United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40332

____________

United States of America, 

Plaintiff—Appellee,

versus

Ehab Sadeek, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 2:20-CR-853-1

______________________________

Before Clement, Elrod, and Willett, Circuit Judges.

Per Curiam:

Ehab Sadeek was convicted of enticement of a minor, travel with 

intent to engage in illicit sexual conduct, and transfer of obscene material to 

a minor. A total offense level of 41 and a criminal history category of I yielded 

a guideline imprisonment range of 324 to 405 months. The district court 

adopted the Pre-Sentence Report and sentenced him to 405 months in 

prison, a life term of supervised release, a $300 special assessment ($100 for 

each count), and a $15,000 Justice for Victims of Trafficking Act special 

assessment ($5,000 for each count). Sadeek timely appealed. On appeal, he

raises multiple challenges to his sentence. Because the district court erred in 

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2023

Lyle W. Cayce

Clerk

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imposing the Justice for Victims of Trafficking Act special assessment for 

count three of Sadeek’s conviction, we VACATE the district court’s 

judgment as to that special assessment. Because the district court correctly 

interpreted and applied the Sentencing Guidelines, we otherwise AFFIRM

the district court’s judgment as to Sadeek’s conviction and sentence.

I.

Sadeek met K.B. online and began chatting through a messaging 

platform. K.B. advised Sadeek from the outset that she was 13 years old. 

Initially the messages were polite, but eventually Sadeek’s messages became 

sexual in nature. He sent K.B. images of his penis and videos of him 

masturbating, professed his love for K.B., and told her that he was going to 

take her to Massachusetts where he lived and that he would visit her in Texas. 

K.B. gave him her address. Sadeek flew to Texas, rented a car, and went to 

her home.

When Sadeek arrived, K.B. led him to the backyard, near an old barn, 

and Sadeek began kissing and groping her as they were talking. K.B. kept 

trying to stop Sadeek, but he ultimately “bear hugged” her and forced her to 

perform oral sex, holding the back of her head with his hand so that she could 

not stop. Sadeek left in search of food, and when he came back the two ate 

behind the barn. He then again started kissing K.B., and despite her protests, 

he “pushed her against a wall” and began assaulting her. He left that night 

and slept at a hotel. 

The next day Sadeek returned, and this time came into K.B.’s home. 

He brought food and clothes, including lingerie. After some pleading, he 

convinced K.B. to wear a dress he brought, then “threw K.B. on her bed so 

hard that it hurt her.” He proceeded to rape K.B. multiple times. When she 

tried to pull away, he “grabbed her legs and pulled her towards him.” K.B. 

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suffered physical injures, which were confirmed during a hospital 

examination. 

On appeal, Sadeek raises three challenges to his sentence. Two of his 

challenges relate to the calculation of his base offense level. In calculating the 

base offense level for count one, enticement of a minor, the Pre-Sentence 

Report applied the cross-reference to the offense level in U.S.S.G. § 2A3.1, 

the Guideline for criminal sexual abuse. Sadeek argues that the district court 

clearly erred by applying the cross-reference to § 2A3.1 based on a finding 

that he engaged in sexual acts by using force or placing the victim in fear. The 

Pre-Sentence Report also included an enhancement for engaging in a pattern 

of prohibited sexual conduct, which Sadeek objected to in the district court 

and challenges on appeal. Also, Sadeek challenges the imposition of a $5,000 

Justice for Victims of Trafficking Act special assessment for his conviction 

for the transfer of obscene materials to a minor.1

II.

This court conducts a bifurcated review of a district court’s 

sentencing determination. United States v. Robinson, 741 F.3d 588, 598 (5th 

Cir. 2014). We must first determine whether the district court committed a 

“significant procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as mandatory, 

_____________________

1 The government agrees that the district court erred by imposing this special 

assessment, as this assessment does not apply to Sadeek’s conviction under count three for 

transfer of obscene material to a minor in violation of § 1470, which falls under Chapter 71 

(relating to obscenity). 18 U.S.C. § 3014(a) (obscenity offenses in Chapter 71 are not 

subjected to the Justice for Victims of Trafficking Act special assessment). Therefore, we 

vacate the district court’s judgment as to its imposition of this $5,000 special assessment 

under the Justice for Victims of Trafficking Act. See United States v. Senke, 986 F.3d 300, 

320 (3d Cir. 2021) (vacating a plainly erroneous Justice for Victims of Trafficking special 

assessment, but otherwise affirming the conviction and sentence). 

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failing to consider the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence.” Gall 

v. United States, 552 U.S. 38, 51 (2007). Second, if there is no procedural 

error or if the procedural error is harmless, this court reviews the substantive 

reasonableness of the sentence for abuse of discretion. Robinson, 741 F.3d at 

598.

We review the district court’s application and interpretation of the 

Guidelines de novo. Id. The district court’s factual findings “are entitled to 

considerable deference and will be reversed only if they are clearly 

erroneous.” United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010) (quoting 

United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)). “A factual 

finding is clearly erroneous if, after reviewing the entire evidence, the 

reviewing court is left with the definite and firm conviction that a mistake has 

been committed.” Id. (quoting United States v. Castillo, 430 F.3d 230, 238 

(5th Cir. 2005)). 

III. Application of the Cross-Reference to § 2A3.1

In his first challenge to the district court’s sentence, Sadeek argues 

that the district court made an erroneous guideline calculation when it 

applied the cross-reference to § 2A3.1. Sadeek contends that the crossreference was inappropriate because the record does not support a factual 

finding that he used force or threats. 

The guideline provision for enticement of a minor in violation of 

§ 2422(b) is generally § 2G1.3(a)(3) and establishes a base offense level of 28. 

See § 2G1.3(a)(3). But § 2G1.3(c) contains three cross-references that apply 

under circumstances meriting a more severe sentencing framework. See

§ 2G1.3(c)(1)-(3). The district court applied the third cross-reference, which 

states:

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If the offense involved conduct described in 18 U.S.C. § 2241 

or § 2242, apply § 2A3.1 (Criminal Sexual Abuse; Attempt to 

Commit Criminal Sexual Abuse), if the resulting offense level 

is greater than that determined [under Section 2G1.3(a)].

U.S.S.G. § 2G1.3(c)(3).

Sadeek contends that the offense did not involve conduct described in 

§ 2241 or § 2242. The application of this cross-reference to § 2A3.1 is 

appropriate if Sadeek’s conduct is analogous to either a violation of § 2241 or 

§ 2242. Here, we conclude that Sadeek both used force within the meaning 

of § 2241 and caused K.B. to engage in sexual acts by placing her in fear within 

the meaning of § 2242. Accordingly, the enhancement was not error. 

A. Use of Force as described by 18 U.S.C. § 2241

Conduct described by § 2241 includes “engaging in, or causing 

another person to engage in, a sexual act with another person . . . using force 

against the minor.” § 2G1.3, cmt. n.5(B)(i). This court has addressed the 

differing levels of force required to violate § 2241. In United States v. Lucas, 

the court explained that “[a] defendant uses force within the meaning of 

§ 2241 when he employs restraint sufficient to prevent the victim from 

escaping the sexual conduct.” 157 F.3d 998, 1002 (5th Cir. 1998). “[F]orce 

can be implied from a disparity in size and coercive power between the 

defendant and his victim, as for example when the defendant is an adult male 

and the victim is a child.” Id. 

The Pre-Sentence Report establishes that Sadeek used force within 

the meaning of § 2241 by employing restraint sufficient to prevent K.B. from 

escaping the sexual conduct. According to the Pre-Sentence Report, after 

Sadeek arrived in the backyard he kissed and groped K.B., even though K.B. 

“kept trying to stop [him].” He then “bear hugged [her],” smashing her 

glasses against her face, and told her to perform oral sex. Though K.B. did 

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not want to, Sadeek held his hand on the back of her head and kept it there. 

Later that night he pushed K.B, so that her face was against a wall, and rubbed 

his penis against her, while she repeatedly asked him to stop. The next day, 

Sadeek “threw K.B. on her bed so hard that it hurt her,” and began raping 

her. She pleaded with him to stop, and started feeling like she could not 

breathe because he was “crushing [her] with his weight.” When she pulled 

away, he grabbed her legs and pulled her back towards him. 

Sadeek raped K.B. multiple times while physically preventing her 

escape, physically restraining her, and crushing her to the point of her being 

unable to breathe. Therefore, there was certainly sufficient evidence that 

Sadeek’s conduct fell within § 2241. See United States v. Simmons, 470 F.3d 

1115, 1121 (5th Cir. 2006) (holding that the evidence was sufficient to support 

an aggravated sexual abuse conviction under § 2241 where the defendant 

forced the victim to perform oral sex by pulling her head and where she was 

unable to escape the rape because he pinned her between his body and his 

vehicle); United States v. Carey, 589 F.3d 187, 195 (5th Cir. 2009) (concluding 

that defendant’s act of choking the victim, which prevented her from 

breathing, fell within § 2241); Lucas, 157 F.3d at 1002 n.9 (defendant’s 

“pressing the victim against a table and thereby blocking her means of egress 

suffices to constitute force within the meaning of § 2241”); United States v. 

Bowman, 632 F.3d 906, 912 (5th Cir. 2011) (“By shoving the victim against 

the car door and forcing her to engage in sexual conduct, [defendant] clearly 

employed restraint sufficient to prevent the victim from escaping from the 

back seat.”). Therefore, the cross-reference to § 2A1.3 was appropriate. 

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B. Use of Threats as described by 18 U.S.C. § 2242

Though a finding that Sadeek’s conduct also fell within § 2242 is not 

necessary, the evidence also demonstratesthat Sadeek caused K.B. to engage 

in sexual acts by placing her in fear within the meaning of § 2242. 

Conduct described by § 2242 includes “engaging in, or causing 

another person to engage in, a sexual act with another person by threatening 

or placing the minor in fear (other than by threatening or placing the minor 

in fear that any person will be subject to death, serious bodily injury, or 

kidnapping).” § 2G1.3, cmt. n.5(B)(iii).

In Lucas, the court explained that for purposes of § 2242, fear has a 

“very broad” definition and can be “inferred from the circumstances, 

particularly a disparity in power between defendant and victim.” 157 F.3d at 

1002; see also id. at 1002-03 (concluding that the disparity in power between 

a prison warden and the victim, who was an inmate, was sufficient to imply 

fear). “This element is satisfied when the defendant’s actions implicitly 

place the victim in fear of some bodily harm.” Id. 

The evidence demonstrates that Sadeek caused K.B. to engage in 

sexual acts by placing her in fear of some bodily harm within the meaning of 

§ 2242. After Sadeek’s first day with K.B., where he held her head, forced 

her to perform oral sex, and pushed her against a wall while groping her, she 

was left shaking, scared, nauseous, and feeling like she was having a panic 

attack. K.B. said that, on the second day, after Sadeek refused to stop kissing 

and groping her, threw her on the bed, and refused to stop painful vaginal 

penetration, she was “too frightened of his physical strength to resist or try 

to escape from him.” 

The conclusion by the district court that there was sufficient force 

involved to apply the cross-reference is, at the very least, “plausible in light 

of the record as a whole.” See Mata, 624 F.3d at 173.

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IV. Application of the § 4B1.5(b)(1) enhancement

Sadeek next contends that the district court clearly erred by applying 

the § 4B1.5(b)(1) enhancement after finding that Sadeek engaged in a pattern 

of prohibited sexual activity. 

Under § 4B1.5(b)(1), the district court shall apply a five-level 

enhancement when the offense of conviction is a covered sex crime and the 

defendant has “engaged in a pattern of activity involving prohibited sexual 

conduct.” Sadeek recognizes that his convictions under counts one and 

two—enticement of a minor in violation of § 2422(b) and travel with intent 

to engage in illicit sexual conduct in violation of § 2423(b)—are “covered sex 

crime[s].” § 4B1.5, cmt. n.2(A)(iii). Therefore, the only disputed issue is 

whether Sadeek’s conduct, sexually assaulting the minor victim over the 

course of two days, constitutes a pattern of prohibited sexual conduct. 

A pattern of prohibited sexual conduct is established “if on at least 

two separate occasions, the defendant engaged in prohibited sexual conduct 

with a minor.” § 4B1.5, cmt. n.4(B)(i). An occasion of prohibited sexual 

conduct can be considered “without regard to whether [it] occurred during 

the course of the instant offense.” Id. cmt. n.4(B)(ii). However, the phrase 

“at least two separate occasions” is not defined by § 4B1.5 or its 

commentary. 

Sadeek objected to the enhancement, arguing that this sexual assault 

occurred on two consecutive days for a single victim, rather than over a 

“substantial period of time.” The phrase “substantial period of time” does 

not appear anywhere in this guideline enhancement. Rather, Sadeek wishes 

for the court to read this language into the guideline because this 

enhancement is located in the Career Offenders and Criminal Livelihood 

section of the Guidelines, and a different enhancement (§ 4B1.3 relating to 

criminal conduct engaged in as a livelihood) defines “pattern of criminal 

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conduct” as “criminal acts occurring over a substantial period of time.” 

When interpreting § 4B1.5, this court will apply the text of § 4B1.5, not the 

language of the numerous other enhancements located elsewhere in Chapter 

4. 

This court has not addressed the meaning of “separate occasions” in 

the context of § 4B1.5(b)(1). Other circuits have applied the plain meaning

of § 4B1.5 and concluded that the enhancement applies in cases where the 

prohibited activity occurred on consecutive days, so long as there were at 

least two separate instances of prohibited conduct. United States v. Telles, 18 

F.4th 290, 303 (9th Cir. 2021) (concluding that the enhancement applied 

where the victim was sexually abused on two separate occasions—the first 

night of the defendant’s trip and then again the second night of his trip); see

also United States v. Wandahsega, 924 F.3d 868, 886-87 (6th Cir. 2019) 

(upholding a finding of a pattern of prohibited sexual conduct where the 

evidence established that the defendant had “touched [the victim’s] genitals 

more than one time on different days”); United States v. Fleetwood, 457 F. 

App’x 591, 591-92 (8th Cir. 2012) (holding that sexual abuse occurring three 

times during a three-day trip and “at least two or three” times thereafter was 

“at least five separate occasions” for purposes of § 4B1.5(b)(1)). 

No circuit has overturned the application of § 4B1.5(b)(1) because the 

“separate occasions” of prohibited conduct occurred too close together in 

time. Sadeek does not identify any case law establishing that his conduct on 

two different days should constitute a single occasion of abuse, or establishing 

that the prohibited sexual acts must continue for a certain period of time or 

occur on a certain number of occasions to constitute a pattern.

 Therefore, we follow our sister courts by holding that the 

commission of distinct sexual assaults constitute “separate occasions,”

whether on the same or different days, for purposes of § 4B1.5(b)(1). 

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In this case, Sadeek first met K.B. in the backyard of her home where 

he kissed and groped her, and then forced her to perform oral sex. Later that 

evening, after leaving and returning with food, Sadeek pushed K.B. against a 

wall and forcibly rubbed his penis against her. The following day, after 

leaving to spend the night at a hotel, Sadeek came into K.B.’s home, threw 

her on the bed and raped her multiple times. At a minimum, the first 

encounter involving forced oral sex and third encounter the following day 

involving multiple instances of rape qualify as two “separate occasions” 

under § 4B1.5(b)(1), as the guideline requires. 

* * *

Accordingly, we AFFIRM the district court’s judgment as to

Sadeek’s conviction and sentence, except as to the $5,000 special assessment 

under the Justice for Victims of Trafficking Act for count three of Sadeek’s 

conviction, which we VACATE. 

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