Same Crime, Different Time: Why we Need an Amended Guideline for Repeat Offenders to Minors

• Date: 01 April 2016
• Published date: 01 April 2016
• DOI: http://doi.org/10.1111/fcre.12220

STUDENT NOTES

SAME CRIME, DIFFERENT TIME: WHY WE NEED AN AMENDED

GUIDELINE FOR REPEAT OFFENDERS TO MINORS

Carissa Danesi

Currently there is a circuit split between the Second and Ninth Circuits in determining whether or not to apply previous juve-

nile sex offenses to the sentencing of an adult sex offender. The Second Circuit feels it is within the trial court’s discretion to

apply an enhancement of the U.S. Sentencing Guidelines by applying either a juvenile adjudicated or unadjudicated sex offense

to the sentencing of an adult offender. The Ninth Circuit sees that as improper and only adult sex offenses should be counted

toward the sentencing of adult sex offenses. Due to the vague language of this enhancement, the determination of how to apply

this is up to the court’s discretion. This Note proposes that the U.S. Sentencing Commission amend section 4B1.5, and decide

in favor of the Ninth Circuit due to the plain text reading of the statute, as well as theintent of the guideline itself alongside the

“rule of lenity” as understood in the Ninth Circuit’s reasoning of only applying adult offenses to the sentencing of that adult

later on in life. The positive public policy of rehabilitation of juvenile offenders would be served greatly by this amendment to

this guideline. By eliminating the possibility of having such an offense count against a juvenile in the future would allow and

encourage those juveniles to take positive steps toward their future.

Key Points for the Family Court Community:

There is a circuit split between the Second and Ninth Circuits on applying enhancement U.S. Sentencing Guideline

section 4B1.5.

This split focuses on whether or not the court may apply a previous juvenile sex offense to the sentencing of an adult

offender.

The language within the enhancement is vague and therefore leaves it up to judicial discretion.

The Sentencing Commission should amend the guideline and decide in favor of the Ninth Circuit due to the language

and intent of the enhancement and apply the “rule of lenity” in their decision.

Keywords: Adult Sex Offenses, Congressional Intent, Juvenile Adjudications, Juvenile Sex Offenses, Ninth Circuit,

Previous Offense, Rule of Lenity, Second Circuit, Section 4B1.5 and Sentencing Guidelines.

I. INTRODUCTION

Charlie Smith

1

grew up being watched by a babysitter, like most children who have parents that

work. In order to make the most of his time, the babysitter watched several children at once. Unfortu-

nately, this babysitter used babysitting to further his own sexual needs. This babysitter had sex with

Charlie and the other children, and facilitated sexual acts between the children. This went on for

Charlie from the ages of eight to twelve. The babysitter made Charlie engage in sexual acts with chil-

dren much younger than him. Later on in life, at age forty-five, Charlie was charged as an adult with

a sex offense against a minor.

2

Charlie went to counseling and admitted to his therapist that he been

sexually abused as a child.

Under the Second Circuit’s understanding of how to apply United States Sentencing Guidelines

(U.S.S.G.) section 4B1.5, Charlie could easily be labeled, not as the victim of this abuse, but as the

offender.

3

In order to apply the enhancement under section 4B1.5, which carries an addition of five

points, or an increase to a base level of at least twenty-two,

4

the individual must have committed a

Correspondence: Carissadanesifcr@gmail.com

FAMILY COURT REVIEW, Vol. 54 No. 2, April 2016 300–313

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C2016 Association of Family and Conciliation Courts