United States v. Justyn Perez-Colon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2802

____________

UNITED STATES OF AMERICA,

v.

JUSTYN PEREZ-COLON,

Appellant

____________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-18-cr-00108-001)

District Judge: Honorable Gene E.K. Pratter

____________

Argued on October 4, 2022

Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit

Judges.

(Filed: March 22, 2023)

Keith M. Donoghue [Argued]

Brett G. Sweitzer

Leigh M. Skipper

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Jennifer Arbittier Williams

Robert A. Zauzmer [Argued]

Priya Desouza

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

___________

OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Justyn Perez-Colon appeals his conviction and

judgment of sentence after pleading guilty to nine child-

pornography crimes. He raises three challenges to the

calculation of his total offense level under the United States

Sentencing Guidelines and takes issue with his conviction on

Count Eight. Though some of Perez-Colon’s arguments have

merit, none warrants reversal. We will affirm.

2

I

A

Perez-Colon’s child pornography offenses included:

two counts of production in violation of 18 U.S.C. § 2251(a)

(Counts One and Two); one count of distribution in violation

of 18 U.S.C. § 2252(a)(2) (Count Three); five counts of

attempted distribution in violation of 18 U.S.C. § 2252(a)(2)

(Counts Four through Eight); and one count of possession in

violation of 18 U.S.C. § 2252(a)(4)(B) (Count Nine). 1 Almost

all of Perez-Colon’s criminal conduct involved “Minor 1,” a

female toddler; only Count Eight involved “Minor 2,” a male

toddler.

At the time of his crimes, Perez-Colon was living with

Minor 1 and her mother at a motel. He posted a Craigslist

advertisement seeking to “share real incest stories fetish stories

underage pedo stories” and stated, “I have real experiences and

1

The Judgment misidentifies Count Two as for distribution

rather than production. The District Court’s oral

pronouncements identifying Count Two as a § 2251(a)

production conviction control. See United States v. Chasmer,

952 F.2d 50, 52 (3d Cir. 1991) (recognizing the “firmly

established and settled principle of federal criminal law that an

orally pronounced sentence controls over a judgment and

commitment order when the two conflict” (citation omitted)).

The District Court may correct the apparent clerical error under

Rule 36 of the Federal Rules of Criminal Procedure.

3

pictures.” App. 50. 2 An undercover FBI agent responded to

Perez-Colon’s post and the two conversed on a messaging app.

Perez-Colon eventually sent pornographic images and videos

of Minor 1 to the agent. Those included: a picture of her in

pajamas with an adult penis in the foreground; a video of a

male masturbating near her face while she slept; and a picture

of her genitals, made visible by pulling back her diaper. A

search of Perez-Colon’s smartphone revealed that he produced

these and other similar pictures and videos at two points, three

days apart.

With respect to Count 8, Perez-Colon also attempted to

distribute an image of Minor 2’s genitals. Minor 2’s mother

took the photo and sent it to Perez-Colon to show him the boy’s

rash and Perez-Colon later attempted to distribute it to others

for malicious reasons.

B

The Presentence Investigation Report (PSR) calculated

Perez-Colon’s base offense level under the Sentencing

Guidelines as 32. The PSR recommended enhancements,

including for the age of Minor 1, the use of a computer or

interactive device, Perez-Colon’s care or supervisory control

over Minor 1, and Perez-Colon’s pattern of prohibited sexual

conduct. Because his offenses fell into two different groups

under the Guidelines, the PSR added two points. It then

deducted three points for acceptance of responsibility.

2

For clarity, we cite Joint Appendices Volumes I, II, and III as

“App.” and Joint Appendix Volume IV, which contains

pagination that conflicts with Volume III, as “Supp. App.”

4

Although the PSR calculated Perez-Colon’s total

offense level as 50, the Guidelines maximum offense level is

43, which brings with it a recommended sentence of life

imprisonment regardless of criminal history category. See

U.S.S.G. Ch. 5, Pt. A & cmt. n.2. Perez-Colon’s statutory

maximum sentence did not allow for a life sentence. He faced

up to 30 years’ imprisonment for Counts One and Two, 18

U.S.C. § 2251(e), and up to 20 years for Counts Three through

Nine, 18 U.S.C. § 2252(b). Those statutory maximums,

running consecutively, yielded a Guidelines range of 200

years’ imprisonment. See U.S.S.G. § 5G1.2(b).

Perez-Colon unsuccessfully objected to parts of the

PSR. First, he objected to the PSR’s treatment of Guideline

§ 3D1.2, which required the District Court to group closely

related counts together when determining Perez-Colon’s

number of “units” of counts. The PSR grouped Perez-Colon’s

nine counts of conviction into two groups, separating the two

production counts, based on conduct that took place three days

apart. Perez-Colon claimed the production counts involved

“the same minor [and] the same harm,” Supp. App. 287, and

thus should have been grouped together in a single unit under

§ 3D1.2(b). That would have reduced Perez-Colon’s offense

level two points. See U.S.S.G. § 3D1.4.

Perez-Colon also contested the enhancement in

§ 2G2.1(b)(5), which imposes a two-level increase “[i]f the

defendant was a parent, relative, or legal guardian of the minor

involved in the offense, or if the minor was otherwise in the

custody, care, or supervisory control of the defendant.” The

PSR applied this enhancement because Perez-Colon was

“monitoring . . . Minor 1 in the absence of her mother,” while

they were living at the motel. Supp. App. 249. Perez-Colon

contended that the enhancement was inapplicable because he

5

committed the crimes while “Minor 1 was asleep in bed” and

the mother was showering “in the same motel room nearby.”

Supp. App. 185.

He also objected to the enhancement under § 4B1.5(b),

which prescribes a five-level increase for “a pattern of activity

involving prohibited sexual conduct.” The PSR applied this

enhancement because Perez-Colon was previously adjudicated

delinquent for sexual assault and indecent assault of a minor.3

Perez-Colon contended the categorical approach precluded this

enhancement because the state statutes he violated were

broader than their federal counterparts.

After rejecting these three arguments, granting Perez-

Colon’s objection to a two-level enhancement for use of a

computer, and denying the Government’s request for a

vulnerable-victim enhancement, the District Court fixed Perez-

Colon’s total offense level at 48 and his Guidelines range at

200 years’ imprisonment. The Court imposed a 55-year

sentence: 20 years for each of the two production counts, to be

served consecutively, and 15 years for each of the remaining

seven counts, to be served concurrently to one another but

consecutively to the production sentences.

Perez-Colon filed this timely appeal. He challenges his

sentence, claiming the District Court erred when it grouped his

counts of conviction into two units and applied enhancements

under §§ 2G2.1(b)(5) and 4B1.5(b). He also asks us to vacate

his judgment of conviction on Count Eight for attempted

3

In Pennsylvania, a juvenile is “adjudicated delinquent” when

found to have engaged in conduct that would be a crime if

committed by an adult. 42 Pa. Cons. Stat. §§ 6302, 6354.

6

distribution of child pornography. We address each argument

in turn. 4

II

Perez-Colon claims the District Court erred when it

placed his counts of conviction into two groups, which

increased his offense level two points under Guideline

§ 3D1.4. He argues that the Court should have grouped the two

production counts together under § 3D1.2(b) because they

involved substantially the same harm. Doing so would have

resulted in no offense-level increase under § 3D1.4.

The parties dispute the standard of review that applies

to this issue. The Government argues for clear error review;

Perez-Colon requests plenary review. We need not resolve the

dispute because the District Court did not err under either

standard.

The Guidelines require grouping of counts that involve

“substantially the same harm.” U.S.S.G. § 3D1.2. Counts can

involve substantially the same harm in four ways, only one of

which is relevant here: “When counts involve the same victim

and two or more acts or transactions connected by a common

criminal objective or constituting part of a common scheme or

plan.” U.S.S.G. § 3D1.2(b). Perez-Colon’s two production

counts involved two acts and the same victim, so whether they

should be grouped turns on whether the two instances of using

Minor 1 to produce pornographic images and videos, three

4

The District Court had jurisdiction under 18 U.S.C. § 3231.

We review the sentence under 18 U.S.C. § 3742(a) and the

conviction under 28 U.S.C. § 1291.

7

days apart, were connected by a common objective or

constituted a common scheme or plan.

We agree with the District Court’s determination that

the two acts against Minor 1 were not so connected. When a

child endures sexual abuse (including being used to produce

child pornography) on separate occasions, the crimes do not

involve “substantially the same harm.” See U.S.S.G.

§ 3D1.2(b). The Guideline speaks of the same harm, not the

same type of harm. Each occasion of abuse inflicts fresh harm

on the child—new fear and trauma—distinct from the prior

harm. See United States v. Bivens, 811 F.3d 840, 842–43 (6th

Cir. 2016) (“Even if the same act is repeated during an

ongoing, continuous pattern of criminality between a single

defendant and his victim, each act usually amounts to a fresh

harm the victim must face anew.”).

Perez-Colon emphasizes that his crimes involved “the

same child, the same motel stay, and the same means.” Perez-

Colon Br. 28. The first of these facts—the same victim—is a

necessary but not a sufficient condition for grouping the counts

under Guideline § 3D1.2(b). And we are not convinced that the

remaining facts show the separate productions of child

pornography were “connected by a common criminal objective

or constitute[d] part of a common scheme or plan.” U.S.S.G.

§ 3D1.2(b).

A broadly viewed “common criminal objective”—

producing child pornography—cannot satisfy § 3D1.2(b)

where the separate acts advanced distinct, narrower

objectives—producing specific images and videos—and

caused distinct harms to Minor 1. Otherwise, a defendant who

regularly abused the same victim to produce child pornography

for weeks or months would be entitled to grouping. This

8

reasoning would likewise require grouping of all the charges

against a defendant who held a victim captive in the same

location and repeatedly abused her for a long time. Doing so

would read “substantially the same harm” out of the Guideline

because that victim surely would have suffered more than a

single harm. See Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 172 (2001) (concluding

that a statutorily defined term cannot be “read[] . . . out of the

statute” and instead retains “independent significance”). For

similar reasons, that Perez-Colon committed his crimes using

the same means and during the same motel stay does not show

the crimes were part of “a common scheme or plan” under the

Guideline. 5

Our conclusion aligns us with other Courts of Appeals,

which separately group sex-crime counts involving the same

victim. See Bivens, 811 F.3d at 842–43 (production of child

pornography and related crimes); United States v. Kiel, 454

F.3d 819, 822 (8th Cir. 2006) (production of child

5

We may defer to commentary only if, among other

conditions, the Guideline is “genuinely ambiguous.” United

States v. Nasir, 17 F.4th 459, 470-71 (3d Cir. 2021) (en banc).

Though we perceive no ambiguity, we note that the

commentary reflects our conclusion. It instructs courts to group

crimes only if they “represent essentially one composite harm,”

not if they create “separate instances of fear or risk of harm.”

U.S.S.G. § 3D1.2 cmt. n.4. Production of child pornography

creates distinct instances of fear or harm and is more analogous

to the commentary’s examples of non-grouped crimes (rape

and robbery) than grouped crimes (mail and wire fraud,

conspiracy to commit extortion and extortion, and auto theft

and altering a vehicle identification number). Id.

9

pornography); United States v. Wise, 447 F.3d 440, 446 (5th

Cir. 2006) (same); United States v. Von Loh, 417 F.3d 710, 713

(7th Cir. 2005) (statutory rape); United States v. Vasquez, 389

F.3d 65, 77 (2d Cir. 2004) (sexual misconduct with an

inmate). 6

The cases Perez-Colon cites are unconvincing. First, he

describes the Sixth Circuit’s opinion in United States v. Bivens

as holding that “production of ten videos over [one] weekend

in hotel room [were] properly treated as single instance of

harm.” Perez-Colon Br. 30. But Bivens faced a single count of

production for those ten videos, so they did not pose a grouping

question. 811 F.3d at 842. And consistent with our reasoning,

the Bivens court refused to group that ten-video production

count with another count of production based on conduct that

took place a few weeks later. Id. at 843. Perez-Colon’s second

case, United States v. Ward, is inapt because “[w]hether the

counts were properly grouped [was] not at issue on appeal.”

626 F.3d 179, 181 n.3 (3d Cir. 2010).

Perez-Colon also invokes the rule of lenity. But that

doctrine applies only when “after considering text, structure,

history, and purpose, there remains a grievous ambiguity or

uncertainty.” United States v. Castleman, 572 U.S. 157, 172–

73 (2014). The Guideline involved here is not grievously

ambiguous, so the rule of lenity does not apply.

Finally, Perez-Colon argues that there must be a

limiting principle as to how close in time is too close to group

sex crimes separately. District courts are in the best position to

6

Because these cases pre-dated Kisor v. Wilkie, 139 S. Ct.

2400, 2414 (2019), they relied on Guidelines commentary. So

the analysis in those opinions differs slightly from ours.

10

draw that line based on the unique facts of each case, subject

to our review. See Buford v. United States, 532 U.S. 59, 64–65

(2001). It would be unwise for us, in the abstract, to adopt a

strict temporal limit for how close is too close, if such a limit

even exists. In this case, the District Court did not err in finding

that Perez-Colon’s two acts of producing of child pornography,

three days apart, caused separate harms justifying separate

grouping. So the Court properly applied a two-level increase to

the combined offense level under § 3D1.4.

III

Perez-Colon also challenges the District Court’s

determination that Minor 1 was in his “custody, care, or

supervisory control” at the time of the offenses. See U.S.S.G.

§ 2G2.1(b)(5).

A

The parties dispute the standard of review that applies

to this issue. After reviewing Supreme Court and Third Circuit

precedent, we hold that clear error review is appropriate.

In Buford v. United States, the Supreme Court

addressed the proper standard of review for “applying a

Sentencing Guidelines term to undisputed facts.” 532 U.S. at

64. The Guidelines provision at issue in Buford required courts

to count “related” convictions as a single prior felony under the

career-offender enhancement in U.S.S.G. § 4B1.1. Id. at 60–61

(analyzing now-amended versions of U.S.S.G. §§ 4B1.2(c)

and 4A1.2(a)(2)). The Court settled on abuse of discretion

review “[i]n light of the fact-bound nature of the legal decision,

the comparatively greater expertise of the District Court, and

the limited value of uniform court of appeals precedent.” Id. at

11

66. The Court remarked that the “deference that is due depends

on the nature of the question presented.” Id. at 63 (quoting

Koon v. United States, 518 U.S. 81, 98 (1996)).

Applying Buford, we reviewed for clear error the

application of a Guidelines enhancement under § 2C1.2 for

certain offenses by a public official in a “high-level decision-

making or sensitive position,” an analogous question to that

presented in this appeal. United States v. Richards, 674 F.3d

215, 219–23 (3d Cir. 2012). In Richards, we noted that 18

U.S.C. § 3742(e) requires appellate courts to “give due

deference to the district court’s application of the guidelines to

the facts.” Id. at 219 n.2. And we reasoned that the “legal test

. . . [was] in essence a factual inquiry” under which the district

court simply “needs to find facts that will answer—either yes

or no—whether the government official possesses ‘direct

authority to make decisions’ for a government entity or

whether the official possesses ‘substantial influence over the

decision-making process.’” Id. at 221 (quoting U.S.S.G.

§ 2C1.2(b)(3) cmt. n.3(A)). The “highly factual nature of this

inquiry, and a trial court’s relative institutional advantages in

conducting it,” together with the fact that appellate review

would be “of little help in future cases,” warranted deference.

Id. We selected clear error review over abuse of discretion

because the latter is appropriate “where there is room for

interpretation as to whether the facts satisfy an essentially legal

test, or where a district court can exercise some discretion in

deciding whether to apply particular Guideline provisions,”

that is, where the court is “choosing among different courses

of action.” Id. at 223 (quotation marks and citation omitted). 7

7

We have reviewed several other Guidelines applications for

clear error. See, e.g., United States v. Rodriguez, 40 F.4th 117,

12

Buford and Richards dictate clear error review here.

First, the question of whether a minor is “in the custody, care,

or supervisory control” of a defendant is highly fact-specific;

it requires a case-by-case analysis of the defendant’s

relationship to the victim and the setting in which the crime

was committed. See U.S.S.G. § 2G2.1(b)(5). Second, “the

district court is in a better position than the appellate court to

decide whether a particular set of individual circumstances

demonstrates” care or supervisory control. Buford, 532 U.S. at

64. Third, whether the facts establish care or supervisory

control is not “readily resolved by reference to general legal

principles and standards alone” but instead “grows out of, and

is bounded by, case-specific detailed factual circumstances.”

Id. at 65. Finally, like in Richards, “our role is more

appropriately described as determining whether the District

Court clearly erred in its determination that the facts fit within

the meaning of [§ 2G2.1(b)(5)], rather than whether it abused

its discretion by adopting one set of factual findings instead of

another.” 674 F.3d at 223.

For these reasons, we review application of the

§ 2G2.1(b)(5) enhancement for clear error. But like in

Richards, we think our choice between clear error and abuse of

120–21 (3d Cir. 2022) (§ 2D1.1(b)(12) enhancement for

“maintain[ing] a premises for the purpose of manufacturing or

distributing a controlled substance”); United States v. Thung

Van Huynh, 884 F.3d 160, 165 (3d Cir. 2018) (§ 3B1.1(a)

enhancement for when a defendant is “an organizer or leader

of a criminal activity that involved five or more participants”

and § 2B1.1(b)(10)(A) enhancement for when a scheme is

relocated to evade law enforcement or regulatory officials).

13

discretion is “not very significant” as our analysis would be

similar under either standard. Id. 8

B

1

Turning to the merits of the § 2G2.1(b)(5)

enhancement, we begin by rejecting Perez-Colon’s view that it

requires “parent-like” authority. Perez-Colon Br. 18 (citing

United States v. Harris, 999 F.3d 1233, 1237 (9th Cir. 2021)).

Care and supervisory control require “some degree of authority

over or responsibility for” the victim, United States v.

Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)—something

more than “mere presence,” Harris, 999 F.3d at 1237. But that

standard does not require parent-like authority.

Perez-Colon relies on two canons of construction. He

starts with the canon against superfluity, arguing that the

Guidelines provision’s first clause, which applies the

enhancement to any “parent, relative, or legal guardian” of the

8

Perez-Colon cites two cases decided after Richards where we

applied de novo review to Guidelines application: United

States v. Bell, 947 F.3d 49, 54 & n.2 (3d Cir. 2020) and United

States v. Douglas, 885 F.3d 124, 129 (3d Cir. 2018) (en banc).

Bell is unavailing because it strays from Richards for the

reasons explained in Judge Chagares’s partial dissent, see 947

F.3d at 63–65 (Chagares, J., dissenting), and the prior opinion

in Richards controls. See Pardini v. Allegheny Intermediate

Unit, 524 F.3d 419, 426 (3d Cir. 2008). Douglas does not apply

because it relied on a pre-Buford line of cases without

conducting any analysis of the proper standard of review. See

885 F.3d at 129.

14

victim, would be superfluous if the “custody, care, or

supervisory control” clause applied to any type of supervision.

See United States v. Brooks, 610 F.3d 1186, 1200 (9th Cir.

2010). This argument fails because relatives and parents do not

always have custody or supervision of their minor relatives. So

the first clause maintains independent meaning even if we read

the second clause broadly.

Perez-Colon next cites ejusdem generis, which requires

us to construe “otherwise in the custody, care, or supervisory

control of the defendant” to embrace similar levels of control

as the preceding list: “parent, relative, or legal guardian.”

“Under that rule, when a statute sets out a series of specific

items ending with a general term, that general term is confined

to covering subjects comparable to the specifics it follows.”

Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586

(2008). This canon is unhelpful to Perez-Colon because his

focus on “parent” ignores “relative.” The authority exercised

by a relative can vary widely depending on the relative and is

often less than “parent-like.”

Simply put, “care[] or supervisory control” does not

require parent-like authority. 9

9

The Guidelines commentary again is consistent with our

interpretation. It states that the enhancement “includes offenses

involving a minor entrusted to the defendant, whether

temporarily or permanently” and applies, for example, to

“teachers, day care providers, baby-sitters, or other temporary

caretakers.” U.S.S.G. § 2G2.1 cmt. n.5(A).

15

2

Having determined that parent-like authority is not

required, we conclude that the District Court’s application of a

two-level enhancement under Guideline § 2G2.1(b)(5) was not

clearly erroneous. Two facts highlighted by the District Court

are particularly convincing. First, as a toddler, the victim

required constant supervision. See Blackbird, 949 F.3d at 532

n.2 (considering age a relevant factor). Second, the mother

intentionally left the child alone in the room with Perez-Colon,

who was temporarily living there, while she showered. This

distinguishes Perez-Colon’s case from those where, for

example, the defendant found the victim “home alone.” Id.; see

also United States v. Blue, 255 F.3d 609, 611, 615 (8th Cir.

2001) (concluding a materially identical enhancement under

§ 2A3.1(b)(3)(A) did not apply when the defendant abused the

victim while the mother was in a drunken “stupor,” because

“the government failed to establish that the mother transferred

care to [the defendant]”).

On these facts, we are not “left with a definite and firm

conviction,” Sabinsa Corp. v. Creative Compounds, LLC, 609

F.3d 175, 182 (3d Cir. 2010) (citation omitted), that the District

Court erred in determining that Minor 1 was in Perez-Colon’s

“care[] or supervisory control,” U.S.S.G. § 2G2.1(b)(5).

IV

Perez-Colon also challenges his five-point increase for

“engag[ing] in a pattern of activity involving prohibited sexual

conduct.” U.S.S.G. § 4B1.5(b). The District Court applied this

enhancement based on Perez-Colon’s prior sexual abuse of a

minor. As will be explained below, the plain language of

§ 4B1.5(b) requires the sentencing court to first identify the

16

conduct in which the defendant engaged. Where, as here, the

defendant’s conduct can only qualify as “prohibited sexual

conduct” if it constituted an offense described in 18 U.S.C.

§ 2426(b)(1)(B), the court must then consider whether the

defendant’s conduct fell within one of the listed federal or state

crimes. Thus, the first part of the analysis does not call for the

application of the categorical approach. The second step of the

analysis does require a type of categorical analysis because it

requires the court to consider whether the identified conduct

falls within a state law offense that is equivalent to one of the

enumerated federal crimes. Applying this analysis, we

conclude the District Court erred, but its mistake was harmless.

A

The parties dispute whether the categorical approach

applies to the Guidelines definition of “prohibited sexual

conduct.” Reviewing that question de novo, United States v.

Dahl, 833 F.3d 345, 349 n.4 (3d Cir. 2016), we hold that the

categorical approach does not apply to Guideline § 4B1.5(b).

The Guidelines define “prohibited sexual conduct” as:

“(i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B);

(ii) the production of child pornography; or (iii) trafficking in

child pornography.” Id. cmt. n.4(A). 10 To establish a “pattern

10

United States v. Nasir, 17 F.4th at 470–71, which generally

prohibits our deference to the commentary to unambiguous

Guidelines, presents no issue with our reliance on the

commentary in this situation. Perez-Colon’s challenge to the

enhancement, and the Government’s argument for its

application, both assume the correctness of and rely on the

commentary’s definition of “prohibited sexual conduct.” To

reach their arguments, we must too. But we state no opinion

17

of activity involving prohibited sexual conduct,” the

Government cites Perez-Colon’s 2014 Pennsylvania

delinquency adjudication of sexual assault and indecent assault

and the underlying evidence that Perez-Colon sexually

assaulted a child over the course of nearly a decade.

Perez-Colon invokes the categorical approach to argue

that the enhancement does not apply because the Pennsylvania

laws under which he was adjudicated delinquent are broader

than their federal counterparts. See generally Shular v. United

States, 140 S. Ct. 779, 783–84 (2020). The Government

concedes that the Pennsylvania offenses are broader because

they encompass reckless conduct. Even so, the Government

rightly argues that the categorical approach does not apply to

this Guidelines provision because it is triggered by prior

conduct, not a prior conviction.

We use the categorical approach to determine whether

“a defendant’s prior federal or state conviction qualifies as a

predicate offense.” Dahl, 833 F.3d at 349. It applies when

increased statutory penalties or Guidelines enhancements are

triggered by a certain criminal offense. See, e.g., Shular, 140

S. Ct. at 783; Dahl, 833 F.3d at 349. Under that approach,

“[s]entencing courts may look only to the statutory

definitions—i.e., the elements—of a defendant’s prior

offenses, and not to the particular facts underlying those

convictions.” Descamps v. United States, 570 U.S. 254, 261

(2013) (quotation marks and citation omitted). If the prior

whether “prohibited sexual conduct” as used in § 4B1.4(b) is

ambiguous, and if so whether the commentary’s definition is a

reasonable interpretation of it. See Nasir, 17 F.4th at 471.

18

offense is defined more broadly than the comparator offense, it

cannot serve as a predicate. Dahl, 833 F.3d at 355.

The categorical approach presupposes some triggering

offense. Otherwise, the sentencing court would have no

elements to consider. Here, Guideline § 4B1.5(b) asks if “the

defendant engaged in a pattern of activity involving prohibited

sexual conduct,” § 4B1.5(b) (emphasis added), which need not

result in a conviction, id. cmt. n.4(B)(ii). This language directs

courts away from the categorical approach by focusing on

whether a defendant engaged in certain conduct rather than

whether he had certain convictions. Cf. Mathis v. United States,

579 U.S. 500, 511 (2016) (“By enhancing the sentence of a

defendant who has three ‘previous convictions’ for generic

burglary—rather than one who has thrice committed that

crime—Congress indicated that the sentencer should [apply the

categorical approach].” (citation omitted)). That a defendant

happened to be convicted (or adjudicated delinquent) for the

conduct is immaterial. So the categorical approach does not

apply.

Contrary to Perez-Colon’s argument, our holding tracks

United States v. Dahl, where we held the categorical approach

applies to Guideline § 4B1.5(a), which references a prior “sex

offense conviction.” 833 F.3d at 349. Unlike that provision,

here subsection (b) of § 4B1.5 refers to conduct. Because Dahl

involved a Guidelines provision that instructs courts to look at

a prior conviction, applying the categorical approach there

made sense. Indeed, we highlighted in Dahl that “a sentencing

enhancement’s use of the phrase ‘conviction’ indicates

Congress’s intent to apply the categorical approach.” Id. at

350.

19

Perez-Colon is correct that neither the presence of the

word “conduct” nor the lack of the word “conviction” is

outcome determinative. Still, the inquiry is a functional one,

asking whether the text requires us to examine a defendant’s

conduct or his statutory offense. We did note in Dahl that “the

‘categorical approach’ applies notwithstanding a predicate

statute’s reference to conduct.” Id. (citing Johnson v. United

States, 576 U.S. 591 (2015)). But the predicate statute

discussed there expressly required an underlying conviction—

for some “conduct”—and the central point was that “the

important textual reference for triggering the categorical

approach is ‘conviction,’ not ‘conduct.’” Id. (citing Johnson,

576 U.S. at 593); see 18 U.S.C. § 924(e)(2)(B). So Dahl

suggests that though a statute’s reference to “conduct” does not

necessarily prevent the application of the categorical approach,

nor does it mean that when a statute or Guideline addresses

only conduct—regardless of a resulting conviction—the

categorical approach applies.

As for “conviction,” it is true that the word “is hardly a

prerequisite for the categorical approach.” United States v.

Davis, 139 S. Ct. 2319, 2335 (2019). But the Supreme Court

has emphasized that “conviction” is a powerful indicator that

the approach should apply. See Mathis, 579 U.S. at 511;

Johnson, 576 U.S. at 604; see also Dahl, 833 F.3d at 358. And

Davis observed only that the word was not required—it did not

apply the categorical approach where there was no conviction

to examine. See 139 S. Ct. at 2324.

In sum, because Guideline § 4B1.5(b) asks whether a

defendant engaged in certain conduct regardless of whether it

led to a conviction, the categorical approach does not apply.

20

B

The Government’s successful parry against the

categorical approach does not resolve this issue. We must now

consider whether Perez-Colon’s actual conduct was

“prohibited sexual conduct.” It was not.

The parties agree that Perez-Colon’s prior conduct was

neither production nor trafficking of child pornography. See

U.S.S.G. § 4B1.5 cmt. n.4(A). So to be “prohibited sexual

conduct,” it must have constituted an “offense described in 18

U.S.C. § 2426(b)(1)(A) or (B).” Id. Those statutory provisions,

which define “prior sex conviction,” apply to an offense:

(A) under this chapter, chapter 109A, chapter

110, or section 1591; or

(B) under State law for an offense consisting

of conduct that would have been an offense

under a chapter referred to in subparagraph (A)

if the conduct had occurred within the special

maritime and territorial jurisdiction of the United

States.

18 U.S.C. § 2426(b)(1).

Subparagraph (A) incorporates statutes defining certain

sex crimes for conduct in federal maritime or territorial

jurisdiction. Two of these would cover Perez-Colon’s prior

sexual abuse of a minor if committed in such jurisdiction: 18

U.S.C. § 2241(c) and 18 U.S.C. § 2243(a). In the

Government’s view, this means that Perez-Colon’s conduct

“would have violated federal statutes.” Gov’t Br. 37. But the

Government does not claim any of Perez-Colon’s conduct was

21

committed in federal maritime or territorial jurisdiction. And

because an “offense described in” subparagraph (A) includes

that jurisdictional element, Perez-Colon’s conduct in

Pennsylvania was not “an offense described in”

§ 2426(b)(1)(A).

As for subparagraph (B), it requires application of the

categorical approach through the back door. We must

determine whether Perez-Colon’s conduct constituted “an

offense described in” § 2426(b)(1)(B)—i.e., a violation “under

State law for an offense consisting of conduct that would have

been a[] [federal] offense” had it been committed in federal

maritime or territorial jurisdiction. 18 U.S.C. § 2426(b)(1)(B).

To do so requires identifying a state law that the conduct

violated (though Perez-Colon need not have been charged or

convicted of it). We have already held § 2426(b)(1)(B)

requires the categorical approach. See Dahl, 833 F.3d at 349–

51. So a state law offense cannot be “described in”

§ 2426(b)(1)(B) if the state statute is categorically broader than

the federal statutes in subparagraph (A). The Government

concedes that the Pennsylvania laws under which Perez-Colon

was adjudicated delinquent are broader than the federal

comparators, and it identifies no other law he violated that is a

categorical match. Perez-Colon’s prior conduct therefore was

not an offense described in § 2426(b)(1)(B).

To recap: The categorical approach does not apply to a

§ 4B1.5(b) enhancement for a pattern of prohibited sexual

conduct. But a defendant’s actual conduct cannot be “any

offense described in 18 U.S.C. § 2426(b)(1)(A) or (B)” unless

the conduct either violated one of the relevant federal criminal

laws or a categorical state-law equivalent. Because Perez-

Colon’s prior sexual abuse of a minor violated neither federal

law nor a state-law categorical match, it was not “an offense

22

described in 18 U.S.C. § 2426(b)(1)(A) or (B).” So the District

Court erred in applying the enhancement based on that

conduct. 11

C

Although the District Court should not have applied the

§ 4B1.5(b) enhancement, we hold its error was harmless,

largely because it did not affect Perez-Colon’s advisory

Guidelines range. See United States v. Raia, 993 F.3d 185, 195

(3d Cir. 2021). The District Court calculated a total offense

level of 48, which included the five-level pattern of prohibited

sexual conduct enhancement. Because the Guidelines

Sentencing Table sets 43 as the maximum offense level,

increases above that level are inconsequential: “[a]n offense

level of more than 43 is to be treated as an offense level of 43.”

U.S.S.G. Ch. 5, Pt. A & cmt. n.2. So the erroneous five-level

enhancement affected neither Perez-Colon’s total offense

level—which was 43 with or without the enhancement—nor

his Guidelines recommendation of 200 years’ imprisonment.

There is therefore “a high probability” the error did not affect

Perez-Colon’s sentence. See Raia, 993 F.3d at 195.

Perez-Colon disputes this reasoning, claiming the

“court attended closely to offense levels above 43” and

“memorialized its level ‘48’ finding in the Statement of

Reasons.” Perez-Colon Br. 23. True enough, but the District

11

The Government argues in the alternative that the § 4B1.5(b)

enhancement could be justified by the conduct underlying

Perez-Colon’s two production of child pornography

convictions in this case. Because we conclude that any error

was harmless, we decline to reach this argument.

23

Court recognized that applying an offense level of 43 is “the

way the Guidelines work in a case such as this.” Supp. App.

298. Perez-Colon admits as much elsewhere in his brief,

describing the Court’s three-level reduction for acceptance of

responsibility (from a total offense level of 51 to 48) as “a

nullity” that “has no effect because the Guidelines’ sentencing

grid ends at level 43.” Perez-Colon Br. 8 & n.3. The same is

true of a five-level enhancement in the total offense level from

43 to 48.

Three more facts support our harmless error conclusion.

First, the Court varied downward substantially from the

Guidelines range, which makes “an error . . . more likely to be

harmless.” United States v. Zabielski, 711 F.3d 381, 388 (3d

Cir. 2013). Second, after calculating the advisory Guidelines

range and considering all the sentencing factors under 18

U.S.C. § 3553(a)(2), the District Court “concluded that [the 55-

year sentence] is the fair, reasonable, and appropriate sentence

without regard to how the Court ruled on any given individual

issue on the Guidelines enhancements or additions or

subtractions.” Supp. App. 352; see Zabielski, 711 F.3d at 388

(“[I]t usually will be difficult for an appellate court to conclude

with sufficient confidence that the same sentence would have

been imposed absent a clear statement to that effect by the

sentencing judge.” (emphasis added) (citation omitted)). Third,

the Court rejected a two-level vulnerable victim enhancement

proposed by the Government, stating it would be “piling on”

even though the Court “underst[ood] the Government saying

that analytically this would be an appropriate time to use such

an enhancement.” Supp. App. 281–82. The Court recognized

that enhancement would be an idle exercise because 43 was the

maximum offense level.

24

For the reasons stated, it is clear that the § 4B1.5(b)

enhancement “did not affect the district court’s selection of the

sentence imposed.” United States v. Langford, 516 F.3d 205,

215 (3d Cir. 2008). The error was harmless and remand is

unnecessary.

V

Perez-Colon challenges for the first time on appeal his

Count Eight conviction for attempted distribution of child

pornography under 18 U.S.C. § 2252(a)(2). The image charged

in Count Eight displayed the genitals of Minor 2, whose mother

had taken the picture and sent it to Perez-Colon for a benign

medical purpose—to show him the toddler’s rash. Perez-Colon

then tried to distribute the image for unrelated, evil purposes.

He argues the District Court erred in accepting his guilty plea

to this count because the image was not produced using a minor

engaged in “sexually explicit conduct,” and therefore his

conduct did not violate the statute. See 18 U.S.C. § 2252(a)(2).

We review the District Court’s acceptance of Perez-

Colon’s guilty plea for plain error. See United States v.

Lessner, 498 F.3d 185, 196 (3d Cir. 2007); Fed. R. Crim. P.

52(b). For plain error to exist, “there must be (1) ‘error,’

(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’”

Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)). If those

conditions are met, we may correct the error “if (4) the error

seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation marks and citations

omitted).

Section 2252(a)(2) prohibits knowingly receiving,

distributing, or reproducing “any visual depiction” if “(A) the

25

producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct; and (B) such visual

depiction is of such conduct.” “Sexually explicit conduct”

means, as relevant here, “lascivious exhibition of the anus,

genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A).

Perez-Colon’s challenge to his Count Eight conviction thus

turns on whether the “producing” of the image involved and

depicts “lascivious exhibition” of Minor 2’s genitals.

Perez-Colon argues with some force that the relevant

image originally fell outside the purview of the statute—it was

not of “lascivious exhibition” when the mother took it—and

that it cannot transform into such an image when he put it to

malicious use. In United States v. Villard, we adopted the six

“Dost factors” for analyzing lascivious exhibition, most of

which focus on the objective nature of the image and at least

three of which are not present here: a sexually suggestive

setting, an unnatural pose or inappropriate attire, and a

suggestion of coyness or willingness to engage in sexual

activity. See 885 F.2d 117, 122 (3d Cir. 1989) (citing United

States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)). We

also stated that “[w]hen a picture does not constitute child

pornography, even though it displays nudity, it does not

become child pornography because it is placed in the hands of

a pedophile, or in a forum where pedophiles might enjoy it.”

Id. at 125 (citation omitted).

The Government raises forceful arguments in response.

The statute defines “producing” broadly to mean “producing,

directing, manufacturing, issuing, publishing, or advertising.”

18 U.S.C. § 2256(3). The definition is not limited to “an initial

act of production, such as taking photographs,” but also

extends to acts in the chain of distribution. United States v.

Lively, 852 F.3d 549, 560 (6th Cir. 2017) (collecting cases).

26

While the mother “produced” the image for medical purposes,

Perez-Colon “intended . . . to elicit a sexual response in the

viewer,” Dost, 636 F. Supp. at 832, when he attempted to

“produce” that image to others. In addition, two other Dost

factors favor the Government: a focal point on genitalia and the

minor’s nudity. See id. at 122 (stating all six factors need not

be present).

The upshot of these competing arguments is that any

error the District Court might have made in accepting Perez-

Colon’s Count Eight guilty plea could not have been “‘clear’

or ‘obvious’” based on unambiguous statutory language,

binding precedent, or consensus among our sister courts.

United States v. Scott, 14 F.4th 190, 198–99 (3d Cir. 2021)

(quoting Olano, 507 U.S. at 734). For those reasons, we will

affirm Perez-Colon’s judgment of conviction on Count Eight

under prong two of plain-error review.

* * *

For the reasons stated, we will affirm Perez-Colon’s

judgment of conviction and sentence.

27