The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11441
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRISTIN TRE-MEL WASHINGTON,
a.k.a. chunkyboy27,
a.k.a. $Tristin2018,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:23-cr-20449-KMM-1
____________________
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
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2 Opinion of the Court 24-11441
Tristin Tre-Mel Washington appeals his 240-month sen-
tence for transporting child pornography, in violation of 18 U.S.C.
§ 2252(a)(1) and (b)(1). On appeal, Washington first argues that the
district court erred in applying U.S.S.G. § 2G2.1, the guideline for
production of child pornography, through the cross-reference in
U.S.S.G. § 2G2.2(c), the guideline for transporting child pornogra-
phy, because he did not cause the minor victim to engage in sex-
ually explicit conduct for the purpose of producing a visual depic-
tion of such conduct. Second, he argues that the court erred in
applying the cross-reference in § 2G2.2(c) because the court did not
first show that the resulting offense level under § 2G2.1 was greater
than the resulting offense level under § 2G2.2. Third, he argues
that the court erred in applying a two-level enhancement for the
distribution of child pornography under § 2G2.1(b)(3), given that
he did not distribute child pornography to others.
I.
We review de novo a district court’s interpretation and appli-
cation of the Sentencing Guidelines, and review findings of fact for
clear error. United States v. Whitesell, 314 F.3d 1251, 1254 (11th Cir.
2002). The government must prove factors that trigger § 2G2.2(c)’s
cross-reference to § 2G2.1 by a preponderance of the evidence. See
id. at 1255.
Appendix A to the 2023 Federal Sentencing Guidelines man-
ual provides that the applicable guideline section for an offense un-
der 18 U.S.C. § 2252 is § 2G2.2. U.S.S.G. § 2G2.2 & App. A. The
cross-reference provision of § 2G2.2(c)(1) provides that, “[i]f the
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24-11441 Opinion of the Court 3
offense involved causing, transporting, permitting, or offering or
seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of
such conduct . . . , apply §2G2.1 . . . if the resulting offense level is
greater than that determined above.” U.S.S.G. § 2G2.2(c)(1). The
term “offense” as used in § 2G2.2(c)’s cross-reference includes both
charged and uncharged offenses. United States v. Miller, 166 F.3d
1153, 1155 (11th Cir.1999).
The guideline commentary to § 2G2.2 further provides,
The cross-reference in subsection (c)(1) is to be con-
strued broadly and includes all instances where the of-
fense involved employing, using, persuading, induc-
ing, enticing, coercing, transporting, permitting, or
offering or seeking by notice or advertisement, a mi-
nor to engage in sexually explicit conduct for the pur-
pose of producing any visual depiction of such con-
duct . . . .
U.S.S.G. § 2G2.2, comment. (n.7(A)). 1
In Whitesell, we concluded that “causing” in § 2G2.2(c)(1)
means “producing an effect, result, or consequence or being
1 In Dupree, we, sitting en banc, held that courts “may not defer” to the com-
mentary to the Sentencing Guidelines “if uncertainty does not exist” in the
Guidelines itself. United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023)
(en banc). However, we have relied on the commentary where “[n]o party
contest[ed] the commentary’s validity . . . or the propriety of its interpretation
of [the guideline’s] text.” United States v. Jews, 74 F.4th 1325, 1327 n.2, 1328
(11th Cir. 2023). Here, neither party contests the commentary’s validity.
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4 Opinion of the Court 24-11441
responsible for an action or result.” 314 F.3d at 1255. (quotation
marks and alterations omitted). When reaching this conclusion,
we specifically rejected as “too restrictive” a definition of “causing”
that required a defendant to have physical contact with or person-
ally photograph the victim. Id. In Whitesell, the defendant had re-
ceived a sexually explicit photograph of the victim and another girl,
and, soon after, he bragged in another chat about coaxing and
prompting the victim to take this photograph. Id. at 1255-56. We
determined that the defendant had “caused” the victim’s conduct
because his “coaxing directly resulted in the victim photographing
herself engaging in sexually explicit conduct.” Id. at 1256.
Here, the district court did not err in applying § 2G2.1
through the cross-reference in § 2G2.2(c) because the record sup-
ports the court’s finding that Washington caused the minor victim,
B.G., “to engage in sexually explicit conduct for the purpose of pro-
ducing a visual depiction of such conduct.” U.S.S.G. § 2G2.2(c)(1).
Under a broad construction of the cross-reference, the district court
properly adopted the PSI’s conclusion that Washington was “per-
suading, inducing, and enticing” B.G. engage in sexually explicit
conduct. U.S.S.G. § 2G2.2, comment. (n.7(A). Washington repeat-
edly purchased from B.G. images and videos of her engaging in sex-
ually explicit conduct, and he made specific requests for certain
content, such as “if she had videos with females or with ‘anyone
younger.’” On appeal, Washington argues that he did not cause
the minor victim’s conduct because he “simply purchased images
and videos that the minor had previously produced and was offer-
ing for sale.” However, there is evidence that Washington inquired
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24-11441 Opinion of the Court 5
if B.G. was making “any new sex tapes,” and she responded that
she could that evening. Washington told her the specific type of
sexual content he wanted her to engage in and she then confirmed,
“I got u[. . . .] I am done.” Therefore, Washington’s specific re-
quests prompted and directly resulted in B.G. producing a new
video of her engaging in sexually explicit conduct, which satisfies
the “causing” requirement in § 2G2.2(c). See Whitesell, 314 F.3d at
1255 56.
II.
We review for plain error a sentencing challenge raised for
the first time on appeal. United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014). “To preserve an issue for appeal, a defendant
must raise an objection that is sufficient to apprise the trial court
and the opposing party of the particular grounds upon which ap-
pellate relief will later be sought.” United States v. Thomas, 108 F.4th
1351, 1355 (11th Cir. 2024), cert. denied, 145 S. Ct. 1102 (2025) (quo-
tation marks omitted). Under plain error review, the defendant
must show that: (1) an error occurred; (2) the error was plain; and
(3) the error affects substantial rights. Rosales-Mireles v. United
States, 585 U.S. 129, 134-35 (2018). When these three factors are
met, we may exercise discretion and correct the error if it “seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 135 (quotation marks omitted).
An error is plain if it is clearly contrary to settled law at the
time of sentencing or at the time of appellate consideration. United
States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). Plain
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6 Opinion of the Court 24-11441
means contrary to the applicable statute, rule, or on-point prece-
dent. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003). A plain error affects substantial rights if it was prejudicial,
meaning that the error “actually did make a difference” in the de-
fendant’s sentence. Shelton, 400 F.3d at 1332 (quotation marks
omitted). Ordinarily, “a defendant will satisfy his burden to show
prejudice by pointing to the application of an incorrect, higher
Guidelines range and the sentence he received thereunder.” Mo-
lina-Martinez v. United States, 578 U.S. 189, 201 (2016).
Section 1B1.1(a) of the Sentencing Guidelines provides that
the court must determine the sentencing guideline range “by ap-
plying the provisions of this manual in the following order, except
as specifically directed” and lists the following:
(1) Determine, pursuant to §1B1.2 (Applicable Guide-
lines), the offense guideline section from Chapter
Two (Offense Conduct) applicable to the offense of
conviction. See §1B1.2.
(2) Determine the base offense level and apply any ap-
propriate specific offense characteristics, cross refer-
ences, and special instructions contained in the partic-
ular guideline in Chapter Two in the order listed.
U.S.S.G. § 1B1.1(a)(1)-(2).
As noted above in Issue 1, Appendix A to the Federal Sen-
tencing Guidelines manual provides that the applicable guideline
section for offenses under § 2252 is § 2G2.2. Id. § 2G2.2 &
App. A. And again, § 2G2.2(c)(1) provides that, “[i]f the offense
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24-11441 Opinion of the Court 7
involved causing, transporting, permitting, or offering or seeking
by notice or advertisement, a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct . . . , apply §2G2.1 . . . if the resulting offense level is
greater than that determined above.” Id. § 2G2.2(c)(1). When a
defendant’s statutory maximum sentence is less than the minimum
of his guideline range, the statutory maximum sentence becomes
his guideline range. Id. § 5G1.1(a).
We apply plain error review because Washington did not
raise this specific argument about the failure to calculate and com-
pare the offense levels under both §§ 2G2.1 and 2G2.2 before the
district court. Vandergrift, 754 F.3d at 1307. During the sentencing
hearing and in his written objections, Washington argued solely
that § 2G2.1 did not apply because the cross-reference did not cover
his actions when he purchased images and videos that the minor
victim had previously produced and was offering for sale. How-
ever, Washington now raises an additional, and different, argu-
ment on appeal that the court erred in applying § 2G2.1 via the
cross-reference without first demonstrating that the resulting of-
fense level under § 2G2.1 was greater than the resulting offense
level under § 2G2.2. Because Washington did not raise this specific
and discrete legal argument before the district court, plain error re-
view applies to this issue. See, e.g., Thomas, 108 F.4th at 1355; Van-
dergrift, 754 F.3d at 1307.
Here, Washington cannot prove that the court plainly erred
in this respect. Rosales Mireles, 585 U.S. at 134 35. Washington is
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8 Opinion of the Court 24-11441
correct that, for his violation of § 2252(a), the Sentencing Guide-
lines direct the court to first calculate under § 2G2.2 the base of-
fense level and any specific offense characteristics before applying
cross-references. U.S.S.G. §§ 1B1.1(a), 2G2.2, & App. A. Then, §
2G2.1 only applies via the cross-reference in § 2G2.2(c)(1) “if the
resulting offense level is greater than that determined” in § 2G2.2.
Id. § 2G2.2(c)(1). The probation officer determined that Washing-
ton’s resulting offense level was greater under § 2G2.1, but the PSI
did not actually include any calculations related to § 2G2.2. As the
government points out, Washington’s written objections to the PSI
included his own anticipated sentencing calculations under §
2G2.2. Of note, Washington’s preferred calculations, offered in ref-
erence to the original PSI, listed an adjusted offense level of 27 un-
der § 2G2.2, which is lower than the adjusted offense level of 40
that the original PSI had calculated under § 2G2.1. Nevertheless,
even if somehow Washington could establish that § 2G2.2 would
yield a higher total offense level compared to § 2G2.1, he cannot
show that any potential error affected his substantial rights.
Rosales-Mireles, 585 U.S. at 134 35. If the court calculated a greater
adjusted offense level under § 2G2.2 compared to § 2G2.1, this
would not prejudice Washington because it would not result in a
lower guideline range or affect his overall sentence. Molina Mar-
tinez, 578 U.S. at 201; Shelton, 400 F.3d at 1332. In fact, an even
higher theoretical adjusted offense level under § 2G2.2 would lead
to a higher total offense level and then to a higher guideline range.
Because any higher, alternative guideline range would also be
above the 20-year statutory maximum, the guideline range still
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24-11441 Opinion of the Court 9
would ultimately become 240 months under operation of §
5G1.1(a). See U.S.S.G. § 5G1.1(a). This is the same guideline range
that the court already considered when it imposed its 240-month
sentence based on its calculations under § 2G2.1. Any error, there-
fore, does not “actually [make] a difference” in Washington’s sen-
tence, and he cannot demonstrate the district court plainly erred.
Shelton, 400 F.3d at 1332.
III.
When reviewing for procedural reasonableness, we ordinar-
ily consider legal issues de novo and reviews factual findings for clear
error. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).
We review the interpretation and application of the Sentencing
Guidelines de novo. United States v. Dupree, 57 F.4th 1269, 1272 (11th
Cir. 2023) (en banc).
Section 2G2.1(b)(3) adds a two-level enhancement if “the de-
fendant knowingly engaged in distribution.” U.S.S.G.
§ 2G2.1(b)(3). Application Note 1 to § 2G2.2 defines distribution as
“any act . . . related to the transfer of material involving the sexual
exploitation of a minor . . . but does not include the mere solicita-
tion of such material by a defendant.” Id., comment. (n.1). At the
same time, the commentary provides that, under § 2G2.1(b)(3),
“the defendant ‘knowingly engaged in distribution’ if the defendant
(A) knowingly committed the distribution, (B) aided, abetted,
counseled, commanded, induced, procured, or willfully caused the
distribution, or (C) conspired to distribute.” Id., comment. (n.3).
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10 Opinion of the Court 24-11441
In the context of the statutory offense of distributing child
pornography, in violation of 18 U.S.C. § 2252A(a)(2), we have said
that “‘distribute’ ordinarily means to deliver, give out, dispense, or
disperse to others,” and that distribution implies that an item “is
delivered to someone other than the person who does the deliver-
ing.” Grzybowicz, 747 F.3d at 1307-08. Yet, we noted in Grzybowicz,
without reaching the issue, that the definition of distribution in
§ 2G2.1(b)(3), which also includes “possession with intent to dis-
tribute,” is broader than the meaning of distribute in § 2252A(a)(2).
Id. at 1312-13.
We have explained that we need not decide a disputed
guidelines issue if the district court states “that the guidelines ad-
vice that results from decision of those issues does not matter to
the sentence imposed after the [18 U.S.C.] § 3553(a) factors are con-
sidered.” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).
If the sentencing court makes such a statement, we assume there
was an error, calculate the guideline range without the error, and
analyze whether the sentence would be substantively reasonable
under that guideline range to determine if any error was “truly
harmless.” Id. at 1349-50.
When reviewing for substantive reasonableness, we con-
sider the totality of the circumstances under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The party challenging the sentence bears the burden of es-
tablishing that it is unreasonable based on the facts of the case and
the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
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24-11441 Opinion of the Court 11
(11th Cir. 2010). The district court abuses its discretion when it
“(1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors.” United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc) (quotation marks omitted). The
proper factors are set out in § 3553(a) and include the nature and
circumstances of the offense, the history and characteristics of the
defendant, the seriousness of the offense, promotion of respect for
the law, providing just punishment, and the need to protect the
public, and the need to avoid unwarranted sentence disparities. 18
U.S.C. § 3553(a)(1), (a)(2)(A)-(D), (a)(6).
We will only vacate the defendant’s sentence if we are “left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in weighing the § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” United States v. Trailer,
827 F.3d 933, 936 (11th Cir. 2016) (quotation marks and citation
omitted). We have “underscored” that we must give “due defer-
ence” to the district court to consider and weigh the proper sen-
tencing factors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th
Cir. 2018) (quotation marks omitted). A district court need not
state that it explicitly considered each of the § 3553(a) factors or dis-
cuss each factor. United States v. Oudomsine, 57 F.4th 1262, 1265
(11th Cir. 2023). Instead, the district court’s acknowledgment that
it considered the § 3553(a) factors is sufficient. Id.
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12 Opinion of the Court 24-11441
When a defendant’s statutory maximum sentence is less
than the minimum of the guideline range, the statutory maximum
sentence becomes the guideline range. U.S.S.G. § 5G1.1(a).
Here, the district court arguably erred in applying the two-
level enhancement under § 2G2.1(b)(3) for distribution, but any er-
ror was harmless. Keene, 470 F.3d at 1349 50. Washington’s actions
may not qualify as “distribution” under § 2G2.1(b)(3), given that he
solicited images and videos from B.G., but no evidence shows he
thereafter delivered or shared the material with others. U.S.S.G. §
2G2.1, comment. (n.1); Grzybowicz, 747 F.3d at 1307. The govern-
ment conceded at sentencing, and again on appeal, that the evi-
dence does not support this enhancement and that the district
court clearly erred in applying the enhancement. However, be-
cause the district court made a valid Keene statement before an-
nouncing its sentence, this triggered harmless-error review. Keene,
470 F.3d at 1349 50. Without this two-level enhancement, Wash-
ington’s reduced total offense level would be 39, and his guideline
range would become 262 to 327 months. U.S.S.G. Ch. 5, Pt. A (ta-
ble). However, because the statutory maximum sentence of 240
months is less than the minimum of this guideline range, Washing-
ton’s guideline range would still remain at 240 months. U.S.S.G. §
5G1.1(a). Therefore, his guideline range is the same, with or with-
out the two-level distribution enhancement under § 2G2.1(b)(3).
Further, the district court’s 240-month sentence is not sub-
stantively unreasonable. Gall, 552 U.S. at 51; Irey, 612 F.3d at 1189.
In his reply brief, Washington contends that the district court
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24-11441 Opinion of the Court 13
ignored his arguments for a lower sentence, never mentioned the
3553(a) factors it had considered for its alternative ruling, and failed
to explain why the sentence was reasonable. However, when im-
posing its sentence, the district court stated that it had considered
the parties’ statements and the factors in § 3553(a). The court at
the hearing already had heard Washington’s sentencing arguments
and his mitigation arguments regarding the relative seriousness of
his offense, his difficult personal upbringing, his consistent efforts
to remain employed, and his commitment to undergoing therapy.
The court was not required to state that it explicitly considered
each of the § 3553(a) factors, but its acknowledgment that it had
considered the § 3553(a) factors is sufficient. Oudomsine, 57 F.4th at
1265. Further, while the court did not provide a detailed explana-
tion, it did state that its 240-month sentence was reasonable after
consideration of § 3553(a) factors, and this Court must give “due
deference” to the district court’s consideration of the sentencing
factors. See Shabazz, 887 F.3d at 1224. Thus, Washington’s 240-
month sentence is not substantively unreasonable, and any alleged
error in the application of the distribution enhancement is harm-
less. See, e.g., Irey, 612 F.3d at 1189; Keene, 470 F.3d at 1349-50.
For the foregoing reasons, we affirm Washington’s sen-
tence.
AFFIRMED.