Attempts to Produce Child Pornography Qualify as “Prohibited Sexual Conduct” and Can Establish a § 4B1.5(b) “Pattern of Activity”

I. Introduction

In United States v. Gilberto Vazquez Gomez (11th Cir. Aug. 10, 2026) (unpublished), the Eleventh Circuit affirmed a 240-month sentence imposed for production of child pornography under 18 U.S.C. § 2251(a). The principal dispute concerned the district court’s application of the U.S.S.G. § 4B1.5(b) five-level enhancement for defendants who engage in a “pattern of activity involving prohibited sexual conduct.”

Gomez argued (1) the district court clearly erred in finding he intended to and took substantial steps toward additional production (i.e., attempt conduct), (2) attempts do not qualify as “prohibited sexual conduct” and thus cannot form the requisite “pattern,” and (3) the enhancement rendered the sentence procedurally and substantively unreasonable.

II. Summary of the Opinion

The court affirmed on three key holdings:

1. The district court did not clearly err in finding Gomez had the intent to produce child pornography and took a substantial step (placing a phone to record in a bathroom), supporting attempt-based conduct relevant to § 4B1.5(b).
2. Multiple recording attempts on different dates constituted a “pattern of activity” (at least two separate occasions), and attempts to produce child pornography qualify as “prohibited sexual conduct” because § 4B1.5’s commentary incorporates 18 U.S.C. § 2426(b)(1)(A), which reaches Chapter 110 offenses, including attempt liability under 18 U.S.C. § 2251(e).
3. The sentence was not procedurally unreasonable, and in any event any Guidelines error would be harmless under United States v. Keene because the district court stated it would impose the same sentence, which the panel found substantively reasonable under the § 3553(a) factors.

III. Analysis

A. Precedents Cited

• United States v. Yost, 479 F.3d 815 (11th Cir. 2007): Supplied the attempt framework—(1) specific intent and (2) substantial step— and the “objective acts” formulation used to uphold the district court’s finding that Gomez’s conduct moved beyond preparation.
• United States v. Moran, 57 F.4th 977 (11th Cir. 2023): Crucial to the intent analysis. The panel leaned on Moran’s statement that a defendant’s “desire alone—wholly without respect to his likelihood of success—can establish his intent,” and that “sexual interest in children speaks to his desire” to obtain child pornography. This undercut Gomez’s argument that limited or unsuccessful recordings negated intent.
• United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010): Provided a concrete definition of “substantial step” (beyond mere preparation; an act that would likely culminate in the crime absent interruption). The panel used it to characterize placing the phone in the bathroom as a qualifying step.
• United States v. Miranda, 348 F.3d 1322 (11th Cir. 2003): Supported treating intent as a factual question reviewed for clear error.
• United States v. Isaac, 987 F.3d 980 (11th Cir. 2021): Set the review standard—clear error for factual findings and “due deference” in applying Guidelines to facts.
• United States v. Saingerard, 621 F.3d 1341 (11th Cir. 2010): Reinforced deference to credibility and permissible evidentiary views; used to reject Gomez’s attempt to reweigh testimony.
• United States v. Boone, 97 F.4th 1331 (11th Cir. 2024): Confirmed that a “pattern of activity” can exist regardless of whether conduct involves the same victim or different victims. While Gomez’s case involved repeated conduct in the same general context, Boone supported a broad reading of “pattern.”
• United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc) and United States v. Jews, 74 F.4th 1325 (11th Cir. 2023): Framed how courts treat Guidelines commentary. The panel acknowledged the Dupree rule (commentary deference only if guideline text is genuinely ambiguous) and noted, per Jews, that the court has relied on commentary where its validity is not contested. This contextualizes why the panel used § 4B1.5 commentary for “pattern of activity” while also grounding “prohibited sexual conduct” in statutory cross-references.
• United States v. Cingari, 952 F.3d 1301 (11th Cir. 2020): Provided de novo review for Guidelines interpretation and application.
• Gall v. United States, 552 U.S. 38 (2007): Supplied the procedural reasonableness framework.
• United States v. Fox, 926 F.3d 1275 (11th Cir. 2019): Placed the burden on the challenger to show unreasonableness in light of the whole record and deference.
• United States v. Croteau, 819 F.3d 1293 (11th Cir. 2016): Treated a sentence well below the statutory maximum as an indicator of reasonableness.
• United States v. Scott, 426 F.3d 1324 (11th Cir. 2005), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007): Supported the proposition that district courts need not discuss each § 3553(a) factor explicitly if the record shows consideration.
• United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010) abrogated on other grounds by Van Buren v. United States, 593 U.S. 374 (2021): Cited to reject “double counting” style arguments—courts may consider offense nature under § 3553(a) even if an enhancement overlaps.
• United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): Central to harmless-error review when the district court announces it would impose the same sentence regardless of Guidelines disputes.
• United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009): Supported the view that lengthy sentences for child sex crimes are often substantively reasonable.
• United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018) and United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Reinforced appellate deference to the district court’s weighing of § 3553(a) factors and resistance to “second guessing” within a reasonable range.

B. Legal Reasoning

1. Attempt findings: intent and substantial step

The panel applied the settled Eleventh Circuit attempt test from United States v. Yost. It then used United States v. Moran to emphasize that intent does not depend on success: even if the defendant’s efforts produce only non-pornographic footage on a given occasion, sexual desire directed at minors can supply intent to produce child pornography.

On the substantial step prong, the panel relied on United States v. Rothenberg to distinguish mere preparation from conduct that would likely culminate in the offense absent interruption. Placing a phone in a bathroom (in the context of the proven offense method—recording a minor in the bathroom and later creating pornographic screenshots) was treated as an “objective act” strongly corroborating culpability.

2. “Pattern of activity” and inclusion of attempt conduct as “prohibited sexual conduct”

The enhancement requires a “pattern of activity involving prohibited sexual conduct.” The panel accepted that two separate recording occasions—one unsuccessful (around Nov. 6, 2016) and one successful (around Nov. 14, 2016)—met the commentary’s “at least two separate occasions” threshold for a “pattern of activity.”

The opinion’s most rule-like move is its treatment of attempts as “prohibited sexual conduct.” Gomez argued that because the commentary’s definition of “prohibited sexual conduct” does not expressly list attempts (while the definition of “covered sex crimes” does), attempts should be excluded. The panel rejected this by tracing the cross-references: § 4B1.5 commentary includes offenses described in 18 U.S.C. § 2426(b)(1)(A), which encompasses Chapter 110 offenses; Chapter 110 includes attempt punishment for production via 18 U.S.C. § 2251(e). Thus, even without an explicit “attempt” word in the commentary’s definition, attempt liability enters through the incorporated statutory scheme.

Notably, the panel also situated its reliance on commentary within United States v. Dupree and United States v. Jews, signaling that interpretive debates about commentary deference may matter in other cases—but here the court found a valid interpretive path to include attempts.

3. Reasonableness review and harmless error

On procedural reasonableness, the panel applied Gall v. United States and found no Guidelines error. It also rejected claims that the district court failed to sufficiently explain its sentence, citing United States v. Scott (as limited by Rita v. United States) and reiterating that an explicit recital of each § 3553(a) factor is unnecessary.

On substantive reasonableness, the court invoked United States v. Keene: because the district court stated it would impose the same 240-month sentence even if the advisory range were lower (assumed 168–210 months), any error would be harmless so long as the sentence remained reasonable. The panel upheld the sentence by pointing to the district court’s focus on deterrence, protection of the public, seriousness of the offense, respect for the law, just punishment, and disparity avoidance, and by citing United States v. Sarras on the egregiousness of child sex crimes.

C. Impact

Although unpublished and therefore not binding precedent, the opinion is instructive in several ways for litigants and sentencing courts in the Eleventh Circuit:

• Attempt conduct can power § 4B1.5(b): The decision concretely endorses using repeated attempted production episodes as the “two occasions” needed for a “pattern of activity,” especially where the attempt method mirrors the charged production conduct.
• Cross-reference reasoning narrows a textual gap: By grounding “prohibited sexual conduct” in statutory incorporation (via § 2426(b)(1)(A) to Chapter 110 to § 2251(e)), the opinion provides a roadmap for arguing that attempt offenses qualify even when guideline commentary does not explicitly say “attempt.”
• Credibility and “desire alone” are potent at sentencing: Combining Moran with clear-error deference means defendants may face steep odds when the district court credits testimony of sexual interest in minors and ties it to corroborative acts.
• Keene harmless-error statements matter: The opinion reinforces that a clear alternative sentence declaration can insulate a sentence from remand, shifting the appellate fight to substantive reasonableness.

IV. Complex Concepts Simplified

U.S.S.G. § 4B1.5(b) enhancement

A Guidelines increase aimed at repeat or patterned sex-offense conduct involving minors. It applies when the conviction is a “covered sex crime” and the defendant engaged in a “pattern of activity involving prohibited sexual conduct.”

“Pattern of activity”

Under the commentary, at least two separate occasions of prohibited sexual conduct with a minor; it can involve the same victim or different victims.

“Prohibited sexual conduct”

A defined term in the § 4B1.5 commentary that includes certain federal sex offenses. Here, the court reasoned it reaches attempt offenses because the definition incorporates statutes that themselves include attempt liability (notably § 2251(e)).

Attempt: “intent” + “substantial step”

“Intent” is the purpose to commit the crime; “substantial step” is conduct beyond preparation that strongly corroborates intent and would likely lead to the crime unless interrupted.

Clear error review

A deferential appellate standard. If the district court’s view of the evidence is permissible—especially on credibility—an appellate court will not overturn it.

Procedural vs. substantive reasonableness

Procedural reasonableness asks whether the court followed the correct process (proper Guidelines calculation, consideration of § 3553(a), adequate explanation). Substantive reasonableness asks whether the length of the sentence is reasonable given the totality of circumstances and § 3553(a).

Harmless Guidelines error (Keene)

If the district court states it would impose the same sentence regardless of a Guidelines dispute, an appellate court can affirm despite a potential Guidelines error so long as the sentence is still substantively reasonable.

V. Conclusion

United States v. Gilberto Vazquez Gomez affirms a robust application of § 4B1.5(b) where the record supports repeated episodes of attempted production of child pornography. The opinion’s key contribution is its reasoning that attempts qualify as “prohibited sexual conduct” through statutory incorporation (via § 2426(b)(1)(A) and § 2251(e)), allowing multiple attempt occasions to satisfy the “pattern of activity” requirement. It also underscores the practical importance of (1) deferential review of sentencing factfinding, (2) broad acceptance of corroborative “substantial step” evidence in digital recording scenarios, and (3) the insulating effect of an alternative sentence statement under United States v. Keene.