                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 18, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-6191
                                                   (D.C. No. 5:13-CR-00264-M-1)
DENNIS M. MULLINS,                                         (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Dennis Mullins pled guilty to transporting and receiving child pornography in

violation of 18 U.S.C. § 2252(a)(1)-(2). In preparing Mullins’ presentence

investigation report (PSIR), a U.S. probation officer considered statements from

Mullins’ adult children alleging Mullins had sexually abused them as minors. Relying

on these statements, the probation officer concluded Mullins engaged in “a pattern of

activity involving the sexual abuse or exploitation of a minor,” and applied a five-

level enhancement under U.S.S.G. § 2G2.2(b)(5) resulting in a Guidelines range of




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
262-327 months. Without the enhancement, his advisory Guidelines range would

have been 151-188 months. See U.S.S.G. ch. 5 pt. A.

      Mullins objected to the enhancement on several grounds including because a

judge, not a jury, found the facts leading to the enhancement, the alleged conduct

occurred 25 to 30 years before the sentencing, and the allegations were hearsay and

otherwise unreliable. The district court overruled his objections and, in view of the

recommended sentencing range in the PSIR, sentenced Mullins to the statutory

maximum 240 months on each count to be served concurrently. Mullins appeals his

sentence as violating his Fifth and Sixth Amendment rights and as being unsupported

by the evidence. Finding no error in the district court’s sentence, we affirm.

                                    BACKGROUND

      In October 2013, a detective with the Canadian County, Oklahoma Sheriff’s

Office identified an Internet Protocol (IP) address that appeared to be downloading

files depicting child pornography. The detective connected to the IP address using

eMule peer-to-peer software and successfully downloaded a 30-minute video

depicting child pornography. The sheriff’s office obtained a warrant for account

information linked to the IP address, determined the account belonged to Mullins,

and executed a search warrant on his home. During the search, investigators seized a

computer and other digital devices storing over 200 still images and over 400 videos

depicting child pornography. The government charged Mullins with transporting

child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(1) and



                                           2
receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He pled guilty to

both counts.

      In preparing Mullins’ PSIR, the probation officer calculated a total offense

level of 39 and a criminal history category of I. In arriving at this offense level, the

probation officer applied a five-level “pattern-of-activity” enhancement under

§ 2G2.2(b)(5) which provides, “If the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor, increase by 5 levels.” U.S.S.G.

§ 2G2.2(b)(5). The Guidelines define “pattern of activity” as “any combination of

two or more separate instances of the sexual abuse or sexual exploitation of a minor

by the defendant, whether or not the abuse or exploitation (A) occurred during the

course of the offense; (B) involved the same minor; or (C) resulted in a conviction

for such conduct.” U.S.S.G. § 2G2.2 cmt. n.1.

      At sentencing, a juvenile investigator from the Canadian County Sheriff’s

Office, Doug Gerten, testified concerning the circumstances supporting the pattern-

of-activity enhancement. Gerten testified that during his search of Mullins’ residence,

Mullins’ wife, Rhonda Mullins, informed Gerten that Mullins’ two daughters from a

prior marriage had accused him of sexually abusing them as minors. She also

reported that her son (Mullins’ stepson) had recently confronted Mullins about “what

he had done.” R. vol. 2, at 22 (sealed). Without providing details, Mrs. Mullins

implied Mullins had inappropriately touched her son when her son was a minor.




                                            3
      In view of these remarks, Gerten and another investigator from the Canadian

County Sheriff’s Office, Adam Flowers, contacted and interviewed each of Mullins’

children.1

      Gerten interviewed Mullins’ oldest daughter, D.L., at her apartment. She told

Gerten that when she was 13, Mullins asked to rub her back, but when she sat in front

of him for the back rub he instead felt her breasts. When she tried to move away,

Mullins pulled her close and put his hand in her underwear. Following the interview,

D.L. provided a handwritten statement repeating the allegations. But before Mullins’

sentencing, D.L. recanted the portion of her statement accusing Mullins of placing

his hand in her underwear.

      Flowers interviewed Mullins’ younger daughter, J.C., by telephone. J.C.

reported that when she was 13, she went to visit her father for two weeks. During this

time, Mullins touched her breasts and buttocks, asked her to expose her bare breasts,

and watched her bathe and change clothes. At Mullins’ direction, J.C. contacted her

mother and obtained approval to extend her visit for several months. During these

months, Mullins escalated his abuse to include touching J.C. under her clothes and

ultimately engaging in sexual intercourse with her. J.C. reported that she lost her

      1
         To protect the identities of Mullins’ children, the government sought
permission to file its response brief under seal. The motion was provisionally granted
subject to this panel’s final approval. Following oral argument, the government filed
a brief redacting the children’s identities. In light of this publicly available redacted
brief, we grant the government’s motion to file the original brief under seal. See, e.g.,
United States v. Dillard, 795 F.3d 1191, 1205-06 (10th Cir. 2015) (discussing
presumption favoring public access to court records and privacy interests that can
overcome presumption).

                                            4
virginity to Mullins and estimated they had sexual intercourse on 20 occasions. She

explained that she only now remembered these events as a result of hypnotherapy.

       Gerten and Flowers interviewed Mullins’ stepson, M.W., in person. M.W. told

investigators that Mullins showed him pornographic material on many occasions,

beginning when he was in third grade. Mullins also asked M.W. if he knew how to

masturbate, and then demonstrated how to do so. Mullins eventually began

masturbating M.W., and did so on more than one occasion. M.W. indicated that

initially he trusted Mullins and let Mullins masturbate him, but as he grew older, it

began to bother him. Mullins eventually ended the abuse.

       Following Gerten’s testimony, Mullins addressed the court but neither denied

nor confirmed the allegations. Instead, he indicated he couldn’t recall any of the

alleged incidents. Although M.W. attended the sentencing hearing, neither party

called him to testify.

       In view of Mullins’ children’s detailed statements, the district court found by a

preponderance of the evidence that Mullins had engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor and applied the five-level

enhancement to arrive at an offense level of 39, which corresponded to a

recommended sentence of 262-327 months’ imprisonment.

       To fall within this range, the probation officer recommended Mullins be

sentenced to the statutory maximum term of 240 months for count I and a term of 22-

87 months for count II to run consecutively. Instead, the district court sentenced

Mullins to the statutory maximum on each count to be served concurrently, totaling

                                           5
240 months, a term 22 months below the Guidelines range. Mullins repeatedly

objected to the pattern-of-activity enhancement at sentencing, and now appeals.

                                      DISCUSSION

I.    The district court’s application of the pattern-of-activity enhancement
      didn’t violate Mullins’ constitutional rights.

      Mullins first argues his sentence is procedurally and substantively

unreasonable because the district court’s application of the five-level, pattern-of-

activity enhancement violated his Fifth and Sixth Amendment rights.2 Because

Mullins properly preserved his objections below, we review the district court’s

application of the pattern-of-activity enhancement for abuse of discretion. Lucero,

747 F.3d 1242, 1246. This means we “review de novo the district court’s legal

conclusions regarding the [G]uidelines and review its factual findings for clear

error.” United States v. Cassius, 777 F.3d 1093, 1096 (10th Cir. 2015) (quoting

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012)).

      A.     Sixth Amendment Right to a Jury Trial

      Mullins argues that application of the enhancement violated his Sixth

Amendment rights because a judge rather than a jury found the facts supporting the


      2
        Although Mullins characterizes his sentencing challenge as both procedural
and substantive, his arguments appear purely procedural. See Gall v. United States,
552 U.S. 38, 51 (2007) (distinguishing procedural and substantive reasonableness);
United States v. Lucero, 747 F.3d 1242, 1246 (10th Cir. 2014) (categorizing
defendant’s appeal of district court’s application of pattern-of-activity enhancement
under § 2G2.2(b)(5) as procedural). Nonetheless, this court’s standard of review
(abuse of discretion) is the same under either challenge. See Lucero, 747 F.3d at
1251.

                                           6
enhancement, increasing his Guidelines range from 151-188 months to 262-327

months. This is a purely legal question we review de novo. Cassius, 777 F.3d at

1096.

        The Sixth Amendment requires a jury, not a judge, find any fact increasing a

statutorily prescribed sentence for a crime. Alleyne v. United States, 133 S. Ct. 2151,

2155 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). But the Guidelines

are advisory, not mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005).

Thus, a judge can find facts supporting a Guidelines enhancement as long as the

resulting Guidelines range isn’t applied in a binding way altering the prescribed

statutory sentence. See Alleyne, 133 S. Ct. at 2163; Cassius, 777 F.3d at 1097.

        Nothing in the record indicates the district court applied the Guidelines in a

binding way in this case. Indeed, the opposite is true. The district court sentenced

Mullins to 240 months imprisonment, a term below the minimum 262 months

recommended by the Guidelines,3 and within the prescribed statutory range. See 18

U.S.C. § 2252(b)(1) (prescribing a statutory sentence of 60 to 240 months for each

count). At most, the district court referenced the calculated Guidelines range in

determining an appropriate sentence within the statutory range. See Alleyne, 133 S.

Ct. at 2163; Cassius, 777 F.3d at 1097 (“[N]othing in the record indicates the district


        3
        The district court could have ordered Mullins to serve his sentences
consecutively. See 18 U.S.C. § 3584(a); Setser v. United States, 132 S. Ct. 1463,
1468 (2012). Instead, the district court ordered Mullins to serve his two 240-month
sentences concurrently, resulting in a total term below the minimum 262 months
recommended by the Guidelines.

                                            7
court increased Defendant’s statutory sentencing range or otherwise altered his

legally prescribed punishment; rather, by all indications the court used its [own

factual] finding solely as a sentencing factor to help determine Defendant’s sentence

within the prescribed statutory range. We find no error in this procedure.” (emphasis

added)). Under these circumstances, we find no violation of Mullins’ Sixth

Amendment right to a jury trial.

      B.     Fifth Amendment Right to Due Process

      Next, Mullins argues the district court violated his Fifth Amendment right to

due process by finding facts supporting the enhancement by a preponderance of the

evidence rather than beyond a reasonable doubt and by relying on alleged criminal

activity for which the statute of limitations had run. Again, these are purely legal

questions we review de novo. Cassius, 777 F.3d at 1096.

             1.     Preponderance of the evidence standard

      Mullins contends the district court violated his due process right by applying a

preponderance of the evidence standard to factual findings supporting the

enhancement. Like Mullins’ Sixth Amendment challenge, this argument is foreclosed

by precedent.

      The Fifth Amendment requires proof beyond a reasonable doubt “of any fact

that increases [a] sentence beyond what could have been lawfully imposed on the

basis of facts found by the jury or admitted by the defendant.” Booker, 543 U.S. at

319 n.6; see also Alleyne, 133 S. Ct. at 2155; Apprendi, 530 U.S. at 490. But facts

supporting a Guidelines enhancement need not be proved beyond a reasonable doubt

                                           8
so long as the facts don’t increase the prescribed statutory sentence. United States v.

Ray, 704 F.3d 1307, 1314 (10th Cir. 2013). Instead, a district court is permitted to

find facts supporting a Guidelines enhancement by a preponderance of the evidence.

See, e.g., id; United States v. Hinson, 585 F.3d 1328, 1341 n.6 (10th Cir. 2009);

United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008).

      As we’ve discussed, the facts found by the district court under a

preponderance of the evidence standard didn’t alter Mullins’ statutory sentencing

range. Rather, the district court used those facts to calculate the Guidelines range. It

then used this range, at most, to influence its calculation of an appropriate sentence

within the statutory range. This didn’t violate Mullins’ due process rights.

               2.   Statute of limitations

      Mullins next contends the district court violated his Fifth Amendment right to

due process by basing the enhancement on alleged criminal activity for which the

statute of limitations had run. More particularly, he argues that because the conduct

constituting the alleged “sexual abuse or exploitation of a minor” occurred 25 to 30

years before his current sentencing, he couldn’t properly defend himself against the

allegations.

      Again, Mullins’ argument contradicts controlling precedent. We’ve held that

statutes of limitations do not bar conduct from being considered at the sentencing

phase. United States v. Griffith, 584 F.3d 1004, 1013 n.7 (10th Cir. 2009)

(concluding conduct may be relevant under the Guidelines even though it can’t be

separately prosecuted because the statute of limitations has run); United States v.

                                             9
Neighbors, 23 F.3d 306, 311 (10th Cir. 1994) (explaining that “[s]tatutes of

limitations play no role in the sentencing phase of a criminal proceeding” (emphasis

added)). Indeed, we recently concluded that the specific pattern-of-activity

enhancement at issue here contains no temporal limitations. Lucero, 747 F.3d at 1247

(concluding “§ 2G2.2(b)(5) may apply regardless of when the underlying pattern of

activity occurred”); see also id. at 1249 (citing opinions from nine sister circuits

unanimously concluding § 2G2.2(b)(5) contains no temporal limitations).

      Mullins urges us to distinguish Lucero, arguing (1) we applied plain-error

review in that case; (2) Lucero admitted to the conduct supporting the enhancement;

and (3) Lucero didn’t make the Sixth and Fifth Amendment arguments made here.

      Mullins misreads Lucero. There, we declined to decide the appropriate

standard of review because Lucero’s claim failed under either plain-error or abuse-of-

discretion review. Id. at 1247. Further, we see no indication that Lucero’s admission

of the underlying conduct impacted our decision in that case; nor do we see the

relevance of such an admission to the legal question at issue—whether § 2G2.2(b)(5)

includes a temporal limitation.

      We are similarly unpersuaded by Mullins’ effort to distinguish Lucero based

on Lucero’s failure to assert the constitutional challenges raised here. We have

previously rejected the suggestion that the Fifth and Sixth Amendments require facts

supporting a Guidelines sentencing enhancement be submitted to a jury and proved

beyond a reasonable doubt, see, e.g., Ray, 704 F.3d at 1314, and we see no reason

why Lucero’s outcome would differ had the court considered such arguments.

                                           10
      Further, at least some of our sister circuits have considered and rejected

Mullins’ remaining constitutional challenge—that requiring him to defend against

remote-in-time conduct violates his due process rights. See United States v. Bacon,

646 F.3d 218, 221-22 (5th Cir. 2011); United States v. Garner, 490 F.3d 739, 743

(9th Cir. 2007). The Fifth Circuit’s rationale for permitting a pattern-of-activity

enhancement in cases concerning sexual abuse and exploitation of children is

particularly persuasive:

      Consideration of remote-in-time conduct does not violate due process. A
      guideline violates due process only if it has no rational basis or is subject to
      arbitrary application. This court has frequently noted the increased risk of
      recidivism associated with the sexual abuse and exploitation of children.
      Therefore, the consideration of even remote-in-time conduct is not
      irrational in applying the “pattern of activity” enhancement.
Bacon, 646 F.3d at 221-22 (internal citations omitted); see also Garner, 490 F.3d at

743 (same).

      We agree with our sister circuits that consideration of remote-in-time conduct

doesn’t raise due process concerns in cases involving the sexual abuse and

exploitation of children. Accordingly, Mullins’ attempts to distinguish Lucero are

unavailing.

      In an effort to distinguish our binding precedent in Cassius, Lucero, and Cook,

Mullins advances an additional argument for the first time in his reply brief. Namely,

he points out that sentencing enhancements typically are applied on the basis of

“relevant conduct” as defined in § 1B1.3 of the Guidelines—that is, conduct that is

factually and temporally limited to the charged offense. He urges us to avoid


                                            11
extending our precedent to the instant pattern-of-activity enhancement because the

conduct underlying this enhancement is arguably unrelated, and thus should be

afforded additional procedural safeguards.

      Mullins failure to raise this argument in his opening brief results in a waiver of

the issue. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.

1994). Regardless, the Guidelines contradict his position. See U.S.S.G. § 2G2.2 cmt.

n.1 (“‘Pattern of activity involving the sexual abuse of exploitation of a minor’ means

any combination of two or more separate instances of the sexual abuse or sexual

exploitation of a minor by the defendant, whether or not the abuse or exploitation (A)

occurred during the course of the offense; [or] (B) involved the same minor . . . .”

(emphasis added)). More importantly, this argument can’t withstand Lucero’s

specific holding. 747 F.3d at 1247 (“[T]he commentary to § 2G2.2(b)(5) makes clear

that the pattern of activity need not be contextually related to the offense for which

the defendant is being sentenced.” (emphasis added)); see also Bacon, 646 F.3d at

221 (finding no temporal or contextual constraint in applying § 2G2.2(b)(5) and

noting “‘relevant conduct’ under § 2G2.2 is intended to be more broadly construed

than the general relevancy provisions found in § 1B1.3”). We thus hold the district

court didn’t violate Mullins’ Fifth Amendment due process rights.

II.   The record supports the district court’s application of the pattern-of-
      activity enhancement.

      Relying on the statements of Mullins’ children, the district court found by a

preponderance of the evidence that Mullins engaged in a pattern of activity involving


                                           12
the sexual abuse or exploitation of a minor. On appeal, Mullins argues the allegations

by his adult children are unreliable and thus insufficient to support the enhancement

because each accuser failed to provide specific details regarding the time and location

of the alleged incidents, the incidents weren’t contemporaneously investigated by law

enforcement, and the accusations are hearsay. He further contends the alleged

misconduct towards D.L. isn’t “sexual abuse or exploitation of a minor” as defined

by § 2G2.2(b)(5) because over-the-clothes touching doesn’t constitute a “sexual

act.”4 And he argues J.C.’s statement is additionally unreliable because it resulted

from posthypnotic recall.

      We review the district court’s factual findings for clear error. Cassius, 777

F.3d at 1096; Cook, 550 F.3d at 1295. “To constitute clear error, we must be

convinced that the sentencing court’s finding is simply not plausible or permissible in

light of the entire record on appeal, remembering that we are not free to substitute

our judgment for that of the district judge.” United States v. Torres, 53 F.3d 1129,

1144 (10th Cir. 1995).

      Sentencing hearings aren’t subject to rules of evidence. 18 U.S.C. § 3661;

U.S.S.G. §§ 1B1.4, 6A1.3(a); United States v. Ruby, 706 F.3d 1221, 1227 (10th Cir.

2013). Instead, “[s]entencing courts historically rely on a wide array of information

      4
        D.L. initially said Mullins placed his hand in her underwear, but later
withdrew this statement, leaving only her allegation that Mullins touched her breasts
when she was 13. The Guidelines define “sexual abuse or exploitation of a minor” as
conduct described in, among other sections irrelevant here, 18 U.S.C. §§ 2241-2243.
U.S.S.G. § 2G2.2 cmt. n.1. Each of those provisions require a “sexual act,” which, as
defined in 18 U.S.C. § 2246(2), doesn’t include over-the-clothes touching.

                                          13
relevant to the individualized needs of the offender, including hearsay evidence

containing a minimal indicia of reliability.” Ruby, 706 F.3d at 1227.

      For example, we’ve held a district court didn’t err in granting an upward

variance from the Guidelines range based on detectives’ testimony regarding

interviews with alleged sexual-abuse victims. United States v. Caiba-Antele, 705

F.3d 1162, 1166 (10th Cir. 2012). There, we found the testimony sufficiently reliable

because the detectives observed the victims firsthand, each victim’s testimony

corroborated the type of abuse testified to by the others, and the victims didn’t

change their testimony after initial interviews. Id. Similarly, we’ve upheld a district

court’s application of a felony-menacing enhancement based on a police report

containing witnesses’ accounts of a crime because officers personally observed the

witnesses and the witnesses corroborated each other. Cook, 550 F.3d at 1297.

      On the other hand, we’ve reversed the district court’s application of a

felonious-assault enhancement based on a probation officer’s report containing

statements from a defendant’s girlfriend. United States v. Fennell, 65 F.3d 812, 813

(10th Cir. 1995). There, we concluded the report lacked minimal indicia of reliability

because it included only the girlfriend’s unsworn allegations made during a telephone

interview. Id.

      With this precedent as background, we first consider the investigators’

interview of M.W., Mullins’ stepson. Gerten and Flowers personally interviewed

M.W. and thus could observe his demeanor and form opinions as to his veracity.

Further, Mrs. Mullins corroborated M.W.’s statements to some extent when she

                                           14
reported to Gerten that M.W. had recently confronted Mullins about “what he had

done” and she implied that Mullins had inappropriately touched her son. R. vol. 2, at

22 (sealed). Perhaps most significant, when Mullins addressed the sentencing court,

he didn’t deny that the abuse occurred, nor did he call M.W. to testify or confront

him about the allegations even though M.W. attended the sentencing hearing.

      Moreover, although Mullins’ attacks the reliability of his daughters’

statements, pointing out that D.L. withdrew her statement in part and J.C.’s statement

resulted from hypnotherapy, we conclude M.W.’s testimony alone is sufficient to

support the pattern-of-activity enhancement. The Guidelines define a “pattern of

activity” as “any combination of two or more separate instances of the sexual abuse

or sexual exploitation of a minor by the defendant.” U.S.S.G. § 2G2.2 cmt. n.1

(emphasis added). M.W. described to Gerten sexual abuse that occurred “[o]ver a

period of time.” R. vol. 2, at 25 (sealed). M.W. said Mullins began showing him

pornographic images when he was in the third grade and continued to show him

increasingly “bizarre” images. Id. Mullins later showed M.W. how to masturbate and

“eventually started” masturbating M.W. M.W. told Gerten that he trusted Mullins and

initially didn’t think Mullins actions were wrong, but “it bothered him as he got

older,” and Mullins “eventually stopped.” Id.

      Under these circumstances, we conclude the district court could reasonably

have concluded Gerten’s testimony regarding his in-person interview of M.W.

contained sufficient indicia of reliability. Further, M.W.’s statements to Gerten

established that Mullins engaged in two or more separate instances of sexual abuse

                                          15
and supported application of the pattern-of-activity enhancement. Thus, without

deciding the independent reliability of Mullins’ daughters’ statements, we conclude

the district court didn’t clearly err in applying the enhancement.

                                     CONCLUSION

      We find no constitutional defect in the district court finding facts by a

preponderance of the evidence to determine a nonbinding sentencing range under the

Guidelines. And we find no clear error in the district court’s evidentiary findings that

support the pattern-of-activity enhancement. Accordingly, we affirm.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                           16
