                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                               No. 07-15419                ELEVENTH CIRCUIT
                                                              November 7, 2008
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                  D. C. Docket No. 03-00285-CR-T-17-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CHARLES M. HAIR,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (November 7, 2008)


Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Charles Hair appeals his 365-month aggregate sentences for 3 counts of
transport and shipment of child pornography in interstate commerce by computer,

in violation of 18 U.S.C. § 2252A(a)(1) , and 1 count of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On direct appeal, we

vacated Hair’s initial sentence and remanded for re-sentencing and a determination

of a sufficient basis for any enhancement to Hair’s offense level based on a pattern

of sexual abuse or exploitation of a minor. In this appeal, Hair argues that the

district court erred at re-sentencing in increasing his offense level by five levels,

pursuant to U.S.S.G. § 2G2.2(b)(4) (2003), for engaging “in a pattern of activity

involving the sexual abuse or exploitation of a minor.” In particular, Hair argues

that the district court should have considered the definition of “sexual abuse or

exploitation” contained in guidelines Amendment 664, which Hair contends was a

clarifying amendment. Hair also argues that the district court increased his

sentence based on facts that were not alleged in the indictment or proven to a jury

beyond a reasonable doubt, in violation of the Fifth and Sixth Amendments.



                           I. U.S.S.G. §2G2.2(b)(4) (2003)

      We review “a district court’s factual findings for clear error and its

application of the Sentencing Guidelines to those facts de novo.” United States v.

Moriarty, 429 F.3d 1012, 1021 (11th Cir. 2005) (quotation omitted). “When a



                                            2
defendant objects to a factual finding that is used in calculating his guideline

sentence[,] the government bears the burden of establishing the disputed fact by a

preponderance of the evidence.” Id. (quotation omitted).

      Section 2G2.2 of the Sentencing Guidelines provides the offense level

calculation for trafficking in child pornography. U.S.S.G. § 2G2.2. That section

provides a five-level enhancement if “the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4)

(2003). A “pattern of activity involving the sexual abuse or exploitation of a

minor” requires at least two separate instances of such conduct by the defendant.

U.S.S.G. § 2G2.2, comment. (n.1). Section 2G2.2 was amended in November

2004 pursuant to Amendment 664, which redesignated the enhancement provision

as subsection (b)(5). U.S.S.G. App. C, Amendment 664. Although the applicable

commentary was altered, the text of the enhancement provision remained

unchanged. See id. The commentary in effect at the time of Hair’s original

sentencing in September 2004 provided:

      ‘Sexual abuse or exploitation’ means conduct constituting criminal
      sexual abuse of a minor, sexual exploitation of a minor, abusive
      sexual contact of a minor, any similar offense under state law, or an
      attempt or conspiracy to commit any of the above offenses. ‘Sexual
      abuse or exploitation’ does not include trafficking in material relating
      to the sexual abuse or exploitation of a minor.

U.S.S.G. § 2G2.2, comment. (n.1) (2003); see U.S.S.G. App. C, Amendment 664.

                                           3
The amended commentary effective November 1, 2004, provides:

      ‘Sexual abuse or exploitation’ means any of the following: (A)
      conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251,
      § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense under
      state law, that would have been an offense under any such section if
      the offense had occurred within the special maritime or territorial
      jurisdiction of the United States; or (C) an attempt or conspiracy to
      commit any of the offenses under subdivisions (A) or (B). ‘Sexual
      abuse or exploitation’ does not include possession, receipt, or
      trafficking in material relating to the sexual abuse or exploitation of a
      minor.

U.S.S.G. § 2G2.2, comment. (n.1) (2004); see U.S.S.G. App. C, Amendment 664.

      Upon remand, a district court must determine the guideline sentencing range

by reference to the Guidelines “that were in effect on the date of the previous

sentencing of the defendant prior to the appeal, together with any amendments

thereto by any act of Congress that was in effect on such date . . . .” 18 U.S.C.

§ 3742(g)(1) (the “Feeney Amendment”). The Feeney Amendment requires the

use of the prior Guidelines even if there has been a later favorable change in the

law. United States v. Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005). In addition,

courts generally must apply the guidelines manual in effect on a particular date in

its entirety. United States v. Bailey, 123 F.3d 1381, 1404 n.33 (11th Cir. 1997).

However, it is “well-settled in this circuit that the sentencing court should consider

clarifying amendments when interpreting the guidelines, even when sentencing

defendants convicted before the effective date of the amendments.” United States

                                           4
v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (quotations omitted). “Clarifying

amendments do not effect a substantive change, but provide persuasive evidence of

how the Sentencing Commission originally envisioned application of the relevant

guideline.” United States v. Descent, 292 F.3d 703, 707-08 (11th Cir. 2002). An

amendment may be substantive if it “substantively alters any relevant preexisting

commentary.” Id.

      In determining whether an amendment is clarifying or substantive, we

consider, among other things: (1) whether the commentary states that the

amendment is intended to be clarifying; and (2) the list of amendments intended to

be applied retroactively, contained in U.S.S.G. § 1B1.10(c). Id. at 708-09. Also

relevant are whether “the amended commentary either contradicts or substantively

alters any relevant preexisting commentary.” United States v. Summers, 176 F.3d

1328, 1331 (11th Cir. 1999) (quotation omitted).

      We hold that the portion of Amendment 664 defining “sexual abuse or

exploitation of a minor” was substantive and, thus did not apply at resentencing.

Even though Amendment 664 did not change the text of the enhancement

provision itself, it did substantively alter the commentary that defined “sexual

abuse or exploitation.” See U.S.S.G. App. C, Amendment 664. In particular,

“abusive sexual contact” was specifically included in the definition of sexual abuse



                                          5
or exploitation in the 2003 commentary, but it appears that it was excluded from

the amended commentary, because 18 U.S.C. § 2244 was not among the listed

offenses. See id.; U.S.S.G. § 2A3.4; 18 U.S.C. § 2244. Thus, the amendment did

not merely clarify what sexual abuse or exploitation meant, but changed the

definition to exclude certain conduct that had been included previously. Whether

the omission of abusive sexual contact was intentional, the effect was a substantive

change in the covered conduct. Moreover, Amendment 664 does not state that it is

intended to be clarifying, and the amendment is not listed in U.S.S.G. § 1B1.10(c).

See generally U.S.S.G. App. C, Amendment 664; U.S.S.G. § 1B1.10(c).

Therefore, Amendment 664 is a substantive amendment with regard to the

definition of sexual abuse or exploitation, and the district court correctly declined

to apply the amendment retroactively. See Summers, 176 F.3d at 133; Descent,

292 F.3d at 708.

      Under the 2003 Guidelines in effect at Hair’s original sentencing, the

government established by a preponderance of the evidence that Hair committed

two prior instances of sexual abuse or exploitation of a minor. Hair admits that the

1982 incident, in which he allegedly performed oral sex on a minor in a park,

would qualify as sexual abuse or exploitation of a minor under U.S.S.G.




                                           6
§ 2G2.2(b)(4)1 but challenges the credibility and reliability of the evidence.

However, Hair did not raise that challenge in his brief in his first appeal so we will

not address it on return from remand. United States v. Fiallo-Jacome, 874 F.2d

1479 (11th Cir. 1989) (rejecting appellant’s attempt to raise new issues in appeal

from resentencing).

       Two incidents are required to establish a pattern of sexual abuse or

exploitation for purposes of the five-level enhancement. U.S.S.G. § 2G2.2(b)(4),

comment. (n.1). Therefore, the enhancement will apply if either the 1986 wasp

incident or the 1989 note-dropping incident qualified as an incident of sexual abuse

or exploitation of a minor under the Guidelines.

       Hair does not argue that the 1986 wasp incident was not sexual abuse or

exploitation under the 2003 Guidelines, but instead argues that the incident would

not be a crime under the statutes listed in the amended commentary to U.S.S.G.

§ 2G2.2. As discussed above, the district court correctly declined to apply the

amended commentary, as it was substantive rather than clarifying. The 2003

commentary to § 2G2.2 specifically included “abusive sexual contact” in the

definition of sexual abuse or exploitation. U.S.S.G. § 2G2.2, comment. (n.1)



       1
         Additionally, 1982 incident qualifies as sexual abuse or exploitation of a minor under
Amendment 664 because it would violate 18 U.S.C. § 2243. See U.S.S.G. Appx. C, Amendment
664; 18 U.S.C. § 2243(a).

                                              7
(2003). Although “abusive sexual contact” was not defined in § 2G2.2, courts may

look to other guideline sections for guidance on a case-by-case basis. See

generally U.S.S.G. § 2G2.2, comment. (n.1); see Saunders, 318 F.3d at 1264. By

reference to U.S.S.G. § 2A3.4, which further references 18 U.S.C. § 2244, the

definition of abusive sexual contact may be found in 18 U.S.C. § 2246(3). See

U.S.S.G. § 2A3.4, comment; 18 U.S.C. § 2246(3). Under 18 U.S.C. § 2246(3), the

1986 wasp incident fits within the definition of “abusive sexual contact” because it

involved the intentional touching of the buttocks of a minor, “with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person.” See 18 U.S.C. §§ 2244, 2246(3). Thus, the 1986 wasp incident qualified

as sexual abuse or exploitation under § 2G2.2(b)(4), and the government

established a pattern by proving the 1982 and 1986 incidents. See U.S.S.G.

§ 2G2.2(b)(4) and comment. (n.1). Accordingly, the district court did not err in

applying the five-level enhancement, pursuant to § 2G2.2(b)(4).

      In the 1989 incident, Hair approached a boy, dropped a note in front of him

which stated that Hair wanted to have oral sex with the boy, and also made a sexual

gesture toward him. Section 2243 of Title 18, United States Code provides

penalties for an attempt to engage in a sexual act with a minor. 18 U.S.C.

§ 2243(a). Hair’s actions reflect an intent to commit an offense under 18 U.S.C.



                                          8
§ 2243(a), and also constitute a substantial step toward committing the offense.

See Murrell, 368 F.3d at 1286; Panfil, 338 F.3d at 1300, 1302-03; 18 U.S.C.

§ 2243(a). Therefore, even under the amended commentary, the 1989 note-

dropping incident would qualify as sexual abuse or exploitation of a minor because

the amended commentary includes a violation of 18 U.S.C. § 2243 in the

definition of sexual abuse or exploitation. See U.S.S.G., App. C, Amendment 664.

Thus, the 1982 and 1989 incidents together would also qualify as a pattern of

sexual abuse or exploitation for purposes of § 2G2.2 as amended by Amendment

664. See U.S.S.G. § 2G2.2(b)(5), comment. (n.1) (2004).



                     II. FIFTH AND SIXTH AMENDMENT

      When the Guidelines are applied as advisory, a sentence may be enhanced

based on facts found by the sentencing court, so long as the judicially found facts

do not increase the sentence beyond the statutory maximum authorized by the facts

admitted or found by the jury beyond a reasonable doubt. United States v. Hunt,

459 F.3d 1180, 1182 (11th Cir. 2006).

      Because the district court applied the Guidelines as advisory and sentenced

Hair to a term of imprisonment below the statutory maximum, the district court did

not violate Hair’s Fifth or Sixth Amendment rights by enhancing his sentence



                                          9
based on judicially found facts.



                                     III. CONCLUSION

      Based on a review of the record and the parties’ briefs, we discern no

reversible error. Accordingly, we affirm Hair’s sentences.

      AFFIRMED.2




      2
          Hair’s request for oral argument is denied.

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