The United States Court of Appeals for the Fourth Circuit vacated a 132-­month prison sentence because the U.S. District Court for the Western District of North Carolina committed procedural error during sentencing for violating 18 U.S.C. § 2252A(a)(2), (b)(l) (possessing material depicting the sexual exploitation of minors) by applying the sentence enhancement cross-­reference under U.S. Sentencing Guidelines § 2G2.2(c)(1) because a finding of “offering money for specific conduct,” without any further factual findings, is insufficient to conclude that the defendant “caused” a minor to produce sexually explicit material. 

Background

In 2021, Luis Avila pleaded guilty to three counts of offenses that involved “possessing material involving the sexual exploitation of minors” within the meaning of § 2G2.2 of the Guidelines. Prior to his sentencing, the probation officer calculated Avila’s advisory Guidelines sentencing range using that provision of the Guidelines that started with a base offense level of 22 and after various enhancements were applied, concluded that his offense level was 35. Notwithstanding that calculation, since § 2G2.2(c)(1)—captioned “Cross Reference”—directs the use of a different Guidelines provision if certain requirements are met that result in a greater offense level, the probation officer concluded that Avila’s offense level was 38 because the “cross reference” subsection applied.

Avila objected to the use of the cross reference both in written objections to the presentence report and at the sentencing hearing. He argued that § 2G2.2(c)(1) applies only if the offense “involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” However, his conduct did not “cause” the sexually explicit material to be created in the first place because the victims were sending the same videos to other people, and the government failed to prove that his requests were what prompted the victims to make the videos, according to Avila.

The Government argued that “caused” and “involved” are broad terms, and the evidence showed that Avila “wanted videos of certain conduct and offered to pay” and did pay one victim for videos. He coerced and enticed the victim to make the videos with the offer of money and thereby “caused” the victim to make them, according to the Government. 

The District Court overruled Avila’s objection, agreed with the Government, and applied the cross-­reference based on a finding that “the language of the cross-­reference is quite broad” and that it appeared “there was money offered for specific conduct that meets the elements in cross reference (c)(l).” The District Court sentenced Avila to 132 months in prison followed by 30 years of supervised release. Avila timely appealed.

Analysis

The Court stated that the proper interpretation of a Guidelines provision is a legal question to be reviewed de novo. See United States v. Mitchell, 120 F.4th 1233 (4th Cir. 2024). Using that standard, the Court determined that offering money for specified conduct and “causing” such conduct to occur “are different things and that proving the former is not enough to prove the latter.” Thus, the Court ruled that the District Court’s factual findings were legally insufficient for the application of Guidelines § 2G2.2(c)(1). 

In reaching its decision, the Court examined what it means for an offense to “involve[] causing … a minor to engage in sexually explicit conduct” under § 2G2.2(c)(1). Since “causing” is not defined in the Guidelines, the Court looked to the “ordinary, contemporary, common meaning” of the term. Johnson v. Zimmer, 686 F.3d 224 (4th Cir. 2012). The Court noted that the parties agree that the term “cause” means to “make (something, typically something bad) happen and that the “cause” of something is “a person or thing that gives rise to an action, phenomenon, or condition.” New Oxford American Dictionary (3d ed. 2010). Additionally, the Government agreed that a person’s conduct cannot “cause” something that happened before that action was taken, i.e., the “cause” must precede the effect. Therefore, the Court explained that the question it must answer is “whether the district court found that at least one victim made sexually explicit videos after and in response to Avila’s request.”

The Government argued that there were sufficient facts in the presentence report for the District Court to rightfully conclude that a least one victim did, in fact, make some videos after and in response to Avila’s request. However, the Court dismissed this argument, stating that “whether the district court could have made a finding” is “different from whether the court actually made that finding.” It explained that a “finding that Avila offered money for videos depicting specific conduct does not establish that he caused anyone to engage in that conduct within the meaning of Guidelines § 2G2.2(c)(1). That is, a finding of money offered for videos alone does not establish that the offer of money “caused” the videos to be created because the cause (offer of money) must necessarily occur before the effect (production of videos), but the District Court failed to make that specific finding. Thus, the Court held that the District Court committed procedural error by applying Guidelines § 2G2.2(c)(1).

Conclusion

Accordingly, the Court vacated the sentence and remanded the case for resentencing. See: United States v. Avila, 134 F.4th 244 (4th Cir. 2025).  

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