Preparatory Communications Can Establish Offense Commencement for the Fifteen-Year Criminal-History Lookback

1. Introduction

The central question in this sentencing appeal was when an offense begins for purposes of deciding whether older convictions count toward a defendant’s criminal-history score. Vincent Joseph Robusto argued that his prior Georgia sentences were too old because his release from custody occurred more than fifteen years before the July 2021 conduct underlying his prosecution. The government maintained that his relevant conduct began months earlier, when he communicated with a minor about traveling to meet him and sent her sexually explicit messages.

The Eleventh Circuit upheld the district court’s finding that those earlier communications constituted preparation for the eventual transportation offense. Accordingly, the offense commenced in February 2021 for criminal-history purposes, bringing Robusto’s earlier incarceration within the applicable fifteen-year period.

The opinion also addresses two distinct appellate-procedure questions: whether defense counsel invited the alleged sentencing error and whether the argument presented on appeal had been preserved. The court rejected invited error but left preservation unresolved because Robusto’s challenge failed even under the more favorable clear-error standard.

Precedential qualification: The opinion is expressly designated “NOT FOR PUBLICATION.” It applies existing Guidelines and appellate-review principles rather than announcing a new binding circuit rule. Its significance lies in its fact-specific treatment of preparatory communications and its careful distinction between inviting error and imperfectly preserving an objection.

2. Background and Procedural History

The offenses and trial evidence

A grand jury charged Robusto with transporting Z.R., a minor, from Texas to Florida with the intent that she engage in sexual activity prohibited by Florida law, and with possessing a firearm as a convicted felon. The transportation charge alleged conduct in July 2021.

The trial evidence, however, extended back to February 11, 2021, when Z.R. was fourteen. In Snapchat communications that day, Robusto offered to buy her a plane ticket, discussed alternative transportation, and expressed his desire to meet her. She told him that she was in tenth grade; he responded that he did not care.

Additional messages from February and March included declarations of affection, references to Z.R. as his “future wifey,” requests that she come to him, and explicit descriptions of sexual activity. In July, Robusto helped guide her through the airport. Z.R. also testified that he instructed her to delete material from her phone when law enforcement arrived.

Robusto admitted knowing her age, engaging in sexual conversations with her since at least February, and arranging her travel to Florida. He nevertheless denied intending unlawful sexual activity and characterized the government’s exhibits as selectively presented. The jury convicted him on both counts.

The disputed criminal-history calculation

Applying the 2024 Sentencing Guidelines, the presentence investigation report assigned three criminal-history points for each of two sets of Georgia convictions from 2001. Robusto had been released from the resulting custody on June 16, 2006. The six disputed points placed him in criminal-history category III. Combined with an offense level of 39, that produced an advisory imprisonment range of 324 to 405 months.

Although Robusto filed no written objections, counsel objected at sentencing. Counsel initially compared the release date with Robusto’s July 21, 2021 arrest date, while also explaining that he had been informed that the relevant conduct began in February. The district court overruled the objection and imposed 405 months’ imprisonment followed by lifetime supervised release.

3. Summary of the Opinion

The Eleventh Circuit affirmed on three principal grounds:

1. No invited error: Counsel’s sentencing remarks were ambiguous when read as a whole. They could have been a description of the government’s position rather than an affirmative concession or request for the challenged calculation.
2. No need to decide preservation: The court recognized competing arguments about whether the sentencing objection preserved the appellate challenge. It declined to resolve that question because the claim failed even under clear-error review.
3. Sufficient evidence of February commencement: The February and March communications supported a finding that Robusto was preparing to transport Z.R. for unlawful sexual activity. Because relevant conduct includes preparation, those communications established a commencement date within fifteen years of his June 2006 release.

The court therefore upheld the six criminal-history points and the resulting sentence.

4. Legal Reasoning

A. The lookback period turns on offense commencement, not arrest

Under U.S.S.G. § 4A1.2(e)(1), a prior sentence exceeding one year and one month counts if it was imposed within the specified fifteen-year period or resulted in incarceration during that period. The period is measured backward from “the defendant’s commencement of the instant offense.”

This distinction defeated the premise of Robusto’s original sentencing objection. His arrest date did not control. Nor did the dates alleged for the completed transportation necessarily mark the earliest relevant conduct.

Application Note 8 to § 4A1.2 explains that commencement includes relevant conduct. Section 1B1.3(a)(1), in turn, encompasses a defendant’s acts during the offense, in preparation for it, or in attempting to avoid detection or responsibility. Together, these provisions permit a sentencing court to look earlier than the completed criminal act.

The opinion’s reasoning therefore rests on a functional inquiry: when did the defendant begin conduct preparing for the offense of conviction? It does not equate commencement automatically with arrest, the indictment’s date range, or the moment the completed offense became punishable.

B. Relationship-building communications could constitute preparation

The court found substantial evidence connecting the early communications to the eventual transportation. Robusto discussed bringing Z.R. to him, offered transportation assistance, cultivated an intimate relationship, and described the sexual activity he wanted. Those exchanges supported the inference that he was developing her willingness to travel for the purpose later established at trial.

Importantly, the court rejected a narrow conception of preparation limited to final travel arrangements. Preparatory conduct did not require settled dates, a purchased ticket, or a complete itinerary. Cultivating the minor’s trust and willingness to travel could itself advance the transportation offense. Moreover, the February 11 exchange did address possible means of travel.

This was not a holding that all earlier sexual or affectionate messages necessarily qualify as relevant conduct. The finding depended on their connection to the particular offense: the same minor, invitations to travel, transportation discussions, sexual intent, and the eventual trip.

C. Robusto’s alternative explanations did not establish clear error

Robusto described the early statements as passing comments or jokes. The district court was not required to accept that characterization. Z.R. ultimately traveled to meet him, and the jury rejected his denial of the requisite sexual intent. Those circumstances supported the district court’s interpretation of the earlier exchanges.

Robusto also asserted that a communication gap between March and July made the earlier messages too remote. But Z.R. testified only that she did not remember whether they communicated during that period. Failure to remember contact was not affirmative proof that contact ceased. The evidence that Robusto instructed her to delete phone material also formed part of the record.

Even assuming a pause, the district court could reasonably regard the July trip as the culmination of the plan pursued in February. The court thus declined to treat an interruption in communications as necessarily severing the connection between preparation and completion.

D. Ambiguous acknowledgment is not necessarily invited error

The government argued that counsel induced the challenged ruling by stating that the criminal activity “actually began as far back as February of 2021.” Read alone, that language could resemble a concession. Read in context, however, counsel attributed the explanation to information brought to his attention and expressly stated an objection.

The court accordingly distinguished affirmative inducement from an ambiguous account of the opposing position. Robusto neither clearly requested the disputed calculation nor unequivocally accepted it. The invited-error doctrine therefore did not bar review.

The procedural lesson is limited but important: acknowledging an adverse explanation while objecting is not automatically equivalent to asking the court to adopt it.

E. Preservation remained unresolved

At sentencing, Robusto relied on his arrest date. On appeal, he accepted that commencement controlled but argued that commencement occurred in July rather than February. That change could be viewed either as a substantively different objection or as a new argument supporting the same request to exclude the Georgia convictions.

The panel identified both possibilities without choosing between them. Because the commencement finding survived clear-error review, it necessarily could not satisfy plain-error review. The opinion therefore does not establish a definitive preservation rule for similarly worded sentencing objections.

5. Precedents Cited and Their Influence

Standards governing appellate review

United States v. Monzo, 852 F.3d 1343, 1348 (11th Cir. 2017)

This decision supplies the division between de novo review of Guidelines interpretation and clear-error review of factual findings. That distinction matters because the decisive dispute concerned the factual significance of Robusto’s communications, not merely the meaning of the Guidelines.

United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)

The court cited this case for the requirement that an appellate court have a “definite and firm conviction” that a mistake occurred before overturning a finding as clearly erroneous. It established the deferential framework within which the February commencement finding was assessed.

United States v. Cobb, 842 F.3d 1213, 1218 (11th Cir. 2016)

This case adds that factual findings must be supported by substantial evidence. Deference therefore did not eliminate evidentiary scrutiny: the panel identified the travel proposals, sexual messages, relationship cultivation, and eventual journey as support for the district court’s conclusion.

United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001)

This precedent supplies the four-part plain-error framework: error, obviousness, prejudice to substantial rights, and a serious effect on the fairness, integrity, or public reputation of judicial proceedings. It also supports the panel’s shortcut: without an underlying error, there could be no plain error, making resolution of preservation unnecessary.

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)

This Supreme Court decision explains that a factfinder’s choice between two permissible views of the evidence cannot be clearly erroneous. It directly answers Robusto’s attempt to recast the messages as jokes: offering a competing interpretation did not demonstrate that the district court’s supported interpretation was impermissible.

Invited error and preservation

United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006)

This case establishes that invited error is not reviewed and describes inducement through a defendant’s request or express acknowledgment that the court may take the challenged action. The panel distinguished it because Robusto did not request the calculation he challenged and his statements were not an unambiguous endorsement.

United States v. Hayes, 762 F.3d 1300, 1310 n.6 (11th Cir. 2014)

This decision provides the controlling qualification that ambiguous statements do not trigger invited error. It was central to reading counsel’s remarks in context rather than treating one sentence as conclusive.

United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014)

This precedent states that a substantively different objection does not preserve an appellate argument. It supported the possibility that Robusto’s arrest-date theory failed to preserve his later challenge to the factual commencement date.

United States v. Horn, 129 F.4th 1275, 1296–98 (11th Cir. 2025)

This case distinguishes an issue from alternative arguments supporting it and recognizes the significance of seeking the same relief on appeal. It supported the competing view that both of Robusto’s arguments concerned the same request: excluding the Georgia convictions as too remote. The panel did not resolve the application of these preservation principles.

Relevant conduct, commentary, and issues not reached

United States v. Cornog, 945 F.2d 1504, 1509 (11th Cir. 1991)

This precedent permits a sentencing court to determine the commencement date of an offense occurring over time from trial evidence. It supported looking beyond the July transportation dates to the earlier communications proved at trial.

United States v. Dupree, 57 F.4th 1269, 1275–78 (11th Cir. 2023) (en banc)

This decision limits deference to Guidelines commentary to circumstances in which the guideline itself is genuinely ambiguous. Its citation acknowledges that commentary does not automatically control merely because it accompanies a guideline.

United States v. Jews, 74 F.4th 1325, 1327–28 & n.2 (11th Cir. 2023)

The panel relied on this decision to use the commentary where neither party challenged its validity or interpretation of the guideline. The opinion therefore does not independently resolve a contested challenge to Application Note 8 under the framework discussed in United States v. Dupree.

United States v. Campbell, 26 F.4th 860, 871–73 (11th Cir. 2022) (en banc)

This case supported treating as abandoned any argument that each count independently had to commence within the fifteen-year period. The panel noted that Robusto did not raise that contention. It also declined to reach the government’s alternative claim that his firearm offense began by January 9, 2021.

6. Potential Impact and Limits

Earlier preparation may make older convictions countable

The decision illustrates how evidence predating the charged transaction can materially affect a sentencing range. Where preparation began before the apparent offense date, a prior period of incarceration may fall within the fifteen-year lookback even though it would fall outside a period measured from arrest or completion.

Digital communications may establish more than intent

Messages can help establish both the defendant’s purpose and the timing of relevant conduct. In comparable cases, communications cultivating a minor’s willingness to travel may support an earlier commencement date when sufficiently connected to the eventual offense. The opinion does not make such communications automatically dispositive.

Clear sentencing objections remain important

Defense counsel avoided the complete review bar associated with invited error but still left uncertainty about preservation. A precise objection should identify the disputed commencement date, explain why earlier conduct does not qualify as preparation, and distinguish acknowledgment of the government’s position from agreement with it.

The decision leaves several questions open

The panel did not decide the preservation issue, the government’s alternative firearm theory, or whether every count must independently satisfy the timing requirement. Nor did it resolve a contested challenge to the relevant Guidelines commentary. Those limits prevent reading the opinion as a comprehensive rule governing all multicount or commentary-related sentencing disputes.

Because the decision is unpublished, its principal future value is persuasive: it provides a concrete application of established relevant-conduct and appellate-review principles.

7. Complex Concepts Simplified

Criminal-history lookback

The period used to determine whether an older sentence is recent enough to affect the current sentencing calculation. Here, the relevant period was fifteen years measured backward from offense commencement.

Relevant conduct

Conduct considered in sentencing beyond the completed act itself, including acts preparing for the offense. It need not be separately charged to be relevant to the calculation.

Preparatory conduct

Actions advancing the eventual offense before its completion. Here, the court treated travel invitations and cultivation of the minor’s willingness to travel as supported examples.

Clear error

A deferential standard for reviewing factual findings. An appellate court does not reverse merely because another interpretation is possible.

Plain error

A more demanding route to relief generally applicable to arguments not properly raised below. An actual, obvious, prejudicial error must satisfy additional requirements concerning the fairness of proceedings.

Invited error

An error the complaining party induced the court to make. Unlike an inadequately preserved objection, invited error generally prevents review altogether.

Issue versus argument

An issue is the matter the court is asked to resolve; an argument is a reason for resolving it a particular way. Robusto consistently sought exclusion of the prior convictions, but changed his explanation for why they should be excluded.

8. Conclusion

The Eleventh Circuit affirmed Robusto’s sentence because substantial evidence supported treating his February 2021 communications as preparation for the later transportation offense. That earlier commencement date brought his prior incarceration within the Guidelines’ fifteen-year criminal-history period.

The opinion’s broader lesson is that sentencing chronology depends on relevant conduct, not simply arrest or completion dates. Its procedural lesson is equally important: an ambiguous acknowledgment of an opposing position does not necessarily invite error, but an imprecise objection can still leave preservation uncertain. These are persuasive applications of existing law, not a new binding rule.