“One Minor, Two Roles”: Sixth Circuit Affirms Dual-Role Application of U.S.S.G. §3B1.4 and Clarifies Scope of §4B1.5(b)(1)

Introduction

United States v. David Jason Parkey, No. 24-5812 (6th Cir. July 9 2025), is a published decision that squarely tackles two recurring Sentencing Guidelines questions:

Whether the use-of-a-minor enhancement in §3B1.4 can be applied when the underlying offense (18 U.S.C. §2251(a)) already requires that a minor be exploited and, critically, where the same minor both appears in and creates the sexually explicit imagery.
Whether the pattern-of-activity enhancement in §4B1.5(b)(1) permits the sentencing court to examine misconduct occurring outside the narrow confines of “relevant conduct” set forth in §1B1.3(a)(1).

Judge Griffin, writing for a unanimous panel (Moore, Griffin, Ritz, JJ.), affirms the district court’s application of both enhancements and, in doing so, cements two doctrinal clarifications that will reverberate through child-exploitation sentencings in the Sixth Circuit and beyond.

Summary of the Judgment

The defendant, a 39-year-old co-worker who posed online as “Hank Williams,” pled guilty to one count of producing child pornography after instructing a 16-year-old to record and transmit sexually explicit images of herself. The district court:

Added 2 levels under §3B1.4 for “using a minor to commit the offense.”
Added 5 levels under §4B1.5(b)(1) for engaging “in a pattern of activity involving prohibited sexual conduct.”

Despite these increases, the court ultimately imposed a below-Guidelines sentence of 270 months. On appeal Parkey argued (1) impermissible double counting under §3B1.4 and (2) that §4B1.5(b)(1) unlawfully broadened “relevant conduct.” Both claims failed; the Sixth Circuit affirmed in full.

Detailed Analysis

Precedents Cited

United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) – key support for treating the minor’s dual role (subject & photographer) as two distinct harms that trigger §3B1.4.
United States v. Martin, 291 F. App’x 765 (6th Cir. 2008) – earlier unpublished Sixth Circuit case recognizing the subject-photographer distinction (two minors).
United States v. Hall, 733 F. App’x 808 (6th Cir. 2018) & United States v. Preston, 2024 WL 4590865 (6th Cir. 2024) – apply Martin/Broxmeyer where one minor records herself.
United States v. Preece, 2023 WL 395028 (6th Cir. 2023) – rejects argument that §1B1.3 “relevant conduct” limits Chapter Four enhancements; followed here for §4B1.5.
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) – framework on impermissible commentary expansion; court finds §4B1.5 commentary passes muster.
Other guideline-interpretation authorities: Bell, Byrd, Taylor, Gould, Sands, etc., governing standards of review and textualism.

Legal Reasoning

A. §3B1.4 – The “Use” Enhancement

1. Textual foothold. The guideline adds 2 levels when the offender “used or attempted to use” a minor to commit an offense. “Use” includes “directing, commanding, encouraging, … or soliciting.”

2. Is the factor already incorporated? Application Note 2 bars §3B1.4 when the underlying offense guideline already incorporates the same conduct. The panel parses §2G2.1’s base level (32) plus its specific-offense characteristics (sexual act & computer use) and finds none hinge on the minor’s active participation as photographer. Thus “functional incorporation” is absent.

3. Double counting? The opinion distinguishes two separate “uses” of the minor:

Use as participant/victim (minor is filmed engaging in sexual conduct) – element of §2251(a).
Use as instrumentality/photographer (minor directs camera at herself at defendant’s behest) – separate conduct captured by §3B1.4.

Because each “use” targets a different aspect of harm, applying §3B1.4 is not double counting.

B. §4B1.5(b)(1) – Pattern-of-Activity Enhancement

1. Definition of “pattern.” Application Note 4(B)(i) requires at least two separate occasions of “prohibited sexual conduct with a minor.”

2. Scope of conduct considered. Section 1B1.3 distinguishes Chapters II–III from Chapters IV–V. The panel, adopting Preece, holds that Chapter IV enhancements have their own relevance rules; thus the court may consider episodes beyond the instant offense provided they are established by a preponderance.

3. Application to Parkey. The January 18 imagery exchange + February 6 live-chat satisfy the “two occasions” threshold, validating the 5-level increase.

Impact of the Decision

Clarifies widespread circuit tension. Although several circuits have hinted at the subject-photographer distinction, Parkey is a published Sixth Circuit endorsement, likely persuading other circuits that have yet to confront the one-minor-two-roles scenario.
Guides district courts. Sentencing courts in the Sixth Circuit now have authoritative instruction that §3B1.4 applies whenever the minor is pressed into “self-production,” eliminating uncertainty over alleged double counting.
Chapter IV autonomy reaffirmed. By reaffirming Preece, the panel signals that challenges invoking Havis against other Chapter IV enhancements (e.g., career offender, armed career criminal) will face an uphill battle.
Plea-bargain strategy. Defense counsel must now factor in the near-certain application of §§3B1.4 & 4B1.5(b)(1) when advising clients charged with self-produced child-porn offenses.
Policy discussion. The opinion acknowledges—but refuses to solve—the “counter-intuitive” outcome: a higher penalty when the child is forced to film herself than when the offender directly films her. This may nudge the Sentencing Commission toward future guideline revisions.

Complex Concepts Simplified

Double Counting: Penalizing a single aspect of conduct twice. Permissible when each guideline punishes distinct harms.
§3B1.4 “Use” vs. Victim Status: A minor’s status as a victim differs from her being instrumental in committing the crime (e.g., pressing “record”).
“Pattern of Activity” (§4B1.5): Requires two or more separate incidents of sexual misconduct, which may include the offense of conviction plus any other proven incident.
Relevant Conduct (§1B1.3): Typically restricts what acts count for Chapters II–III calculations. Chapters IV–V enhancements have independent relevance rules.
Standard of Review: De novo for legal interpretations; clear-error for factual findings; mixed questions unresolved but immaterial here.

Conclusion

United States v. Parkey crystallizes two core sentencing principles: (1) §3B1.4 captures the distinct harm of using a minor in any instrumental capacity— even when the same child is the sexual-abuse victim-model— and (2) §4B1.5(b)(1) authorizes courts to look beyond the charged conduct to detect recurring sexual predation. The ruling provides vital clarity for lower courts, curtails defense arguments of impermissible double counting, and underscores the Sixth Circuit’s textualist commitment to the Sentencing Guidelines. Practitioners in child-exploitation cases must now reckon with Parkey’s dual-role doctrine and broader pattern-of-activity reach when negotiating pleas and predicting sentencing exposure.