1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0106p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

W ILLIAM M. B ABCOCK , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-3958

Appeal from the United St ates District Court for the Southern District of Ohio at Columbus. No. 2:13-cr-00048-1—Edmund A. Sargus, Jr., District Judge. Argued: March 14, 2014 Decided and Filed: May 23, 2014 Before: MERRITT, MOORE, and CLAY, Circuit Judges.

_________________ COUNSEL

ARGUED: Kevin M. Schad, OFFICE OF THE FE DERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Benjamin C. Gla ssman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appe llant. Mary Beth Young, Heather A. Hill, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.

_________________ OPINION

_________________
CLAY, Circuit Judge. Defendant William Babcock appeals the sentence of 190 months’ imprisonment and lifetime supervised release imposed by the district court after Defendant pleaded guilty to one count of attempting to entice a minor to engage in se xual activity, in violation of 18 U.S.C. § 2422(b). Defendant ch allenges the district court’s Guidelines 

### >No. 13-3958 United States v. Babcock Page 2

calculation—specifically, its application of th e repeat child sex offender enhancement of U.S.S.G. § 4B1.5(a)—and asserts that imposi ng a life term of supe rvised release was procedurally unreasonable. For the reasons that follow, we AFFIRM

.
BACKGROUND

On June 12, 2012, officers of the Internet Crimes Against Child ren task force in Franklin County, Ohio were browsing Craigslist for suspici ous personal ads. The officers saw two ads in which the poster offered money for sex with some one of any age. The poster was Defendant, a registered sex offender living in Newark, Ohio. One of the o fficers responded to Defendant’s ads by e-mail, adopting the persona of a fourteen-year-old girl named Amber. “Amber” told Defendant her age, and Defendant told Amber that it was not a problem for him. Defendant then steered the discussion towards sexual topics, eventually arranging a liaison for June 14, 2012. Defendant arrived at the pre-arra nged meeting spot in Columbus , Ohio, and was promptly placed under arrest. In February 2013, Defendant pleaded guilty to one count of attempting to entice a minor to engage in sexual act ivity. 18 U.S.C. § 2422(b).
The sentencing proceeding focused heavily on Defendant’s troubled past. Defendant was the victim of physical and sexual abuse as a ch ild, and claimed to have been diagnosed with schizophrenia and bipolar disord er at a young age. His father was absent and his mother struggled with substance abuse. In addition, Defendant had been in and out of the criminal justice system almost continually since the ag e of twelve. Defendant had four juvenile adjudications for breaking and entering, assault, theft, and burglary. He went on to have seventeen adult criminal convictions, mostly related to narcotics.
Three convictions warranted special attention from the district court and the parties. First, in April 1999, Defendant pleaded no cont est in Ohio state cour t to three counts of corruption of a minor, a fourth-degree felony. See Ohio Rev. Code § 2907.04. The prosecution alleged that Defendant had engaged in consensual sex with two girl s, aged fourteen and fifteen, between June 1997 and April 1998. Defendant entered an Alford plea to these charges, meaning
he admitted no misconduct. See North Carolina v. Alford , 400 U.S. 25 (1970). Second, in August 2001, Defendant was sentenced to five y ears of probation by an Ohio state court for disseminating information harmful to juveniles— specifically, providing a pornographic video toNo. 13-3958 United States v. Babcock Page 3

an eight-year-old girl. Thir d, in January 2009, Defendant was sentenced to six months’ confinement for failing to register or verify his cu rrent address as required by his status as a sex
offender.

Defendant’s offense and crimin al history resulted in an advisory Guidelines sentencing range of 120–150 months. However, the probation office concluded that the repeat child sex offender enhancement of U.S.S.G. § 4B1.5(a) should apply. This enhancement has three elements: (1) the defendant’s offense must be a “covered sex crime,” (2) the defendant cannot be a career offender under § 4B1.1, and (3) “the defendant [must have] committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.” U.S.S.G. § 4B1.5(a). Defendant’s offense, a violation of 18 U.S.C. § 2422(b), constitutes a covered sex
crime. See U.S.S.G. § 4B1.5 application note 2(A)(iii), (B). Defendant was not classified as a career offender. And the probation office conclude d that Defendant’s 1999 plea to corruption of a minor counted as the prior sex offense convic tion. Applying this enha ncement to Defendant
increased his Guidelines senten cing range to 235–293 months.
Defendant did not object to the probation office’s Guidelin es calculation. But at sentencing, Defendant argued that the factors of 18 U.S.C. § 3553(a) counseled a significantly
below-Guidelines sentence. Defendant stress ed that but for the § 4B1.5(a) enhancement, Defendant’s Guidelines range would be 120–150 m onths, and that the enhancement applied only because of a 15-year-old conviction where Defe ndant did not admit misconduct. Based on these factors, Defendant requested a sentence of 120 months—the mandatory minimum—followed by 120 months of supervised release. The governme nt requested a 264-month sentence followed by a life term of supe rvised release.
After hearing both parties, the district court explained the sentence it would impose. The court noted that there was no legal dispute concerning the Guidelines calculation and the resulting sentencing range. Th e court was concerned that the conviction triggering the § 4B1.5(a) enhancement was old, but concluded th at a prior adult conviction could trigger the enhancement regardless of when it occurred. The court went on to consider the § 3553(a) factors. The offense conduct was very serious , the court concluded, even though the intended victim happened to be an undercover police o fficer. Defendant suffere d a troubled upbringing,No. 13-3958 United States v. Babcock Page 4

but the court deemed this factor to be less im portant since danger to the public was a significant factor. Furthermore, Defendant’s criminal hi story was extensive and revealed “an escalating continuous pattern of illegal criminal behavior .” (R. 48, Sentencing Tr., at 165.) The court acknowledged the difficulties in determining future danger, but thought there were reasons to be
concerned about Defendant ’s behavior after his release, particularly since Defendant had committed at least one other crime involving a mi nor. After reiterating its concern about the vintage of the conviction that triggered the § 4B1.5(a) enhancement, the court sentenced Defendant to 190 months’ imprisonment and a life term of supe rvised release.

DISCUSSION
On appeal, Defendant challenges the app lication of the § 4B1.5( a) enhancement and asserts that the district court’s imposition of a life term of supervised release was procedurally
unreasonable. We review a di strict court’s sentence for procedural and substantive reasonableness, applying the a buse of discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). Our procedural reas onableness review includes dete rmining whether the district court properly calculated a defenda nt’s Guidelines sentencing range. See United States v. Seymour , 739 F.3d 923, 929 (6th Cir. 2014). We also re view the duration of supervised release
for abuse of discretion. See United States v. Stall , 581 F.3d 276, 283 (6th Cir. 2009).

However, Defendant concedes that he failed to object in the district court to either the § 4B1.5(a) enhancement or the length of supervised release. We thus review for plain error. See
United States v. Stock , 685 F.3d 621, 627 (6th Cir. 2012); United States v. Inman , 666 F.3d 1001, 1003 (6th Cir. 2012) (per curiam). “Under the plai n error standard of review, the defendant must show (1) there is error; (2) the error was clea r or obvious rather than subject to reasonable dispute; (3) it affected the defe ndant’s substantial righ ts, which in the ordinary case means it
affected the outcome of the dist rict court proceedings; and (4) it seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Massey , 663 F.3d 852, 856 (6th Cir. 2011) (quotation marks omitted). A pplying this more deferential standard of review, we turn to Defenda nt’s two grounds for appeal.No. 13-3958 United States v. Babcock Page 5

I. T HE § 4B1.5( A ) E NHANCEMENT
Section 4B1.5(a) imposes an increased offense level and a criminal history category of at least V on repeat child sex offende rs. As stated above, it applie s when three criteria are met: (1) the defendant’s offense of conviction is a “covered sex crime,” (2) the defendant is not a career offender, and (3) “the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offens e conviction.” U.S.S.G. § 4B1.5( a). Defendant concedes that
the first two elements are satisfied. He further does not dispute that the crime he pleaded guilty to in 1999, corruption of a minor in violation of Ohio Rev. Code § 2907.04, can qualify as a “sex
offense conviction.” See U.S.S.G. § 4B1.5 application note 3(A)(ii). However, Defendant argues that he did not commit the instant offens e “subsequent to” the 1999 conviction, since that conviction occurred too long ago.
In construing the Guidelines, we employ the tr aditional tools of statutory interpretation, beginning with the text’s plain meaning. See United States v. Jackson , 635 F.3d 205, 209 (6th Cir. 2011). Section 4B1.5(a) and its application notes do not exp licitly place a limitations period on otherwise-qualifying sex offense convictions. The plain meaning of the term “subsequent to” suggests that no such limitation exists. “S ubsequent to” ordinarily means “at a time later or more recent than; since,” Webster’s Third New Int’l Dictionary 2279 (2002), or “[f]ollowing on from; after.” Oxford English Dictionary (3d ed. 2012), available at http://www.oed.com/view/Entry/192976. These dict ionary definitions do not contain any time limitation—once an event occurs, all later ev ents happen “subsequent to” the former.
Defendant suggests, however, th at we must read § 4B1.5(a) in pari materia with the time limitations of § 4A1.2, under which certain sentences more than ten or fifteen years old do not count when tallying a defendant’s criminal hist ory category. Since the 1999 conviction did not add points to his criminal history category, Defendant argues that it should not be able to trigger the § 4B1.5(a) enhancement. We disagree. De fendant cannot support his argument that the time rules from § 4A1.2 apply to § 4B1.5 or to Chapter 4 of the Guidelines as a whole. In fact, the Guidelines show that just the opposite is true. Application note 3 to § 4B1.2, the section that provides definitions for the career offender Guidelin e, stipulates that “[t] he provisions of § 4A1.2 (Definitions and Instructions for Computing Crimin al History) are applicable to the counting ofNo. 13-3958 United States v. Babcock Page 6

convictions under § 4B1.1.” See also United States v. Baker , 559 F.3d 443, 450 (6th Cir. 2009). If the definitions of § 4A1.2 applied universally to Chapter 4 of the Guidelines, this application note would be entirely superfluous. 1 See Smith v. United States , 508 U.S. 223, 231 (1993).
The intent undergirding § 4B1.5(a) further s upports our interpretati on. The background to § 4B1.5 states that the Guideline “applies to of fenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the public. . . . [Congress] directed the Commission to ensure lengthy incar ceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors.” U.S.S.G. § 4B1.5 background. Th e Commission emphasized this harsh purpose when it enacted § 4B1.5: “This guideline provision effectuate s the Commission’s and Congress’s intent to punish repeat child sex offenders severely.” U. S.S.G. app. C, amend. 615. In other words, the expressed purpose of § 4B1.5(a) contains no hint of temporal limitations, and an explicit directive to sentence repeat child sex offenders sternly.

Defendant’s reliance on United States v. Nielsen , 694 F.3d 1032 (9th Cir. 2012), does not salvage his argument. This case addressed whet her juvenile adjudicati ons can count as prior convictions under § 4B1.5(a). See Nielson , 694 F.3d at 1037–38. The Ninth Circuit held they

cannot. See id. The court noted that the Guidelines explicitly state when they intend to encompass juvenile adjudications, and when th ey do, the Guidelines do not refer to these adjudications with the term “conviction.” See id. Furthermore, the Ninth Circuit’s interpretation “comport[ed] with the rule of lenity.” Id. at 1038. By contrast, the case before us now does not concern juvenile adjudications, nor does it implic ate the type of clear statement rule that supported the Ninth Circuit’s ruling. 2

1 Defendant’s citation to United States v. Graham , 622 F.3d 445 (6th Cir. 2010), is entirely off-base. The question before us in Graham was “whether a ‘prior conviction’ stemming from a juvenile action, treated as adult for prosecution and sentencing purposes under state law, that qualifies as a ‘felony drug offense’ under the [21 U.S.C.] § 802(44) definition qualifies as a ‘prior conviction’ for [21 U.S.C.] § 841(b)(1)(A) mandatory minimum purposes.” Id. at 456. We held that the district court had pr operly considered such a conviction when determining which mandatory minimum applied. See id. at 457. En route, we rejected the defendant’s analogy to the time limitations of § 4A1.2: “Unlike the Guidelines, § 841(b)(1)(A) does not include a temporal limit.” Id. at 461. Defendant claims this statement shows that the time rules from § 4A1.2 apply to Chapter 4 of the Guidelines as a whole. Graham says no such thing.

2 Defendant does not argue that an Alford plea cannot constitute a prior sex offense conviction under § 4B1.5(a). As a result, we assume that the Alford plea does not affect the application of the enhancement. Cf.No. 13-3958 United States v. Babcock Page 7

The Guidelines’ plain language, context, and in tent all point to a single conclusion—an adult sex offense conviction can trigger the § 4B1.5(a) enhancement regardless of when it occurred. Defendant is not a career offender, and committed the instant sex crime “subsequent to sustaining at least one sex offense convicti on.” U.S.S.G. § 4B1.5(a). The district court therefore did not err when it applied this enha ncement. Of course, our conclusion does not deprive district courts of their discretion to consider the vintage of a prior sex offense conviction when determining the appropriate sentence. The district court in this case sentenced Defendant to a prison term significantly below the advisory Guidelines sentencing range, in part because the prior conviction occurred more than ten years before Defendant committed the instant offense. Sentencing judges have the discretion to emulate this approach in the future.

II. T HE L IFE T ERM OF S UPERVISED R ELEASE
Defendant next argues that the district cour t committed procedural error when it imposed a life term of supervised release. “Congress in sists that lifetime supervision be available to courts in sentencing sexual offenders.” United States v. Kennedy , 499 F.3d 547, 553 (6th Cir. 2007). The district court in this case had to sentence Defendant to at least five years of supervised release, and was permitted to impose a life term. See 18 U.S.C. § 3583(k). The Guidelines urge district courts to impose th e maximum term available for sex offenders. See U.S.S.G. § 5D1.2(b). Section 4B1 .5 carries its own presumption th at a life term of supervised release is appropriate. See U.S.S.G. § 4B1.5 application note 5(A) . It was the job of the district
court to consider these Guidelines and the re levant sentencing factor s from 18 U.S.C. § 3553(a) to determine what duration of supe rvised release was appropriate. See 18 U.S.C. § 3583(c).
Although the Guidelines counsel a lifetime of supervision, the district court still had to explain why it chose this term. See United States v. Inman , 666 F.3d 1001, 1004 (6th Cir. 2012) (per curiam). “Without proper analysis and an expl anation for the length of the supervised release term chosen, we cannot review the reasonableness of the sentence as imposed.” Id. The district court did not explicitly give its reasoning for selecting a life term, but the court did fully explain why it concluded that 190 months of in carceration was appropriate. “In outlining its

United States v. Leach , 491 F.3d 858, 867 (8th Cir. 2007) (holding that “the term ‘conviction’ in § 4B1.5(a) [] only requir[es] an adjudication of guilt”).No. 13-3958 United States v. Babcock Page 8

reasons for imposing the sentence of incarceration . . . the district court was also outlining the reasons supporting the [term] of supervised release,” even though the court did not do so explicitly. United States v. Zobel , 696 F.3d 558, 572 (6th Cir. 2012).

But Defendant contends that our decision in Inman requires us to vacate his term of supervised release. The defendant in Inman was sentenced to 57 mont hs’ imprisonment after pleading guilty to possession of child pornography. See Inman , 666 F.3d at 1003. Although the defendant and the government agreed that a ten-y ear term of supervised release was appropriate, the court ordered lifetime supe rvision without explanation. See id. at 1003–04. The court also imposed several onerous conditions of supervised release addressing substa nce abuse, electronics the defendant could own, and financial informati on the defendant would be required to hand over to his probation officer. See id. at 1004–06. Again, the court did not explain the need for these conditions and we found little supp ort for them in the record. See id. Considering all of these factors, we held that the district court had co mmitted plain error, which required us to vacate the sentence and remand for resentencing. See id. at 1006–07.

Inman does not compel the same result here. Defendant pleaded guilty to attempting to entice a minor to engage in sexual conduct, not possession of child pornography. Defendant’s crime and criminal history warranted the repeat child sex offender enhancement—not at issue in
Inman —which carries its own recommendation of lif etime supervision. Section 4B1.5(a) only applies where the defendant has committed more than one sex offense—that is, where the defendant has already proved to be a continuing risk to the community. Unlike in Inman , the government in this case request ed a life term of supervised release. And unlike in Inman , Defendant does not challenge any onerous or unus ual conditions of superv ised release. Under these circumstances, we cannot conc lude that “the length of superv ised release . . . [is] likely
more severe than if the district cour t had followed the correct procedures.” Id. at 1007. Thus
Defendant cannot show that the district court’s failure to e xplicitly lay out the reasoning supporting a life term of supervis ed release was plain error.

CONCLUSION
For the foregoing reasons, we AFFIRM the district court in full.