                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2441
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Shane Jay Fleetwood,                    *      [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 13, 2012
                                Filed: March 1, 2012
                                 ___________

Before LOKEN, BOWMAN, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       Shane Fleetwood appeals from the sentence imposed by the District Court1
after Fleetwood pleaded guilty to one count of interstate transportation of a minor
with intent to engage in criminal sexual activity. We affirm.

      From February 5–7, 2010, forty-year-old Fleetwood took the fifteen-year-old
victim from Missouri to Kansas and engaged in criminal sexual activity with her three
times during the trip. After the trip, he had sexual intercourse with her at least two

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
or three additional times. At sentencing, the District Court increased Fleetwood’s
base-offense level by five, having determined that Fleetwood “engaged in a pattern
of activity involving prohibited sexual conduct.” U.S. Sentencing Guidelines Manual
§ 4B1.5(b)(1). The total offense level of thirty-nine resulted in an advisory
Guidelines range of 292 to 365 months’ imprisonment. The District Court varied
downward and sentenced Fleetwood to 220 months.

       On appeal, Fleetwood argues that the five-level enhancement under
§ 4B1.5(b)(1) should not apply because “there is only one alleged victim and . . . only
one [interstate] trip,” although he and the victim engaged in sexual intercourse on
three occasions during that trip. Br. of Appellant at 7. He contends that by applying
the enhancement, the District Court failed to properly calculate the advisory
Guidelines range, resulting in procedural sentencing error. We review the District
Court’s factual findings for clear error and its application of the Guidelines de novo.
United States v. Gant, 663 F.3d 1023, 1029 (8th Cir. 2011).

       In the Guidelines commentary, note 4(B)(i) to § 4B1.5 instructs that the
“pattern” required for application of the enhancement is established “if on at least two
separate occasions, the defendant engaged in prohibited sexual conduct with a
minor.” The facts here support the application of § 4B1.5 to Fleetwood. On at least
five separate occasions, Fleetwood had sexual intercourse with the minor victim.
Fleetwood maintains that the three instances of prohibited sexual conduct during the
road trip are “not sufficient to show a repeated pattern of activity.” Br. of Appellant
at 8. We disagree. The commentary informs us that an “occasion” on which the
defendant engaged in prohibited conduct can be considered for purposes of
§ 4B1.5(b)(1) “without regard to whether the occasion . . . occurred during the course
of the instant offense.” U.S. Sentencing Guidelines Manual § 4B1.5 cmt.
n.4(B)(ii)(I). In any event, the District Court also noted that the prohibited sexual
conduct between Fleetwood and the minor continued after they returned to Missouri
from the road trip. Fleetwood challenges this finding because “the details of such are

                                          -2-
not particularly known and Appellant has never been charged for such conduct,” and
he argues that the government did not prove the conduct “beyond a preponderance
of the evidence.” Br. of Appellant at 8. But there is no requirement that the
“occasions” of prohibited sexual conduct result in criminal charges or conviction for
that conduct. See U.S. Sentencing Guidelines Manual § 4B1.5 cmt. n.4(B)(ii)(II).
The District Court’s findings were based on the sworn testimony of the minor victim,
which she gave on the first day of Fleetwood’s trial, before he decided to plead guilty.
The findings are not clearly erroneous. If Fleetwood is arguing that these “occasions”
must have occurred during an interstate trip to count, there is no such requirement in
the Guidelines or the application notes.

      Finally, if Fleetwood is suggesting that the government was required to show
that he engaged in prohibited sexual activity with more than one minor for
§ 4B1.5(b)(1) to apply, the plain language of the application note—“on at least two
separate occasions . . . with a minor”—says otherwise. Id. § 4B1.5 cmt. n.4(B)(i)
(emphasis added). Moreover, were there any doubt that this language means what it
says, we would be persuaded by the 2003 amendment to the application notes.
Previously, the note did require “at least two separate occasions” and “at least two
minor victims” to establish a pattern under § 4B1.5(b)(1). Id. app. C (vol. II) amend.
649 (2003). But the note was “directly amended” by Congress, effective April 30,
2003, to read “a minor” instead of “two minor victims.” Id.

       The District Court did not commit procedural error in calculating Fleetwood’s
Guidelines sentencing range by applying § 4B1.5(b)(1) to increase his base-offense
level. The sentence is affirmed.
                       ______________________________




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