UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before GORSUCH , MURPHY , and MORITZ , Circuit Judges.

________________ _________________ Dennis Mullins pled guilty to transpor ting 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. proba tion officer consider ed statements from Mullins’ adult children alleging Mullins had sexually abused them as minors. Relying on these statements, the probation officer c oncluded Mullins engaged in “a pattern of activity involving the sexual abuse or exploitation of a minor,” and applied a fivelevel 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32 .1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 18, 2015 Elisabeth A. Shumaker Clerk of Court2 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 sentenci ng, and the allegations were hearsay and otherwise unreliable. The dist rict court overruled his objecti ons and, in view of the recommended sentencing range in the PSI R, sentenced Mullins to the statutory maximum 240 months on each count to be served concurrently . Mullins appeals his sentence as violating his Fi fth and Sixth Amendment right s and as being unsupported by the evidence. Finding no error in the district court’s se ntence, we affirm. B ACKGROUND In October 2013, a detective with the Canadian County, Oklahoma Sheriff’s Office identified an Internet Protocol (IP ) address that appear ed to be downloading files depicting child pornography. The det ective connected to th e IP address using eMule peer-to-peer software and succes sfully downloaded a 30-minute video depicting child pornography. The sheriff’ s office obtained a warrant for account information linked to the IP address, de termined the account belonged to Mullins, and executed a search warrant on his home. During the search, inve stigators seized a computer and other digital devices storing over 200 still images and ove r 400 videos depicting child pornography. The governme nt charged Mullins with transporting child pornography in intersta te commerce in violation of 18 U.S.C. § 2252(a)(1) and3 receiving child pornography in vi olation of 18 U.S.C. § 2252( a)(2). He pled guilty to both counts. In preparing Mullins’ PSIR, the probati on 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-act ivity” enhancement under § 2G2.2(b)(5) which provides, “If the defe ndant 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 “pat tern of activity” as “any combination of two or more separate instan ces of the sexual abuse or se xual exploitation of a minor by the defendant, whether or not the abus e or exploitation (A) occurred during the course of the offense; (B) involved the sa me 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 patternof-activity enhancement. Gerten testified that during his se arch of Mullins’ residence, Mullins’ wife, Rhonda Mullins, informed Gerten that Mu llins’ 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 c onfronted Mullins about “what he had done.” R. vol. 2, at 22 (sealed) . Without providing de tails, Mrs. Mullins implied Mullins had inapprop riately touched her son wh en her son was a minor.4 In view of these remarks, Gerten and another inves tigator from the Canadian County Sheriff’s Office, Ad am Flowers, contacted and interviewed each of Mullins’ children. 1 Gerten interviewed Mullins’ oldest daught er, 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 handwr itten statement repeating the al legations. But before Mullins’ sentencing, D.L. recanted the portion of her statement accusing Mullins of placing his hand in her underwear. Flowers interviewed Mullins’ younge r daughter, J.C., by telephone. J.C. reported that when she was 13, she went to visit her father for tw o weeks. During this time, Mullins touched her breasts and buttock s, asked her to expo se her bare breasts, and watched her bathe and change clothes. At Mullins’ direction, J.C. contacted her mother and obtained approval to extend he r visit for several months. During these months, Mullins escalated his abuse to incl ude touching J.C. un der her clothes and ultimately engaging in sexual intercourse w ith her. J.C. reported that she lost her

1 To protect the identities of Mull ins’ children, the government sought permission to file its res ponse brief under seal. The moti on was provisionally granted subject to this panel’s fina l approval. Following oral ar gument, 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 ac cess to court records and privacy interests that can overcome presumption).5 virginity to Mullins and esti mated they had sexual intercourse on 20 occasions. She explained that she only now remembered th ese events as a resu lt of hypnotherapy. Gerten and Flowers interviewed Mullins’ stepson, M.W., in person. M.W. told investigators that Mullins showed hi m pornographic material on many occasions, beginning when he was in th ird 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 th an 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 ev entually ended the abuse. Following Gerten’s testimony, Mullins ad dressed the court but neither denied nor confirmed the allegations . Instead, he indicated he couldn’t recall any of the alleged incidents. Although M.W. attende d the sentencing hearing, neither party called him to testify. In view of Mullins’ children’s detailed statements, the distri ct court found by a preponderance of the eviden ce 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 offens e level of 39, which corresponded to a recommended sentence of 262-32 7 months’ imprisonment. To fall within this range, the proba tion 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 distri ct court sentenced Mullins to the statutory maxi mum on each count to be serv ed concurrently, totaling6 240 months, a term 22 mont hs below the Guidelines range. Mullins repeatedly objected to the pattern-of-activity enhan cement at sentencing, and now appeals. D ISCUSSION I. The district court’s application of the pattern-of-activity enhancement didn’t violate Mullins’ constitutional rights. Mullins first argues his se ntence is procedura lly and substantively unreasonable because the district court’s a pplication of the five-level, pattern-ofactivity enhancement violated his Fifth and Sixth Amendment rights. 2 Because Mullins properly preserved his objections be low, 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 “rev iew 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 th e enhancement violated his Sixth Amendment rights because a j udge rather than a jury f ound the facts supporting the

2 Although Mullins characterizes his sent encing challenge as both procedural and substantive, his arguments appear purely procedural. See Gall v. United States , 552 U.S. 38, 51 (2007) (distinguishing pro cedural and substantive reasonableness); United States v. Lucero , 747 F.3d 1242, 1246 (10th Cir. 2014) (categorizing defendant’s appeal of distri ct court’s application of pa ttern-of-activity enhancement under § 2G2.2(b)(5) as procedural). Noneth eless, this court’s standard of review (abuse of discretion) is the same under either challenge. See Lucero , 747 F.3d at 1251.7 enhancement, increasing his Guidelines range from 151-188 months to 262-327 months. This is a purely legal question we revi ew 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, 49 0 (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 e nhancement as long as the resulting Guidelines range isn’t applied in a binding wa y altering the prescribed statutory sentence. See Alleyne , 133 S. Ct. at 2163; Cassius , 777 F.3d at 1097. Nothing in the record indi cates the district court a pplied the Guidelines in a binding way in this case. Indeed, the opposite is true. The distri ct court sentenced Mullins to 240 months im prisonment, a term belo w the minimum 262 months recommended by the Guidelines, 3 and within the prescribed statutory range. See 18 U.S.C. § 2252(b)(1) (prescribi ng a statutory sentence of 60 to 240 months for each count). At most, the district court refere nced the calculated Gu idelines 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 th e record indicates the district

3 The district court could have or dered 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, re sulting in a total term below the minimum 262 months recommended by the Guidelines.8 court increased Defendant’s statutory sentencing range or otherwise altered his legally prescribed punishment; rather, by a ll 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 dist rict 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 re view de novo. Cassius , 777 F.3d at 1096. 1. Preponderance of th e evidence standard Mullins contends the district court violat ed his due process ri ght by applying a preponderance of the evidence standard to factual findings supporting the enhancement. Like Mullins’ Si xth Amendment challenge, this argument is foreclosed by precedent. The Fifth Amendment requires proof beyo nd a reasonable doubt “of any fact that increases [a] sentence beyond what co uld 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 doubt9 so long as the facts don’t increase the prescribed statutory sentence. United States v. Ray , 704 F.3d 1307, 1314 (10th Cir. 2013). Inst ead, a district cour t is permitted to find facts supporting a Guide lines enhancement by a prepon derance 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 f ound by the district court under a preponderance of the evidence st andard 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 mo st, to influence its calculati on 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 a lleged 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 c ontrolling 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.10 Neighbors , 23 F.3d 306, 311 (10t h 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 cont ains no temporal limitations. Lucero , 747 F.3d at 1247 (concluding “§ 2G2.2(b)(5) may apply regard less 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 plai n-error or abuse-ofdiscretion review. Id. at 1247. Further, we see no indi cation that Lucero’s admission of the underlying conduct impacted our d ecision in that case; nor do we see the relevance of such an admission to the le gal question at issue—whether § 2G2.2(b)(5) includes a temporal limitation. We are similarly unpersuaded by Mu llins’ effort to distinguish Lucero based on Lucero’s failure to assert the constitutional challenge s raised here. We have previously rejected the sugge stion that the Fifth and Sixt h Amendments require facts supporting a Guidelines sent encing enhancement be submitt ed 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 cour t considered such arguments.11 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 violat es 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 ra tionale for permitting a pattern-of-activity enhancement in cases concerning sexual abuse and exploitati on 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 sexua l abuse and exploitation of children. Therefore, the consideration of ev en remote-in-time conduct is not irrational in applying the “pa ttern 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 ci rcuits 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 distingui sh 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 define d in § 1B1.3 of the Guidelin es—that is, conduct that is factually and temporally li mited to the charged offens e. He urges us to avoid12 extending our precedent to the instant patt ern-of-activity enhancement because the conduct underlying this enhancement is arguably un related, and thus should be afforded additional procedural safeguards. Mullins failure to raise this argument in his opening brie f 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 Guidelin es contradict his position. See U.S.S.G. § 2G2.2 cmt. n.1 (“‘Pattern of activity involving the sexu al 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) invol ved the same minor . . . . ” (emphasis added)). More importan tly, 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 rela ted to the offense for which the defendant is being sentenced .” (emphasis added)); see also Bacon , 646 F.3d at 221 (finding no temporal or c ontextual constraint in a pplying § 2G2.2(b)(5) and noting “‘relevant conduct’ unde r § 2G2.2 is intended to be more broadly construed than the general relevancy pr ovisions found in § 1B1.3”). We thus hold the district court didn’t violate Mullins’ Fift h Amendment due process rights. II. The record supports the district cour t’s application ofthe pattern-ofactivity enhancement. Relying on the statements of Mullins’ children, the district court found by a preponderance of the evidence that Mullins engaged in a pa ttern of activity involving13 the sexual abuse or exploita tion 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 fail ed to provide specific details regarding the time and location of the alleged incidents, the incidents we ren’t contemporaneously investigated by law enforcement, and the accusati ons are hearsay. He furt her 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 stat ement is additionally unrelia ble 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, rememb ering 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 c ourts historically rely on a wide array of information

4 D.L. initially said Mu llins 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 “s exual abuse or explo itation of a minor” as conduct described in, among ot her sections irrelevant he re, 18 U.S.C. §§ 2241-2243. U.S.S.G. § 2G2.2 cmt. n.1. Each of those provisions require a “se xual act,” which, as defined in 18 U.S.C. § 2246(2), doesn’t include over-the-c lothes touching.14 relevant to the individualized needs of the offender, including hearsay evidence containing a minimal i ndicia of reliability.” Ruby , 706 F.3d at 1227. For example, we’ve held a district c ourt didn’t err in granting an upward variance from the Guidelines range ba sed on detectives’ testimony regarding interviews with allege d sexual-abuse victims. United States v. Caiba-Antele , 705 F.3d 1162, 1166 (10th Cir. 201 2). There, we found the test imony sufficiently reliable because the detectives observed the vict ims firsthand, each victim’s testimony corroborated the type of abuse testified to by the others, and the victims didn’t change their testimony af ter initial interviews. Id . Similarly, we’ve upheld a district court’s application of a felony-menaci ng enhancement based on a police report containing witnesses’ accounts of a crime because officer s personally observed the witnesses and the witnesses corroborated each other. Cook , 550 F.3d at 1297. On the other hand, we’ve reversed th e district court’s application of a felonious-assault enhancement based on a probation officer’s report containing statements from a defe ndant’s girlfriend. United States v. Fennell , 65 F.3d 812, 813 (10th Cir. 1995). There, we concluded the report lacked mi nimal indicia of reliability because it included only th e girlfriend’s unsworn allega tions made during a telephone interview . Id. With this precedent as b ackground, we first consid er the investigators’ interview of M.W., Mullins’ stepson. Gerten and Flow ers personally interviewed M.W. and thus could observe his demeanor and form opi nions as to his veracity. Further, Mrs. Mullins corroborated M.W.’s statements to some extent when she15 reported to Gerten that M.W. had recently confronted Mullins about “what he had done” and she implied that Mullins had inappr opriately touched her son. R. vol. 2, at 22 (sealed). Perhaps most si gnificant, when Mullins addre ssed 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 Guidelin es 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 Gert en sexual abuse that occurred “[o]ver a period of time.” R. vol. 2, at 25 (seale d). 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” masturba ting M.W. M.W. told Gerten that he trusted Mullins and initially didn’t think Mullins actions were wrong, but “it bothe red him as he got older,” and Mullins “eventually stopped.” Id. Under these circumstances, we conclude the district cour t could reasonably have concluded Gerten’s testimony rega rding 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 inst ances of sexual abuse16 and supported application of the pattern-of-activity e nhancement. Thus, without deciding the independent reliability of Mull ins’ daughters’ statements, we conclude the district court didn’t clearly e rr in applying the enhancement. C ONCLUSION We find no constitutional defect in th e district court finding facts by a preponderance of the evidence to determ ine a nonbinding sentencing range under the Guidelines. And we find no clear error in the district cour t’s evidentiary findings that support the pattern-of-activity enhan cement. Accordingly, we affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge