Occasion Means More Than Time Stamps: Third Circuit Vacates §4B1.5(b) Pattern Enhancement and Remands to Assess Whether a Prior Assault Was a Separate Occasion

Case: United States v. Jeffrey Colin Rogers, No. 24-1024 (3d Cir. Sept. 29, 2025) (not precedential)

Panel: Krause, Matey, and Phipps, JJ. (Opinion by Matey, J.; Phipps, J., concurring)

Introduction

This appeal addresses how federal sentencing courts should apply the “pattern of activity” enhancement in U.S.S.G. § 4B1.5(b), which adds five offense levels if a defendant convicted of a covered sex offense “engaged in a pattern of activity involving prohibited sexual conduct.” The District Court treated multiple photographs taken over the course of a single evening’s continuous sexual abuse as “separate occasions” sufficient to trigger the enhancement. The Third Circuit vacated, holding that time-stamped breaks between images—without proof of intervening events that meaningfully separate the criminal conduct—do not establish “two separate occasions” under § 4B1.5(b).

The Court remanded for resentencing so the District Court could consider a different theory the government had advanced below: that a prior, earlier assault of one of the same victims at the defendant’s apartment constituted a separate occasion. The panel also clarified several important procedural and doctrinal points: (1) arguments about the meaning of “separate occasions” were preserved even though defense counsel had not cited the Supreme Court’s Wooden decision at sentencing; (2) the District Court unduly narrowed “prohibited sexual conduct” to the charged photographs alone; (3) courts must look for intervening events—not time stamps alone—to find separate occasions; and (4) on remand, the government may supplement the record because it had properly raised the “earlier visit” theory originally.

Although labeled “NOT PRECEDENTIAL,” the opinion offers detailed guidance for district courts in the Third Circuit and beyond on the proof necessary to establish a “pattern of activity” under § 4B1.5(b), and it applies the Supreme Court’s approach to “occasions” in Wooden v. United States by analogy.

Summary of the Opinion

The District Court erred by treating multiple photographs taken during a single, continuous evening of sexual abuse as multiple “separate occasions” under U.S.S.G. § 4B1.5(b). Duplicate time stamps and the absence of any intervening event meant the record did not support more than one occasion on that night.
The Court vacated the sentence because the enhancement was applied solely based on the events of November 25, 2017, and the record did not establish multiple occasions that night.
On remand, the District Court must consider whether an earlier assault of the same minor at the defendant’s apartment constituted a separate occasion. The panel noted the government had argued this theory at sentencing; fairness permits additional development of that record.
The panel drew on Wooden v. United States (interpreting “occasions” under ACCA) to emphasize that time alone is not dispositive; rather, courts should look for intervening events, changes in location, or differences in the character/relationship of offenses to separate occasions.
The Court declined to resolve two open questions: (i) whether “pattern of activity” in § 4B1.5 is ambiguous (triggering deference to commentary under Nasir), and (ii) whether the commentary’s definition of “prohibited sexual conduct” controls. Those issues may be explored on remand.
A concurrence by Judge Phipps would read “occasion” from the defendant’s perspective, given § 4B1.5(b)’s text (“the defendant engaged”) and the commentary’s focus on the defendant. On that view, the night’s crimes were a single “episode,” reinforcing the majority’s conclusion that they occurred on one occasion.

Factual and Procedural Background

Jeffrey Rogers was convicted in the Western District of Pennsylvania of five counts of production of child pornography (18 U.S.C. § 2251) and one count of possession (18 U.S.C. § 2252), arising from a night in which he lured a 14-year-old and a 16-year-old to his apartment, plied them with marijuana and alcohol, sexually assaulted them, and photographed the abuse. The government introduced evidence (including a nurse’s account) that on an earlier visit, Rogers sexually assaulted the 14-year-old. The District Court excluded the minor’s direct testimony about the prior assault for failure to comply with Federal Rule of Evidence 412’s notice requirements but admitted the nurse’s account.

At sentencing, the government sought the five-level enhancement in U.S.S.G. § 4B1.5(b), arguing both that (a) the multiple photographs from the charged night constituted separate occasions, and (b) the earlier assault combined with the charged night formed the required “pattern.” The District Court adopted the first theory, counted photographs as separate occasions, and applied the enhancement. It did not address whether the earlier visit constituted a separate occasion. Using the enhancement, it calculated a total offense level of 39 with a criminal history category III and an advisory range of 324–405 months, then varied downward to 300 months.

Analysis

Precedents and Authorities Cited

Wooden v. United States, 595 U.S. 360 (2022): Wooden interpreted “committed on occasions different from one another” in ACCA. The Third Circuit drew on Wooden’s guidance: time alone is not dispositive; courts look to the presence of intervening events, changes in location, or changes in the character/relationship of the offenses. Substantial temporal breaks (e.g., a day or more) may suffice; otherwise, concrete intervening circumstances are needed. The panel applied these principles by analogy to § 4B1.5(b)’s “separate occasions.”
United States v. Sadeek, 77 F.4th 320 (5th Cir. 2023): The opinion cited Sadeek as an example of courts identifying intervening events (e.g., leaving the victim to get food or to sleep) that can split conduct into separate occasions.
United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc): The Third Circuit reiterated that guideline commentary is entitled to deference only if the guideline text is genuinely ambiguous. The panel did not decide whether § 4B1.5(b)’s “pattern of activity” is ambiguous or whether commentary supplied by Congress (via the PROTECT Act) changes the analysis.
United States v. Perez-Colon, 62 F.4th 805 (3d Cir. 2023): Because both parties assumed the commentary’s applicability, the court proceeded on that assumption to address the issues presented without resolving the deference question.
Preservation and Standard of Review: United States v. Abreu, 32 F.4th 271 (3d Cir. 2022) (preservation concerns the legal principle, not specific citations); United States v. Lingala, 91 F.4th 685 (3d Cir. 2024) (limits on reframing); United States v. Joseph, 730 F.3d 336 (3d Cir. 2013) (parties may expand arguments on appeal). The panel rejected the government’s plain-error argument and reviewed the legal question de novo, consistent with United States v. McCants, 952 F.3d 416 (3d Cir. 2020).
Remand and Record Development: United States v. Rowe, 919 F.3d 752 (3d Cir. 2019) (government ordinarily gets one opportunity to carry its burden); United States v. Dickler, 64 F.3d 818 (3d Cir. 1995) (fairness may permit further development; remand is not necessarily a “second bite at the apple”). The panel permitted additional development on remand because the government had raised the “earlier assault” theory from the outset.
Scope of Appellate Affirmance: United States v. Stanford, 75 F.4th 309 (3d Cir. 2023) (appellate courts may affirm on any ground the record supports). The panel refused to rely on a stray sentencing-factor comment about a prior assault because the District Court had not tied that finding to § 4B1.5(b).
Harm and Nature of Child Pornography: New York v. Ferber, 458 U.S. 747 (1982); Paroline v. United States, 572 U.S. 434 (2014); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). These cases underscore the gravity and enduring harm of child sexual exploitation, informing the court’s framing but not the core legal holding.
Sentencing Mechanics: U.S.S.G. §§ 5G1.1 and 5G1.2(d): The panel clarified that with multiple counts, sentences may run consecutively “to the extent necessary” to reach the total punishment, so the guidelines range remained 324–405 months despite individual statutory maxima.
Statutory and Legislative Background: The panel noted but did not resolve the significance of Congress’s role in supplying commentary language to § 4B1.5 in the PROTECT Act of 2003.

Legal Reasoning

The enhancement at issue, U.S.S.G. § 4B1.5(b), applies to a defendant convicted of a covered sex offense who has engaged in a “pattern of activity involving prohibited sexual conduct.” The commentary (assumed applicable for purposes of this case) provides that a pattern exists if the defendant engaged in prohibited sexual conduct with a minor on at least two separate occasions.

The core question was whether multiple photographs taken during one night’s continuous sexual abuse could be parsed into multiple “separate occasions.” The Third Circuit concluded they could not, on this record, for two principal reasons:

First, the District Court’s finding that each photograph constituted a separate occasion rested on mere temporal segmentation. Two images even shared identical time stamps and depicted the same event, undermining any inference of an “intervening event” separating the conduct.
Second, the District Court had artificially narrowed the scope of “prohibited sexual conduct” to the six images of conviction. The record showed continuous sexual assaults and additional explicit images between those five photos; when considered as a whole, the abuse that night was ongoing, not segmented by meaningful breaks.

Drawing on dictionary definitions (occasion as a happening or event; separate as set apart or independent) and Wooden’s analytic framework, the panel emphasized that occasions are divided by intervening events or distinct circumstances, not by arbitrary time-stamp breaks in the course of a single episode of abuse. Substantial temporal gaps (a day or more) can themselves imply a new occasion; otherwise, courts should look for concrete intervening developments—e.g., a change in location, a change in the character of the offense, or discrete events like the perpetrator leaving and returning—that would “set apart” one occurrence from another.

Because the District Court’s enhancement relied exclusively on the November 25, 2017 night and on time-stamped images without evidence of intervening events, the panel vacated the sentence. The panel then remanded for consideration of the government’s alternative theory: that a prior assault on an earlier visit to the apartment constituted a separate occasion. That theory, if credited, could establish the “pattern” required by § 4B1.5(b).

Importantly, the panel held the government could develop the record on remand in fairness, since it had argued the “earlier visit” theory all along. The Court declined to treat the District Court’s stray remark (during discussion of § 3553(a) factors) that the victims had been assaulted on a prior occasion as sufficient to affirm the enhancement; such a finding must be tied expressly to § 4B1.5(b) and supported by the record with the requisite analysis.

Finally, the panel left open two conceptual issues for remand: (1) whether the guideline text is ambiguous such that commentary definitions control under Nasir; and (2) whether the commentary’s definition of “prohibited sexual conduct” should govern in this context, noting that the Third Circuit has not held that commentary controls that definition and inviting the parties to develop the point further.

The Concurrence: Whose Perspective Defines an “Occasion”?

Judge Phipps’s concurrence addressed a subtle but important interpretive question: From whose perspective is an “occasion” assessed—victim or defendant? Acknowledging that, in crimes with human victims, victims may reasonably perceive distinct indignities as separate, Judge Phipps concluded that § 4B1.5(b)’s text and commentary focus on the defendant’s action (“the defendant engaged”), and therefore the legal inquiry centers on the defendant’s perspective. On that view, the multiple sexual acts across two hours on one night were part of a single episode and thus a single occasion, aligning with the majority’s vacatur and remand.

Although not binding (and the opinion itself is non-precedential), this framing may influence future disputes over what counts as a separate “occasion” under § 4B1.5(b) and other provisions that use similar language.

Potential Impact

District courts should not treat multiple images or discrete acts within one continuous episode as separate occasions absent proof of intervening events, substantial temporal gaps, or other circumstances that meaningfully “set apart” one event from another.
Prosecutors seeking § 4B1.5(b)’s five-level enhancement should be prepared to show either:
- Separate episodes (e.g., assaults occurring on different days, at different locations, or with intervening breaks like leaving and returning), or
- Prior or subsequent assaults that are not part of the instant offense but qualify under the commentary’s pattern definition (subject to any Nasir-based limits).
Defense counsel can rely on Wooden’s structural approach to argue that acts within a single episode, without meaningful intervening events, amount to only one “occasion.”
The panel’s express invitation to litigate the deference owed to commentary on the definition of “prohibited sexual conduct” signals potential future narrowing or re-interpretation in the Third Circuit, consistent with Nasir’s limits on commentary deference.
The concurrence’s “defendant perspective” approach, while not binding, offers a focused lens that may shape lower courts’ analyses in close cases.
The opinion highlights a practical evidentiary point: reliable hearsay (e.g., a nurse’s contemporaneous account) can support findings at sentencing. Practitioners should ensure such evidence is developed and tied explicitly to the § 4B1.5(b) analysis.
On the mechanics of multi-count sentencing, the panel clarified that statutory maximums do not cap the advisory range when counts can run consecutively under § 5G1.2(d) to reach the total punishment.
The Court’s dicta urging the Sentencing Commission and Congress to update the Guidelines for modern technological realities underscores a policy headwind that may inform future amendments to § 4B1.5.

Complex Concepts Simplified

What is U.S.S.G. § 4B1.5(b)’s “Pattern of Activity” Enhancement?

Section 4B1.5 is the “Repeat and Dangerous Sex Offender Against Minors” guideline. Subsection (b) increases the offense level by five if:

The instant offense is a covered sex crime, and
The defendant “engaged in a pattern of activity involving prohibited sexual conduct.”

The commentary (often cited by courts) states a “pattern” exists when the defendant engaged in prohibited sexual conduct with a minor on at least two separate occasions. Many courts also rely on commentary stating that occasions can include conduct both during and outside the instant offense and regardless of whether it resulted in a conviction. In the Third Circuit, however, Nasir limits deference to commentary to cases where the guideline text is genuinely ambiguous. Here, the panel proceeded on the parties’ shared assumption that the commentary applies, while leaving room to litigate that assumption on remand.

What Counts as a “Separate Occasion”?

An “occasion” is a discrete event or happening. Two occasions are “separate” when divided by an intervening event or distinguishing circumstances—such as a substantial break in time (e.g., a day or more), a change in location, or a shift in the character/relationship of the offenses. Time alone, especially short time-stamp gaps during a single episode, generally does not suffice. Courts look for meaningful breaks: leaving and returning, sleep, travel, re-initiated contact, or other facts showing one episode ended and another began.

Commentary Deference After Nasir

In the Third Circuit, guideline commentary is not automatically controlling. Under Nasir, courts defer to commentary only if the guideline’s text is genuinely ambiguous, and even then, only if the commentary is a reasonable interpretation. In § 4B1.5(b) cases:

Whether “pattern of activity” is ambiguous remains open in this panel’s view.
Whether to use the commentary’s definition of “prohibited sexual conduct” is also open; the court invited further development on remand.

Preserving Issues Without Citing the “Right” Case

A party preserves a legal issue by raising the relevant legal principle; it need not cite the same cases later relied upon on appeal. Thus, arguing about the meaning of “separate occasions” sufficed to preserve the sentencing issue here even though Wooden was not cited below. As a result, the Third Circuit applied de novo review to the legal question.

Sentencing on Multiple Counts: Stacking Under § 5G1.2(d)

When a defendant is sentenced on multiple counts, the guidelines range is not artificially capped by the statutory maximum for any single count. Under § 5G1.2(d), sentences on multiple counts can run consecutively “to the extent necessary” to reach the advisory total punishment. Here, despite statutory maxima on individual counts, the advisory range remained 324–405 months.

Evidence at Sentencing: Reliable Hearsay and Rule 412

Sentencing courts may consider reliable hearsay. The District Court excluded the minor’s direct testimony about the prior assault for lack of Rule 412 notice but admitted a nurse’s account of the assault. On remand, that evidence—if found reliable and tied to § 4B1.5(b)—could support a finding that an earlier, separate occasion occurred.

Practical Guidance for Remand and Future Cases

For district courts:
- Articulate explicitly how each “occasion” is separated by intervening facts (time, location, conduct, defendant actions), not just by photo time stamps or minor shifts in pose or act.
- Address all theories argued by the parties—including prior uncharged conduct—to determine whether a pattern exists.
- Make clear, guideline-tied factual findings; avoid relying on stray remarks elsewhere in the record.
For prosecutors:
- Do not rely on multiple photos from a single episode to prove separate occasions absent evidence of meaningful breaks; instead, develop proof of distinct episodes (different days, locations, or intervening events).
- Consider presenting reliable evidence of prior or subsequent assaults (even uncharged), mindful of any constraints post-Nasir on commentary-defined terms.
- Preserve Wooden-based arguments by framing the “occasion” issue in terms of intervening events and episode boundaries.
For defense counsel:
- Argue that acts within one continuous episode are a single “occasion” absent concrete intervening events, and use Wooden’s factors by analogy.
- Challenge reliance on commentary where guideline text is unambiguous; preserve objections that “prohibited sexual conduct” must be defined by text or statute, not commentary.
- Scrutinize record support for any prior-occasion finding, including reliability of hearsay and compliance with evidentiary safeguards.

Conclusion

The Third Circuit’s decision vacates a five-level § 4B1.5(b) enhancement that was predicated on slicing a single night’s continuous sexual abuse into multiple “occasions” based on photo time stamps. The Court holds that “occasion” means more than the passage of minutes between images; it requires intervening events or distinct circumstances that meaningfully separate criminal conduct into discrete episodes. By invoking Wooden’s analytical approach to “occasions,” the opinion offers a workable, fact-sensitive framework for lower courts.

On remand, the District Court must address whether an earlier assault constitutes a separate occasion, and the parties may further litigate whether commentary definitions—especially of “prohibited sexual conduct”—govern in light of Nasir. Judge Phipps’s concurrence adds a potentially influential lens: assess “occasion” from the defendant’s perspective, consistent with the guideline’s textual focus on the defendant’s conduct.

Though non-precedential, the decision provides robust guidance: (1) multiple images from one uninterrupted episode do not, without more, create a “pattern”; (2) intervening events, not time stamps, divide occasions; (3) courts should consider prior episodes when properly supported; and (4) commentary deference questions remain open for further development. The opinion also highlights a policy concern—that guideline approaches to child exploitation may lag technological realities—suggesting future amendments may follow. For now, practitioners and courts in the Third Circuit have a clearer map for navigating § 4B1.5(b)’s demanding “separate occasions” requirement.