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Case 1:20-cr-00330-PAE Document 670 Filed 06/22/22 Page 35 of 55

minors.” U.S.S.G. § 4B1.5 background cmt.; see Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-314 § 505 (“Pursuant to its authority . . . the United States Sentencing Commission shall . . . promulgate amendments to the Federal Sentencing Guidelines to increase penalties applicable to [certain offenses] in any case in which the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”); see id. § 502 (directing the Sentencing Commission to “ensure that the sentences, guidelines, and policy statements for offenders convicted of [Chapter 117 offenses] are appropriately severe and reasonably consistent with other relevant directives with other Federal Sentencing Guidelines”). That is, while one concern motivating the Guideline is protection of the public from future offenses, another is just punishment for the seriousness of criminal conduct involving the abuse of multiple minors or a minor on multiple occasions. See also, e.g., U.S.S.G. Amend. 615 (explaining that this Guideline was promulgated to “increase penalties in any case in which the defendant engaged in a pattern of activity of sexual abuse or sexual exploitation of a minor” (emphasis added)); Protection of Children from Sexual Predators Act of 1998, Proceedings and Debates Before the Senate, 105th Cong., 2nd Session (Sept. 17, 1998) (statement of Sen. Orrin Hatch), available at 144 Cong. Rec. S10518-02, S10521, 1998 WL 636904 (“[T]he bill will also recommend that the Sentencing Commission reevaluate the guidelines applicable to these offenses, and increase them where appropriate to address the egregiousness of these crimes.”). In any event, Guidelines commentary is not binding over the text of the relevant Guideline. The commentary on which the defendant relies is not “interpretive or explanatory,” but “background” commentary. United States v. Sash, 396 F.3d 515, 523 (2d Cir. 2005); see Def. Mem. 14 (“The government ignores the background commentary to § 4B1.5 . . . .” (emphasis added)). Background commentary, which “merely provides . . . reasons underlying promulgation of the guideline,” is not binding. Id. (internal

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