## 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 attemp t to persuade, induce, and entice a minor to engage in illegal sexual activ ity, 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, alternativel y, 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.-2- I. Background On February 22, 2005, Leach pleaded guilty in Kansas state court to attempted aggravated criminal sodomy with a childunder the age of 14 years ("the Kansas offense"). The Kansas offense involved L each 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, "Amb er" was actually an undercover FBI agent. Leach's conversations with "Amber" quickly became sexual. The next day, Leach again contacted "Amber" and made arrange ments to travel from his residence in Lawrence, Kansas, to her residence in Kans as City, Missouri, to engage in sexual activity. On March 10, 2005, Leach arrived at the Kansas City, Missouri address provided by "Amber," and wa s 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 co mmerce to attempt to entice a minor into engaging in illegal sexual c onduct, in violation of 18 U.S.C. § 2422(b) (Count One); traveling in interstate commerce for th e purpose of engaging in illicit sexual conduct with another person, in vi olation 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.

-3- 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 le vel offense is 24 pursuant to U.S.S.G. § 2G1.3(a);" (3) Leach was subject to a tw o-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(A) because the offense involve d 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 th e defendant's criminal history category;" (6) neither party would seek a departure fro m 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 e xplicitly 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 thatthe plea agreement was negotiated without any consideration of U.S.S.G. § 4B1.5. In fact, the gove rnment 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 anaddendum, on November 3, 2005. The PSR concluded that Leach's Guidelines range was 60–63 months 1 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 pr obation office filed a second addendum to2 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

-4- 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 hehad already been adjudicated guilty but had not yet been sentenced. If the § 4B1.5(a) enhancement applied, Leach's offense leve l 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 se ntencing, on the applicability of the § 4B1.5(a) enhancement. Leachcontended that the enhan cement did not apply because he had not yet been sentenced for the Ka nsas 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 ag reement and sentence him accordingly. The government, despite having not objected to th e 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—adoptedthe 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 appl y 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 me rely 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. 2enhancement. At no time during the Decembe r 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 h earing, 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 wh ich did not include either enhancement.

-5- 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 appl y, 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 c ourt 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 de nied the government's motion to reconsider its ruling on the § 4B1.5(a) enhancement, concluding that the government had no standing to seek the enhancem ent because it had failed to timely object to the original PSR. 3 Moreover, the court determined th at the plea agreement prevented the government from advocating for the enhancemen t. 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 de termined that § 4B1.5(b) was inapplicable because the government failed to prove two prior occasions that were distinct from the offense of conviction.-6- The district court ultimately concluded that Leach's offense level was 23, his criminal history was a Category II and his advisory gui deline range was 60–63 months. The court then se ntenced Leach to 72 months' imprisonment, a 9-month increase from the top of the calculated Gu idelines 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 th e 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 beaddressed and inves tigated 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 includethe § 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 ame nded 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 sent encing 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 origin al and first-amended PSR was cured by the adequate opportunity he was gi ven to oppose the enhancement. See United States v.-7- Soto-Beniquez , 356 F.3d 1, 52 (1st Cir. 2004) ("A ny 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 th e government's late submission."); United States v. Young , 140 F.3d 453, 457 (2d Cir. 1998) (" The sentencing court may impose sentencing enhancements belatedly suggest ed by the Government and not contained in the PSR, provided the defe ndant is afforded an ade quate opportunity to respond to the Government's late submission and any revision of th e PSR.") (internal citation omitted). We hold that the government's ar guments for the enhancements were not foreclosed.

B. The Plea Agreement Leach argues that the government's advo cacy for the § 4B1.5(a) enhancement breached the plea agreement. The governmentstipulated that Leach's base offense level was 24, but the enhancem ent, if applied, would haveincreased Leach's offense level to 34. Leach further contends that because the plea agreem ent stipulated to a two-level enhancement for use of a comput er, pursuant to § 2G2.2(b)(3)(A), without any reference to § 4B1.5 or any other enhancement, the ag reement 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 offens e 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,-8- the probation office prepared a PSR sugges ting 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 th e 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 adopt ed the PSR's recommended base offense level. Id.

On appeal, we reversed, holding th at the government breached the plea agreement when it introducedevidence at sentencing to attribute a greater drug quantity to the defendant when it had previ ously 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 conduc t, we ruled that such a general provision could not beread 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 agr eement 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 sentenci ng hearing to obtain a greater sentence, even if the government has come to believe th at 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 th at 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-9- criminal history category under Chapter Four of the Guidelines a nd made no reference to any potential adjustment to hi s offense level unde r Chapter Four. Id. at 810–11. Prior to the sentencing hearing, the probation office prepared a PSR, which recommended that Martinez-Noriega be asse ssed 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 offens e level was 20 and did not refer to § 4B1.1, the court was precluded from applyi ng 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 s tipulation under § 2D1.1 meaningless. He contended the existence of the specific stipulation concerning the base offense level necessarily implied th at 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 le vel . . . contained in the particular guideline in Chapter Two." USSG § 1B 1.1(b). The next three steps direct the court to apply adjustments from Chapter Three of the guidelines. The sixth step then states that the c ourt should "[d]etermine the defendant's criminal history category as specifiedin 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 car eer offenders pursuant to USSG § 4B1.1.

Id. at 812. (emphasis in original).-10- We further explained that "[t]he guidelin es contemplate . . . that even when a defendant ultimately is subject to [a Chap ter Four adjustment], the court will first compute the defendant's 'base offense leve l' under Chapter Two of the guidelines." Id. Thus, by stipulating to a base offense leve l, "[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 Gu ideline 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 a ddress possible adjustments "from Part B of Chapter Four," which includes the enhancedoffense 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 advo cated for something that was not resolved by the plea agreement. Para graph 11 of Leach's plea agr eement stated that "[t]he parties understand, ac knowledge and agree that there are no agreements between the parties with respect to any Sentencing Guid elines issues other than those specifically listed" and that "[a]s to any other Guidelines issues, th e 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 inthe 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 stipulat ed 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.
-11- (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 o ffense 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 c overed sex crime;" (2) the career offender5 Application Note 2 of § 4B1.5, entitled "Covered Sex Crime as Instant Offense of Conviction," states:

For purposes of this guideline, the in stant offense of conviction must be a covered sex crime, i.e.: (A) an o ffense, perpetrated against a minor, under (i) chapter 109A of title 18, Un ited States Code; (ii) chapter 110 of such title, not including trafficki ng 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 thatthe 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 in tended victim was in fact an undercover law enforcement officer. United States v. Blazek , 431 F.3d 1104, 1110 (8th Cir. 2005).
-12- enhancement (§ 4B1.1) does not apply to him; and (3) he "committed the instant offense of conviction subsequent to sustai ning at least one sex offense conviction." Id. Leach unquestionably meets the first two pr erequisites of § 4B1.5(a). His "instant offense of conviction"—knowingly using a f acility of interstate commerce to attempt to entice a minor to engage in sexual ac tivity—qualifies as a "covered sex crime" as that term is defined in A pplication Note 2 to § 4B1.5. 5 More specifically, the offense was perpetrated against a minor 6and fell under 18 U.S.C. § 2422(b), which is under Chapter 117 of Title 18 of the United States Code and thus cons tituting 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 th e intended victim was an undercover officer and not an actual minor). Additionally, § 4B1.1, the career o ffender enhancement,-13- does not apply to Leach because he did not have at least two prior felony convictions of either a crime of violen ce or a controlled substance o ffense. Therefore, § 4B1.5(a) would apply to Leach if he"committed the instant offe nse 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 offe nse 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 cont ends, therefore, that the Kansas offense cannot be counted as a prior "sex offens e conviction" for purposes of § 4B1.5(a) because the section does not define whether the term "conviction" requires the defendant to have been sentenced pursuan t 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 convi ction 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 "convic tion" requires that the defendant have been sentenced for the offense and a final judgment of convic tion 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 defi ned 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 'c onviction' can mean either the finding of guilt or the entry of a final judgment on that fi nding," 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 defin ition 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 ag ainst 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 actare intended to have the same meaning.").
-14- We disagree with the district court's in terpretation 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 § 4B 1.5(a) therefore cannot mean a judgment of conviction. Clearly, the term c onviction refers to a convicti on 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 othe rwise stated or implied. 7 We do not read § 4B1.5(a) as requiring the formal entry of a judgmen t 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 impos ed . . . 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:-15- 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 repe at sex offenders and make those increased statutory maximum penalties available if the defendant previously was convicted of any of several federal and st ate 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 engagein a pattern of activity involving the sexual abuse or exploitation of minors. Section 401(i)(1)(A) of Public Law 108-21 directly amended A pplication Note 4(b)(i), effective April 30, 2003.

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

As stated above, § 4B1.5 "is intende d to provide lengthy incarceration for offenders who commit sex offenses agai nst 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, wh en 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 re lation to the plea agreement entered into by Leach and the government. Although § 4B1.5 does not define the term "conviction," commentary note 3 to § 4B 1.5 defines the phrase "sex offense conviction" as meaning: "any offense desc ribed 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.-16- 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 agreemen t entered into in this case, Leach acknowledged, in the "Statuto ry Penalties" section of his plea agreement, that upon pleading guilty to Count One of the indi ctment, 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 offe nse 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-17- agreement that the Kansas offense was a prior "sex offense conviction" under § 2426(b)(1)(A).

Because we find that § 4B1.5(a) applie s 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 senten ce and remand the case for resentencing in accordance with this decision.

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