U.S.S.G. § 2G1.3 “Minor” Includes Fictitious Minors: Fourth Circuit Defers to Commentary After Finding Guideline Ambiguity

I. Introduction

In United States v. Gary Lee Hodges (4th Cir. Mar. 25, 2026), the Fourth Circuit addressed whether two sentencing enhancements under U.S.S.G. § 2G1.3—§ 2G1.3(b)(3)(A) (computer/interactive service) and § 2G1.3(b)(5) (victim under 12)—apply when the “minor” is not an actual child but a fictitious child represented by law enforcement in a sting operation.

Gary Lee Hodges communicated online with “Alice,” who claimed to have two daughters (ages 11 and 13). “Alice” and the children were fictitious personas created by federal agents. Hodges traveled to West Virginia to meet them and was arrested. He pleaded guilty to two counts of attempted enticement of a minor under 18 U.S.C. § 2422(b). At sentencing, the district court applied the two enhancements. Hodges did not object, but later—after obtaining an out-of-time appeal through § 2255—challenged the enhancements on the theory that “minor” unambiguously excludes fictitious minors and that the Guidelines commentary impermissibly expands the text.

The key issues were (1) how to interpret “minor” in § 2G1.3(b) and (2) when courts may defer to Guidelines commentary under the post-Kisor interpretive framework embraced by recent Fourth Circuit precedent.

II. Summary of the Opinion

The Fourth Circuit affirmed Hodges’s 324-month sentence (bottom of the calculated 324–405 month range).

III. Analysis

A. Precedents Cited

1. Plain-error framework

• United States v. Simmons, 11 F.4th 239 (4th Cir. 2021): Supplied the three-part plain-error test and reiterated the court’s discretion to correct only errors that seriously affect the proceedings’ fairness/integrity.
• United States v. Olano, 507 U.S. 725 (1993): Provided the foundational articulation of when appellate courts should exercise discretion to recognize plain error (“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”).
• United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013): Defined “plain” error as one made clear by settled Supreme Court or Fourth Circuit law and cautioned that circuit splits generally preclude plain error.
• United States v. Maxwell, 285 F.3d 336 (4th Cir. 2002): Recognized sister-circuit authority as “pertinent” to whether an error is plain when the Supreme Court and circuit have not addressed the issue.

These cases mattered because Hodges did not object at sentencing. The panel used them to set a high bar: Hodges needed not just a persuasive textual argument, but a showing of clear legal error—something the court found lacking.

2. Interpreting Guidelines text vs. commentary (the Kisor-influenced approach)

• Kisor v. Wilkie, 588 U.S. 558 (2019): The court quoted Kisor for the principle that deference is inappropriate when the text is not genuinely ambiguous; “the provision just means what it means.”
• United States v. Mitchell, 120 F.4th 1233 (4th Cir. 2024): Provided the Fourth Circuit’s step-by-step method: determine genuine ambiguity; if ambiguous, ask whether the commentary is within the “zone of ambiguity” and then whether it deserves controlling weight.
• United States v. Boler, 115 F.4th 316 (4th Cir. 2024): Reinforced contextual interpretation, use of ordinary meaning, and the deference inquiry—emphasizing the Commission’s “official position,” expertise, and “fair and considered judgment.”

These authorities structured the opinion’s core move: ambiguity first, deference second. The panel’s most consequential doctrinal statement is its confirmation—in a published decision—that the § 2G1.3 commentary definition of “minor” merits deference once ambiguity is found.

3. Meaning of “minor” and attempt liability under 18 U.S.C. § 2422(b)

• United States v. Skinner, 70 F.4th 219 (4th Cir. 2023) (per curiam): Cited for the general description that § 2422(b) “prohibits convincing a minor to engage in criminal sexual activity.”
• Christopher v. United States, 148 F.4th 885 (7th Cir. 2025): Quoted for the proposition that, for an attempt offense under § 2422(b), the intended target need not be a real minor if the defendant believed the target was real, intended illegal enticement, and took a substantial step.
• United States v. Root, 296 F.3d 1222 (11th Cir. 2002), superseded on other grounds as recognized in United States v. Jerchower, 631 F.3d 1181 (11th Cir. 2011): Used to show early circuit recognition that belief in a minor’s existence can sustain an attempt conviction.
• United States v. Roman, 795 F.3d 511 (6th Cir. 2015): Cited for the intermediary scenario (communicating with an officer about a fictitious minor) still satisfying § 2422(b) when the aim is to secure the child’s assent.
• United States v. Kelly, 510 F.3d 433 (4th Cir. 2007): Cited (dicta) to note the Fourth Circuit and others have reached similar conclusions about § 2422(b)’s lack of an “actual minor” requirement.
• United States v. Kaye, 243 F. App’x 763 (4th Cir. 2007) (per curiam): An unpublished Fourth Circuit decision affirming that § 2422(b) does not require an actual minor to be put at risk.

The panel did not treat these § 2422(b) cases as directly controlling on the Guidelines enhancements’ text. Instead, it used them to (i) undermine Hodges’s claim that “minor” is unambiguous and (ii) support the reasonableness of the commentary’s definition.

4. Conduct-focused vs. harm-focused enhancements

• United States v. DeCarlo, 434 F.3d 447 (6th Cir. 2006): Cited for the distinction that some Guideline provisions apply to fictitious-minor stings when the provision is not dependent on actual effects or harm, while provisions requiring an “actual effect” may not.

This supported the Fourth Circuit’s purposive/contextual point: the challenged enhancements target the defendant’s mode of offending (computer use; seeking very young children), not the measurable harm to a real victim.

5. Sister-circuit treatment of § 2G1.3 and fictitious minors

• United States v. Seeley, No. 19-4320, 2021 WL 5049457 (2d Cir. Nov. 1, 2021): An unpublished decision rejecting the argument that “minor” in § 2G1.3(b)(3) applies only to actual minors and reasoning that the Guidelines definition including fictitious minors is consistent with § 2422(b).

Seeley played a dual role: it undercut any claim of “uniform” support for Hodges’s position and reinforced the panel’s conclusion that, even if error existed, it was not “plain.”

B. Legal Reasoning

1. Step one: Is “minor” genuinely ambiguous in § 2G1.3(b)(3)(A) and (b)(5)?

The court began with “ordinary meaning,” consulting dictionary definitions, but found them inconclusive because they define “minor” by age and legal status, not by ontological reality (i.e., whether the person must exist). The panel then moved to context: the enhancements’ language (“offense involved … persuade … the minor”; “offense involved a minor who had not attained the age of 12 years”) does not, on its face, resolve whether “minor” must be an actual child.

The court also emphasized statutory context: § 2G1.3 applies because Hodges was convicted under 18 U.S.C. § 2422(b), which multiple circuits (and Fourth Circuit dicta/unpublished decisions) interpret to permit attempt convictions involving fictitious minors where the defendant believes the minor is real. The court reasoned it would be “anomalous” if the statute covers fictitious-minor attempts, yet the sentencing enhancements for that same conviction categorically exclude them.

2. Step two: Does the commentary’s definition fall within the “zone of ambiguity”?

Having found ambiguity, the panel asked whether the commentary definition is a reasonable interpretation. The answer was “an easy yes”: the commentary’s inclusion of “fictitious” minors mirrors the prevailing understanding of attempt liability under § 2422(b) and reflects the Sentencing Commission’s official position and expertise (as described in Boler and Kisor).

The court then made its most forward-looking statement: it “confirm[s] and adopt[s]” the Commission’s position “in a published decision,” effectively settling (within the Fourth Circuit) that the commentary definition of “minor” governs these enhancements when the Guideline text is ambiguous.

3. Independent backstop: No plain error even under Hodges’s theory

Even assuming arguendo that the district court’s use of the commentary were wrong, the panel held Hodges could not satisfy the “plainness” requirement. There was no binding Supreme Court or Fourth Circuit precedent establishing error, and Hodges could not identify uniform sister-circuit authority supporting his interpretation. The presence of contrary authority (e.g., United States v. Seeley) further defeated any “plain” error argument.

C. Impact

1. Sentencing in fictitious-minor sting operations

The decision strengthens the government’s ability to seek—and district courts’ ability to impose—§ 2G1.3 enhancements in undercover operations where no real child exists. In practical terms, defendants convicted of attempted enticement under § 2422(b) in the Fourth Circuit should expect that:

• § 2G1.3(b)(3)(A) can apply based on online communications and arranging travel, even when the “minor” is fictitious; and
• § 2G1.3(b)(5) can apply where the fictitious child is represented as under 12 (as here, age 11).

2. Commentary deference after Kisor in the Fourth Circuit

Beyond sex-offense sentencing, the opinion is significant for methodology. It exemplifies the Fourth Circuit’s post-Kisor approach (via Mitchell and Boler): courts must exhaust textual and contextual tools to decide whether a Guideline is genuinely ambiguous; if ambiguity remains, commentary that reasonably fits within that ambiguity may receive controlling weight. The court’s “published” adoption of the § 2G1.3 “minor” commentary is likely to be cited in future disputes over the boundary between Guideline text and commentary.

3. Litigation incentives and preservation

Because the case was reviewed only for plain error, it also underscores a practice point: failing to object to enhancements at sentencing drastically narrows appellate options. Even novel interpretive arguments may fail absent clear, settled authority.

IV. Complex Concepts Simplified

• “Fictitious minor”: A nonexistent child invented by law enforcement (or an undercover officer posing as a child), used in sting operations. The legal question is often whether the law punishes the defendant’s intent and steps taken, even without a real child victim.
• Attempt under 18 U.S.C. § 2422(b): The statute criminalizes persuading/enticing a minor—or attempting to do so. For attempts, courts commonly focus on the defendant’s belief, intent, and substantial steps (e.g., travel, gifts, planning), not on the actual existence of a child.
• Guidelines “commentary”: Official explanatory notes issued by the Sentencing Commission. Commentary can clarify how Guideline terms apply, but after Kisor v. Wilkie, courts generally defer only when the Guideline text is genuinely ambiguous.
• “Genuinely ambiguous” and the “zone of ambiguity”: If, after using ordinary meaning, context, and structure, a term can still reasonably be read more than one way, it is ambiguous. Commentary is allowed to resolve that ambiguity if it is a reasonable fit—within the “zone” of what the text could mean.
• Plain error review: When a defendant did not object in the district court, an appellate court usually corrects an error only if it is (1) an error, (2) clear/obvious, and (3) affected substantial rights—plus (often) only if leaving it uncorrected would seriously harm the judiciary’s fairness or integrity.

V. Conclusion

United States v. Gary Lee Hodges establishes, in a published Fourth Circuit decision, that “minor” in U.S.S.G. § 2G1.3(b)(3)(A) and (b)(5) is ambiguous regarding fictitious minors and that the Sentencing Commission’s commentary definition—including fictitious minors represented by law enforcement—falls within that ambiguity and is entitled to deference. The ruling aligns the enhancements’ reach with the widely accepted understanding that attempted enticement under 18 U.S.C. § 2422(b) does not require an actual child, and it signals a robust, structured approach to commentary deference in the Fourth Circuit’s post-Kisor sentencing jurisprudence.