UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESSE N. EVANS, a/k/a Jesse Evans, 

 Defendant - Appellant. 

No. 14-1142 

(D.C. No. 1:12-CR-00325-WJM-1) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges. 

 

 Jesse N. Evans appeals his sentence imposed on his guilty plea to production 

of child pornography. We affirm. 

 I. Background

 In 2012, authorities discovered 4800 child-pornography videos and images in 

Evans’s possession, at least 100 of which depicted his own minor daughters and his 

minor niece. Evans was charged with five counts of production, distribution, and 

 

*

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

unanimously to grant 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 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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possession of child pornography. He eventually entered a guilty plea to an added 

sixth count of production of child pornography, in violation of 18 U.S.C. § 2251(a), 

and the government dismissed the original indictment. In his guilty plea, Evans 

admitted that he had produced child pornography of two minor victims between 

January 2010 and November 25, 2011. 

 Over Evans’s objection, the district court applied § 4B1.5(b) of the United 

States Sentencing Guidelines (USSG or Guidelines), which provides for a five-point 

sentence enhancement if “the defendant’s instant offense of conviction is a covered 

sex crime . . . and the defendant engaged in a pattern of activity involving prohibited 

sexual conduct.” The district court specifically found that Evans had produced 

child-pornography videos on November 5, 2011, and November 25, 2011, thus 

satisfying the “pattern of conduct” element of § 4B1.5(b). The resultant Guidelines 

sentencing range was 360 months. The district court granted Evans’s motion for a 

downward variance, and sentenced him to 252 months in prison. 

 Evans claims § 4B1.5(b) does not apply to him because the “pattern of 

activity” requirement is not met. He contends that § 4B1.5(b) does not apply to any 

act of production occurring during the period of almost two years covered by his 

guilty plea—January 2010 through November 25, 2011. He also asserts that the 

district court erred in applying § 4B1.5(b) because the government did not request it, 

and he claims the enhancement should not have been applied in the interest of 

fairness. 

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 II. Discussion

 Evans preserved his objection to § 4B1.5(b) at the sentencing hearing, so “we 

review the district court’s legal conclusions under the 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. Salas, 756 F.3d 1196, 

1204 (10th Cir. 2014) (internal quotation marks omitted). 

 The application notes to § 4B1.5(b) state that a pattern of activity may exist “if 

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

conduct with a minor.” USSG § 4B1.5(b) cmt. n. 4(B)(i). The notes further provide 

that “[a]n occasion of prohibited sexual conduct may be considered . . . without 

regard to whether the occasion (I) occurred during the course of the instant offense; 

or (II) resulted in a conviction for the conduct that occurred on that occasion.” Id.

cmt. n. 4(B)(ii) (emphasis added). “[C]ommentary in the Guidelines Manual that 

interprets or explains a guideline is authoritative unless it violates the Constitution or 

a federal statute, or is inconsistent with, or a plainly erroneous reading of, that 

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). The plain language of 

the commentary makes clear that the conduct underlying the present offense of 

conviction—in this case, production of the two videos on November 5 and 25, 

2011—may provide the “pattern of activity” covered by § 4B1.5(b). Because “[w]e 

find the plain language of the sentencing guidelines and the accompanying 

commentary to be dispositive,” United States v. Dell, 359 F.3d 1347, 1349 (10th Cir. 

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2004), we, like the Eighth Circuit, “hold that [§ 4B1.5(b)] may apply where . . . the 

only pattern of [activity] is conduct involved in the present offense of conviction.” 

United States v. Rojas, 520 F.3d 876, 883 (8th Cir. 2008); see also United States v. 

Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012) (according § 4B1.5(b) its plain 

meaning: “‘separate’ means the two occasions must be separate from each other, not 

that the two occasions demonstrating a pattern must be separate from (and in addition 

to) the crime of conviction”). 

 In an alternative argument, Evans contends that the district court should not 

have applied § 4B1.5(b) in the interests of fairness because the government did not 

request application of the Guideline. He also points out that the plea agreement 

stated that the repeat and dangerous sex offender adjustment, § 4B1.5(b), tentatively 

would not apply. Evans concedes that the district court was not bound by this 

statement or any understanding between counsel. Indeed, the district court had a 

duty to consider and apply the applicable Guidelines when fashioning Evans’s 

sentence. See 18 U.S.C. § 3553(a)(4)(A) (including the applicable guidelines range 

in the sentencing factors the court should consider); United States v. Booker, 

543 U.S. 220, 264 (2005) (“The district courts, while not bound to apply the 

Guidelines, must consult those Guidelines and take them into account when 

sentencing.”). Having held that § 4B1.5(b) applies to Evans’s conviction, we discern 

no abuse of discretion in the district court’s sentencing decision. See United States v. 

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Morrison, 771 F.3d 687, 691 (10th Cir. 2014) (stating reasonableness of a sentence is 

reviewed for abuse of discretion). 

 III. Conclusion

 Evans’s motion to seal the unredacted transcript of the sentencing hearing—

Attachment B to appellant’s original opening brief—is granted. The unredacted 

version of Attachment B shall permanently remain under seal. The judgment of the 

district court is affirmed. 

 Entered for the Court 

 John C. Porfilio 

 Circuit Judge 

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