United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-1471

___________

United States of America, * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Tyler M. Leach, * 

* 

Appellee. *

___________

Submitted: February 14, 2007

Filed: June 22, 2007

___________

Before WOLLMAN, BYE, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Tyler Leach pleaded guilty, pursuant to a plea agreement, to knowingly using

a facility of interstate commerce to attempt to persuade, induce, and entice a minor to

engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). In sentencing

Leach, the district court declined to apply enhancements advocated by the government

under U.S.S.G. § 4B1.5(a) or, alternatively, under § 4B1.5(b). Leach was sentenced

to 72 months' imprisonment. The government appeals the district court's decision that

neither enhancement applies. We reverse.
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I. Background

On February 22, 2005, Leach pleaded guilty in Kansas state court to attempted

aggravated criminal sodomy with a child under the age of 14 years ("the Kansas

offense"). The Kansas offense involved Leach receiving oral sex from a 13-year old

girl that he had met in an internet chat-room. Leach's sentencing on that offense was

set for March 15, 2005. 

On March 8, 2005, one week before his scheduled sentencing on the Kansas

offense, Leach conversed in a chat-room with someone that he thought was a 14-year

old girl named "Amber." However, "Amber" was actually an undercover FBI agent.

Leach's conversations with "Amber" quickly became sexual. The next day, Leach

again contacted "Amber" and made arrangements to travel from his residence in

Lawrence, Kansas, to her residence in Kansas City, Missouri, to engage in sexual

activity. On March 10, 2005, Leach arrived at the Kansas City, Missouri address

provided by "Amber," and was arrested by federal agents. During a post-arrest

interview, Leach admitted that he had arranged to have vaginal and oral sex with

"Amber," whom he believed to be a 14-year old girl. Because of Leach's arrest, his

sentencing on the Kansas offense did not occur as scheduled.

The government charged Leach in a three-count federal indictment with

knowingly using a facility of interstate commerce to attempt to entice a minor into

engaging in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) (Count One);

traveling in interstate commerce for the purpose of engaging in illicit sexual conduct

with another person, in violation of 18 U.S.C. § 2423(b) (Count Two); and criminal

forfeiture, pursuant to 18 U.S.C. § 2253 (Count Three). Leach entered into a plea

agreement, pleading guilty to Count One in return for the government dropping the

remaining counts. In the plea agreement, Leach acknowledged that he was subject to

a 5-year minimum and a 60-year maximum sentence under 18 U.S.C. § 2426(a)
1

The Guidelines range would have been 51–63 months, if not for the statutory

minimum sentence of 60 months.

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because his federal "offense occurred after [Leach] had a prior sex offense

conviction."

The parties stipulated in the plea agreement that: (1)"the applicable Guidelines

section for the offense was U.S.S.G. § 2G1.3 (Travel to engage in prohibited sexual

conduct with a minor);" (2) "the base level offense is 24 pursuant to U.S.S.G. §

2G1.3(a);" (3) Leach was subject to a two-level enhancement pursuant to U.S.S.G. §

2G2.2(b)(3)(A) because the offense involved the use of a computer; (4) Leach was

entitled to a three-level reduction for acceptance of responsibility; (5) "there [was] no

agreement between the parties regarding the defendant's criminal history category;"

(6) neither party would seek a departure from the applicable guidelines range; and (7)

the court would determine the "applicable criminal history category after receipt of the

presentence investigation report." 

Additionally, the plea agreement limited its scope to issues explicitly addressed

therein and had no effect on any unmentioned Sentencing Guidelines issues. As to any

unmentioned issues, "the parties were free to advocate their respective positions at the

sentencing hearing." It is undisputed that the plea agreement was negotiated without

any consideration of U.S.S.G. § 4B1.5. In fact, the government acknowledges that it

was "completely unaware" of the potential applicability of the enhancement when it

negotiated and executed the plea agreement. 

The presentence investigation report ("PSR") was prepared on October 3, 2005,

and revised, along with an addendum, on November 3, 2005. The PSR concluded that

Leach's Guidelines range was 60–63 months1

 based on an offense level of 23 and

criminal history category of II. Neither party objected to these calculations.

Thereafter, on November 10, 2005, the probation office filed a second addendum to
2

After the court ruled that § 4B1.5(a) did not apply, Leach stated for the record

that in the event the court's decision on the enhancement was overturned, his position

was that the plea agreement prevented the government from advocating for the

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the PSR, stating that "the guidelines were inaccurately calculated" in the original PSR

and suggesting that Leach was subject to an enhancement under Guidelines § 4B1.5(a)

based on the existence of the Kansas offense for which he had already been

adjudicated guilty but had not yet been sentenced. If the § 4B1.5(a) enhancement

applied, Leach's offense level would have been 34 with a criminal history Category

V, making Leach's Guidelines range 168–210 months' imprisonment. Leach timely

objected to the § 4B1.5(a) enhancement.

Both parties filed briefs, prior to sentencing, on the applicability of the §

4B1.5(a) enhancement. Leach contended that the enhancement did not apply because

he had not yet been sentenced for the Kansas offense, and therefore had not yet

sustained a prior sex offense conviction. Additionally, Leach urged the court to honor

the parties' stipulations in the plea agreement and sentence him accordingly. The

government, despite having not objected to the initial or first-amended PSR, which did

not include the § 4B1.5 enhancement—and admitting that it had previously been

"completely unaware" of § 4B1.5—adopted the position of the probation office and

advocated for the application of § 4B1.5(a).

On December 20, 2005, the court held a hearing on the applicability of §

4B1.5(a) and concluded that the enhancement did not apply because Leach had not yet

been sentenced for the Kansas offense. The court determined that it was unclear

whether the "conviction" requirement of § 4B1.5(a) required the defendant to have

been sentenced for the prior offense or merely have been adjudicated guilty by plea

of guilty, nolo contendre, or a finding of guilt. Based on the failure of the

enhancement section to define the term "conviction," recent legislative enactments

regarding the term, and the rule of lenity, the court refused to apply the § 4B1.5(a)

enhancement to Leach.2
enhancement. At no time during the December 20, 2005, hearing did Leach assert that

the government's failure to object to the original PSR precluded it from advocating for

enhancement.

3

Prior to the January 13, 2006 sentencing hearing, Leach had not argued that the

government had no standing to advocate for the enhancements because it had failed

to timely object to the original PSR which did not include either enhancement.

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The government moved for reconsideration of the court's ruling on the §

4B1.5(a) enhancement, and the probation office filed a third addendum to the PSR,

suggesting that if § 4B1.5(a) did not apply, then a five-level enhancement under §

4B1.5(b) should apply because the defendant had engaged "in a pattern of activity

involving prohibited sexual conduct." If § 4B1.5(b) applied, Leach's total offense level

would increase from 23 to 28, causing his Guidelines range to increase from 60–63

months to 87–108 months' imprisonment. Both parties filed sentencing briefs

regarding the applicability of § 4B1.5(b). 

On January 13, 2006, the court conducted Leach's sentencing hearing and heard

arguments on both the reconsideration of § 4B1.5(a) and the applicability of §

4B1.5(b). After oral argument, the court denied the government's motion to reconsider

its ruling on the § 4B1.5(a) enhancement, concluding that the government had no

standing to seek the enhancement because it had failed to timely object to the original

PSR.3

 Moreover, the court determined that the plea agreement prevented the

government from advocating for the enhancement. Alternatively, the court denied the

motion to reconsider for the same reasons given in its original decision—that it was

unclear whether § 4B1.5(a)'s conviction requirement required a defendant to have

been sentenced on the conviction or merely adjudicated guilty and that the rule of

lenity favored Leach. Further, the court determined that § 4B1.5(b) was inapplicable

because the government failed to prove two prior occasions that were distinct from the

offense of conviction.
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The district court ultimately concluded that Leach's offense level was 23, his

criminal history was a Category II and his advisory guideline range was 60–63

months. The court then sentenced Leach to 72 months' imprisonment, a 9-month

increase from the top of the calculated Guidelines range. The government appeals.

II. Discussion

The government contends that the district court erred in not applying §

4B1.5(a), or alternatively, § 4B1.5(b). Leach agrees with the district court's conclusion

that neither enhancement should apply but alternatively asserts that the plea agreement

and the government's failure to timely object to the original PSR prevent it from

advocating for either enhancement.

A. Untimely Objections to the PSR

Federal Rule of Criminal Procedure 32(f) states that "[w]ithin 14 days after

receiving the presentence report, the parties must state in writing any objections . . .

contained in or omitted from the report." "The reason for the fourteen-day filing

requirement is 'so that the objections can be addressed and investigated prior to the

sentencing hearing.'" United States v. May, 413 F.3d 841, 849 (8th Cir. 2005) (quoting

United States v. Jones, 70 F.3d 1009, 1010 (8th Cir. 1995)) (emphasis deleted).

Here, the probation officer did not include the § 4B1.5(a) enhancement in the

initial or first-amended PSR, and the government did not object to the omission.

However, when the probation office amended the PSR, through the second addendum,

to include the § 4B1.5(a) enhancement, Leach was put on notice—more than a month

before his initial sentencing hearing—that the enhancement could be at issue. This

gave Leach ample opportunity before sentencing to prepare a sentencing memoranda

on the applicability of § 4B1.5(a) and formulate an argument regarding the

enhancement. Given these circumstances, any possible prejudice to Leach from the

government's failure to object to the original and first-amended PSR was cured by the

adequate opportunity he was given to oppose the enhancement. See United States v.
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Soto-Beniquez, 356 F.3d 1, 52 (1st Cir. 2004) ("Any possible prejudice to [defendant]

from the government's non-compliance [with Federal Rule of Criminal Procedure 32]

was cured by the district court's two-week continuance to give defense counsel an

adequate opportunity to respond to the government's late submission."); United States

v. Young, 140 F.3d 453, 457 (2d Cir. 1998) ("The sentencing court may impose

sentencing enhancements belatedly suggested by the Government and not contained

in the PSR, provided the defendant is afforded an adequate opportunity to respond to

the Government's late submission and any revision of the PSR.") (internal citation

omitted). We hold that the government's arguments for the enhancements were not

foreclosed.

B. The Plea Agreement

Leach argues that the government's advocacy for the § 4B1.5(a) enhancement

breached the plea agreement. The government stipulated that Leach's base offense

level was 24, but the enhancement, if applied, would have increased Leach's offense

level to 34. Leach further contends that because the plea agreement stipulated to a

two-level enhancement for use of a computer, pursuant to § 2G2.2(b)(3)(A), without

any reference to § 4B1.5 or any other enhancement, the agreement necessarily implied

that no other enhancements would be applied.

Issues regarding the interpretation and enforcement of a plea agreement are

reviewed de novo. United States v. Martinez-Noriega, 418 F.3d 809, 811 (8th Cir.

2005); United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). "Plea agreements

are contractual in nature, and should be interpreted according to general contract

principles." DeWitt, 366 F.3d at 669.

 Leach asserts that our decision in DeWitt, compels us to find a breach of the

plea agreement in this case. We disagree. In DeWitt, the government and the defendant

stipulated to a base offense level and a specific drug quantity in a plea agreement. Id.

at 668. After the plea agreement was accepted by the court at a change of plea hearing,
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the probation office prepared a PSR suggesting that DeWitt's relevant conduct made

her accountable for additional drug amounts and recommended a higher base offense

level. Id. at 668–69. At the sentencing hearing, the government, on its own initiative,

sought to introduce evidence to establish the higher drug quantity set forth in the PSR,

and DeWitt objected, claiming that the government had stipulated in the plea

agreement to the base offense level and the drug quantity. Id. at 669. The district court

allowed the evidence and subsequently found DeWitt accountable for the drug

quantity recommended in the PSR and adopted the PSR's recommended base offense

level. Id.

On appeal, we reversed, holding that the government breached the plea

agreement when it introduced evidence at sentencing to attribute a greater drug

quantity to the defendant when it had previously stipulated to the total drug quantity

in the plea agreement. Id. at 670–72. Although the plea agreement entitled the

government to offer evidence of uncharged relevant conduct, we ruled that such a

general provision could not be read to override the specific provision to recommend

only a certain drug quantity for Guidelines calculation purposes. Id. at 670. We noted

that when stipulations in the plea agreement differ from recommendations in a PSR,

there is no breach of the plea agreement if the court requests the parties to provide

evidence or argument on the issue. Id. at 671. But, we ultimately concluded that

"[w]here the government stipulates to a drug quantity and a base offense level, it may

not then initiate an effort at the sentencing hearing to obtain a greater sentence, even

if the government has come to believe that the stipulation was made in error." Id. at

671–72.

Although there are certainly some similarities between this case and DeWitt, we

believe that the instant case is controlled by our decision in Martinez-Noriega. In

Martinez-Noriega, the plea agreement stipulated that the defendant's base offense

level was 20, pursuant to § 2D1.1. 418 F.3d at 810. The plea agreement in MartinezNoriega, like the plea agreement here, made no agreement regarding the defendant's
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criminal history category under Chapter Four of the Guidelines and made no reference

to any potential adjustment to his offense level under Chapter Four. Id. at 810–11.

Prior to the sentencing hearing, the probation office prepared a PSR, which

recommended that Martinez-Noriega be assessed an offense level of 32, pursuant to

the career offender guideline, § 4B1.1(b)(C), because he had two prior felony drug

convictions. Id. at 811. Martinez-Noriega objected, arguing that because his plea

agreement stipulated that his base offense level was 20 and did not refer to § 4B1.1,

the court was precluded from applying the career offender guideline. Id. The district

court disagreed and sentenced Martinez-Noriega as a career offender. Id.

On appeal, Martinez-Noreiga argued that application of the career offender

enhancement would render his base-offense-level stipulation under § 2D1.1

meaningless. He contended the existence of the specific stipulation concerning the

base offense level necessarily implied that his offense level would be computed

without regard to § 4B1.1. Id. "We reject[ed] Martinez-Noriega's argument because

we [found] it inconsistent with the structure of the sentencing guidelines." Id. In

reaching this conclusion, we explained:

The "Application Instructions" for use of the guidelines set forth nine

sequential steps to be followed by the sentencing court in applying the

provisions of the guidelines manual. The second step calls for the court

to "[d]etermine the base offense level . . . contained in the particular

guideline in Chapter Two." USSG § 1B1.1(b). The next three steps direct

the court to apply adjustments from Chapter Three of the guidelines. The

sixth step then states that the court should "[d]etermine the defendant's

criminal history category as specified in Part A of Chapter Four," and

"[d]etermine from Part B of Chapter Four any other applicable

adjustments." USSG § 1B1.1(f). These adjustments from Part B include

the enhanced offense levels for career offenders pursuant to USSG §

4B1.1.

Id. at 812. (emphasis in original). 
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We further explained that "[t]he guidelines contemplate . . . that even when a

defendant ultimately is subject to [a Chapter Four adjustment], the court will first

compute the defendant's 'base offense level' under Chapter Two of the guidelines." Id.

Thus, by stipulating to a base offense level, "[the] defendant has solidified where he

will start in Chapter Two of the guidelines, but he has not protected himself against

adjustments in Chapter Four." Id. at 813. Accordingly, we held that the district court

did not err in applying the career-offender Guideline to Martinez-Noriega because the

agreement only resolved the defendant's base offense level under Chapter Two, but

did not resolve any issues with respect to Chapter Four. Id.

Like the agreement in Martinez-Noriega, Leach's plea agreement only

stipulated to his base offense level under Chapter Two of the Guidelines. Although the

parties were free to do so, they did not address possible adjustments "from Part B of

Chapter Four," which includes the enhanced offense levels for repeat and dangerous

sex offenders against minors pursuant to U.S.S.G. § 4B1.5. Thus, in contrast to

DeWitt, the government here did not advocate for anything inconsistent with the

stipulations of the plea agreement; it advocated for something that was not resolved

by the plea agreement. Paragraph 11 of Leach's plea agreement stated that "[t]he

parties understand, acknowledge and agree that there are no agreements between the

parties with respect to any Sentencing Guidelines issues other than those specifically

listed" and that "[a]s to any other Guidelines issues, the parties are free to advocate

their respective positions at sentencing." We conclude, therefore, that the government

was free to advocate for the § 4B1.5(a) enhancement because it was an issue that had

not been agreed to or specifically listed in the agreement. Accordingly, we hold that

the government did not breach the plea agreement.

C. U.S.S.G. § 4B1.5(a)

Having concluded that the government was not precluded from arguing in favor

of the § 4B1.5 enhancement, we must now determine whether that section should have

been applied. Section 4B1.5, entitled "Repeat and Dangerous Sex Offender Against

Minors," states under subsection (a) that:
4

The plea agreement stipulated that the applicable Guidelines Manual was "the

one that took effect on November 5, 2004." Section 4B1.5(a) remains unchanged in

the current edition of the Guidelines Manual.

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(a) In any case in which the defendant's instant offense of conviction is

a covered sex crime, § 4B1.1 (Career Offender) does not apply, and the

defendant committed the instant offense of conviction subsequent to

sustaining at least one sex offense conviction:

(1) The offense level shall be the greater of:

(A) the offense level determined under Chapters Two and

Three; or

(B) the offense level from the table below decreased by the

number of levels corresponding to any applicable

adjustment from § 3E1.1 (Acceptance of Responsibility):

Offense Statutory Maximum Offense Level

(i) Life ..................................................................... 37

(ii) 25 years or more ............................................... 34

(iii) 20 years or more, but less than 25 years.......... 32

(iv) 15 years or more, but less than 20 years.......... 29

(v) 10 years or more, but less than 15 years........... 24

(vi) 5 years or more, but less than 10 years ............17

(vii) More than 1 year, but less than 5 years...........12.

(2) The criminal history category shall be the greater of:

(A) the criminal history category determined under Chapter

Four, Part A (Criminal History); or (B) criminal history

Category V.

U.S.S.G. § 4B1.5(a).4

Put simply, Leach would be subject to the § 4B1.5(a) enhancement if: (1) his

"instant offense of conviction is a covered sex crime;" (2) the career offender
5

Application Note 2 of § 4B1.5, entitled "Covered Sex Crime as Instant Offense

of Conviction," states:

For purposes of this guideline, the instant offense of conviction must be

a covered sex crime, i.e.: (A) an offense, perpetrated against a minor,

under (i) chapter 109A of title 18, United States Code; (ii) chapter 110

of such title, not including trafficking in, receipt of, or possession of,

child pornography, or a recordkeeping offense; (iii) chapter 117 of such

title, not including transmitting information about a minor or filing a

factual statement about an alien individual; or (B) an attempt or

conspiracy to commit any offense described in subdivisions (A)(i)

through (iii) of this note.

6

Although Application Note 1 to § 4B1.5, defines "minor" as a person under the

age of 18 and defines "minor victim" to include "an undercover law enforcement

officer who represented to the defendant that the officer was a minor," this court has

specifically held that a conviction for attempted enticement of a minor under 18

U.S.C. § 2422(b)—Leach's instant offense of conviction—is a "covered sex crime"

for purposes of § 4B1.5 even though the intended victim was in fact an undercover

law enforcement officer. United States v. Blazek, 431 F.3d 1104, 1110 (8th Cir. 2005).

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enhancement (§ 4B1.1) does not apply to him; and (3) he "committed the instant

offense of conviction subsequent to sustaining at least one sex offense conviction."

Id. Leach unquestionably meets the first two prerequisites of § 4B1.5(a). His "instant

offense of conviction"—knowingly using a facility of interstate commerce to attempt

to entice a minor to engage in sexual activity—qualifies as a "covered sex crime" as

that term is defined in Application Note 2 to § 4B1.5.5

 More specifically, the offense

was perpetrated against a minor6

 and fell under 18 U.S.C. § 2422(b), which is under

Chapter 117 of Title 18 of the United States Code and thus constituting a "covered sex

crime." See United States v. Blazek, 431 F.3d 1104, 1110 (8th Cir. 2005) (upholding

the application of § 4B1.5(a) enhancement and ruling that a conviction for attempted

enticement of a minor under 18 U.S.C. § 2422(b) is a "covered sex crime" for

purposes of the enhancement, even if the intended victim was an undercover officer

and not an actual minor). Additionally, § 4B1.1, the career offender enhancement,
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does not apply to Leach because he did not have at least two prior felony convictions

of either a crime of violence or a controlled substance offense. Therefore, § 4B1.5(a)

would apply to Leach if he "committed the instant offense of conviction subsequent

to sustaining at least one sex offense conviction." § 4B1.5(a).

It is undisputed that Leach committed the instant offense of conviction after he

pleaded guilty to the Kansas offense—attempted aggravated criminal sodomy.

However, sentencing on Leach's Kansas offense was pending when the district court

sentenced him on the instant offense. Thus, no final judgment of conviction had been

entered on the Kansas offense. Leach contends, therefore, that the Kansas offense

cannot be counted as a prior "sex offense conviction" for purposes of § 4B1.5(a)

because the section does not define whether the term "conviction" requires the

defendant to have been sentenced pursuant to the conviction (a final judgment of

conviction) or whether a "conviction" only requires that the defendant was adjudicated

guilty of the offense, whether by the court, jury, or accepted plea of guilty or nolo

contendere. If the prior conviction under § 4B1.5(a) only requires that the defendant

have been found guilty of the offense, the enhancement would apply to Leach.

However, if the prior "conviction" requires that the defendant have been sentenced for

the offense and a final judgment of conviction entered, then § 4B1.5(a) would not

apply to him.

The district court ruled that the term "conviction" in § 4B1.5(a) was ambiguous.

The court noted that the term is not defined in § 4B1.5(a), relying on language from

the Supreme Court's decision in United States v. Deal, 508 U.S. 129, 131–32 (1993)

("It is certainly correct that the word 'conviction' can mean either the finding of guilt

or the entry of a final judgment on that finding," which "includes both the adjudication

of guilt and the sentence."). The district court considered that the context of §

4B1.5(a) did not clear up the ambiguity of the term "conviction," so it applied the rule

of lenity and found the Kansas offense could not count as a prior sex conviction under

the section.
7

Essentially, Leach argues for one definition of "conviction" the first time it

appears in § 4B1.5(a)—an adjudication of guilt—and a different definition for

"conviction" the second time the term is used—a judgment of conviction requiring a

sentence to be imposed. This result would go against one of the basic rules of statutory

interpretation—that identical words used in different parts of the same act or statute

are intended to have the same meaning. See Comm'r of Internal Revenue v. Lundy, 516

U.S. 235, 250 (1996) ("the normal rule of statutory construction [is] that identical

words used in different parts of the same act are intended to have the same meaning.").

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We disagree with the district court's interpretation and find that the context of

§ 4B1.5—much like the context of the statute at issue in Deal—makes "it

unambiguous that 'conviction' refers to the finding of guilt by a judge or jury that

necessarily precedes the entry of a final judgment of conviction." See id. at 132. The

first clause of § 4B1.5(a) speaks of "the instant offense of conviction," which is the

crime for which the defendant was now to be sentenced, and for which the

enhancement would apply if the defendant has a previous sex offense conviction. See

§ 4B1.5(a). The term "conviction" in § 4B1.5(a) therefore cannot mean a judgment of

conviction. Clearly, the term conviction refers to a conviction without an entry of final

judgment in the phrase "instant offense of conviction" because the sentencing was not

yet complete. The term should be read to have the same meaning when used later in

the same sentence unless otherwise stated or implied.7

 We do not read § 4B1.5(a) as

requiring the formal entry of a judgment of conviction before a defendant is

considered convicted for the provision's enhancements to apply. Any other reading is

at best strained. See Deal, 508 U.S. at 132 (finding that if "conviction" in § 924(c)(1)

meant "judgment of conviction," then "the provision would be incoherent, prescribing

that a sentence which has already been imposed . . . shall be 5 or 20 years longer than

it was").

Our reading of the term "conviction" in § 4B1.5(a) as only requiring an

adjudication of guilt is confirmed by the "Background" section of § 4B1.5, which

states:
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The guideline is intended to provide lengthy incarceration for offenders

who commit sex offenses against minors and who present a continuing

danger to the public. It applies to offenders whose instant offense of

conviction is a sex offense committed against a minor victim. The

relevant criminal provisions provide for increased statutory maximum

penalties for repeat sex offenders and make those increased statutory

maximum penalties available if the defendant previously was convicted

of any of several federal and state sex offenses (see 18 U.S.C. 2247,

2426). In addition, section 632 of Public Law 102-141 and section 505

of Public Law 105-314 directed the Commission to ensure lengthy

incarceration for offenders who engage in a pattern of activity involving

the sexual abuse or exploitation of minors. Section 401(i)(1)(A) of

Public Law 108-21 directly amended Application Note 4(b)(i), effective

April 30, 2003.

U.S.S.G. § 4B1.5 cmt. Background (Emphasis added).

As stated above, § 4B1.5 "is intended to provide lengthy incarceration for

offenders who commit sex offenses against minors and who present a continuing

danger to the public," and to increase the maximum penalties for "repeat sex

offenders." Requiring a "repeat sex offender," such as Leach, to have been sentenced

for a prior sex offense against a minor, when he has already been adjudicated guilty

of the offense does nothing to effectuate the stated intent of the enhancement.

Our decision to apply the § 4B1.5(a) enhancement to Leach is further confirmed

by commentary note 3 of § 4B1.5 and its relation to the plea agreement entered into

by Leach and the government. Although § 4B1.5 does not define the term

"conviction," commentary note 3 to § 4B1.5 defines the phrase "sex offense

conviction" as meaning: "any offense described in 18 U.S.C. 2426(b)(1)(A) or (B), if

the offense was perpetrated against a minor; and (II) does not include trafficking in,

receipt of, or possession of, child pornography. . . ." U.S.S.G. § 4B1.5 cmt. n. 3.
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Section 2426(b), the referenced statute in commentary note 3 to § 4B1.5 states: 

(a) Maximum term of imprisonment.--The maximum term of

imprisonment for a violation of this chapter after a prior sex offense

conviction shall be twice the term of imprisonment otherwise provided

by this chapter, unless section 3559(e) applies.

(b) Definitions.--In this section--

(1) the term "prior sex offense conviction" means a conviction for

an offense--

(A) under this chapter, chapter 109A, or chapter 110; or

(B) under State law for an offense consisting of conduct

that would have been an offense under a chapter referred

to in paragraph (1) if the conduct had occurred within the

special maritime and territorial jurisdiction of the United

States;

. . . .

18 U.S.C. § 2426 (emphasis added).

Although this section does not explicitly state whether a "conviction" requires

sentencing to have occurred, subsection (a) of § 2426 doubles a defendant's maximum

term of imprisonment if the defendant had a prior "sex offense conviction" against a

minor. 18 U.S.C. § 2462. In the plea agreement entered into in this case, Leach

acknowledged, in the "Statutory Penalties" section of his plea agreement, that upon

pleading guilty to Count One of the indictment, his maximum sentence was 60 years

"pursuant to 18 U.S.C. § 2426(a) because said offense occurred after [Leach] had a

prior sex offense conviction . . . ." Plea Agreement ¶ 5 (emphasis added). Because the

phrase "sex offense conviction" in § 4B1.5(a) is defined as "any offense described in

18 U.S.C. 2426(b)(1)(A) or (B), if the offense was perpetrated against a minor" and

Leach stipulated in his plea agreement that his maximum sentence would be doubled

to 60 years under 18 U.S.C. § 2426(a) because the Kansas offense qualified as a prior

"sex offense conviction" against a minor, Leach essentially stipulated in the plea
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agreement that the Kansas offense was a prior "sex offense conviction" under §

2426(b)(1)(A).

Because we find that § 4B1.5(a) applies to Leach, we need not address the

merits of the district court's decision regarding the inapplicability of § 4B1.5(b), as

subsection (b) can only apply if subsection (a) is inapplicable. U.S.S.G. § 4B1.5(b).

III. Conclusion

Accordingly, we vacate Leach's sentence and remand the case for resentencing

in accordance with this decision.

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