NOT RECOMMENDED FOR PUBLICATION File Name: 24a0495n.06
No. 24-5111
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Dec 06, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF BILL DANIEL COMBS, ) KENTUCKY Defendant-Appellant. ) ) OPINION
Before: SUTTON, Chief Judge; MURPHY and BLOOMEKATZ, Circuit Judges.
MURPHY, Circuit Judge. Bill Combs persuaded a young girl to send him sexually explicit
photos of herself. He later pleaded guilty to unlawfully producing child pornography. When
calculating Combs’s guidelines range, the district court relied on evidence that he had also sexually
abused his victim. On appeal, Combs claims that this evidence did not permit the court to impose
two sentencing enhancements. But the court properly applied one of the enhancements, and the
other one did not affect his guidelines range. We thus affirm the court’s 360-month sentence.
In February 2021, the Kentucky State Police started to investigate Combs over his
relationship with a 14-year-old girl in Pikeville, Kentucky. As part of the investigation, Facebook
produced the messages that Combs had exchanged with this young girl on Facebook Messenger
from late January into early February. These messages referred to sexual acts that Combs had
previously engaged in with her. The messages also showed Combs soliciting her to take sexually No. 24-5111, United States v. Combs
explicit pictures of herself and to share those pictures with him. She sent him two of these explicit
photos on February 10. During an interview the next month, the victim acknowledged Combs’s
past sexual abuse and explained that they had engaged in the prior sex acts when living in the same
house a year or so in the past.
Combs pleaded guilty to one count of producing child pornography in violation of 18
U.S.C. § 2251(a). The district court calculated his guidelines sentence as life imprisonment. This
conclusion rested in part on the court’s factual finding that Combs had sexually abused the victim
before he had solicited her to send him the two sexually explicit pictures. The court made that
finding based mainly on Combs’s text messages with the victim. Despite this life-sentence
guidelines calculation, Combs’s crime had a statutory maximum of 30 years’ imprisonment. See
18 U.S.C. § 2251(e). So that term of years became Combs’s guidelines sentence. The court
imposed this 30-year term of imprisonment.
Combs appealed. He now argues that the district court wrongly relied on two sentencing
enhancements to calculate his guidelines range. The court first imposed a five-level enhancement
on the ground that Combs had engaged in a pattern of prohibited sexual conduct with the victim.
See U.S.S.G. § 4B1.5(b)(1). It next imposed a two-level enhancement on the ground that his crime
involved a sexual act with her. Id. § 2G2.1(b)(2)(A). We will consider each enhancement in turn.
Section 4B1.5(b)(1): Pattern of Prohibited Sexual Conduct. Section 4B1.5 increases the
punishment for defendants who commit repeated sex crimes against minors. As relevant now, this
guideline requires district courts to impose a five-level enhancement “[i]n any case in which the
defendant’s instant offense of conviction is a covered sex crime, neither § 4B1.1 nor subsection (a)
of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited
sexual conduct[.]” Id. § 4B1.5(b). The parties do not dispute that two of these three elements
2 No. 24-5111, United States v. Combs
apply here. They do not dispute that Combs’s conviction for producing child pornography
qualifies as a “covered sex crime.” See id. § 4B1.5 n.2(A)(ii). They also do not dispute that Combs
did not qualify as a career offender under § 4B1.1 or have a prior “sex offense conviction” under
§ 4B1.5(a). Their dispute instead turns only on whether Combs “engaged in a pattern of activity
involving prohibited sexual conduct” with the victim. Id. § 4B1.5(b).
Even on this final element, the parties disagree only on a narrow issue. Combs accepts that
a pattern of prohibited sexual conduct can exist under § 4B1.5 if “the defendant engaged in
prohibited sexual conduct with a minor” “on at least two separate occasions[.]” Id. § 4B1.5
n.4(B)(i). Combs also accepts that a defendant’s current conviction can count toward this total.
Id. § 4B1.5 n.4(B)(ii); see United States v. Wandahsega, 924 F.3d 868, 886 (6th Cir. 2019). And
he accepts that a defendant’s prior uncharged crimes can count toward it too. U.S.S.G. § 4B1.5
n.4(B)(ii); see United States v. Corp, 668 F.3d 379, 391–92 (6th Cir. 2012). Combs lastly does
not dispute that his current child-pornography conviction and his prior sexual acts with the victim
both qualify as “prohibited sexual conduct” under § 4B1.5(b)(1). See U.S.S.G. § 4B1.5 cmt.
n.4(A).
So what does Combs dispute? He offers two reasons why we may not rely on his prior
sexual abuse as one of the two required “occasions” of prohibited sexual conduct. Id. § 4B1.5
n.4(B)(i). Combs first asserts that the prior sexual abuse does not qualify as “relevant conduct”
for his current conviction because he did not engage in the abuse “during the commission of” his
child-pornography offense, “in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for” it. Id. § 1B1.3(a)(1). But a defendant’s prior misconduct generally
must fall within this “relevant conduct” definition only if a district court seeks to use that prior
misconduct to determine the defendant’s “base offense level,” any “specific offense
3 No. 24-5111, United States v. Combs
characteristics,” any “cross references in Chapter Two” of the Sentencing Guidelines, or any
“adjustments in Chapter Three[.]” Id. § 1B1.3(a). A defendant’s prior crimes, by contrast, need
not fall within this relevant-conduct definition when the district court applies the career-offender
provisions in Chapter Four (including § 4B1.5). See id. § 1B1.3(a)–(b); United States v. Preece,
2023 WL 395028, at *5–7 (6th Cir. Jan. 25, 2023). Combs’s past abuse thus did not need to qualify
as “relevant conduct” for the district court to consider it under § 4B1.5(b)(1).
Combs next argues that the district court did not, in fact, rely on his prior sexual abuse for
this enhancement. He argues that the court instead found that the two explicit photos were created
on two separate “occasions” and thus that the photos alone sufficed to apply the enhancement.
Combs adds that the court erred in this regard because the victim created the two photos at the
same time. Cf. Wooden v. United States, 595 U.S. 360, 366–76 (2022). But we need not decide
whether the production of the two photos occurred on separate occasions because Combs is wrong
to suggest that the court did not rely on his prior sexual abuse. Admittedly, the court said that the
“activity here” established a pattern of prohibited sexual conduct without identifying any specific
incidents. Sent. Tr., R.71, PageID 329.
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NOT RECOMMENDED FOR PUBLICATION File Name: 24a0495n.06
No. 24-5111
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Dec 06, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF BILL DANIEL COMBS, ) KENTUCKY Defendant-Appellant. ) ) OPINION
Before: SUTTON, Chief Judge; MURPHY and BLOOMEKATZ, Circuit Judges.
MURPHY, Circuit Judge. Bill Combs persuaded a young girl to send him sexually explicit
photos of herself. He later pleaded guilty to unlawfully producing child pornography. When
calculating Combs’s guidelines range, the district court relied on evidence that he had also sexually
abused his victim. On appeal, Combs claims that this evidence did not permit the court to impose
two sentencing enhancements. But the court properly applied one of the enhancements, and the
other one did not affect his guidelines range. We thus affirm the court’s 360-month sentence.
In February 2021, the Kentucky State Police started to investigate Combs over his
relationship with a 14-year-old girl in Pikeville, Kentucky. As part of the investigation, Facebook
produced the messages that Combs had exchanged with this young girl on Facebook Messenger
from late January into early February. These messages referred to sexual acts that Combs had
previously engaged in with her. The messages also showed Combs soliciting her to take sexually No. 24-5111, United States v. Combs
explicit pictures of herself and to share those pictures with him. She sent him two of these explicit
photos on February 10. During an interview the next month, the victim acknowledged Combs’s
past sexual abuse and explained that they had engaged in the prior sex acts when living in the same
house a year or so in the past.
Combs pleaded guilty to one count of producing child pornography in violation of 18
U.S.C. § 2251(a). The district court calculated his guidelines sentence as life imprisonment. This
conclusion rested in part on the court’s factual finding that Combs had sexually abused the victim
before he had solicited her to send him the two sexually explicit pictures. The court made that
finding based mainly on Combs’s text messages with the victim. Despite this life-sentence
guidelines calculation, Combs’s crime had a statutory maximum of 30 years’ imprisonment. See
18 U.S.C. § 2251(e). So that term of years became Combs’s guidelines sentence. The court
imposed this 30-year term of imprisonment.
Combs appealed. He now argues that the district court wrongly relied on two sentencing
enhancements to calculate his guidelines range. The court first imposed a five-level enhancement
on the ground that Combs had engaged in a pattern of prohibited sexual conduct with the victim.
See U.S.S.G. § 4B1.5(b)(1). It next imposed a two-level enhancement on the ground that his crime
involved a sexual act with her. Id. § 2G2.1(b)(2)(A). We will consider each enhancement in turn.
Section 4B1.5(b)(1): Pattern of Prohibited Sexual Conduct. Section 4B1.5 increases the
punishment for defendants who commit repeated sex crimes against minors. As relevant now, this
guideline requires district courts to impose a five-level enhancement “[i]n any case in which the
defendant’s instant offense of conviction is a covered sex crime, neither § 4B1.1 nor subsection (a)
of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited
sexual conduct[.]” Id. § 4B1.5(b). The parties do not dispute that two of these three elements
2 No. 24-5111, United States v. Combs
apply here. They do not dispute that Combs’s conviction for producing child pornography
qualifies as a “covered sex crime.” See id. § 4B1.5 n.2(A)(ii). They also do not dispute that Combs
did not qualify as a career offender under § 4B1.1 or have a prior “sex offense conviction” under
§ 4B1.5(a). Their dispute instead turns only on whether Combs “engaged in a pattern of activity
involving prohibited sexual conduct” with the victim. Id. § 4B1.5(b).
Even on this final element, the parties disagree only on a narrow issue. Combs accepts that
a pattern of prohibited sexual conduct can exist under § 4B1.5 if “the defendant engaged in
prohibited sexual conduct with a minor” “on at least two separate occasions[.]” Id. § 4B1.5
n.4(B)(i). Combs also accepts that a defendant’s current conviction can count toward this total.
Id. § 4B1.5 n.4(B)(ii); see United States v. Wandahsega, 924 F.3d 868, 886 (6th Cir. 2019). And
he accepts that a defendant’s prior uncharged crimes can count toward it too. U.S.S.G. § 4B1.5
n.4(B)(ii); see United States v. Corp, 668 F.3d 379, 391–92 (6th Cir. 2012). Combs lastly does
not dispute that his current child-pornography conviction and his prior sexual acts with the victim
both qualify as “prohibited sexual conduct” under § 4B1.5(b)(1). See U.S.S.G. § 4B1.5 cmt.
n.4(A).
So what does Combs dispute? He offers two reasons why we may not rely on his prior
sexual abuse as one of the two required “occasions” of prohibited sexual conduct. Id. § 4B1.5
n.4(B)(i). Combs first asserts that the prior sexual abuse does not qualify as “relevant conduct”
for his current conviction because he did not engage in the abuse “during the commission of” his
child-pornography offense, “in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for” it. Id. § 1B1.3(a)(1). But a defendant’s prior misconduct generally
must fall within this “relevant conduct” definition only if a district court seeks to use that prior
misconduct to determine the defendant’s “base offense level,” any “specific offense
3 No. 24-5111, United States v. Combs
characteristics,” any “cross references in Chapter Two” of the Sentencing Guidelines, or any
“adjustments in Chapter Three[.]” Id. § 1B1.3(a). A defendant’s prior crimes, by contrast, need
not fall within this relevant-conduct definition when the district court applies the career-offender
provisions in Chapter Four (including § 4B1.5). See id. § 1B1.3(a)–(b); United States v. Preece,
2023 WL 395028, at *5–7 (6th Cir. Jan. 25, 2023). Combs’s past abuse thus did not need to qualify
as “relevant conduct” for the district court to consider it under § 4B1.5(b)(1).
Combs next argues that the district court did not, in fact, rely on his prior sexual abuse for
this enhancement. He argues that the court instead found that the two explicit photos were created
on two separate “occasions” and thus that the photos alone sufficed to apply the enhancement.
Combs adds that the court erred in this regard because the victim created the two photos at the
same time. Cf. Wooden v. United States, 595 U.S. 360, 366–76 (2022). But we need not decide
whether the production of the two photos occurred on separate occasions because Combs is wrong
to suggest that the court did not rely on his prior sexual abuse. Admittedly, the court said that the
“activity here” established a pattern of prohibited sexual conduct without identifying any specific
incidents. Sent. Tr., R.71, PageID 329. But the court adopted the “findings” in Combs’s
presentence report. Id., PageID 330. That report found that Combs’s prior abuse qualified as
prohibited sexual conduct under § 4B1.5(b)(1). By incorporating the report’s findings, the court
incorporated this logic. And since the creation of the photos and the prior abuse occurred at
different times, Combs engaged in prohibited sexual conduct on the two occasions required to
trigger § 4B1.5(b)(1).
Section 2G2.1(b)(2)(A): Sexual Act or Contact. Section 2G2.1(b)(2)(A) increases a
defendant’s offense level by two if the “offense involved” “the commission of a sexual act or
sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A). The parties agree that the “relevant conduct”
4 No. 24-5111, United States v. Combs
definition does apply to this enhancement. See id. § 1B1.3(a). But the district court found that
Combs’s prior sex acts with the victim qualified as relevant conduct for his later efforts to get her
to create explicit photos. It reasoned that the prior acts qualified as “grooming” behavior designed
to get her to produce the photos. Sent. Tr., R.71, PageID 326. The court thus found that Combs
had engaged in the prior abuse “in preparation for” his current child-pornography offense.
U.S.S.G. § 1B1.3(a)(1).
We need not address this theory’s validity. Even if the court wrongly imposed this
enhancement, it would not have changed Combs’s guidelines sentence. We have often held (as a
common-sense matter) that a district court’s errors in calculating a defendant’s guidelines range
did not harm the defendant when those errors did not affect the defendant’s ultimate guidelines
range (or when they produced a lower range than the defendant should have received). See United
States v. Faulkner, 926 F.3d 266, 275 (6th Cir. 2019); United States v. Aguilar-Andres, 780
F. App’x 231, 234 (6th Cir. 2019); United States v. Bivens, 811 F.3d 840, 843 (6th Cir. 2016); see
also United States v. Bell, 661 F. App’x 318, 325 (6th Cir. 2016).
This principle applies here. The district court calculated Combs’s total offense level as 46.
Without this two-level enhancement, his total offense level would have declined to 44. Yet this
number still would have exceeded the highest possible offense level under the guidelines: 43. The
district court thus still would have reduced Combs’s total offense level to 43. See U.S.S.G. ch. 5,
pt. A (Sentencing Table) cmt. n.2. And his guidelines sentence would have remained his statutory
maximum: 360 months’ imprisonment. Because this two-level enhancement did not affect
Combs’s proper guidelines sentence, any (assumed) error in applying the enhancement was
harmless. See Faulkner, 926 F.3d at 275.
We affirm.