From “Occasions” to “Instances”: Second Circuit Extends Wooden-Style Analysis to U.S.S.G. § 2G2.2(b)(5)’s Pattern-of-Abuse Enhancement

Introduction

In United States v. Bullock, No. 23-7341 (2d Cir. Aug. 22, 2025), the Court of Appeals for the Second Circuit addressed how trial courts should decide whether a defendant’s sexual misconduct amounts to two “separate instances” of abuse for purposes of the five-level “pattern of activity” enhancement in U.S.S.G. § 2G2.2(b)(5). Drawing heavily—by analogy—on the Supreme Court’s interpretive framework in Wooden v. United States, 595 U.S. 360 (2022), the Second Circuit affirmed that two groping incidents, committed against different victims on the same afternoon but separated by non-criminal conduct and occurring in different rooms, constituted distinct “instances.”

Beyond the Guideline issue, the decision re-examines familiar sentencing themes: substantive reasonableness, procedural safeguards when imposing special conditions of supervised release, and the plain-error standard on appellate review. Together, the court’s holdings reinforce both deference to district-court fact-finding and the flexibility of courts to craft protective supervised-release conditions, while simultaneously clarifying how Wooden can inform Guideline interpretation.

Summary of the Judgment

• Guideline Holding: The district court correctly applied the five-level § 2G2.2(b)(5) enhancement because Bullock’s abuse of two boys, although on the same day, were “separate instances.” The Second Circuit analogized to the factors articulated in Wooden for determining distinct “occasions.”
• Sentence Length: A bottom-of-the-range 97-month prison term was found substantively reasonable.
• Special Conditions: Restrictions on contact with minors, a one-device internet limitation, and a ban on possessing sexually explicit material were all procedurally sound and not plainly erroneous.
• Disposition: Judgment of the Northern District of New York (Suddaby, J.) affirmed in full.

Detailed Analysis

A. Precedents Cited and Their Influence

1. Wooden v. United States, 595 U.S. 360 (2022)
   

   Although Wooden construed the Armed Career Criminal Act’s phrase “committed on occasions different from one another,” the Supreme Court identified three interpretive touchstones—time, place, and character/relationship of offenses. The Second Circuit imported these factors almost wholesale to analyze “instance” under § 2G2.2(b)(5), concluding the textual overlap (“occasion” vs. “instance”) was close enough to warrant analogous treatment.

2. Erlinger v. United States, 602 U.S. 821 (2024)
   

   Relied upon for the caution that no fixed temporal or geographic distance is required; analysis remains holistic.

3. Second Circuit Sentencing Cases
   
   • United States v. Kunz, 68 F.4th 748 (2d Cir. 2023) – cited for the need to articulate reasons when limiting internet access.
   • United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) – distinguished because the defendant there had never contacted minors.
   • United States v. Dupes, 513 F.3d 338 (2d Cir. 2008) – supports looking to older (remote) conduct for supervised-release conditions.

B. Legal Reasoning of the Court

1. Textual & Purposive Approach to “Instance”

The Sentencing Guidelines do not define “instance,” but the commentary defines a “pattern of activity” as “any combination of two or more separate instances” of abuse (cmt. n.1). The court:

• Consulted the same dictionaries the Supreme Court referenced in Wooden, finding “instance” synonymous with an “occasion defined by certain events.”
• Reasoned that if Congress (or the Sentencing Commission) intended a narrower meaning, it would have limited the word with qualifiers (e.g., “different days,” “different venues”).

2. Application of Wooden Factors

3. Sentencing Components Beyond the Guideline

• Substantive Reasonableness – The 97-month term lay at the bottom of a correctly-calculated 97–121-month range. The court rejected arguments that Bullock was “atypical” or that COVID-19 hardships mandated a shorter sentence.
• Procedural Safeguards on Special Conditions – Though defense counsel raised no contemporaneous objections, the appellate panel scrutinised the record for “particularised on-the-record findings” (per Kunz). The sentencing judge’s cross-reference to the PSR and explicit linkage to Bullock’s conduct sufficed.

C. Impact of the Judgment

The decision is significant for three principal reasons:

1. Clarifies “instance” under § 2G2.2(b)(5)
   Trial courts within the Second Circuit will now apply Wooden’s tripartite test when deciding if multiple acts of sexual misconduct are discrete. This lends predictability to future sentencing in child-pornography and other sex-offense cases.
2. Broadens Wooden’s Reach
   Although Wooden interpreted ACCA, Bullock affirms that its conceptual tools are exportable to the Guidelines (and potentially to other statutes employing similar language).
3. Re-affirms Deference on Supervised-Release Conditions
   The plain-error analysis underscores that defendants must preserve objections or face an uphill struggle on appeal. Additionally, the ruling validates single-device and broad contact-with-minors restrictions when supported by the PSR and sentencing colloquy.

Complex Concepts Simplified

• Pattern-of-Activity Enhancement (§ 2G2.2(b)(5)) – Adds five offense levels if the defendant committed two or more separate acts of abuse or exploitation, even if no conviction was entered for those acts.
• Instance vs. Occasion – Both words denote an “episode” or “event.” The Second Circuit treats them similarly, focusing on time, place, and relational overlap.
• Standard of Review
  • Guideline application: factual findings = clear error; legal conclusions = de novo.
  • Unpreserved objections: “plain error,” requiring an obvious error that affects substantial rights.
  • Sentence length: substantive reasonableness — overturned only in “exceptional cases.”
• Supervised-Release Conditions – Tailored rules a defendant must follow post-incarceration. They must be (1) reasonably related to sentencing factors, (2) no greater than necessary, and (3) consistent with Sentencing Commission policy.

Conclusion

United States v. Bullock furnishes the first clear appellate guidance on applying the “pattern of activity” enhancement after Wooden. By harmonising the meaning of “instance” with Wooden’s “occasion,” the Second Circuit equips district judges with an intuitive, factor-based test while keeping the inquiry fact-specific and holistic. The ruling also:

• Confirms the continued vitality of the Guidelines’ child-pornography framework even amid criticism of over-severity;
• Highlights that voluntary treatment and partial remorse, while mitigating, do not necessarily overcome risk-of-recidivism findings; and
• Signals that carefully-explained, technology-oriented supervised-release limits will withstand appellate scrutiny—even when they substantially curb a defendant’s liberty interests.

For practitioners, Bullock stresses the importance of preserving objections, building thorough sentencing records, and anticipating how Wooden-style reasoning might reshape Guidelines interpretation beyond § 2G2.2(b)(5).