Appeal from the United States District Court for the Western District of Wisconsin. No. 01 CR 53--John C. Shabaz, Judge.
Before Ripple, Manion and Evans, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Having pleaded guilty to one count of transporting child pornography in interstate commerce in violation of 18 U.S.C. sec. 2252A(a)(1), Mr. Polson now appeals the application of an enhancement to his sentence as based on unreliable information. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
After the FBI discovered that he had been disseminating pornographic pictures of minors over the internet, Mr. Polson pleaded guilty to one count of transporting child pornography in interstate commerce in violation of 18 U.S.C. sec. 2252A(a)(1). The district court determined Mr. Polson's offense level under the United States Sentencing Guidelines to be 32, which included a base offense level of 17 for "Trafficking in Material Involving the Sexual Exploitation of a Minor," U.S.S.G. sec. 2G2.2(a), and several upward adjustments relating to the particular circumstances of Mr. Polson's offense. The upward adjustments included a five-level enhancement based on the district court's determination that Mr. Polson had "engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. sec. 2G2.2(b)(4). The district court applied this enhancement despite Mr. Polson's objection that it was based on unreliable information.
At the sentencing hearing, the Government had presented evidence of three alleged instances of sexual abuse. The first incident occurred in February 1987. According to a police report appended to the Presentence Report (PSR), a mother reported the possible sexual assault of her four-year-old daughter by her babysitter, Andrew Polson, who was then fifteen years old. The mother reported that her daughter had told her that Mr. Polson had touched her inappropriately while he babysat her the previous evening. Her daughter had pointed to the front of her pelvic area and said that Mr. Polson had touched her there with his finger. The police made an audio recording of the mother's statement, the transcript of which the Government introduced during the sentencing hearing. For this incident, a juvenile court convicted Mr. Polson of first-degree sexual assault and placed him on supervision for one year.
The second instance of sexual abuse allegedly occurred around the same time as the first and consisted of similar misconduct involving the same four-year-old girl. The only evidence of it, however, was the mother's statement during the investigation of the first incident that she had asked her daughter if Mr. Polson previously had touched her in the same way and that her daughter had indicated that he had. Mr. Polson had babysat for the child four or five times before.*fn1
The third instance of sexual abuse allegedly occurred sometime in the early 1990s. According to the police reports appended to the PSR, an eight-year-old girl told police in April 1997 that Mr. Polson had "picked at" her genitalia while he was baby-sitting several years before. R.25, Addendum to the PSR, Incident Report No. 1997-000970-I, at 2. The mother of the girl told police that Mr. Polson had babysat her daughter four or five years earlier. The girl therefore would have been three or four years old at the time of the incident. A police detective who had participated in the 1997 investigation of this incident testified at the sentencing hearing. The detective related that he had interviewed Mr. Polson after receiving the complaint and that he had told Mr. Polson that he was investigating "a situation that occurred while baby-sitting." R.27, at 12. The detective had not mentioned the name of the child, but Mr. Polson nevertheless volunteered that the complaint must have been in regard to an incident that he remembered occurring while baby-sitting the girl who had reported the incident. Mr. Polson explained that he had been baby-sitting the girl while she was going through "potty training" and that she had had a diaper rash in her vaginal area, which he had attempted to treat by applying Neosporin. Id. According to the detective, Mr. Polson explained that he had later wiped off the cream because it appeared to be burning the child. The detective further testified that Mr. Polson had appeared very nervous during the interview and that Mr. Polson's voice and hands were shaky. In the detective's opinion, Mr. Polson was not truthful during the interview and had withheld information.
The district court determined that the Government had established by a preponderance of the evidence that the first instance of sexual abuse had occurred and that the same conduct had occurred at least one other time, although the court could not ascertain on the record how many other times it had occurred. With regard to the third instance, the court determined that Mr. Polson's admission that he had applied Neosporin to the girl's rash indicated that he had touched the girl in the way that she later described. The court also stated that it did not accept Mr. Polson's explanation of the incident. The district court therefore applied the five-level enhancement and sentenced Mr. Polson to 151 months of imprisonment, the maximum allowed under the Sentencing Guidelines. Mr. Polson appeals only the application of the five-level enhancement for engaging in a "pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. sec. 2G2.2(b)(4).
A "pattern of activity," as defined by the Sentencing Guidelines, consists of two or more instances of sexual abuse or exploitation of a minor. See U.S.S.G. sec. 2G2.2, Application Note 1. "'Sexual abuse or exploitation' does not include trafficking in material relating to the sexual abuse or exploitation of a minor." Id. Therefore, for the enhancement to apply to Mr. Polson's sentence, there must be evidence of at least two instances--not including the ...