PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROLANDO CIFUENTES-LOPEZ, 

 Defendant - Appellant. 

No. 21-6053 

_________________________________ 

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:19-CR-00364-G-1)

_________________________________ 

Submitted on the briefs:*

Virginia L. Grady, Federal Public Defender, and Meredith Esser, Assistant Federal Public 

Defender, Office of Federal Public Defender, Denver, Colorado, for DefendantAppellant. 

Robert J. Troester, United States Attorney, and Mary E. Walters, Assistant United States 

Attorney, Office of the United States Attorney, Oklahoma City, Oklahoma, for PlaintiffAppellee. 

_________________________________ 

Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges. 

_________________________________ 

TYMKOVICH, Chief Judge. 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 26, 2022

Christopher M. Wolpert 

Clerk of Court

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_________________________________ 

Rolando Cifuentes-Lopez admitted to having commercial sex with two minors 

and was sentenced to 24 years and 4 months in prison. He claims that the district 

court erred in applying certain sentencing enhancements pursuant to the United States 

Sentencing Guidelines; one enhancement for a pattern of sexual conduct with a 

minor, and the other for his conviction on multiple counts. He argues that: (1) the 

application of a pattern of activity enhancement under U.S.S.G § 4B1.5(b)(1) should 

not apply to him because he engaged in only one prohibited sexual act with each 

minor; and (2) the application of the pattern of activity enhancement along with a 

multiple count enhancement, U.S.S.G. § 3D1.4, is impermissible double counting. 

We find that the district court correctly applied the enhancements. First, the 

pattern of activity enhancement under U.S.S.G. § 4B1.5(b)(1) can be applied to either 

repeated abuse of a single minor or to separate abuses of multiple minors. Second, 

applying a five-level pattern of activity enhancement under U.S.S.G. § 4B1.5(b)(1) 

along with a two-level multiple count enhancement under U.S.S.G. § 3D1.4 is not 

double counting in this case because the Guidelines expressly intend cumulative 

application, and the enhancements serve different sentencing goals. For the reasons 

below, we reject both of Cifuentes-Lopez’s arguments and AFFIRM the district 

court. 

I. Background 

Cifuentes-Lopez rented a trailer home to a tenant and engaged in commercial sex 

with each of the tenant’s two minor children. Cifuentes-Lopez pled guilty to engaging in 

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prohibited sexual conduct with the two minors on one occasion each. See 18 U.S.C. 

§§ 1591(a)(1), (b)(2), (c) and 18 U.S.C. § 1594(a). The probation office generated a 

presentence report (PSR) with the following sentencing calculations: 

 A base offense level of 30 for a violation of 18 U.S.C. § 1591(a)(1). 

 A two-point increase under U.S.S.G. § 2G1.3(b)(4) because the offense involved 

the commission of a sex act or sexual contact. 

 A two-point enhancement under U.S.S.G. § 3D1.4 because there were multiple 

counts of conviction that were equally serious in nature. 

 A five-point enhancement under U.S.S.G. § 4B1.5(b)(1) because Cifuentes-Lopez 

engaged in a pattern of activity involving prohibited sexual conduct. 

With acceptance of responsibility, Cifuentes-Lopez’s total offense level was 36. With a 

criminal history category of I, the resulting Guideline range was 188 to 235 months. 

At sentencing, the government argued that two additional enhancements should 

apply: 

 A two-point enhancement under U.S.S.G. § 2G1.3(b)(2)(B) because CifuentesLopez had exerted undue influence over the minors. 

 A four-level aggravating role enhancement under U.S.S.G. § 3B1.1(a) for 

Cifuentes-Lopez’s role as “an organizer or leader of a criminal activity that 

involved five or more participants or was otherwise extensive.” Id.

Cifuentes-Lopez countered that the five-level increase pursuant to U.S.S.G. § 4B1.5(b)(1) 

for engaging in a pattern of activity involving prohibited sexual conduct should not be 

applied because he only had sex with each victim one time. Further, he argued that the 

application of this enhancement along with the two-level enhancement for multiple 

counts or multiple victims pursuant to U.S.S.G. § 3D1.4 constituted impermissible double 

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counting. He claimed that the two enhancements did not address separate effects and did 

not otherwise operate independently of each other. 

The district court applied all the enhancements in the PSR along with the undue 

influence enhancement proposed by the government. The district court rejected 

Cifuentes-Lopez’s objections. Ultimately, the district court found Cifuentes-Lopez’s 

total offense level was 38 and his criminal history category was I, resulting in a Guideline 

sentencing range of 235-293 months of imprisonment. The district court sentenced 

Cifuentes-Lopez near the top of that range: 292 months. 

II. Analysis 

We review the district court’s legal conclusions under the Sentencing Guidelines 

de novo and its findings of fact for clear error, “giving great deference to the district 

court’s application of the Guidelines to the facts.” United States v. Evans, 782 F.3d 1115, 

1117 (10th Cir. 2015) (quoting United States v. Salas, 756 F.3d 1196, 1204 (10th Cir. 

2014). 

Cifuentes-Lopez raises two arguments regarding his pattern of activity 

enhancement and alleged impermissible double counting. We address each argument in 

turn. 

A. Pattern of Activity Enhancement 

Section 4B1.5 applies to a “Repeat and Dangerous Sex Offender Against Minors.” 

U.S.S.G. § 4B1.5. Subsection (b) provides for a five-level increase in the offense level if 

(1) “the defendant’s instant offense of conviction is a covered sex crime” and (2) “the 

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defendant engaged in a pattern of activity involving prohibited sexual conduct.”1

 Id. at 

§ 4B1.5(b). And Application Note 4(B)(i) provides 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(b) cmt. n.4(B)(i). 

In the present case, the district court applied a five-level increase for a pattern of 

activity pursuant to § 4B1.5(b)(1) because Cifuentes-Lopez had engaged in prohibited 

sexual conduct on more than one occasion. 

Cifuentes-Lopez argues that the district court erred in applying the pattern of 

activity enhancement because he engaged in only one prohibited sexual act with each 

minor, and separate acts do not create a pattern. See United States v. Riccardi, 314 F. 

App’x 99, 103 (10th Cir. 2008) (“While § 2G2.1 allows for an enhancement for multiple 

1

 The full text of subsection (b) says: 

(b) In any case in which the defendant’s instant offense of conviction is 

a covered sex crime, neither § 4B1.1 nor subsection (a) of this guideline 

applies, and the defendant engaged in a pattern of activity involving 

prohibited sexual conduct: 

(1) The offense level shall be 5 plus the offense level determined 

under Chapters Two and Three. However, if the resulting offense 

level is less than level 22, the offense level shall be level 22, 

decreased by the number of levels corresponding to any applicable 

adjustment from § 3E1.1. 

(2) The criminal history category shall be the criminal history 

category determined under Chapter Four, Part A. 

U.S.S.G. § 4B1.5(b). 

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victims, § 4B1.5 allows for enhancement if a defendant exploited victims on multiple 

occasions.”). He contends that § 4B1.5(b)(1) is reserved for situations in which sexual 

acts have occurred with the same minor on multiple occasions. 

We disagree with this logic. First, the Application Note says that a defendant must 

engage in prohibited sexual conduct with “a minor” on two separate occasions to qualify 

for the enhancement. U.S.S.G. § 4B1.5(b) cmt. n.4(B)(i). The word “a” indicates that 

the two separate occasions of sexual conduct may—but do not have to be—with one 

minor. Cf. United States v. Thompson, 402 F. App’x 378, 384 (10th Cir. 2010) (“The use 

of the indefinite article ‘a’ before ‘dwelling’ suggests the ‘dwelling’ need not be a 

specific dwelling.”); United States v. Jenkins, 904 F.2d 549, 553 (10th Cir. 1990) 

(“Section 848’s use of the indefinite article when describing ‘a position of organizer’ or 

‘a supervisory position or any other position of management’ contemplates that a given 

network may have many persons in authority.”). Thus, the plain meaning of the 

Application Note is that a pattern of activity includes when a defendant engages in sexual 

conduct against two different minors on separate occasions or against the same minor on 

two different occasions. See U.S.S.G. § 4B1.5(b) cmt. n.4(B)(i); United States v. Oakie, 

993 F.3d 1051, 1053-54 (8th Cir. 2021) (affirming application of § 4B1.5(b) 

enhancement where defendant molested one girl one time and later molested a different 

girl one time); United States v. Fox, 926 F.3d 1275, 1280 (11th Cir. 2019) (“The plain 

meaning of ‘separate occasions’ . . . requires only events that are independent and 

distinguishable from each other. Multiple, distinct instances of abuse—whether ongoing, 

related, or random—meet the requirements under § 4B1.5(b)(1).”); United States v. 

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Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012) (“[W]e accord Guidelines language in the 

plain meaning: ‘two’ means two, not three; and ‘separate’ means the two occasions must 

be separate from each other.”). 

This interpretation is consistent with the history of the enhancement. The prior 

version of § 4B1.5(b)(1) required “at least two minor victims of the prohibited sexual 

conduct” for the enhancement to apply. See U.S.S.G. § 4B1.5 cmt. n.4(B)(i) (2002) 

(“[T]he defendant engaged in a pattern of activity involving prohibited sexual conduct 

if— (I) on at least two separate occasions, the defendant engaged in prohibited sexual 

conduct with a minor; and (II) there were at least two minor victims of the prohibited 

sexual conduct.”). The Application Note explained that a defendant engaged in a pattern 

of activity “if there were two separate occasions of prohibited sexual conduct and each 

such occasion involved a different minor”—the exact situation presented in this appeal. 

Id. In 2003, “[i]n an effort to broaden § 4B1.5(b)(1)’s scope,” Congress amended 

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.” United States v. Brattain, 539 

F.3d 445, 448 (6th Cir. 2008). Thus, the enhancement was expanded to include repeated 

abuse of a single minor, not restricted to only instances where a defendant repeatedly 

abuses a single minor. 

In summary, the pattern of activity enhancement under § 4B1.5(b)(1) can be 

applied to either repeated abuse of a single minor or separate abuses of multiple minors. 

Accordingly, the district court correctly applied the pattern of activity enhancement to 

Cifuentes-Lopez. 

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B. Double Counting 

The Sentencing Guidelines specify that offense level adjustments for more than 

one specific offense characteristic are cumulative, whereas within each specific offense 

characteristic they are alternative. See U.S.S.G. § 1B1.1, cmt. n.4. Impermissible double 

counting occurs in Guideline calculations when “the same conduct on the part of the 

defendant is used to support separate increases under separate enhancement provisions 

which necessarily overlap, are indistinct, and serve identical purposes.” United States v. 

Fisher, 132 F.3d 1327, 1329 (10th Cir. 1997) (quoting United States v. Blake, 59 F.3d 

138, 140 (10th Cir. 1995)). All three criteria must be satisfied to constitute double 

counting. See United States v. Rucker, 178 F.3d 1369, 1371 (10th Cir. 1999). 

But a court “may apply separate enhancements to reach distinct aspects of the 

same conduct.” United States v. Reyes Pena, 216 F.3d 1204, 1209 (10th Cir. 2000). 

There is no double counting when a court punishes “the same act using cumulative 

Sentencing Guidelines if the enhancements bear on ‘conceptually separate notions 

relating to sentencing.’” Id. at 1209 (quoting United States v. Lewis, 115 F.3d 1531, 

1537 (11th Cir. 1997)). Put another way, “cumulative sentencing is permissible when the 

separate enhancements aim at different harms emanating from the same conduct.” Reyes 

Pena, 216 F.3d at 1209-10. 

Here, Cifuentes-Lopez argues that his pattern of activity enhancement is 

impermissible double counting. He contends that the five-level pattern of activity 

enhancement under U.S.S.G. § 4B1.5(b)(1) cannot be applied at the same time as a twolevel multiple count enhancement under § 3D1.4. See United States v. Fadl, 498 F.3d 

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862, 867 (8th Cir. 2007) (noting that “the enhancement for multiple victims could be 

applied without the application of an enhancement for multiple occasions, and viceversa”). Cifuentes-Lopez contends that the two enhancements punish him for the same 

criminal conduct—i.e., the fact that there are multiple victims—and thus the 

enhancement provisions “necessarily overlap, are indistinct, and serve identical 

purposes.” Fisher, 132 F.3d at 1329. In other words, Cifuentes-Lopez contends that both 

U.S.S.G. § 4B1.5(b)(1) and § 3D1.4 are aimed at punishing offenders for multiple 

criminal acts and thus applying the two enhancements constitutes impermissible double 

counting in his case. 

We are not persuaded. Double counting did not occur because (1) the Guidelines 

expressly intend cumulative application, and (2) the enhancements serve different 

sentencing goals. 

First, the Guidelines anticipate a cumulative application of both enhancements. 

U.S.S.G. § 4B1.5(b)(1) expressly states that if the provision applies, the resulting offense 

level “shall be 5 plus the offense level determined under Chapters Two and Three.” Id.

(emphasis added). The additive noun “plus” tells us that “the guidelines intend the 

cumulative application” of such enhancements. United States v. Dowell, 771 F.3d 162, 

170 (4th Cir. 2014) (discussing a Chapter Two enhancement and § 4B1.5(b)(1)); see also

United States v. Von Loh, 417 F.3d 710, 715 (7th Cir. 2005) (holding that the application 

of § 3D1.4 and § 4B1.5(b)(1) did not constitute impermissible double counting because 

“[t]he word ‘plus’ [in § 4B1.5(b)(1)] indicates that the Sentencing Commission intended 

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that the repeat sex offender enhancement be imposed in addition to calculations made 

pursuant to §§ 2A3.2 and 3D1.4.”). 

Second, the two enhancements are directed to different purposes and aimed at 

different harms. The purpose of the multiple count enhancement in § 3D1.4 is to 

“provide incremental punishment for significant additional criminal conduct.” See

U.S.S.G. § 3D intro. cmt. The purpose of § 4B1.5(b)(1) is to protect minors from sex 

offenders “who present a continuing danger to the public.” See U.S.S.G. § 4B1.5 cmt. 

bkgd. (noting that the enhancement is derived from a Congressional directive “to ensure 

lengthy incarceration for offenders who engage in a pattern of activity involving the 

sexual exploitation of minors”). Punishing an offender for additional criminal conduct 

and continued danger to the public is not double counting—those are two separate 

sentencing goals. Cf. United States v. Seibert, 971 F.3d 396, 400 (3d Cir. 2020) 

(concluding that § 4B1.5(b)(1) serves a different sentencing goal than offense-specific 

Guideline provisions “[b]ecause it pertains to the part of the Guidelines dealing with 

career offenders”); United States v. Dowell, 771 F.3d 162, 171 (4th Cir. 2014) (holding 

that application of § 4B1.5(b)(1), together with § 2G2.2(b)(5), was not impermissible 

double counting because “§ 4B1.5(b)(1) aims not merely to punish a defendant for the 

specific characteristics of the offenses of conviction . . . but to allow a district court to 

impose an enhanced period of incarceration because the defendant presents a continuing 

danger to the public”). The fact that different harms may emanate from the same conduct 

does not result in impermissible double counting. See Reyes Pena, 216 F.3d at 1210. 

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In summary, applying a five-level pattern of activity enhancement under U.S.S.G. 

§ 4B1.5(b)(1) along with a two-level multiple count enhancement under § 3D1.4 is not 

double counting in this case because the Guidelines expressly intend cumulative 

application, and the enhancements serve different sentencing goals. Thus, the district 

court correctly applied both enhancements to Cifuentes-Lopez. 

III. Conclusion 

For the foregoing reasons, we AFFIRM the district court. 

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