The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 25-1517
D.C. No.
Plaintiff - Appellee,
2:22-cr-00243-
TLN-1
v.
LOUIS DONALD MENDONSA,
AKA Louis Mendonsa, OPINION
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted February 12, 2026
San Francisco, California
Filed September 16, 2026
Before: Sidney R. Thomas and Eric D. Miller, Circuit
Judges, and Stanley Blumenfeld, Jr., District Judge.*
Opinion by Judge Blumenfeld
*
The Honorable Stanley Blumenfeld, Jr., United States District Judge
for the Central District of California, sitting by designation.
2 USA V. MENDONSA
SUMMARY**
Criminal Law
The panel affirmed Louis Mendonsa’s sentence for
possessing and distributing child pornography in a case in
which the district court applied the five-level sentencing
enhancement in U.S.S.G. § 2G2.2(b)(5) for defendants who
“engaged in a pattern of activity involving the sexual abuse
or exploitation of a minor.”
Consistent with the Guidelines commentary, the district
court interpreted the pattern enhancement to encompass
Mendonsa’s prior sex abuse convictions that were over 30
years old. Mendonsa contended that the pattern
enhancement unambiguously applies only to conduct related
to the offense of conviction, and that under Kisor v. Wilkie,
588 U.S. 558 (2019), the district court’s deference to the
Guidelines commentary was inappropriate. The panel held
that § 2G2.2(b)(5) is ambiguous as to whether the pattern
enhancement reaches conduct outside the offense of
conviction, that the commentary interpretation permitting
consideration of such conduct is reasonable, and that
deference to the commentary is therefore appropriate.
Mendonsa argued, alternatively, that even if his prior
convictions may be considered for the pattern enhancement,
they do not satisfy § 2G2.2(b)(5) because (1) his convictions
for lewd and lascivious acts under Cal. Pen. Code § 288(a)
do not qualify under the categorical approach as “sexual
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. MENDONSA 3
abuse or exploitation” and (2) his convictions for oral
copulation do not constitute a “pattern” because they may
have arisen from the same incident.
• The panel held that the categorical approach does not
apply to Mendonsa’s § 288(a) convictions because
the enhancement focuses on a defendant’s conduct
rather than prior convictions.
• Because the categorical approach does not apply, the
district court was entitled to examine the facts
underling the convictions. The panel held that, in
relying on documents from state-court proceedings,
the district court neither clearly erred in finding at
least two separate instances of qualifying sexual
abuse nor abused its discretion in considering
hearsay evidence concerning the state
convictions. The district court therefore properly
applied the enhancement.
COUNSEL
Roger Yang (argued), Assistant United States Attorney;
Nirav K. Desai, Appellate Chief; Eric Grant, United States
Attorney; Office of the United States Attorney, United States
Department of Justice, Sacramento, California; for Plaintiff-
Appellee.
Douglas J. Beevers (argued), Assistant Federal Defender;
Heather E. Williams, Federal Defender; Office of the
Federal Public Defender, Sacramento, California; for
Defendant-Appellant.
4 USA V. MENDONSA
OPINION
BLUMENFELD, District Judge:
Defendant Louis Mendonsa appeals his 292-month
sentence for possessing and distributing child pornography.
The district court applied the five-level sentencing
enhancement in Section 2G2.2(b)(5) of the United States
Sentencing Guidelines for defendants who “engaged in a
pattern of activity involving the sexual abuse or exploitation
of a minor.” Consistent with the Guidelines commentary,
the district court interpreted the pattern enhancement to
encompass Mendonsa’s prior sex abuse convictions that
were over 30 years old.
Mendonsa contends that the pattern enhancement
unambiguously applies only to conduct related to the offense
of conviction, and that under Kisor v. Wilkie, 588 U.S. 558
(2019), the district court’s deference to the Guidelines
commentary was inappropriate. Alternatively, he argues
that even if his prior convictions may be considered for the
pattern enhancement, the district court erred under the
categorical approach by considering the underlying factual
record from his state convictions to determine that the
enhancement applied.
We hold that the pattern enhancement is ambiguous and
deference to the Guidelines commentary is appropriate.
Moreover, the categorical approach does not apply because
the enhancement focuses on a defendant’s conduct rather
than prior convictions, and the district court neither clearly
erred in finding the enhancement satisfied nor abused its
discretion in considering hearsay evidence concerning
Mendonsa’s state convictions.
USA V. MENDONSA 5
I
In April 2024, Mendonsa pleaded guilty to seven counts
of distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4).
Mendonsa posted hundreds of images on four “dark web”
websites—of which he was an administrator or moderator—
between July and November 2022.
Decades before the child pornography offenses, a state
jury found Mendonsa guilty of child sex abuse offenses for
molesting newspaper delivery boys whom he supervised. In
1993, he was convicted of nine counts of lewd and lascivious
acts upon a child under age 14 in violation of California
Penal Code § 288(a); two counts of oral copulation with a
child in violation of Penal Code § 288a(c); and one count of
a lewd act upon a child in violation of Penal Code § 288(c).
All but the last of these involved the same victim. Mendonsa
was sentenced to 14 years in prison for the offenses.
Section 2G2.2 of the Sentencing Guidelines governs the
offense-level calculation for Mendonsa’s federal child
pornography crimes. This appeal concerns the pattern
enhancement in § 2G2.2(b)(5), which requires a five-level
increase “[i]f the defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.”
U.S.S.G. § 2G2.2. The commentary to § 2G2.2 defines a
“pattern of activity involving the sexual abuse or
exploitation of a minor” as:
any combination of two or more separate
instances of the sexual abuse or sexual
exploitation of a minor by the defendant,
whether or not the abuse or exploitation
6 USA V. MENDONSA
(A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted
in a conviction for such conduct.
Id. cmt. n.1. The commentary further defines “sexual abuse
or exploitation” as conduct described in specified federal
statutes, including 18 U.S.C. §§ 2241–2243 (criminalizing
sexual acts involving force or threats, minors, or persons
incapable of giving consent), or equivalent state-law
conduct. Id.
The original presentence report (PSR) prepared by the
U.S. Probation Office did not recommend applying the
pattern enhancement to Mendonsa. The government
informally objected and argued for the enhancement, citing
discovery materials related to his 1993 convictions. Over
Mendonsa’s objection, the final PSR recommended applying
the pattern enhancement based on his prior lewd and
lascivious acts on minor victims on several occasions.
Mendonsa objected to the pattern enhancement on two
grounds, arguing: (1) that it was “based on conduct that
allegedly occurred thirty years prior to the offense”; and
(2) that the evidence concerning his 1993 convictions was
“insufficient to establish that he committed two separate
incidents of specifically defined sexual crimes.”
At the sentencing hearing, the district court summarized
the documents from the 1993 convictions and understood
them to reflect multiple acts involving one victim at different
times. The court found that there were “six separate
incidents,” including four where Mendonsa touched the
victim under his clothing. The court also described an
incident with another victim, in which, according to the
investigation report, Mendonsa “touched [the victim’s] leg
USA V. MENDONSA 7
and moved towards his penis . . . then continued rubbing
[his] neck and worked his way down to his groin area.” The
district court concluded that the underlying records detailed
“different occurrences” and that the § 2G2.2 commentary
“eliminates any need for any temporal or factual nexus
between . . . the offense of conviction and any prior act of
sexual abuse.” Consequently, the court applied the pattern
enhancement.
Mendonsa was sentenced to 292 months in prison
followed by 10 years of supervised release. He timely
appealed his sentence.
II
“We review the district court’s interpretation of the
Sentencing Guidelines de novo, its application of the
Guidelines to the facts of the case for abuse of discretion,
and its factual findings for clear error.” United States v.
Kirilyuk, 29 F.4th 1128, 1133 (9th Cir. 2022).
III
Mendonsa principally argues that the district court erred
in applying the § 2G2.2(b)(5) pattern enhancement because
that Guidelines provision unambiguously applies only to
conduct relevant to the offense of conviction, not to sexual
abuse occurring decades earlier. In the alternative, he argues
that the record does not support application of the
enhancement and that the district court erred in relying on
hearsay to support its contrary conclusion.
A
We first address Mendonsa’s contention that the pattern
enhancement in § 2G2.2(b)(5) applies only to conduct that is
temporally or otherwise related to the offense of conviction.
8 USA V. MENDONSA
The Guidelines commentary rejects such limitations, stating
that the enhancement applies “whether or not the abuse or
exploitation . . . occurred during the course of the offense.”
U.S.S.G. § 2G2.2 cmt. n.1. Relying on the commentary, this
court previously held that the pattern enhancement (then
found at § 2G2.2(b)(4)) “allows for consideration of
expanded relevant conduct” unrelated to the offense of
conviction. United States v. Williamson, 439 F.3d 1125,
1140 (9th Cir. 2006). At the time we decided Williamson,
we gave the Guidelines commentary “controlling weight
unless it is plainly erroneous or inconsistent with the
regulation.” Stinson v. United States, 508 U.S. 36, 45 (1993)
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,
414 (1945)). The Supreme Court’s subsequent decision in
Kisor, however, requires us to reexamine the conclusion in
Williamson, which rested solely on the Guidelines
commentary and cases finding the commentary
unambiguous.
Kisor established a two-step framework for determining
whether to defer to an agency’s interpretation of its own
regulations. First, the court asks whether the regulation is
“genuinely ambiguous” after applying the traditional tools
of interpretation. 588 U.S. at 573. If not, the regulation
controls. Id. at 575. Second, if the regulation is found to be
ambiguous, the court defers only if the agency’s
interpretation is reasonable and its character and context
warrant controlling weight—meaning that it reflects the
agency’s official position, implicates its substantive
expertise, and represents its fair and considered judgment.
Id. at 575–79. Although the circuits disagree over the
deference owed to the Guidelines commentary after Kisor,
USA V. MENDONSA 9
this court applies the Kisor framework. United States v.
Castillo, 69 F.4th 648, 655 (9th Cir. 2023).1
1
Mendonsa argues that deference to the Guidelines
commentary is inappropriate because the § 2G2.2(b)(5)
enhancement for “a pattern of activity involving the sexual
abuse or exploitation of a minor” unambiguously limits the
qualifying pattern of abuse or exploitation to conduct related
to the offense of conviction. Neither the plain text nor the
standard tools of construction compel that reading.
a
There is no express temporal or offense-related
limitation in the text of § 2G2.2(b)(5). The guideline merely
provides that the offense level should be increased “[i]f the
defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.” U.S.S.G.
§ 2G2.2(b)(5) (emphasis added).
A “pattern of activity” is a recurring course of conduct.
As relevant here, “pattern” means “a reliable sample of
traits, acts, tendencies, or other observable characteristics of
a person.” Webster’s Third New International Dictionary
1657 (1993). Applied to § 2G2.2(b)(5), that definition looks
to repeated acts of sexual abuse as evidence of a
1
Other circuits continue to apply the more deferential standard
articulated in Stinson. E.g., United States v. Vargas, 74 F.4th 673, 678,
680 (5th Cir. 2023) (en banc); United States v. Maloid, 71 F.4th 795,
809–13 (10th Cir. 2023). The Supreme Court recently granted certiorari
to decide whether Stinson remains the governing standard. Beaird v.
United States, No. 25-5343, 2026 WL 1052007, at *1 (U.S. Apr. 20,
2026). The issue does not affect the result here because Mendonsa
cannot prevail even under Kisor’s less deferential standard.
10 USA V. MENDONSA
characteristic course of behavior. The focus is therefore on
the recurrence of the conduct, not its connection to any
particular offense.
The nature of the pattern of activity—“sexual abuse or
exploitation of a minor”—reinforces this focus. Section
2G2.2 governs nonproduction child-pornography offenses;
the pattern enhancement, by contrast, targets a defendant’s
personal involvement in the sexual abuse or exploitation of
minors. See United States v. Ketcham, 80 F.3d 789, 794–95
(3d Cir. 1996) (explaining that § 2G2.2(b)(4)—now
§ 2G2.2(b)(5)—targets “more dangerous” defendants who
have been “involved first hand in the exploitation of
children”). The enhancement’s focus on sexual abuse or
exploitation—conduct distinct from the child-pornography
offense—suggests that the aggravating factor is the
defendant’s history of such conduct, not its connection to the
offense of conviction.
Thus, the text does not contain the limitations Mendonsa
seeks to impose—much less unambiguously so.
b
The inquiry does not end with the text of § 2G2.2(b)(5),
because in determining whether a guideline is ambiguous,
courts must exhaust the tools of construction, including by
looking to its “structure, history, and purpose.” Kisor, 588
U.S. at 575; United States v. Cisneros, No. 24-6774, 2026
WL 2451424, at *3 (9th Cir. Aug. 21, 2026) (explaining that
“[w]e may not defer to the Sentencing Commission’s
commentary interpreting the Sentencing Guidelines unless
the guideline itself is genuinely ambiguous” after exhausting
the traditional tools of construction). Mendonsa argues that
the Guidelines’ structure—including § 2G2.2(b)(5)’s
location, its interaction with other Guidelines provisions,
USA V. MENDONSA 11
and the limitations in the neighboring subsections of
§ 2G2.2—requires finding that the pattern enhancement is
limited to conduct related to the offense of conviction.
The strongest support for Mendonsa’s argument comes
from U.S.S.G. § 1B1.3(a). Section 1B1.3(a) provides that,
“[u]nless otherwise specified,” Chapter Two adjustments—
where the pattern enhancement is found—“shall be
determined” based on several categories of relevant
information. One such category, set out in subsection
(a)(1)(A), includes “all acts and omissions committed . . . by
the defendant . . . that occurred during the commission of the
offense of conviction.” U.S.S.G. § 1B1.3(a)(1)(A).
Mendonsa reads this language as imposing a default
limitation: unless the applicable guideline specifies
otherwise, a court may not consider conduct that occurred
outside the offense of conviction.
That argument, however, gives subsection (a)(1) more
limiting force than the structure of § 1B1.3(a) supports.
Section 1B1.3(a)(1) is only one of four categories of
information the provision directs courts to consider.
Subsection (a)(4) separately permits consideration of “any
other information specified in the applicable guideline.”
Thus, subsection (a)(1) does not itself categorically limit
Chapter Two adjustments to conduct occurring during the
offense of conviction.2 See United States v. Arias-Granados,
941 F.2d 996, 998 (9th Cir. 1991) (considering prior
2
Although Williamson stated that § 1B1.3(a)(1) generally limits relevant
conduct to conduct occurring during the offense “[u]nless otherwise
specified,” 439 F.3d at 1139, it did not address § 1B1.3(a)(4). Nor did it
need to because it concluded that the commentary expressly permitted
consideration of conduct unrelated to the offense of conviction. Id. at
1140.
12 USA V. MENDONSA
unrelated offenses in calculating guidelines range); United
States v. Davis, 360 F.3d 901, 903 (8th Cir. 2004) (relying
on § 1B1.3(a)(4) to impose enhancement for firearm used in
offense unrelated to conviction and rejecting argument that
§ 1B1.3(a)(1) limited its application).
That does not mean, however, that subsection (a)(4)
resolves the issue in the government’s favor. Subsection
(a)(4) permits consideration only of information “specified
in the applicable guideline.” It therefore shifts the inquiry
back to § 2G2.2(b)(5): whether that provision’s direction to
consider whether “the defendant engaged in a pattern of
activity” itself specifies consideration of conduct outside the
offense of conviction. Neither party addresses subsection
(a)(4) or its effect on that inquiry.
Setting aside § 1B1.3(a)(4), Mendonsa’s reliance on
§ 1B1.3(a)(1) still does not establish that the pattern
enhancement is limited to conduct occurring during the
offense of conviction because that limitation is qualified by
the phrase “[u]nless otherwise specified.” A guideline
“otherwise specifie[s]” if its text directs consideration of
conduct different from § 1B1.3’s default scope, whether or
not it expressly references § 1B1.3 or disclaims its default
rule.
The First Circuit has adopted this reading. United States
v. Salvador-Gutierrez, 128 F.4th 299, 311–13 (1st Cir.
2025). It held that a guideline “otherwise specifie[s]” when
its language is “best read as an explicit instruction to adjust
the defendant’s offense level based on a different (or
narrower) range of conduct than the conduct specified in
§ 1B1.3.” Id. at 311. The guideline need not, however,
“mention § 1B1.3 by name or quote from its text.” Id. This
court has similarly recognized in another context that a
USA V. MENDONSA 13
provision may “specify” a condition that triggers an
exception to a default rule without expressly referencing the
statute containing the default rule. Spencer Enters., Inc. v.
United States, 345 F.3d 683, 688–90 (9th Cir. 2003) (holding
that an immigration statute providing that the Attorney
General “may” grant asylum would, absent a specific
carveout in the statute, trigger a jurisdiction-stripping
provision applicable when a decision or action “is specified
. . . to be in the discretion of the Attorney General”).
Section 2G2.2(b)(5) may fairly be read to “otherwise
specif[y]” a broader range of conduct than the offense-
related conduct described in § 1B1.3(a)(1). As discussed,
the enhancement’s focus on a defendant’s “pattern of
activity” points to a recurring course of conduct, and the
nature of that conduct—firsthand sexual abuse or
exploitation—distinguishes it from the nonproduction child-
pornography conduct governed by § 2G2.2. Taken together,
these textual cues provide a basis for looking beyond the
offense of conviction. At a minimum, they undermine
Mendonsa’s argument that § 1B1.3(a)(1) unambiguously
limits the pattern enhancement to abuse related to the child-
pornography offense.
This conclusion is bolstered by the pattern
enhancement’s immediate context. Section 2G2.2(b)(5)’s
reference to whether “the defendant engaged in” a pattern of
abuse or exploitation stands in stark contrast to the
neighboring subsections, each of which ties the enhancement
to the conduct or circumstances of the child-pornography
offense itself. See U.S.S.G. § 2G2.2(b)(2) (enhancing where
“the material involved a prepubescent minor or a minor who
had not attained the age of 12 years”); id. § 2G2.2(b)(3)(A)
(enhancing where “the offense involved distribution for
pecuniary gain”); id. § 2G2.2(b)(3)(B) (enhancing where
14 USA V. MENDONSA
“the defendant distributed in exchange for any valuable
consideration”); id. § 2G2.2(b)(3)(C)–(E) (enhancing where
“the offense involved distribution to a minor” under
specified circumstances); id. § 2G2.2(b)(3)(F) (enhancing
where “the defendant knowingly engaged in distribution”);
id. § 2G2.2(b)(4) (enhancing where “the offense involved
material that portrays” sadistic or masochistic conduct,
violence, or abuse of an infant or toddler); id. § 2G2.2(b)(6)
(enhancing where “the offense involved the use of a
computer or an interactive computer service”); id.
§ 2G2.2(b)(7) (enhancing where “the offense involved” a
specified number of images). Section 2G2.2(b)(1) is the
lone neighboring provision that reduces, rather than
increases, the offense level. But it too focuses on the offense
conduct, applying when “the defendant’s conduct was
limited to the receipt or solicitation” of qualifying material
and the defendant lacked intent to traffic or distribute it. Id.
§ 2G2.2(b)(1).
Mendonsa invokes these neighboring provisions to argue
that § 2G2.2(b)(5) should be read to contain a similar
offense-related limitation. But “[t]he Supreme Court has
emphasized that ‘Congress generally acts intentionally when
it uses particular language in one section of a statute but
omits it in another,’ and that this canon ‘applies with
particular force’ when the use and omission occur ‘in close
proximity’ to one another.” Castillo, 69 F.4th at 658
(quoting Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383,
391–92 (2015)). In Castillo, the definition of “controlled
substance offense” listed completed drug offenses but did
not include related attempt and conspiracy offenses, even
though neighboring Guidelines provisions expressly
included such inchoate crimes. The court reasoned that the
contrast showed that the drafters “knew how to include”
USA V. MENDONSA 15
inchoate offenses when intended but chose not to include
them in the definition at issue. Id. The same reasoning cuts
against Mendonsa here. The neighboring subsections
demonstrate that the Commission knew how to tie an
adjustment to offense-related conduct and did so in every
neighboring provision. Section 2G2.2(b)(5), by
comparison, asks only whether “the defendant engaged in” a
pattern of abuse or exploitation, without referring to “the
defendant’s conduct,” “the offense,” or the “material” at
issue. That contrast suggests that the omission of an offense-
related limitation was deliberate.
Mendonsa’s remaining structural arguments are
similarly unavailing. He first relies on the title of
§ 2G2.2(b)—“Specific Offense Characteristics”—to argue
that the pattern enhancement is limited to a pattern of activity
related to the offense of conviction. Like many guidelines
in Chapter Two, § 2G2.2 is organized into subdivisions that
set the base offense level, provide adjustments to that level,
and supply a cross-reference. In that structure, “Specific
Offense Characteristics” identifies a category of adjustments
to the base offense level; it does not itself define the conduct
relevant to those adjustments. See U.S.S.G. § 1B1.3(a)
(providing that “specific offense characteristics” are
determined under its relevant-conduct rules “[u]nless
otherwise specified”); cf. United States v. Ellison, 113 F.3d
77, 82 (7th Cir. 1997) (“The listing of an enhancement under
the heading ‘specific offense characteristics’ does not
require us to truncate the definition of ‘offense’ by ignoring
the full range of relevant conduct under § 1B1.3.”). The title
therefore does not establish that the pattern enhancement
unambiguously applies only to conduct related to the offense
of conviction.
16 USA V. MENDONSA
Finally, Mendonsa argues that § 2G2.2(b)(5)’s
placement in Chapter Two, rather than Chapter Four,
indicates that the enhancement is limited to conduct related
to the offense of conviction. But that argument conflates a
defendant’s criminal history with a defendant’s history of
conduct. Part A of Chapter Four calculates a defendant’s
criminal history category principally from “prior
sentence[s].” U.S.S.G. § 4A1.1. A “prior sentence” is one
“previously imposed upon adjudication of guilt . . . for
conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2(a)(1). Some enhancements in Chapter Two require
a prior conviction, see, e.g., U.S.S.G. § 2L1.2(b), which may
or may not also be included in calculating a defendant’s
criminal history category, see U.S.S.G. § 4A1.2(c). But the
pattern enhancement here, like other pattern enhancements
in Chapter Two, turns on whether the defendant engaged in
qualifying conduct, regardless of whether that conduct
resulted in a conviction or sentence. Cf. U.S.S.G.
§ 2A6.2(b)(1)(E) & cmt. n.1 (“pattern of activity involving
stalking, threatening, harassing, or assaulting the same
victim”); U.S.S.G. § 2B1.5(b)(5) & cmt. n.6 (“pattern of
misconduct involving cultural heritage resources or
paleontological resources”). Its placement outside Chapter
Four therefore does not establish that the qualifying conduct
must be related to the offense of conviction.
In sum, neither the immediate context of § 2G2.2(b)(5)
nor the broader structure of the Guidelines unambiguously
limits the pattern enhancement to conduct related to the
offense of conviction.
c
Nor do the history and purpose of § 2G2.2(b)(5) support
Mendonsa’s interpretation. See Kisor, 588 U.S. at 575
USA V. MENDONSA 17
(noting that courts should look to a regulation’s history and
purpose before finding ambiguity and extending deference).
The Sentencing Commission first considered a pattern
enhancement in 1990 because its “own research revealed
that prior incidents of sexually abusing children seemed to
establish a ‘heartland’ characteristic in child pornography
cases.” U.S. Sent’g Comm’n, The History of the Child
Pornography Guidelines 16 (2009). The Commission
responded by amending § 2G2.2’s commentary to
“recommend consideration of an upward departure where
the defendant had sexually abused a minor at any time in the
past.” Id. (citing U.S.S.G. app. C, amend. 325). In 1991, as
part of an effort to increase sentences for child-pornography
offenses, Congress directed the Commission to “provide at
least a 5 level increase for offenders who have engaged in a
pattern of activity involving the sexual abuse or exploitation
of a minor.” Id. at 23 (quoting Treasury, Postal Service and
General Government Appropriations Act, 1992, Pub. L. No.
102–141, § 632, 105 Stat. 834, 876 (1991)).
The Commission implemented that directive by
amending § 2G2.2 itself to add the pattern enhancement,
effective November 1991. Id. at 24–25. At the same time,
the Commission defined the operative phrase in the
commentary:
‘Pattern of activity involving the sexual
abuse or exploitation of a minor,’ for the
purposes of subsection (b)(4) [now (b)(5)],
means any combination of two or more
separate instances of the sexual abuse or the
18 USA V. MENDONSA
sexual exploitation of a minor, whether
involving the same or different victims.
United States v. Debus, 688 F. Supp. 3d 201, 208 (M.D. Pa.
2023) (citing U.S.S.G. app. C, amend. 435).
Thus, the pattern enhancement grew out of the
recognized connection between child-pornography offenses
and a defendant’s history of sexually abusing or exploiting
minors—a concern the Commission first addressed by
recommending an upward departure, and Congress later
addressed by directing the Commission to create the
enhancement. Neither the pattern enhancement nor its
contemporaneous definition required that the abuse be
related to the child-pornography offense. After the First and
Sixth Circuits held that conduct under the enhancement must
relate to the offense of conviction, the Commission made
explicit that the enhancement encompasses a broader scope
of conduct, amending the commentary to state that the
enhancement applies “whether or not the abuse or
exploitation . . . occurred during the course of the offense.”
See Williamson, 439 F.3d at 1139–40 & n.17 (discussing
history of the pattern enhancement’s commentary).
This history supports the government’s reading. The
enhancement was designed to account for a child-
pornography offender’s history of prior sexual abuse, and
nothing in its development suggests that Congress or the
Commission intended to confine it to abuse connected to the
offense of conviction. The enhancement’s history and
purpose therefore undermine Mendonsa’s contention that
§ 2G2.2(b)(5) unambiguously requires an offense nexus.
USA V. MENDONSA 19
2
The plain text, structure, and history of § 2G2.2(b)(5) do
not unambiguously limit the enhancement to offense-related
conduct, but neither do they unambiguously establish that it
reaches conduct unrelated to the offense of conviction. The
enhancement does not expressly extend to such unrelated
conduct, and its placement under the “Specific Offense
Characteristics” heading, coupled with § 1B1.3(a)(1)’s
general focus on offense-related conduct, leaves sufficient
uncertainty about the enhancement’s scope to render the
guideline ambiguous. Although Mendonsa ends his Kisor
analysis at the first step and does not dispute that the
government can satisfy the remaining steps for deference,
the government addresses those steps on the merits and does
not invoke forfeiture. Cf. Cisneros, 2026 WL 2451424, at
*4 n.2 (finding that defendant forfeited any challenge to
Kisor’s third step by making no argument). Accordingly, we
briefly consider the remaining Kisor steps.
a
The next step is to determine whether the Commission’s
interpretation of the enhancement in the commentary is
reasonable. United States v. Trumbull, 114 F.4th 1114, 1118
(9th Cir. 2024). To be reasonable, the interpretation “must
come within the zone of ambiguity the court has identified
after employing all its interpretive tools.” Kisor, 588 U.S. at
575–76.
The commentary defines a “pattern of activity involving
the sexual abuse or exploitation of a minor” as a
“combination of two or more separate instances of the sexual
abuse or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A) occurred during
the course of the offense; (B) involved the same minor; or
20 USA V. MENDONSA
(C) resulted in a conviction for such conduct.” U.S.S.G.
§ 2G2.2 cmt. n.1. This court has explained that the
application note “obviously intends to cast a wide net to
draw in any conceivable history of sexual abuse or
exploitation of children.” United States v. Garner, 490 F.3d
739, 743 (9th Cir. 2007).
The Commission’s interpretation is reasonable. As
discussed, the text of § 2G2.2(b)(5) can be read to reach a
defendant’s history of abusive conduct unrelated to the
offense of conviction, and the enhancement’s structure,
history, and purpose support that reading. The commentary
adopts that permissible reading by specifying that the pattern
of abuse need not have “occurred during the course of the
offense.” That interpretation falls within the zone of
ambiguity identified above.
b
The final step of the Kisor analysis examines the
“character and context of the agency interpretation,” asking
whether the commentary: (1) represents the agency’s
“official position” rather than an “ad hoc statement not
reflecting the agency’s views”; (2) “implicates the agency’s
substantive expertise”; and (3) “reflects the agency’s fair and
considered judgment.” Trumbull, 114 F.4th at 1118 (cleaned
up) (quoting Kisor, 588 U.S. at 574–79).
Mendonsa does not dispute that these requirements are
satisfied. As in Trumbull, the application note represents the
Commission’s official position on the meaning of the
guideline, implicates its substantive expertise in federal
sentencing, and reflects its “fair and considered judgment”
through the Commission’s process for reviewing and
promulgating Guidelines commentary. Id. at 1120–21;
accord United States v. Yafa, 136 F.4th 1194, 1199 (9th Cir.
USA V. MENDONSA 21
2025); see also Stinson, 508 U.S. at 45 (discussing the
Commission’s statutory duty to periodically review and
revise the Guidelines). Deference to the commentary to
§ 2G2.2(b)(5) is therefore appropriate under Kisor.
In sum, because the Commission’s interpretation is
reasonable and satisfies Kisor’s remaining requirements, we
defer to its conclusion that § 2G2.2(b)(5) reaches a
defendant’s pattern of sexual abuse or exploitation unrelated
to the offense of conviction.
B
We next consider Mendonsa’s alternative argument that
his 1993 convictions do not satisfy § 2G2.2(b)(5) because
(1) his convictions for lewd and lascivious acts under Cal.
Pen. Code § 288(a) do not qualify as “sexual abuse or
exploitation” and (2) his two convictions for oral copulation
do not constitute a “pattern” because they may have arisen
from the same incident.
1
The commentary to U.S.S.G. § 2G2.2(b)(5) defines
“sexual abuse or exploitation” as any of the following:
(A) conduct described in 18 U.S.C. § 2241,
§ 2242, § 2243, § 2251(a)–(c),
§ 2251(d)(1)(B), § 2251A, § 2260(b),
§ 2421, § 2422, or § 2423; (B) an offense
under state law, that would have been an
offense under any such section if the offense
had occurred within the special maritime or
territorial jurisdiction of the United States; or
22 USA V. MENDONSA
(C) an attempt or conspiracy to commit any
of the offenses under subdivisions (A) or (B).
U.S.S.G. § 2G2.2(b)(5) cmt. n.1.
Mendonsa argues that his convictions under Cal. Penal
Code § 288(a) do not satisfy the definition because § 288(a)
encompasses over-the-clothes touching that would not
violate the federal statutes identified in the commentary. 3
This argument rests on the assumption that a prior state
conviction may qualify for the enhancement only if it
satisfies the categorical approach, under which a court may
examine only “the fact of conviction and the statutory
definition of the prior offense.” Taylor v. United States, 495
U.S. 575, 602 (1990).
The categorical approach does not apply where an
enhancement is based on prior conduct rather than prior
convictions. See United States v. Dailey, 941 F.3d 1183,
1191 (9th Cir. 2019) (applying noncategorical approach
where the statute “cover[ed] ‘any conduct that by its nature
is a sex offense against a minor’” (quoting 34 U.S.C.
§ 20911)); accord United States v. Byun, 539 F.3d 982, 992
(9th Cir. 2008) (rejecting categorical approach where statute
addressed “conduct”); cf. Taylor, 495 U.S. at 600 (reasoning
that a statute’s reference to “convictions” for specified
crimes supported application of the categorical approach);
United States v. Thompson, 127 F.4th 1204, 1210–13 (9th
Cir. 2025) (applying categorical approach to sentencing
enhancement that required a qualifying “prior conviction”).
Courts use “ordinary tools of statutory construction, relying
3
For purposes of this argument, Mendonsa accepts the Guidelines
commentary as controlling, and we therefore proceed on that premise.
USA V. MENDONSA 23
primarily on the language of the statute,” to determine
whether a provision “calls for a categorical approach or an
examination of the facts underlying prior convictions.”
Byun, 539 F.3d at 991 (internal quotation marks omitted).
Here, although the commentary’s definition of sexual
abuse or exploitation references specific federal provisions,
it applies to the “conduct described in” those statutes.
U.S.S.G. § 2G2.2 cmt. n.1. The definition of a “pattern of
activity” also expressly extends to “instances” of sexual
abuse regardless of whether they “resulted in a conviction.”
Id. The enhancement thus turns on whether the defendant
engaged in qualifying conduct, not whether a prior
conviction categorically qualifies. Accordingly, the
categorical approach does not apply to Mendonsa’s § 288(a)
convictions.4
2
Because the categorical approach does not apply, the
district court was entitled to examine the facts underlying
Mendonsa’s 1993 convictions. To apply the pattern
enhancement, the district court had to find by a
preponderance of the evidence that Mendonsa’s 1993
convictions involved “two or more separate instances of
. . . sexual abuse or sexual exploitation of a minor.” Id.; see
United States v. Lucas, 101 F.4th 1158, 1162 (9th Cir. 2024)
4
Our decision accords with decisions by two other circuits permitting
district courts to examine the underlying facts of the defendant’s past
conduct when applying § 2G2.2(b)(5)’s pattern enhancement. See
United States v. Davis, 751 F.3d 769, 778 (6th Cir. 2014); United States
v. Morin, 417 F. App’x 885, 887 (11th Cir. 2011).
24 USA V. MENDONSA
(en banc) (adopting preponderance-of-the-evidence standard
at sentencing).
The government submitted police reports and charging
documents from the state sentencing proceedings. In
reviewing this evidence at the sentencing hearing, the district
court described multiple instances of sexual contact with one
victim, including direct genital touching and oral sexual
conduct. Mendonsa was convicted of two counts of oral
copulation and nine counts of lewd and lascivious acts,
including multiple instances of skin-to-skin sexual contact
with this victim. Based on this evidence, the district court
reasonably concluded by a preponderance of the evidence
that Mendonsa committed at least two separate instances of
qualifying sexual abuse.
Focusing on this one victim,5 Mendonsa argues that the
police reports show only “one very brief incident” involving
five sexual acts on September 20, 1992. The reports,
however, do not support that characterization. The victim
reported that “Mendonsa fondled and orally copulated him”
on September 20 and further described six additional
incidents—five in Mendonsa’s vehicle and one behind his
truck. Nothing in the report states that those additional
incidents occurred during the same encounter or even on the
same day. And the conduct reported on September 20 itself
was not confined to a single brief episode: the report
describes sexual acts separated by intervening events over a
work shift lasting from approximately 12:30 a.m. to 5:00
a.m. The charging documents further allege qualifying
conduct over different date ranges. The district court
5
The district court also identified qualifying conduct involving at least
one other victim, further supporting its conclusion.
USA V. MENDONSA 25
therefore did not clearly err in finding at least two separate
instances of qualifying sexual abuse involving this victim.6
C
Finally, Mendonsa argues that the district court erred by
relying on unreliable hearsay—namely, documents
describing the conduct involved in his 1993 convictions.
Hearsay evidence is admissible at sentencing provided that
it is accompanied by “some minimal indicia of reliability.”
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001)
(quoting United States v. Petty, 982 F.2d 1365, 1369 (9th
Cir.), amended, 992 F.2d 1015 (9th Cir. 1993)). A district
court’s determination whether hearsay statements are
sufficiently reliable at sentencing is reviewed for abuse of
discretion. 7 United States v. Shetty, 130 F.3d 1324, 1331
(9th Cir. 1997).
The documents reviewed by the district court consisted
of (1) charging documents, (2) court records, and (3) police
reports. Mendonsa does not genuinely challenge the
accuracy of the charging documents or court records. As for
the police reports, hearsay may be sufficiently reliable when
6
Indeed, Mendonsa conceded below that if the categorical approach did
not apply, his prior lewd-and-lascivious conduct would satisfy the
requirements of the enhancement. In light of that concession, the district
court’s finding arguably should be reviewed for plain error. See Greer
v. United States, 593 U.S. 503, 507 (2021) (forfeited claims are reviewed
for plain error). But the government does not seek plain-error review,
and Mendonsa’s challenge in any event fails under the more favorable
clear-error standard.
7
The record does not indicate that Mendonsa challenged the documents’
reliability below, arguably subjecting his evidentiary challenge to plain-
error review. Greer, 593 U.S. at 507. Regardless, the challenge fails
under the more favorable abuse-of-discretion standard.
26 USA V. MENDONSA
corroborated by other evidence. United States v. Littlesun,
444 F.3d 1196, 1200–01 (9th Cir. 2006). Here, the victims’
accounts in the police reports largely correspond to the
charges on which Mendonsa was convicted, providing
sufficient indicia of reliability for sentencing purposes.
Mendonsa’s contrary arguments are unpersuasive. His
contention that we cannot evaluate the reliability of the
documents because they are not in the record is moot
because we granted the government’s unopposed motion to
supplement the record on appeal. Nor is it disputed that the
government provided the documents to the U.S. Probation
Office, which incorporated information from them into the
presentence report reviewed by the parties and the district
court. That they were not separately filed on the docket
below does not call their reliability into question.
Second, Mendonsa argues that the police reports are not
reliable because at the time they were prepared, the author
of the reports was “tasked with investigating whether there
were separate counts and not whether there were separate
instances of federally defined offenses.” But Mendonsa
confuses the purpose of the investigation with the reliability
of the facts it produced. The investigator’s purpose may bear
on what the documented facts establish, but it does not
undermine the reliability of the facts themselves.
Third, he contends that the passage of time since the
police reports were authored makes it impossible for the
defense to test their accuracy. But the inability to cross-
examine the source of hearsay does not, by itself, render the
evidence unreliable at sentencing. See Petty, 982 F.2d at
1367 (upholding reliance on a hearsay statement despite the
defendant’s inability to cross-examine the declarant).
USA V. MENDONSA 27
In sum, Mendonsa has not shown that the district court
abused its discretion by relying on the documents from the
state-court proceedings.
IV
We hold that § 2G2.2(b)(5) is ambiguous as to whether
the pattern enhancement reaches conduct outside the offense
of conviction and that the Commission’s interpretation
permitting consideration of such conduct is reasonable and
entitled to deference. Because the district court properly
applied the enhancement, we affirm Mendonsa’s sentence.
AFFIRMED.