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Case 1:20-cr-00330-PAE Document 670 Filed 06/22/22 Page 33 of 55

The defendant’s argument to the contrary—that her particular crime involved undue influence of minors—does not demonstrate double-counting. The fact that the defendant’s course of conduct triggers both the harm targeted by the base offense level and the harm triggered by an enhancement shows that the enhancement applies, not that the enhancement is redundant with the base offense level.³

D. The Five-Level Enhancement in Section 4B1.5 Applies

Section 4B1.5 has two provisions, depending on whether a defendant has a prior sex offense conviction. Where, as here, the defendant does not have a prior conviction, § 4B1.5(b) adds five offense levels and sets a minimum offense level of 22, so long as the defendant satisfies that section’s three requirements: (1) the offense of conviction must be a “covered sex crime,” (b) the defendant is neither a career offender nor a repeat offender, and (c) the defendant “engaged in a pattern of activity involving prohibited sexual conduct.” Id. § 4B1.1(b). “Prohibited sexual conduct,” in turn, covers any offense under Chapters 117, 109A, or 110, and any state law offense that would be a federal offense under those chapters if committed “within the special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 2426 (2003); see U.S.S.G. § 4B1.5 app. n.4(A) (incorporating that definition); see also, e.g., United States v. Phillips, 431 F.3d 86, 90 & n.6 (2d Cir. 2005) (applying these requirements).

³ The defendant also argues that the enhancement does not apply as to Jane and Annie because, under the 2003 Guidelines, the undue influence must occur with the object of having the minor engage in a commercial sex act. (Def. Mem. 21). As explained above, the 2004 Guidelines manual applies, and it contains no such provision. In any event, Jane testified that she received money during the course of her abuse (Tr. 301-02), and Annie testified that she was promised a trip to Thailand which she ultimately received (Tr. 2059, 2090-92). See U.S.S.G. § 2G1.1 app. n.1 (incorporating the definition of “commercial sex act” in 18 U.S.C. § 1591(c)(1)); 18 U.S.C. § 1591(e)(1) (2000) (defining a “commercial sex act” and “any sex act, on account of which anything of value is given to or received by any person”).

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