Criminal appeals attorneys are often fighting the US Sentencing Guidelines for our clients. In a recent case we argued that Section 2G1.3(b)(2)(B) includes an unconstitutional-mandatory presumption and is thus invalid.
- Section 2G1.3(b)(2)(B)
Section 2G1.3(b)(2)(B) from 2016 provides “a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels.” U.S. Sentencing Guidelines Manual § 2G1.3(b)(2)(B) cmt.n.3 (U.S. Sentencing Comm’n 2016). The application notes explain:
Undue Influence. In determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring.
However, subsection (b)(2)(B) does not apply in a case in which the only “minor” (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.
In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B) applies. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. (emphasis added).
Section 2G1.3(b)(2)(B) has not been contested widely, but the cases that have interpreted this section have done so consistently.
- Richmond United States
The government charged Richmond with Coercion and Enticement, in violation of 18 U.S.C. § 2422(a). Richmond v. United States, No. 4:16cv736, 2018 U.S. Dist. LEXIS 224664, at *2 (E.D. Tex. 2018). On May 7, 2015, Movant pleaded guilty and the district court sentenced the Movant to 150 months. Id. Movant did not file a direct appeal but did seek relief through a § 2255 motion. Id. at *2-3.
In the § 2255 motion, the movant alleged his attorney was constitutionally ineffective for failing to challenge the enhancement under § 2G1.3(b)(2)(B).
The district court considered the argument and in denying relief wrote:
the record reflects that at least some level of coercion did, in fact, occur: (1) Nicholas Smith stated, as did the victim, that the victim ran away from Movant; (2) the victim claimed that Movant harmed her, and threatened her by stating if the victim left again that he would “blow [her] brains out[;]” and (3) both the victim and Nicholas Smith stated that the victim and Movant had sexual relations. This is clear evidence of some level of coercion and undue influence over the victim. See United States v. Pringler, 765 F.3d 445, 456 (5th Cir. 2014) (finding threats of physical violence and sexual relations between the victim and defendant, as a common control mechanism between a pimp and prostitute, sufficient to find undue influence over the behavior of a minor victim). Finally, Movant’s instant allegations that the victim engaged in voluntary prostitution fly in the face of his prior statements within his change of plea hearing and his factual admission.
Id. at *12.
- United States v. Alonzo
Defendant-Appellant Carmen Alonzo pleaded guilty to engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(c), and he was sentenced within the Guidelines to 72 months of imprisonment. United States v. Alonzo, 575 F. App’x 252, 253 (5th Cir. 2014). Alonzo appealed his sentence and claimed, in part, that the district court erred in applying a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B). Id. The Appellate court denied relief writing “Although Alonzo preserved his challenge to the application of § 2G1.3(b)(2)(B), his assertion that he “did nothing to compromise the victim’s volition” is insufficient to rebut the presumption that there was “some degree of undue influence” based on the “substantial difference in age between” him and the minor. See § 2G1.3, comment. (n.3). The district court did not commit any procedural error by applying the enhancement.” Id.
- United States v. Aluiso
Aluiso pleaded guilty to illegal transportation for prostitution a then 16-year-old girl (J.H.) and aiding and abetting and was sentenced to 100 months of imprisonment. United States v. Aluiso, 727 F. App’x 84, 85 (5th Cir. 2018). On appeal, Aluiso argued that his sentence erroneously included Guidelines enhancements for unduly influencing a minor to engage in a prohibited sex act. Id.
The Appellate court rejected the argument, writing “. . .there is sufficient evidence of Aluiso’s own complicity in unduly influencing J.H.: he helped transport J.H. to Shreveport; he, Quince, and Cuellar forbade J.H. from leaving the Shreveport hotel; he, Quince, and Cuellar threatened J.H. not to talk to police; and J.H. expressed fear of repercussions from Aluiso’s and Quince’s families.” Id.
- United States v. Anderson
Anderson appealed his conviction and sentence for two counts of sex trafficking of children. United States v. Anderson, 560 F.3d 275, 278 (5th Cir. 2009).
The Appellate court rejected this argument and wrote:
Anderson contends that his victims were already engaging in prostitution before they associated with him. This, however, ignores evidence in the record that Anderson’s victims were afraid to leave him. Moreover, the application note for § 2G1.3 provides for a rebuttable presumption of undue influence “[i]n a case in which a participant is at least 10 years older than the minor.” The district court stated at sentencing that Anderson was 29 years old. His victims were minors, at least under 18, though evidence at trial suggested they were considerably younger. Thus, undue influence was both presumed and supported by evidence.
Id. at 283.
- United States v. Goldberg
The Eleventh Circuit wrote “to assess whether the defendant’s conduct constitutes undue influence, “the district court may look to a variety of factors, including whether the defendant displays an abuse of superior knowledge, influence and resources.” (emphasis added). United States v. Goldberg, 591 F. App’x 792, 793 (11th Cir. 2014).
The Eleventh Circuit explained, “[a]ccording to the unchallenged factual basis of his plea, Goldberg sent a text message to MW, aged fifteen, saying ‘Let’s play,’ with a smiley face; he also sent a photo of fanned-out United States currency to MW, accompanied by a message asking ‘Can you and me hang out?’ The same day, he picked up MW and her friend JS, aged seventeen, and drove them to his office, where he gave them alcohol and one hundred dollars each to allow him to take sexually explicit pictures of them. He then drove them to a nearby gas station, where he performed oral sex on MW in the gas-station bathroom.” Id.
The Appellate court affirmed the sentence writing “Undisputed evidence in the record supports the district court’s finding that Goldberg unduly influenced his minor victims to engage in prohibited sexual conduct. As the district court explained, Goldberg, a ‘very mature adult male[,] reach[ed] out to a 15-year-old in the first instance’; ‘made the first contact’; ‘us[ed] money to entice her into a relationship which she says at one point she’s confused about,’ after she had ‘indicat[ed] she’s not really interested in having sex.’ Goldberg thus displayed ‘an abuse of superior . . . influence and resources,’ that supports application of the undue-influence enhancement.” Id. at 794 (internal citations removed).
- United States v. Pringler
Following a jury trial, Pringler was convicted of aiding and abetting sex trafficking of a minor in violation of 18 U.S.C. § 1591(a) and sentenced to 405 months of imprisonment and 10 years of supervised release. United States v. Pringler, 765 F.3d 445, 447-48 (5th Cir. 2014). Pringler appealed and challenged the calculation of his sentence under the U.S. Sentencing Guidelines. Id. at 448.
The Fifth Circuit affirmed the conviction and sentence and wrote:
Pringler contends that B.L. engaged in prostitution of her own volition. The government responds that significant evidence presented at trial supports the district court’s determination.
This Court has upheld the application of the undue-influence provision where victims testified to their fear of leaving. See United States v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009). In this case, the victim likewise testified to her fear of leaving. B.L. testified that Pringler told her “You can’t run from me” and “You’re not going anywhere.” Pringler also would ask B.L. “Are you going to leave me?” B.L. explained that, as a result of Pringler’s statements and questions, she did not think that she could leave. B.L. also testified about Pringler’s physical abuse of Norman and to unlawful sexual relations with her pimp. The government also presented testimony from a police officer with significant experience investigating prostitution, who explained that physical abuse of one person in the presence of another can be used to control the person who is watching. The officer also testified that sexual relations between a pimp and his prostitute is another control mechanism. The district court therefore had ample evidence with which to find that Pringler “compromised the voluntariness of [B.L.’s] behavior.”
Id. at 456.
- United States v. Robinson
Robinson pleaded guilty to sex trafficking of children; on appeal he argued Robinson argues that the district court clearly erred by applying a two-level enhancement for “undue influence” of his victim, “Jane Doe,” pursuant to U.S.S.G. § 2G1.3(b)(2)(B). United States v. Robinson, 701 F. App’x 381, 381 (5th Cir. 2017).
The Fifth Circuit rejected the argument claiming that Doe engaged in prostitution before she became involved with him in the instant offense. But the Fifth Circuit rejected this argument on the basis that evidence of the victim’s prior prostitution is insufficient to rebut the presumption of undue influence and because the evidence showed that Robinson controlled Doe’s accommodations, transportation, and communication. Id.
- United States v. Smith
In Smith, the court convicted the defendants of trafficking a 14-year-old girl. United States v. Smith, 895 F.3d 410, 413-14 (5th Cir. 2018). They complained about the enhancement, but the Fifth Circuit explained, “the rebuttable presumption applied due to Washington’s age, and she did not offer any evidence to rebut that presumption.” Id. at 417.
Section 2G1.3(b)(2)(B) is a mandatory presumption. This mandatory presumption violates a defendant’s Due Process Rights under the Fifth/Fourteenth Amendment to the Constitution of the United States. This section violates a defendant’s Due Process Rights because it is a mandatory presumption where the basic and elemental facts do not coincide as required by Supreme Court precedent.
- Role of Guidelines and Burden of Proof during Sentencing
Even in the discretionary sentencing system established by Booker/Fanfan, a sentencing court must still carefully consider the detailed statutory scheme created by the Sentencing Reform Act and the Sentencing Guidelines, which are designed to guide the judge toward a fair sentence while avoiding serious sentence disparity. United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
18 U.S.C. § 3553 requires a sentencing court to consider the Sentencing Guidelines in all federal sentencing proceedings. 18 U.S.C.S. § 3553(A)(4). And 18 U.S.C. § 3553 requires that “[e]xcept as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” (emphasis added). 18 U.S.C.S. § 3553(B)(1).
The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence. Mares, 402 F.3d at 519.
- Mandatory Presumptions
A mandatory presumption may affect not only the strength of the applicable burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. Cty. Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 2225 (1979).
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (1970). This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, 442 U.S. 510, 520-524, 99 S. Ct. 2450, 2457 (1979); Patterson v. New York, 432 U.S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698-701 (1975); see also Morissette v. United States, 342 U.S. 246, 274-275 (1952).
Most often, issues concerning mandatory or unconstitutional presumptions arise in the context of jury cases. But mandatory or unconstitutional presumptions exist in bench trials and during sentencing when a judge is the fact finder. Walton v. Arizona, 497 U.S. 639, 651, 110 S. Ct. 3047, 3056 (1990) (“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.”).
- Cases Involving Mandatory Presumptions
In Tot v. United States, 319 U.S. 463 (1943), the Supreme Court explained:
Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts. (citations removed).
Tot, 319 U.S. 467-468.
In Tot, the Supreme Court considered a federal statute which, as construed, made it a crime for one previously convicted of a crime of violence to receive any firearm or ammunition in an interstate transaction. Id. The statute provided that “the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act.” Applying the “rational connection” test, the Court held the Tot presumption unconstitutional. Id. The Court rejected the contention that because most States forbade intrastate acquisition of firearms without a record of the transaction or registration of ownership it could be inferred merely from possession that an acquisition which did not meet these requirements must have been interstate, noting the alternative possibilities of unlawful intrastate acquisition and interstate shipment prior to the beginning of state regulation. Id. at 468.
Subsequent cases in which the Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U.S. 63 (1965), and United States v. Romano, 382 U.S. 136 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills. The presumption in Gainey permitted a jury to infer from a defendant’s presence at an illegal still that he was “carrying on” the business of a distiller “unless the defendant explains such presence to the satisfaction of the jury . . . .” See 26 U. S. C. §§ 5601 (a)(4), 5601 (b)(2) . The Court held that the Gainey presumption should be tested by the “rational connection” standard announced in Tot. The Court explained, “[t]he process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” Gainey, 380 U.S., at 67. The Court then sustained the Gainey presumption, finding that it “did no more than ‘accord to the evidence, if unexplained, its natural probative force.’” Id. at 71.
The presumption under attack in United States v. Romano, supra, was identical to that in Gainey except that it authorized the jury to infer from the defendant’s presence at an illegal still that he had possession, custody, or control of the still. The Supreme Court held this presumption invalid, but reiterated that the result in Gainey was entirely justified because “presence at an operating still is sufficient evidence to prove the charge of ‘carrying on’ because anyone present at the site is very probably connected with the illegal enterprise.” Romano, 382 U.S., at 141. The Court concluded: “Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from proof of the other is arbitrary . . . .’” Id.
In Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the Supreme Court considered a mandatory presumption in a family law case and upheld a father’s challenge to an Illinois law conclusively presuming that, because he was not married to the mother of his children at the time of her death, he was not a suitable custodial parent for the children. Id. The Court analyzed this argument under the Due Process Clause and conducted a “Tot balancing test.” Id. The Court considered Stanley’s parental interest, the state’s interest in presuming Stanley was unfit, and the likelihood that the presumption would produce errors. Id. at 654-55. The Court found the mandatory presumption violated Stanley’s Due Process Rights. In summary, the Court wrote:
The State’s interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family. In other words, the father has a procedural due process interest in an individualized determination of fitness.
Id. at 647-48.
In Leary, the statute at issue made it illegal for a defendant to knowingly import marijuana into the United States. Leary v. United States, 395 U.S. 6, 30, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969). The statute included a presumption that authorized a jury to infer from the defendant’s possession of marijuana that the marijuana was imported into the United States illegally and that the defendant knew of the unlawful importation. Id. at 37. The Court held that the connection between the proved fact (possession) and the presumed fact (unlawful importation and knowledge of same) was not rational, and therefore the statute’s presumption was unconstitutional. Id.
In 1979 the Supreme Court summarized it jurisprudence on mandatory presumptions and wrote:
A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the “no reasonable doubt” burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. E. g., Turner v. United States, supra, at 401-402, and n. 1; Leary v. United States, 395 U.S. 6, 30; United States v. Romano, 382 U.S. 136, 137, and n. 4, 138, 143; Tot v. United States, supra, at 469. In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. E. g., Turner v. United States, supra, at 408-418; Leary v. United States, supra, at 45-52; United States v. Romano, supra, at 140-141; Tot v. United States, 319 U.S., at 468. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases. It is for this reason that the Court has held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction.
Allen, 442 U.S. at 157-60.
Ten years later, the Fifth Circuit considered a case that claimed there was an unconstitutional mandatory presumption. United States v. Kim, 884 F.2d 189, 195 (5th Cir. 1989).
The Fifth Circuit considered a challenge to 26 U.S.C. § 6064, which then provided, “[t]he fact that an individual’s name is signed to a return, statement, or other document shall be prima facie evidence for all purposes that the return, statement, or other document was actually signed by him.” The Court explained:
The jury essentially was instructed that the signatures gave rise to a “mandatory presumption,” i.e., that they must find an “ultimate fact” on proof of a “basic fact,” unless the defendants present evidence to rebut the connection between the two. See County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 2225, 60 L. Ed. 2d 777 (1979). The constitutionality of a statute setting forth a mandatory presumption depends on the rationality of the connection between the facts proved and the ultimate fact presumed. United States v. Gainey, 380 U.S. 63, 66, 85 S. Ct. 754, 757, 13 L. Ed. 2d 658 (1965). A presumption of this type will be regarded as irrational “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57 (1969). There is little doubt that a person may rationally be presumed to have signed his name, when the name of that person has been signed to a return. The connection between the proved and presumed fact therefore shows no constitutional defect.
Kim, 884 F.2d at 195.
- Section 2G1.3(b)(2)(B) of the Sentencing Guidelines
Section 2G1.3(b)(2)(B) provides for a two-level enhancement if “a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct.” U.S. Sentencing Guidelines Manual § 2G1.3(b)(2)(B) (U.S. Sentencing Comm’n 2016). And the accompanying note provides “In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B) applies. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.” (emphasis added). Id.
- Application of Law to Fact: Section 2G1.3(b)(2)(B) is Unconstitutional
As the Supreme Court has explained, a mandatory presumption tells the trier that he must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. Allen, 442 U.S. at 157.
Section 2G1.3(b)(2)(B) imposes a mandatory presumption that there was undue influence by the perpetrator to get the victim to participate in a prohibited sexual act if the preponderance of the evidence establishes that the perpetrator is more than ten years older than the victim. U.S. Sentencing Guidelines Manual § 2G1.3(b)(2)(B) cmt.n.3 (U.S. Sentencing Comm’n 2016). According to the note, “[i]n a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B) applies. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.” Id.
The presumption is a mandatory presumption because it instructs the trier of fact that he “must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Allen, 442 U.S. at 157. Therefore, under Supreme Court precedent, the presumption is mandatory. Id.
When a presumption is mandatory the question becomes whether the “the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide.” Id.
The basic fact in the presumption in § 2G1.3(b)(2)(B) is that the perpetrator is more than ten years older than the victim. U.S. Sentencing Guidelines Manual § 2G1.3(b)(2)(B) cmt.n.3 (U.S. Sentencing Comm’n 2016). The elemental fact is that because the victim and the perpetrator are more than ten years apart that the perpetrator exerted undue influence on the minor to convince the minor to engage in the prohibited sexual act. Id.
The premise of the presumption is that without the undue influence that the minor would not engage in the sexual act. But it is well-established that pubescent and post-pubescent minors regularly and willingly engage in a huge variety of sexual activities. For example, an article in the Fordham Urban Law Journal reminds us that:
It is imperative, however, to acknowledge that teenagers engage in sexual relationships. According to the Centers for Disease Control (CDC) Youth Risk Behavior Survey, in 2003, forty-five percent of high school girls and forty-eight percent of high school boys reported that they had sexual intercourse. The CDC found that the percentage of high school students who have had sexual intercourse increases by grade: sixty-two percent of the twelfth graders surveyed had engaged in sexual intercourse, compared to only thirty-three percent of the ninth graders. While this represents a slight decline in sexual activity over the previous decade, the percentage of teens who do engage in sexual intercourse remains significant.
Cheryl Hanna, Special Feature: Women as Perpetrators of Crime: Sex before Violence: Girls, Dating Violence, and (Perceived) Sexual Autonomy, 33 Fordham Urb. L.J. 437, 451 (2006).
Statistics from the Centers for Disease Control estimate that between forty and fifty percent of tenth grade students (sixteen years old) have had sexual intercourse.
One well-known expert on adolescents wrote, “[i]f there is anything that can be safely said about what is new in the minds of adolescents, it is that they … have sex on their minds.” Lawrence Kohlberg & Carol Gilligan, The Adolescent as a Philosopher: The Discovery of the Self in a Post-Conventional World, in Twelve to Sixteen: Early Adolescence 144, 153 (Robert Coles & Jerome Kagan eds., 1972).
Other authors have explained, “[i]ndeed, adolescents are – for a variety of biological and cultural reasons – more likely than adults to engage in risky sexual behavior.” Lisa T. McElroy Article: Sex on the Brain: Adolescent Psychosocial Science and Sanctions for Risky Sex, 34 N.Y.U. Rev. L. & Soc. Change 708, 714 (2010).
And another scholar recently explained that “‘although we do not yet have societal agreement about what constitutes age-appropriate child sexual behavior, we do have a universal norm that infants and children should not be sexually abused.’ But even here, there is not always a clear dividing line between sexual activity and sexual abuse, acceptable persuasion and impermissible coercion, consent and nonconsent, or childhood incapacity and coming-of-age competence. This causes analytical complexity when it comes to regulating juvenile sexual behavior.” (emphasis added). Dr. Anna High, ARTICLE: Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class, 69 Ark. L. Rev. 787, 793 (2016).
An annotated bibliography of articles discussing adolescent sexual activity would resemble the unabridged Oxford English Dictionary. But the point is that § 2G1.3(b)(2)(B)’s premise—that without some undue influence from an adult perpetrator that a minor (even a post-pubescent minor) would not engage in the prohibited sexual act—is not well founded. U.S. Sentencing Guidelines Manual § 2G1.3(b)(2)(B) cmt.n.3 (U.S. Sentencing Comm’n 2016). Instead, it is well-established (no matter how distasteful) that pubescent and post-pubescent minors widely engage in sexual activities and often in what is classified as “risky” sexual behavior. And the closer the minor is to the age of consent or the age of majority, the more sexually active that individual is likely to be. Therefore, § 2G1.3(b)(2)(B)’s premise that when there is more than ten years between the perpetrator and the victim that “some degree of undue influence can be presumed” is not valid. Id. Yet, cases such as Alonzo and Smith apply the unconstitutional two-level enhancement. Alonzo, 575 F.App’x at 253; Smith, 895 F.3d at 417.
Because Section 2G1.3(b)(2)(B) imposes a mandatory presumption, this Court need not look to the record for evidence that would support the presumption of “undue influence” because such evidence is irrelevant to the analysis. Allen, 442 U.S. at 157-60 (“the Court has held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction.”).
Therefore, the basic fact of § 2G1.3(b)(2)(B) (i.e. that the defendant and the victim were more than ten years apart in age) does not necessarily establish the elemental fact (i.e. that the defendant exerted some “undue influence” on Doe to get Doe to participate in the prohibited sex act). And for this reason, the mandatory presumption in § 2G1.3(b)(2)(B) is unconstitutional.
 See Centers for Disease Control, U.S. Dep’t of Health & Human Services, Youth Risk Behavior Surveillance – United States, 1999, Morbidity and Mortality Weekly Report, Vol. 49 (June 9, 2000), at 75 (Table 30). The Centers for Disease Control (CDC) reports that forty-three percent of tenth grade girls and fifty-one percent of tenth-grade boys say they have engaged in sexual intercourse. The prior CDC report provides nearly identical numbers for girls, though a smaller number of boys who reported engaging in sexual intercourse by the tenth grade. Centers for Disease Control, U.S. Dep’t of Health & Human Services, Youth Risk Behavior Surveillance – United States, 1997, Morbidity and Mortality Weekly Report, Vol. 47 (Aug. 14, 1998), at 70 (Table 26) (43.5 percent of tenth-grade girls and 41.7 percent of tenth-grade boys reported having engaged in sexual intercourse). Since nearly all teenagers reach their sixteenth birthday during the tenth grade, these numbers fairly reflect a reasonable estimate of the percentage of children under the age of sixteen who have engaged in sexual intercourse.