Sex Offense by Registered Sex Offender Is Offense, Not Sentencing Enhancement

US v. Beck: Beck, already a registered sex offender, was charged with multiple counts arising from the abuse of a minor, including the production of child pornography and doing so while required to register as a sex offender. Beck pleaded guilty to both charges (others were dropped) and was told that the district court was required to imposed the 10-year mandatory sentence on the sex offender count consecutively to whatever sentence was imposed on the production count. The district court imposed the statutory maximum 40-year term on the production count, plus the ten years. After remand because there was no consecutive requirement the district court reimposed the same sentence.

The Fourth Circuit affirmed Beck’s sentence in a second appeal. This time, Beck argued that the statute under which the sex offender conviction was sustained, 18 USC 2260A, does not actually state an offense at all – it was merely a sentencing enhancement. As a result, his conviction on that count was invalid (because the other offense to which he pleaded guilty was not one of the listed predicate offenses for which a sentence could be enhanced). The court rejected that argument, looking the language of 2260A and concluding that it did state an offense. In particular, because liability under 2260A requires proof that a minor was involved in the offense (not all of the listed predicate offenses involve minors) which was an element of an offense.

Judge Harris wrote a concurring opinion to “emphasize some of the peculiar features of this case that have muddled the statutory question,” while Judge Rushing dissented, arguing that the court should have dismissed the appeal pursuant to the waiver provision in Beck’s plea agreement (she agreed that 2260A is a substantive offense, however).

No Need to Specify Evidence Upon Which Supervised Release Revocation Is Based

US v. Patterson: Patterson was in a local jail while also serving a term of supervised release when his cellmate overdosed and was taken to the hospital. Patterson was eventually charged with violating his conditions of supervised release by possessing heroin and Xanax with intent to distribute as a result of that incident. He denied the charges and the district court held a contested revocation hearing in which it heard testimony from the cellmate (he got better) and others. The district court concluded that Patterson had provided the drugs the cellmate used to overdose, revoked his term of supervised release, and imposed a term of 39 months in prison.

On appeal, the Fourth Circuit affirmed Patterson’s revocation, but vacated his sentence. As to the revocation, the court rejected Patterson’s argument that the district court violated his due process rights by not specifying the particular evidence upon which it based its decision to revoke his term of supervised release. That was because “the record plainly shows the trial court’s rationale” in the way it “actively engaged with the witnesses and counsel.” The court also found the district court’s conclusion was not clearly erroneous. As to the sentence, however, the court agreed with Patterson that the district court did not provide a sufficient explanation for the sentence it imposed, because while it “gave a fulsome explanation” of the 3553(a) factors it “failed to not that it had considered Patterson’s mitigation points.”