“During the Commission” as Relevant Conduct in a Continuing § 2422(b) Enticement Offense: Sexual Assaults Within the Charged Timeframe Drive Guidelines

I. Introduction

In United States v. Steven Randall Neal (6th Cir. Aug. 19, 2026), the Sixth Circuit affirmed a 292-month sentence imposed after Steven Randall Neal pleaded guilty to attempted child enticement under 18 U.S.C. § 2422(b). The indictment alleged a two-year enticement period (Aug. 2021–Aug. 2023) based on ongoing Facebook Messenger communications with a minor. During that same charged period, Neal committed two in-person sexual assaults of the victim (July 2022 and Aug. 2023), which he admitted in the plea process.

The central sentencing dispute was whether those assaults could be treated as “relevant conduct” under U.S.S.G. § 1B1.3, thereby triggering (i) the cross-reference from the enticement guideline (§ 2G1.3) to a sexual-abuse guideline (§ 2A3.1) and (ii) multiple enhancements, including a pattern-of-activity enhancement under § 4B1.5(b)(1).

The Sixth Circuit’s key contribution is its application of the phrase “during the commission of the offense of conviction” in § 1B1.3(a)(1) to a charged continuing § 2422(b) enticement offense: where the indictment alleges—and the defendant admits—a multi-year enticement course of conduct, sexual assaults occurring within that window may qualify as relevant conduct because they occur “during” the ongoing offense.

II. Summary of the Opinion

  • The court held that the district court properly treated Neal’s two sexual assaults as relevant conduct under § 1B1.3(a)(1) because they “occurred during [his] commission of” the charged two-year enticement offense.
  • As a result, the district court correctly applied § 2G1.3(c)(3)’s cross-reference to § 2A3.1 (sexual abuse), and enhancements including § 2A3.1(b)(1) (forced sexual act conduct described in 18 U.S.C. § 2241(a)).
  • The court rejected a double-counting challenge to using the same assault to trigger the cross-reference and to apply § 2A3.1(b)(1).
  • The court upheld the § 4B1.5(b)(1) pattern-of-activity enhancement, explaining that Chapter Four does not depend on § 1B1.3 relevant conduct, and that even applying Wooden v. United States, the assaults occurred on separate occasions.
  • The within-guidelines, bottom-of-range sentence (292 months) was presumed reasonable and affirmed as substantively reasonable.

III. Analysis

A. Precedents Cited

1. Appellate review of sentencing procedure and substance

  • United States v. Riccardi (procedural error includes guidelines miscalculation) anchored Neal’s procedural attack on the guidelines calculation.
  • United States v. Rayyan, United States v. Holt, United States v. Vonner, and United States v. Gardner framed the deferential abuse-of-discretion review for substantive reasonableness and the presumption of reasonableness for within-guidelines sentences.

2. Relevant conduct: scope, standards, and requirements

  • United States v. Benton supported the basic principle that sentencing is not confined to the offense’s narrow factual core and may include relevant conduct; it also supplied the standard-of-review split (clear error for facts, de novo for relevance determinations).
  • United States v. Amerson confirmed de novo review of whether conduct is “relevant” under § 1B1.3.
  • United States v. Donadeo reinforced clear-error review of underlying factual findings.
  • United States v. England and United States v. Hodge
  • United States v. Ressam was used for the “temporal link” concept—relevant conduct must be temporally connected to the offense when the guideline uses “during.”
  • United States v. Caldwell and United States v. Wernick were cited for the “logical relationship” requirement that some courts employ when determining whether conduct is sufficiently tied to the offense.

3. “Continuing offense” framing for § 2422(b) as charged

  • United States v. Tykarsky, United States v. Pulido, United States v. Rounds, and United States v. Byrne were cited for the proposition (often in the venue context) that § 2422(b) prosecutions can be pleaded as involving a pattern over time.
  • Smith v. United States supplied general continuing-offense principles—offenses can extend through “time and space” as part of a single crime.
  • Important nuance: the panel explicitly assumed without deciding that § 2422(b) was properly charged here as a single continuing offense, while noting United States v. Pulido had recently suggested potential duplicity concerns where an indictment aggregates multiple discrete § 2422(b) episodes into one count.

4. Comparing “during the commission” cases: child exploitation context

  • United States v. Schock was central to Neal’s argument but distinguished: there, the indictment “cabin[ed]” offense conduct to a specific date, while other abuse occurred about a year later and thus not “during” the offense. Neal’s indictment, by contrast, alleged a two-year ongoing enticement course; both assaults occurred inside that span and involved the same victim.
  • United States v. Weiner was cited in tandem with Schock as another example where temporally distinct conduct fell outside “during the commission.”

5. Enhancements and double counting

  • United States v. Al-Maliki supported application of § 2A3.1(b)(1) where conduct described in § 2241(a) is present.
  • United States v. Hensley and United States v. DukeUnited States v. Battaglia
  • The panel relied on prior Sixth Circuit applications rejecting the same cross-reference/enhancement double-counting claim: United States v. Bixler, United States v. Kizer, and United States v. Morris. It also cited corroborating circuit authority: United States v. Flanders and United States v. Archdale.

6. Pattern-of-activity enhancement (§ 4B1.5(b)(1))

  • United States v. Paauwe, United States v. Parkey, and United States v. Preece were used to explain that Chapter Four enhancements are not constrained by § 1B1.3 relevant conduct in the same way, and to support use of broader conduct where the guideline/commentary so specifies.
  • United States v. Vannelli and United States v. Wandahsega supported that abuse of the same child “more than one time on different days” suffices for a “pattern.”

7. “Occasion” analysis and Wooden

  • Wooden v. United States was invoked by Neal to import ACCA’s “occasion” test into guideline commentary; the panel reiterated it had reserved whether Wooden applies to § 4B1.5, citing United States v. Vannelli, but held Neal’s argument failed even under Wooden because the assaults were more than a year apart and occurred in different locations.

8. Charging facts, admissions, and Apprendi

  • Apprendi v. New Jersey was referenced in rejecting the claim that the government can “control” relevant conduct through indictment timeframes; the panel emphasized the government must prove (or obtain admissions to) element-related facts, and here Neal admitted the two-year messaging pattern.

9. Guideline amendment context

  • The panel addressed Neal’s reliance on the Sentencing Commission’s deletion of certain departure provisions, citing U.S. Sent'g Guidelines Manual, amend. 836 and noting the Commission described the change as “outcome neutral” because courts can still vary based on similar factors.

B. Legal Reasoning

1. The operative interpretive move: “during the commission” in a continuing enticement count

The panel treated the indictment’s two-year charge period as legally consequential because it defined the temporal boundaries of the “commission” of the offense the defendant admitted. From that baseline, the court reasoned:

  • Temporal link satisfied: “during” means “throughout the continuance” or “at some point in the course of.” Because Neal admitted to enticement messaging across Aug. 2021–Aug. 2023, both assaults (July 2022 and Aug. 2023) occurred “at some point in the course of” the offense.
  • Logical relationship conceded: Neal did not dispute that the assaults were logically related to the enticement goal (sexual activity with the victim) and were independently criminal.
  • Factual admissions mattered: the panel repeatedly grounded its conclusion in what Neal admitted at the plea hearing—ongoing messaging across the full charged period—undercutting arguments that the government’s proof was “vague” or that it failed to introduce more message evidence at sentencing.

2. Distinguishing Sixth Circuit limits in Schock

The decision clarifies that Schock is not a general bar on considering other sexual misconduct in exploitation cases; rather, it turns on how the offense of conviction was temporally cabined. Where the indictment pins the offense to a discrete event/date, later or separate misconduct is harder to fit into “during the commission.” Where the indictment alleges an extended course and the defendant admits it, that “course” can encompass discrete wrongful acts within the period.

3. Cross-reference to § 2A3.1 and the forced-act enhancement

Once the assaults were relevant conduct, the cross-reference in § 2G1.3(c)(3) followed because the offense “involved conduct described in 18 U.S.C. § 2241 or § 2242,” and Neal did not dispute the district court’s conclusion that the July 2022 digital penetration by force fit § 2241(a)(1). That same conduct then supported § 2A3.1(b)(1) (four-level increase).

4. No impermissible double counting

The panel held it was permissible to use the same assault both to trigger the cross-reference (moving from § 2G1.3 to § 2A3.1) and to apply § 2A3.1(b)(1), because each provision targets a different “aspect”:

  • Cross-reference: covers sexual abuse or aggravated sexual abuse (conduct described in § 2241 or § 2242).
  • Enhancement: adds punishment specifically for the aggravated nature (conduct described in § 2241(a) or (b)).

The court’s reasoning preserves gradations within the sexual-abuse guideline: otherwise, defendants whose conduct qualifies as aggravated sexual abuse would be treated like those who commit only sexual abuse once the cross-reference applies.

5. Pattern-of-activity enhancement is broader than relevant conduct

For § 4B1.5(b)(1), the panel emphasized that Chapter Four does not necessarily track § 1B1.3 relevant conduct rules; instead, courts consider “conduct and information specified” in that guideline. And the commentary expressly allows counting prohibited sexual conduct “without regard to whether” it “occurred during the course of the instant offense.” This provided an independent basis to uphold the enhancement even if relevant-conduct arguments had prevailed.

6. Wooden does not rescue Neal—even if it applied

Neal attempted to use Wooden in two conflicting ways: first to say the assaults and enticement were on “different occasions” (so not “during”), then to say the assaults were on the “same occasion” (to avoid “two separate occasions” in § 4B1.5’s commentary). The panel rejected both moves, underscoring the textual mismatch between “different occasions” (ACCA) and “during the commission” (Guidelines), and holding that under Wooden’s own factors the two assaults—over a year apart in different locations—were plainly separate occasions.

C. Impact

1. Practical sentencing consequence: indictment timeframes and admissions can expand “during”

The decision underscores that, where a § 2422(b) count is charged (and admitted) as a multi-year enticement effort, discrete sexual assaults within the charged period can be treated as “during the commission” relevant conduct. This may frequently:

  • trigger § 2G1.3(c)(3)’s cross-reference to § 2A3.1 (often increasing the base offense level),
  • support aggravated abuse enhancements, and
  • increase guideline exposure substantially even absent separate convictions for the assaults.

2. Doctrinal clarifications within the Sixth Circuit

  • Schock is framed as a “cabined offense date” case, not a broad constraint on sentencing courts.
  • The panel operationalizes a two-part understanding of “during” relevant conduct: a temporal link (within the offense’s continuance) plus a logical relationship—and shows how a continuing-offense charge can satisfy the temporal link over long periods.
  • It fortifies existing Sixth Circuit authority permitting the combined use of § 2G1.3 cross-references and § 2A3.1 enhancements without impermissible double counting.

3. Open issue flagged: the proper unit of prosecution for § 2422(b)

By relying on the parties’ assumption that § 2422(b) was properly charged as one continuing offense, the panel leaves room for future litigation (especially after Pulido) about whether aggregating multiple enticement episodes and discrete sex acts into one § 2422(b) count creates duplicity or unit-of-prosecution problems. Future defendants may challenge the charging theory directly rather than contesting relevance at sentencing.

IV. Complex Concepts Simplified

  • Relevant conduct (U.S.S.G. § 1B1.3): sentencing courts may consider more than the exact elements of the conviction—other unlawful acts can count if the guideline’s conditions are met (here, acts occurring “during the commission” of the offense).
  • “During the commission”: not necessarily “at the same moment.” In this opinion, it means acts occurring at some point within the ongoing time span of the charged offense, so long as there is a temporal link (and, in this circuit’s approach, a logical relationship).
  • Continuing offense: a crime that can unfold over time (like conspiracy). Here, the indictment alleged enticement as an extended course of conduct via messaging over two years.
  • Guideline cross-reference (§ 2G1.3(c)(3)): a rule that switches the court to a different guideline (here, from enticement to sexual abuse) if specified conduct is involved and yields a higher offense level.
  • Double counting: using the same conduct to increase the guideline calculation twice is sometimes barred, but is allowed where provisions address different aspects of the conduct or the guideline text indicates that cumulative application is intended.
  • Pattern-of-activity enhancement (§ 4B1.5(b)(1)): adds punishment for repeated prohibited sexual conduct; its commentary allows considering conduct beyond what qualifies as “relevant conduct” for Chapter Two calculations.
  • Procedural vs. substantive reasonableness: procedural concerns whether the court followed correct steps (including correct guideline math); substantive asks whether the final sentence is unreasonable in length under § 3553(a). A bottom-of-range sentence is presumed reasonable on appeal.

V. Conclusion

United States v. Steven Randall Neal affirms a significant Sixth Circuit application of the relevant-conduct guideline: when a § 2422(b) enticement count is charged and admitted as a multi-year course of conduct, sexual assaults occurring within that charged span may qualify as acts that occurred “during the commission of the offense” under U.S.S.G. § 1B1.3(a)(1). That finding can dramatically reshape the guideline calculation by triggering the § 2G1.3(c)(3) cross-reference to § 2A3.1 and supporting aggravating enhancements, without impermissible double counting. The opinion also reinforces that § 4B1.5(b)(1) can rest on a broader factual universe than § 1B1.3 relevant conduct, and it signals (without deciding) that future cases may contest whether § 2422(b) should be treated as a continuing offense in the first place—an issue sharpened by Pulido.