*

The Honorable R. Leon Jordan, Senior District Judge for the Eastern District of Tennessee, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0316p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

CHRISTOPHER BRATTAIN,

 Defendant-Appellee.

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No. 07-1594

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 06-00293—Robert Holmes Bell, Chief District Judge.

Argued: June 10, 2008

Decided and Filed: August 25, 2008 

Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, Senior District Judge.*

_________________

COUNSEL

ARGUED: Elisa Castrolugo, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellant. Ray S. Kent, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Elisa Castrolugo, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellant. Ray S. Kent, FEDERAL PUBLIC

DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellee. 

MARTIN, J., delivered the opinion of the court, in which JORDAN, D. J., joined.

BATCHELDER, J. (p. 5), delivered a separate concurring opinion.

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. The United States appeals the sentence imposed

by the district court on Christopher Brattain after he pled guilty to aggravated sexual abuse of a

minor. The district court refused to apply a five-level enhancement pursuant to U.S.S.G. § 4B1.5(b),

stating that the enhancement applied only to offenders who had abused multiple victims, and

Brattain had abused a single victim over a period of seven years. The government argues that the

district court’s refusal to apply the enhancement was error because Brattain qualified as a repeat1
No. 07-1594 United States v. Brattain Page 2

offender, and Congress explicitly revised the enhancement to apply to repeat-offenders who abuse

only a single victim. We agree with the government, VACATE Brattain’s sentence, and REMAND

for resentencing. 

I.

On January 21, 2005, Brattain’s daughter disclosed to her mother, Brattain’s wife at the time,

that her father had been touching her private parts. After being confronted by his wife, Brattain

admitted to sexually abusing his daughter. Brattain’s wife, a United States Air Force staff sergeant

at Sheppard Air Force Base in Wichita Falls, Texas, promptly reported her husband’s conduct to

military police. The military police contacted the Air Force Office of Special Investigation, who

then later turned over the investigation to the FBI. 

During a February 8, 2005, interview with the FBI, Brattain confessed to repeatedly sexually

abusing his daughter over a seven-year period, starting at the age of three and continuing until the

age of ten. The majority of the incidents took place at various military installations, including

Sheppard Air Force Base. 

On August 9, 2006, a federal grand jury in Wichita Falls indicted Brattain, charging him with

aggravated sexual abuse of a minor in violation of 18 U.S.C. §§ 2241(c) and 2244. On September

21, 2006, Brattain was arrested in the Western District of Michigan, where he had moved to reside

with his mother and stepfather after his marriage ended in divorce. He consented to the transfer of

the case to the Western District of Michigan, and on January 8, 2007, he pled guilty to aggravated

sexual abuse of a minor.

The probation office prepared a Presentence Investigation Report after Brattain’s guilty plea.

The Report suggested a total offense level of 38 and a criminal history category of I, resulting in an

advisory guidelines range of 235 to 293 months’ incarceration. The total offense level included,

among other enhancements and reductions, a five-level enhancement pursuant to U.S.S.G.

§ 4B1.5(b)(1) because Brattain “engaged in a pattern of activity involving a prohibited sexual

conduct.” 

Brattain objected to the total offense level, and specifically to the application of the five-level

enhancement under § 4B1.5(b)(1). Brattain argued that the enhancement should not apply to him

because it was intended to deter recidivism and he did not present a high risk of recidivism given

that his was a crime of incest with only one victim, his eldest daughter. He further argued that the

enhancement was intended for cases involving multiple victims. The government attempted to rebut

Brattain’s argument by pointing out that the current version of § 4B1.5(b)(1) did not require more

than one victim, reflecting a deliberate change by Congress to expand the definition of repeatoffenders to include defendants like Brattain who engage in a pattern of sexual abuse against one

victim over a period of time. The government also argued that Brattain presented a risk to society

given his sexual preference for minors.

The district court sided with Brattain, finding that § 4B1.5(b)(1) was directed toward repeat

offenders who engaged in a pattern of activity involving the sexual abuse or exploitation of minors.

Here, the district court found that Brattain had abused only one victim, and the sentencing

commission had not made it clear that such a defendant should fall under 4B1.5(b)(1). Accordingly,

the district court reduced his total offense level from 38 to 33, which when combined with a criminal

history category of I resulted in an advisory guidelines range of 135 to 168 months’ imprisonment.

Brattain was then sentenced to 144 months’ imprisonment followed by ten years of supervised

release. 

The government now appeals the district court’s sentence, arguing that the district court erred

in its interpretation of the applicability of § 4B1.5(b)(1).
No. 07-1594 United States v. Brattain Page 3

II.

“Post- Booker, [this Court] review[s] a district court’s sentencing determination, ‘under a

deferential abuse-of-discretion standard’ for reasonableness, which, as the Supreme Court has

recently confirmed, has two components: procedural and substantive.” United States v. Bolds, 511

F.3d 568, 578 (6th Cir. 2007) (internal citations omitted) (quoting Gall v. United States, 128 S.Ct.

586, 591 (2007)). When reviewing for procedural reasonableness, this Court ensures that the district

court correctly calculated the applicable Guidelines range – “the starting point and initial

benchmark” of its sentencing analysis. Id. (quoting Gall, 128 S.Ct. at 596). “In reviewing the

district court’s calculation of the Guidelines, [this Court] still review[s] the district court's factual

findings for clear error and its legal conclusions de novo.” Id. 

The question before this Court is whether the district court erred when it held that

§ 4b1.5(b)(1) did not apply to Brattain because he had sexually abused only a single victim, his

daughter. We now find that the district court did err. 

The current version of § 4B1.5(b)(1) states that a five-level enhancement applies when “the

defendant engaged in a pattern of activity involving prohibited sexual conduct . . . .” U.S.S.G.

§ 4B1.5(b)(1) (2006). Application Note 4 states that “a defendant engaged in a pattern of activity

involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in

prohibited sexual conduct with a minor.” U.S.S.G. § 4B1.5, cmt. n.4(B)(i). 

Rather than apply the Application Note, the district court focused on the Background Note

to § 4B1.5, which states that “[t]his guideline is intended to provide lengthy incarceration for

offenders who commit sex offenses against minors and who present a continuing danger to the

public.” U.S.S.G. § 4b1.5, cmt. background. The Background Note further states that Congress

directed the Sentencing Commission to “ensure lengthy incarceration for offenders who engage in

a pattern of activity involving the sexual abuse or exploitation of minors.” Id. Based on the use of

the plural term “minors” in the Background Note – despite the use of the singular term “minor” in

the actual enhancement section – the district court found that § 4B1.5(b)(1) did not apply to Brattain

because he had abused only a single victim. 

First, we believe the plain language of § 4B1.5(b)(1) and its application note apply to

defendants who abuse only a single victim. The Application Note provides that a defendant who

engages in prohibited sexual conduct with a minor on at least two separate occasions has engaged

in a “pattern of activity” for purposes of § 4B1.5(b). See U.S.S.G. § 4B1.5, cmt. n.4(B)(i). Second,

even if the Application Note is deemed ambiguous given the use of the plural term “minors” in the

Background Note, the legislative history of the current version of this enhancement easily clears up

any confusion. 

The prior version of § 4B1.5(b)(1) required there to be multiple victims for a defendant to

be considered a repeat-offender and subject to the five-level enhancement. However, in 2003

Congress specifically addressed this enhancement. The congressional committee recognized that

the 2001 version of § 4B1.5(b)(1) applied only to defendants who “engaged in prohibited sexual

conduct on at least two separate occasions with at least two different minor victims.” H.R. Conf.

Rep. No. 108-66, at 694 (2003). Congress found that definition did not “adequately take account

of the frequent occurrence of repeated sexual abuse against a single child victim, and the severity

of the harm to such victims from the repeated abuse.” Id. In an effort to broaden § 4B1.5(b)(1)’s

scope to include defendants who repeatedly “abuse [] the same victim on separate occasions,” id., Congress amended the Application Note 4(B)(i) to eliminate the requirement of at least two minor

victims in order for the enhancement under § 4B1.5(b)(1) to apply. Accordingly, we find that the

district court erred in ruling that § 4B1.5(b)(1) did not apply to Brattain.
No. 07-1594 United States v. Brattain Page 4

We quickly address Brattain’s argument that Congress did not intend for § 4B1.5(b)(1) to

be applied to defendants who commit incest. We have found no case law in our circuit

differentiating between sexual abuse of a child and incest. And while there may be a compelling

argument that defendants who commit incest with a single victim have much lower rates of

recidivism, Congress has yet to adopt that argument. Because Congress did not differentiate

between the two, we are bound by the definitions as they exist in the guidelines, and incest does not

receive any less harsh treatment than does aggravated sexual abuse of a minor. 

III.

Based on the foregoing, we VACATE Brattain’s sentence, and REMAND for resentencing.

However, we think it is important to note that while the district court made one error in calculating

the guidelines, the district court should remain mindful that the sentencing guidelines are merely

advisory. The guidelines provide a requisite starting point in any sentencing determination, but they

are not determinative of a district court’s ultimate decision when sentencing a defendant. Here, the

district court correctly applied the § 3553(a) factors and gave more than adequate reasoning in

support of Brattain’s sentence. The same detailed application of the § 3553(a) factors and explicit

reasoning in support of the sentence will hopefully be repeated on remand. 
No. 07-1594 United States v. Brattain Page 5

____________________

CONCURRENCE ____________________

ALICE M. BATCHELDER, Circuit Judge, concurring. I concur in the opinion, although

I do not believe the discussion in Section III of the lead opinion is appropriate. I write separately

with regard to the lead opinion’s discussion of USSG § 4B1.5(b)(1) and its applicability to the crime

of incest. The record’s depiction of Brattain is wholly inconsistent with his argument that

§ 4B1.5(b)(1) was not intended to apply to individuals such as himself, because his crime was incest,

he had only one victim, and, like other persons who commit incest, he presents a low risk of

recidivism. Brattain’s attention was not limited to KB, and his interests were not purely incestuous.

He admits to having fantasized about having sex with both KB and her sister. He frequented a

pornography site that depicted young children engaged in sexual activities, and, according to the

PSR, he characterized himself as having “a problem he could not control.” Brattain’s having abused

“only” KB may be more a matter of opportunity — or lack thereof — than an indication that he

presents a low risk of recidivism. Whatever “compelling arguments” may be made regarding

recidivism rates for individuals who commit incest, they are irrelevant here.