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

                            FOR THE TENTH CIRCUIT                         April 2, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 14-1142

JESSE N. EVANS, a/k/a Jesse Evans,

             Defendant - Appellant.


                                       ORDER


Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.


      Appellee has filed a motion to publish the order and judgment previously

issued on March 3, 2015. The motion is granted. The published opinion is filed

nunc pro tunc to that date, and a copy is attached.

      Appellant’s petition for rehearing is denied.

                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk
                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                        March 3, 2015

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                          No. 14-1142

JESSE N. EVANS, a/k/a Jesse Evans,

             Defendant - Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                    (D.C. No. 1:12-CR-00325-WJM-1)


Submitted on the briefs:*

Kathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado, for Defendant-Appellant.

John F. Walsh, United States Attorney, Judith A. Smith, Assistant United States
Attorney, District of Colorado, Denver, Colorado, for Plaintiff-Appellee.


Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.


PORFILIO, Circuit Judge.

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      Jesse N. Evans appeals his sentence imposed on his guilty plea to production

of child pornography. We affirm.

      I.     Background

      In 2012, authorities discovered 4800 child-pornography videos and images in

Evans’s possession, at least 100 of which depicted his own minor daughters and his

minor niece. Evans was charged with five counts of production, distribution, and

possession of child pornography. He eventually entered a guilty plea to an added

sixth count of production of child pornography, in violation of 18 U.S.C. § 2251(a),

and the government dismissed the original indictment. In his guilty plea, Evans

admitted that he had produced child pornography of two minor victims between

January 2010 and November 25, 2011.

      Over Evans’s objection, the district court applied § 4B1.5(b) of the United

States Sentencing Guidelines (USSG or Guidelines), which provides for a five-point

sentence enhancement if “the defendant’s instant offense of conviction is a covered

sex crime . . . and the defendant engaged in a pattern of activity involving prohibited

sexual conduct.” The district court specifically found that Evans had produced

child-pornography videos on November 5, 2011, and November 25, 2011, thus

satisfying the “pattern of conduct” element of § 4B1.5(b). The resultant Guidelines

sentencing range was 360 months. The district court granted Evans’s motion for a

downward variance, and sentenced him to 252 months in prison.


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       Evans claims § 4B1.5(b) does not apply to him because the “pattern of

activity” requirement is not met. He contends that § 4B1.5(b) does not apply to any

act of production occurring during the period of almost two years covered by his

guilty plea—January 2010 through November 25, 2011. He also asserts that the

district court erred in applying § 4B1.5(b) because the government did not request it,

and he claims the enhancement should not have been applied in the interest of

fairness.

       II.    Discussion

       Evans preserved his objection to § 4B1.5(b) at the sentencing hearing, so “we

review the district court’s legal conclusions under the Guidelines de novo and its

findings of fact for clear error, giving great deference to the district court’s

application of the Guidelines to the facts.” United States v. Salas, 756 F.3d 1196,

1204 (10th Cir. 2014) (internal quotation marks omitted).

       The application notes to § 4B1.5(b) state that a pattern of activity may exist “if

on at least two separate occasions, the defendant engaged in prohibited sexual

conduct with a minor.” USSG § 4B1.5(b) cmt. n. 4(B)(i). The notes further provide

that “[a]n occasion of prohibited sexual conduct may be considered . . . without

regard to whether the occasion (I) occurred during the course of the instant offense;

or (II) resulted in a conviction for the conduct that occurred on that occasion.” Id.

cmt. n. 4(B)(ii) (emphasis added). “[C]ommentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it violates the Constitution or


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a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). The plain language of

the commentary makes clear that the conduct underlying the present offense of

conviction—in this case, production of the two videos on November 5 and 25,

2011—may provide the “pattern of activity” covered by § 4B1.5(b). Because “[w]e

find the plain language of the sentencing guidelines and the accompanying

commentary to be dispositive,” United States v. Dell, 359 F.3d 1347, 1349 (10th Cir.

2004), we, like the Eighth Circuit, “hold that [§ 4B1.5(b)] may apply where . . . the

only pattern of [activity] is conduct involved in the present offense of conviction.”

United States v. Rojas, 520 F.3d 876, 883 (8th Cir. 2008); see also United States v.

Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012) (according § 4B1.5(b) its plain

meaning: “‘separate’ means the two occasions must be separate from each other, not

that the two occasions demonstrating a pattern must be separate from (and in addition

to) the crime of conviction”).

       In an alternative argument, Evans contends that the district court should not

have applied § 4B1.5(b) in the interests of fairness because the government did not

request application of the Guideline. He also points out that the plea agreement

stated that the repeat and dangerous sex offender adjustment, § 4B1.5(b), tentatively

would not apply. Evans concedes that the district court was not bound by this

statement or any understanding between counsel. Indeed, the district court had a

duty to consider and apply the applicable Guidelines when fashioning Evans’s


                                           -4-
sentence. See 18 U.S.C. § 3553(a)(4)(A) (including the applicable guidelines range

in the sentencing factors the court should consider); United States v. Booker,

543 U.S. 220, 264 (2005) (“The district courts, while not bound to apply the

Guidelines, must consult those Guidelines and take them into account when

sentencing.”). Having held that § 4B1.5(b) applies to Evans’s conviction, we discern

no abuse of discretion in the district court’s sentencing decision. See United States v.

Morrison, 771 F.3d 687, 691 (10th Cir. 2014) (stating reasonableness of a sentence is

reviewed for abuse of discretion).

       III.   Conclusion

       Evans’s motion to seal the unredacted transcript of the sentencing hearing—

Attachment B to appellant’s original opening brief—is granted. The unredacted

version of Attachment B shall permanently remain under seal. The judgment of the

district court is affirmed.




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