Causation-by-Solicitation Confirmed: Eleventh Circuit Applies §2G2.1 Cross-Reference to a Buyer Who Prompted New Production; Harmless-Error Where Statutory Maximum Caps the Guidelines Range

Causation-by-Solicitation Confirmed: Eleventh Circuit Applies §2G2.1 Cross-Reference to a Buyer Who Prompted New Production; Harmless-Error Where Statutory Maximum Caps the Guidelines Range

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished decision in United States v. Tristin Tre-Mel Washington (No. 24-11441, Oct. 1, 2025), affirming a 240-month sentence for transporting child pornography under 18 U.S.C. § 2252(a)(1), (b)(1). The appeal raised three Guidelines-centric issues:

  • Whether the district court properly invoked the § 2G2.2(c)(1) cross-reference to apply § 2G2.1 (the production guideline) based on the defendant’s conduct as a purchaser who made specific requests that prompted the minor to create new images/videos.
  • Whether the court erred by not first calculating and comparing the offense levels under § 2G2.2 and § 2G2.1 before applying the cross-reference.
  • Whether a two-level enhancement for “distribution” under § 2G2.1(b)(3) was improperly applied despite an absence of proof that the defendant disseminated images to others.

The panel (Judges Newsom, Grant, and Anderson) affirmed. The decision is most notable for its reaffirmation that “causing” under § 2G2.2(c)(1) includes coaxing or prompting a minor to create new child sexual abuse material (CSAM), even when the defendant is a remote buyer rather than an on-scene producer, and for its application of harmless-error principles where the statutory maximum caps the advisory range.

Summary of the Opinion

The Eleventh Circuit held:

  • Cross-reference to § 2G2.1 was proper: Applying United States v. Whitesell, the court found Washington “caused” the minor (B.G.) to engage in sexually explicit conduct “for the purpose of producing a visual depiction” when he specifically requested new content and the minor immediately complied, confirming she had made a new video.
  • Failure to perform and compare both calculations did not warrant relief under plain-error review: Even assuming error due to a lack of explicit § 2G2.2 computations in the presentence report (PSR), Washington could not show prejudice because any applicable guideline range exceeded the 240-month statutory maximum, which became his operative guideline sentence under § 5G1.1(a).
  • Distribution enhancement likely erroneous but harmless: The government conceded the § 2G2.1(b)(3) “distribution” enhancement lacked evidentiary support. The district court, however, made a valid alternative-sentence statement under United States v. Keene. Given the statutory cap, removing the enhancement did not change the ultimate guideline sentence (still 240 months). The sentence was also substantively reasonable under § 3553(a).

Analysis

Precedents Cited and Their Influence

  • United States v. Whitesell, 314 F.3d 1251 (11th Cir. 2002): The cornerstone for Issue 1. Whitesell construed “causing” in § 2G2.2(c)(1) to include “coaxing” and “prompting,” rejecting any requirement of physical contact or personally photographing the victim. The panel applied this broad definition to Washington’s specific requests that immediately resulted in new CSAM. Whitesell thus drives the conclusion that a requesting buyer can be treated as having “caused” production.
  • United States v. Miller, 166 F.3d 1153 (11th Cir. 1999): Confirms that the “offense” in § 2G2.2(c)(1) encompasses both charged and uncharged conduct. This widens the lens for cross-referencing beyond the formal elements of the conviction to relevant, proven conduct—especially important in child-exploitation cases where production is not charged but is factually present.
  • U.S.S.G. § 2G2.2 cmt. n.7(A) (2023): States the cross-reference should be “construed broadly,” including “persuading, inducing, [or] enticing” a minor to engage in sexually explicit conduct to produce a visual depiction. The panel acknowledged the Eleventh Circuit’s en banc decision in United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), which limits deference to commentary when the guideline text is unambiguous. But relying on United States v. Jews, 74 F.4th 1325 (11th Cir. 2023), the court noted neither party contested the commentary’s validity here, permitting reliance. The outcome still coheres with Whitesell’s text-based definition.
  • Preservation and Plain Error:
    • United States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014), and United States v. Thomas, 108 F.4th 1351 (11th Cir. 2024), cert. denied, 145 S. Ct. 1102 (2025): Control preservation standards; an appellant must alert the district court to the specific grounds for relief. Washington did not preserve the discrete argument that the court had to show § 2G2.1 yielded a higher offense level than § 2G2.2.
    • Rosales-Mireles v. United States, 585 U.S. 129 (2018); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005); United States v. Lejarde-Rada, 319 F.3d 1288 (11th Cir. 2003): Provide the plain-error framework. An error must be plain and affect substantial rights; relief is discretionary even then.
    • Molina-Martinez v. United States, 578 U.S. 189 (2016): Typically, use of an incorrect higher Guidelines range is prejudicial. But where the statutory maximum is below any relevant guideline minimum, the prejudice showing falters because § 5G1.1(a) caps the sentence.
  • Guidelines Mechanics:
    • U.S.S.G. § 1B1.1(a): Sets the sequence—select the applicable Chapter Two guideline, apply base offense level and specific offense characteristics, then apply cross-references where directed.
    • Appendix A: For § 2252 offenses, § 2G2.2 is the starting guideline; cross-reference to § 2G2.1 when the offense involved causing a minor to engage in sexually explicit conduct for the purpose of producing a depiction and § 2G2.1 yields the higher offense level.
    • U.S.S.G. § 5G1.1(a): If the statutory maximum is less than the minimum of the applicable guideline range, the statutory maximum becomes the guideline sentence.
  • Distribution Issues:
    • United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014): For the statutory offense of distributing child pornography, “distribute” ordinarily means delivering to someone else. The opinion notes that guideline usage can be broader, but here the court did not need to resolve scope because the government conceded no evidence of dissemination by Washington.
    • U.S.S.G. § 2G2.2 cmt. n.1 and § 2G2.1 cmt. n.3: The opinion draws on these commentary notes for the working definitions of “distribution” and what it means to have “knowingly engaged in distribution.”
  • Alternative-sentence/Harmless Error and Reasonableness Review:
    • United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): If the district court clearly states it would impose the same sentence after considering § 3553(a), the appellate court may assume a Guidelines error and assess whether any error is harmless by testing substantive reasonableness under the correct (or more favorable-to-defendant) range.
    • Gall v. United States, 552 U.S. 38 (2007); United States v. Tome, 611 F.3d 1371 (11th Cir. 2010); United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc); United States v. Trailer, 827 F.3d 933 (11th Cir. 2016); United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018); United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023): Define substantive review, the deference due the district court, and the limited need to recite each § 3553(a) factor explicitly so long as the record shows they were considered.

Legal Reasoning and Application

The court’s reasoning moved through three issues, each anchored in well-settled doctrine:

1) Cross-reference to § 2G2.1 (production) via § 2G2.2(c)(1) (transportation):

  • The Guidelines direct courts to begin with § 2G2.2 for convictions under § 2252, but § 2G2.2(c)(1) contains a cross-reference: if the “offense” involved causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, and § 2G2.1 yields the greater offense level, then § 2G2.1 applies. “Offense” includes relevant conduct, charged or uncharged (Miller).
  • Applying Whitesell, the panel held “causing” encompasses prompting a minor to make new content. The record showed that Washington did more than purchase previously made images; he asked the minor if she had any “new sex tapes,” specified the type of sexual content he wanted, and she confirmed “I got u ... I am done,” indicating production of a new video responsive to his request. Those facts satisfy the causal link needed for the cross-reference.
  • Although the panel cited commentary (cmt. n.7(A)) that the cross-reference is to be construed broadly, its holding stands independently on Whitesell’s interpretation of the guideline’s text. Under Dupree and Jews, reliance on commentary posed no problem here, as neither party challenged its validity or applicability.

2) Failure to calculate and compare § 2G2.2 and § 2G2.1 offense levels:

  • Washington did not raise this particular sequencing/ordering argument below, so review was for plain error. While § 1B1.1(a) prescribes calculating the applicable Chapter Two guideline and specific offense characteristics (here, § 2G2.2) before applying cross-references, the PSR did not set out § 2G2.2 computations; it proceeded directly to § 2G2.1 via the cross-reference.
  • Even assuming a procedural misstep, Washington could not demonstrate prejudice. Any guideline range, whether under § 2G2.1 or § 2G2.2, exceeded the 20-year statutory maximum, which became the operative guideline sentence by operation of § 5G1.1(a). Thus, the asserted error did not “actually make a difference” in the sentence, defeating the substantial-rights prong under Rosales-Mireles/Molina-Martinez.

3) Two-level “distribution” enhancement under § 2G2.1(b)(3):

  • The enhancement requires that the defendant “knowingly engaged in distribution.” Here, the government conceded that the record contained no proof that Washington disseminated material to others; he solicited and purchased from the minor, which—standing alone—does not show distribution as ordinary usage (and Guideline commentary) contemplates. The panel acknowledged the likely error.
  • Nonetheless, any error was harmless. The district court issued a valid Keene alternative-sentence statement and, regardless, the statutory maximum of 240 months capped Washington’s sentence even if the total offense level were reduced (the panel noted a total offense level of 39 would still produce a guideline range above 240 months, leaving § 5G1.1(a) to fix the guideline sentence at 240 months).
  • The court also rejected Washington’s substantive reasonableness challenge. The district court stated it had considered the parties’ arguments and § 3553(a) factors. Under Shabazz and Oudomsine, the court had no obligation to discuss each factor in detail, and the 240-month sentence fell within the realm of reasonable sentences given the nature of the offense and Washington’s conduct.

Impact and Practical Significance

While unpublished and therefore non-precedential, the opinion is instructive in several respects:

  • “Causation-by-solicitation” is enough to trigger the production guideline: In the Eleventh Circuit, a defendant who remotely requests or pays for specific new CSAM from a minor can be treated as having “caused” production under § 2G2.2(c)(1), exposing the defendant to the significantly higher offense levels under § 2G2.1 even where the charge is possession, receipt, or transportation rather than production. Practitioners should recognize that a buyer’s role is not a safe harbor if the record shows specific requests that lead to new content.
  • Preservation matters—and so does the statutory cap: Arguments about the sequencing of calculations (i.e., insisting the court perform § 2G2.2 calculations before cross-referencing) must be distinctly preserved in the district court. Even then, relief may be elusive where § 5G1.1(a) caps the sentence at the statutory maximum; in such cases, a failure to calculate both sets of offense levels will often be harmless absent an effect on the bottom-line sentence.
  • Distribution enhancement is not a default add-on: Simply soliciting or buying images from a minor, without evidence of dissemination to others, does not itself establish “distribution” under § 2G2.1(b)(3). Government concessions on this point are appropriate where the record lacks proof of delivery to third parties. Still, harmless-error doctrines—including Keene alternative-sentence statements and statutory caps—can blunt the practical effect of such guideline errors on appeal.
  • Commentary after Dupree: The panel’s use of commentary tracks the Eleventh Circuit’s post-Dupree approach: where the guideline text is clear or the parties do not challenge the commentary’s validity, courts may continue to rely on commentary that sensibly interprets the guideline (as in cmt. n.7(A)’s “broad construction” of the cross-reference).

Complex Concepts Simplified

  • Guideline Cross-Reference (§ 2G2.2(c)(1) → § 2G2.1): Think of § 2G2.2 as the default for § 2252 offenses. But if the offense conduct involved getting a minor to perform sexual acts for a recording (even remotely, by coaxing or paying), the Guidelines direct the court to apply § 2G2.1 (production)—if it produces a higher offense level.
  • “Causing” versus Physical Production: A defendant need not be present with a camera. If the defendant’s requests or payment prompt a minor to create new images or videos, that “causes” production within the meaning of the cross-reference.
  • Plain Error Review: When an argument wasn’t made in the district court, the appellant must show a clear error that affected the outcome. If the statutory maximum caps the sentence regardless, it is difficult to show that a calculation error made any difference.
  • § 5G1.1(a) Statutory Cap: If the lowest point of the advisory range is higher than the statutory maximum, the statute controls. The maximum becomes the guideline sentence. This often renders guideline-calculation disputes academic unless they matter for supervised release, fines, or collateral consequences.
  • Distribution Enhancement: The enhancement for “distribution” is aimed at those who deliver or share CSAM with others. Mere solicitation or purchase from a victim, without more, does not establish distribution.
  • Keene Alternative-Sentence Statements: If a district judge says, in substance, “Even if I’m wrong about the Guidelines, I would impose the same sentence after considering § 3553(a),” the appellate court can treat potential guideline errors as harmless if the resulting sentence is still substantively reasonable.

Conclusion

United States v. Washington underscores three important points for child-exploitation sentencing in the Eleventh Circuit. First, the production cross-reference applies not only to hands-on producers but also to remote buyers whose specific requests prompt new CSAM, consistent with Whitesell’s broad understanding of “causing.” Second, technical errors in guideline sequencing will seldom warrant relief absent a concrete effect on the sentence—particularly where § 5G1.1(a) caps the sentence at the statutory maximum. Third, the “distribution” enhancement requires evidence of dissemination, not merely solicitation or purchase; yet even a conceded error can be harmless when the district court issues a valid Keene alternative sentence and the statutory cap fixes the guideline sentence at the maximum. Although unpublished, the opinion provides clear guidance on how Eleventh Circuit panels will evaluate causation through solicitation, preservation-related plain-error claims, and harmless-error analysis in child-exploitation cases.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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