Application of Enhancement for "Pattern of Activity" Affirmed, Finding Prior Conduct Neither Too Remote in Time nor Too Different in Kind

In United States v. Olfano, No. 06-2988 (3d Cir. Sept. 20, 2007), the panel unanimously affirmed a 188-month sentence on a conviction for receipt of child pornography by computer, rejecting Olfano’s arguments that the sentence was unreasonable because the District Court improperly included in its sentencing guideline calculation a five-level enhancement for pattern-of-activity, under U.S.S.G. § 2G2.2(b)(4) [now designated as U.S.S.G. § 2G2.2(b)(5)].

Olfano had pleaded guilty to receipt of child pornography by computer, in violation of 18 U.S.C. § 2252(a)(2). In calculating the advisory sentencing guideline range, the District Court included the five-level enhancement in U.S.S.G. § 2G2.2(b)(4) [now U.S.S.G. § 2G2.2(b)(5)], for engaging "in a pattern of activity involving the sexual abuse or exploitation of a minor." The two incidents that supported the "pattern of activity" enhancement involved sexual touching of a minor; one incident occurred 15 years earlier, the other occurred 18 years earlier. On appeal, Olfano argued that in relation to the offense to which he pleaded guilty, these prior incidents were too remote in time and too different in kind to support an enhancement for "pattern of activity."

The Court noted, first, that although the Third Circuit had never addressed the "remote in time" issue in a precedential opinion, the Circuit Courts that had addressed the issue had uniformly held that there was no time limit on prior actions that a court may consider in finding a "pattern of activity." The Court therefore held that "there is no temporal nexus necessary to establish a pattern of activity of sexual abuse or exploitation of a minor."

The Court also noted that it had never expressly addressed the "different in kind" issue that Olfano presented. But again, the Court observed that the Circuit courts that had recently interpreted § 2G2.2 "recognized that remote or unrelated instances of sexual misconduct can support a sentencing enhancement." Although the Court recognized that the prior incidents constituting a "pattern of activity" involved inappropriate touching, and did not involve a computer, or receipt of pornography, the Court concluded that they nevertheless involved "sexual abuse or exploitation of a minor," and thus fell within the ambit of § 2G2.2. Accordingly, the Court held that "because there is no similarity requirement and Olfano’s previous incidents of sexual misconduct are not so different in kind, they can be used to enhance his sentence . . . ."