activity the court could consider to conduct related
to the offense of conviction.” Id. at 751. Rather, we held that the
1996 amendments were issued to clarify that the “pattern” of abuse
“may include acts of sexual abuse or exploitation that were not
committed during the course of the offense or that did not result in
a conviction.” Id. at 750.
Then, in United States v. Turner, based on an old conviction
for unrelated conduct, we affirmed the application of the pattern
enhancement to a defendant convicted of receiving child pornog-
raphy.
626 F.3d 566, 572–73 (11th Cir. 2010). Relying on § 2G2.2’s
commentary, we rejected the argument “that the ‘pattern of activ-
ity’ must be between the past sexual abuse and the current of-
fense,” noting that receipt of child pornography cannot be used to
establish a pattern under the commentary. Id. at 572. And we
found no “temporal limitation on unrelated conduct,” explaining
that, under the “plain terms of the commentary, the only require-
ments for establishing a ‘pattern of activity’ are two or more in-
stances of sexual abuse or exploitation of a minor that are separate
from one another.” Id. at 573.
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8 Opinion of the Court 21-14010
Finally, in United States v. McGarity, we considered the “in-
terplay” between § 2G2.2(b)(5) and § 1B1.3, the relevant conduct
guideline.
669 F.3d 1218, 1259–60 (11th Cir. 2012). One defendant
argued that his past sexual abuse of his daughter could not be con-
sidered “relevant conduct” under §1B1.3, but we found “no diffi-
culty in reconciling” §1B1.3(a) and § 2G2.2(b)(5). Id. at 1259. We
explained that explicit language in §1B1.3(a) “provides that relevant
conduct is conduct relating to the offense of conviction ‘unless oth-
erwise specified’” Id. at 1260. And we concluded that clear lan-
guage in the commentary “otherwise specified” by authorizing an
increased offense level based on conduct unrelated to the offense
of conviction. Id.
B. Plain Error Analysis
Here, Dugger has not met his heavy burden of showing that
the district court plainly erred in applying § 2G2.2(b)(5)’s pattern
enhancement in this case. To obtain relief on plain-error review,
the alleged error “must be so clearly established and obvious that
it should not have been permitted” by the court in the first place.
Hesser, 800 F.3d at 1325; Kushmaul, 984 F. 3d at 1363. No error of
that sort occurred here.
Dugger has not identified any Supreme Court or Eleventh
Circuit precedent that would establish that the district court erred
in its interpretation of § 2G2.2(b)(5). Lejarde Rada,
319 F.3d at
1291. On the contrary, we have repeatedly held that conduct un-
related to the offense of conviction, including conduct that oc-
curred in the distant past, can constitute a “pattern of activity”
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under § 2G2.2(b)(5). McGarity,
669 F.3d at 1259; Turner,
626 F.3d
at 571–73; Anderton, 136 F.3d at 750-51. And the district court ap-
plied the pattern enhancement in Dugger’s case consistently with
how we have construed the guidelines and commentary.
Nor are we persuaded that the plain language of
§ 2G2.2(b)(5) prevents its application here. According to § 1B1.3,
“specific offense characteristics” are based on relevant conduct “un-
less otherwise specified.” See U.S.S.G. § 1B1.3. The text of
§ 2G2.2(b)(5) itself does not limit its application to conduct arising
from “the offense,” unlike other nearby enhancements. See, e.g.,
U.S.S.G. § 2G2.2(b)(1) (referring to “the defendant’s conduct”),
(b)(2) (referring to “the material” and what it “involved”), (b)(3)(A),
(C), (D), (E) & (b)(4), (6), & (7) (referring to “the offense”). And in
McGarity, we held that the commentary to § 2G2.2 “otherwise
specified” by permitting the pattern enhancement to be based on
prior conduct without any connection to the offense of conviction.
669 F.3d at 1260. In other words, the commentary provides “more
explicit instructions in the context of a specific guideline.” U.S.S.G.
§ 1B1.3, cmt. (backg’d) (emphasis added). And we cannot say that
the commentary necessarily contradicts the text of the guideline
itself.
Dugger’s contention that the commentary’s definition of
“pattern” is inconsistent with the ordinary meaning of the word
also fails. In Burke, we explained that guideline language “must be
given its plain and ordinary meaning.” United States v. Burke,
863
F.3d 1355, 1358 (11th Cir. 2017). A “pattern” is “[a] mode of
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10 Opinion of the Court 21-14010
behavior or series of acts that are recognizably consistent.” Black’s
Law Dictionary (11th Ed. 2019). The commentary’s definition of
“pattern of activity”—as two or more separate instances of certain
conduct involving minors—is not inconsistent with that term’s or-
dinary meaning as used in the guidelines. See, e.g., United States
v. Fox,
926 F.3d 1275, 1280 (11th Cir. 2019) (noting that Congress
has defined a “pattern of activity” for a similar enhancement under
U.S.S.G. § 4B1.5(b) as certain conduct committed “on at least two
separate occasions”). Like the defendants in McGarity and Turner,
Dugger engaged in a series of acts that are recognizably consistent.
McGarity,
669 F.3d at 1259-60; Turner,
626 F.3d at 572. Nothing in
the guidelines or the commentary requires that the “pattern” in-
clude the offense of conviction. See Turner,
626 F.3d at 572
(“Turner’s argument that the ‘pattern of activity’ must be between
the past sexual abuse and the current offense lacks merit.”).
Finally, Dugger’s remaining arguments fall flat. He relies on
the Supreme Court’s recent decision in Kisor v. Wilkie,
139 S. Ct.
2400 (2019), which concerned deference to federal administrative
agencies, but that case did not purport to overrule Stinson, nor did
it directly address the interpretation of the guidelines or its com-
mentary. So Kisor does not establish plain error in this case, even
if it may ultimately call for a less deferential approach to guidelines
commentary. See, e.g., Cingari, 952 F.3d at 1308 (applying ordi-
nary Stinson principles post-Kisor). Dugger also argues that, in
United States v. Chapman,
60 F.3d 894, 896 (1st Cir. 1995), the First
Circuit adopted his interpretation by holding the commentary
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contradicts § 2G2.2(b)(5). But we are not bound by Chapman, and
in any case, the First Circuit decided it under the outdated 1995
version of the commentary.
Because neither the plain language of the guideline nor any
controlling precedent makes it clear or obvious that the district
court erred in basing the § 2G2.2(b)(5) pattern enhancement on
two separate instances of conduct unrelated to the offense of con-
viction, Dugger cannot show plain error. Hesser, 800 F.3d at 1325;
Kushmaul, 984 F.3d at 1363.
IV. CONCLUSION
Dugger failed to meet his burden of showing that the district
court plainly erred by applying the five-level enhancement in §
2G2.2(b)(2) because it is not clear from the plain language of the
guidelines that the commentary to § 2G2.2(b)(2) is inconsistent
with the guidelines text and thus invalid. Nor has Dugger pointed
to any on-point, binding precedent establishing that the district
court erred in applying the enhancement. For these reasons, we
affirm his sentence.
AFFIRMED.
