Unchallenged Sex-Offense Enhancement Renders Alleged Guidelines Calculation Errors Harmless

1. Introduction

In United States v. David Greulich, the Sixth Circuit affirmed a thirty-year sentence for seven child-exploitation offenses. The appeal challenged how the district court grouped the offenses under the United States Sentencing Guidelines and whether a cross-reference properly subjected the travel offenses to the guideline governing production of child pornography.

The court did not decide either disputed question. Instead, it concluded that accepting Greulich’s proposed corrections would leave his ultimate Guidelines calculation unchanged once an independently applicable, five-level enhancement was included. Although Greulich had opposed that enhancement at sentencing, he abandoned the objection on appeal.

The opinion’s central lesson is therefore about harmless error and appellate issue preservation: alleged mistakes in intermediate Guidelines calculations do not warrant reversal when correcting them would not change the applicable sentencing range. Because the opinion is designated “NOT RECOMMENDED FOR PUBLICATION,” it should be understood as an application of existing doctrine rather than a newly announced binding rule resolving the disputed grouping or cross-reference questions.

2. Background and Sentencing Proceedings

The offenses

Greulich met a fourteen-year-old girl through Snapchat and knew her age. In April and May 2024, he traveled from Ohio to New York, sexually abused her, and recorded the abuse. A subsequent search uncovered child pornography on his digital devices and in his Google account, including recordings involving the victim. He also admitted emailing child pornography to another account in July 2023.

He pleaded guilty, without a plea agreement, to all seven charged offenses:

The presentence report’s calculation

The presentence report organized the offenses into two groups corresponding to the two trips. Each group contained the production and travel counts associated with that trip. The possession and transportation counts were grouped together and placed in the second group.

The report applied U.S.S.G. § 2G2.1, the production guideline, to both the production counts and, through § 2G1.3(c)(1), the travel counts. That cross-reference directs use of the production guideline when the offense involves specified conduct causing or facilitating a minor’s sexually explicit conduct for the purpose of producing a visual depiction.

Each group received an offense level of 42. Combining the groups under § 3D1.4 produced level 44. The report then added five levels under § 4B1.5(b)(1) for a pattern of prohibited sexual conduct and subtracted three levels for acceptance of responsibility, producing level 46. Because the Guidelines treat levels above 43 as level 43, the resulting recommendation was life imprisonment. No individual count authorized life imprisonment, however, so the Guidelines sentence became 2,040 months.

Greulich’s objections and the sentence imposed

Greulich advanced three relevant objections:

1. The offenses should form three groups organized by offense type: production, travel, and possession/transportation.
2. The production cross-reference should not apply to the travel counts because producing visual depictions was not the primary purpose of those offenses.
3. The five-level pattern enhancement constituted impermissible double counting.

The district court rejected all three objections. It also explained that the cross-reference did not affect either group’s offense level: under § 3D1.3(a), the highest-scoring count determined each group’s level, and the production count already supplied the higher score. Alternatively, it found that the cross-reference applied because Greulich traveled to produce a visual depiction of the abuse.

After considering the factors in 18 U.S.C. § 3553(a), the court imposed 360 months’ imprisonment, substantially below the Guidelines sentence. It stated that it would impose the same sentence even if it accepted all of Greulich’s arguments.

3. Summary of the Appellate Decision

The Sixth Circuit affirmed because the asserted grouping and cross-reference errors, even if established, would not change the Guidelines range.

Under Greulich’s proposed approach, the three groups would have offense levels of 42, 28, and 40. Combining those groups would still produce level 44—the same combined level reached by the district court. Greulich’s proposed final level of 41 resulted from subtracting three levels for acceptance of responsibility while omitting the five-level pattern enhancement.

That omission was decisive. Greulich did not challenge the enhancement in his opening brief or reply, despite having objected below and despite the government defending its application. The court therefore treated the challenge as abandoned. It also independently concluded that the enhancement applied.

Adding the enhancement to Greulich’s own calculation produced level 46, treated as level 43—the same result used at sentencing. Accordingly, the court had no need to resolve the disputed grouping methodology or the purpose requirement in the production cross-reference.

4. Analysis

A. Precedents Cited

United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022)

The court cited United States v. Nunley for the framework governing review of procedural sentencing challenges. Overall procedural reasonableness is reviewed for abuse of discretion, while underlying legal conclusions receive de novo review and factual findings receive clear-error review.

This framework matters because a Guidelines challenge can involve distinct kinds of questions. Interpreting a grouping provision or cross-reference presents a legal issue; determining the defendant’s conduct or purpose can involve factual findings. The court identified these standards but ultimately avoided deciding the disputed issues because neither could affect the sentencing range.

United States v. Faulkner, 926 F.3d 266, 275 (6th Cir. 2019)

United States v. Faulkner supplied the controlling harmless-error principle: an error that does not change the applicable Guidelines range is harmless.

This precedent drove the disposition. The Sixth Circuit compared the district court’s calculation with Greulich’s proposed calculation after restoring the applicable five-level enhancement. Both routes reached the same final offense level and Guidelines sentence. The court therefore could affirm without determining whether either alleged intermediate error had actually occurred.

The reliance on Faulkner also defines the decision’s limits. The court did not hold that Guidelines mistakes are unimportant or that a substantial downward variance automatically cures them. Its conclusion rested on the unchanged Guidelines outcome.

Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013)

The court cited Kuhn v. Washtenaw Cnty. for the rule that an appellant abandons an objection raised below but omitted from the opening appellate brief.

Greulich’s sentencing objection to the pattern enhancement did not preserve that issue indefinitely. His appellate briefs challenged grouping and the cross-reference but did not challenge the enhancement itself. Those arguments also did not indirectly contest the enhancement: its application depended on covered offenses and a pattern of prohibited conduct, not on the disputed grouping arrangement or cross-reference.

This precedent explains why the appellate court would not accept a proposed calculation that silently removed five levels. A party cannot obtain the benefit of excluding an adjustment without presenting an appellate challenge to it.

United States v. Haas, 986 F.3d 467, 481 (4th Cir. 2021)

The court relied on United States v. Haas when addressing the enhancement’s substantive applicability. That Fourth Circuit decision explained that § 4B1.5(b)(1) applies “as long as one count is a covered sex crime.”

Its significance here was that the enhancement did not require every conviction to qualify as a covered sex crime. Greulich’s production and travel convictions satisfied the coverage requirement, regardless of the additional possession and transportation convictions. As an out-of-circuit decision, Haas supplied persuasive support rather than binding Sixth Circuit authority.

B. The Decisive Calculation

The opinion turns on distinguishing a combined offense level from the final offense level after additional adjustments:

Thus, Greulich’s proposed regrouping changed the route but not the destination. The lower-scoring travel group did not produce the reduction he sought, and removing the cross-reference did not alter the combined level. His proposed range of 324 to 405 months depended on the additional omission of an enhancement he had not challenged on appeal.

C. Independent Applicability of the Pattern Enhancement

Although abandonment was sufficient to defeat Greulich’s calculation, the court also explained why § 4B1.5(b)(1) applied on the merits. The provision required three conditions:

1. A covered sex crime: Greulich’s production and travel convictions qualified.
2. No application of § 4B1.1 or § 4B1.5(a): He was not a career offender and lacked the prior sex-offense conviction that would trigger § 4B1.5(a).
3. A pattern of prohibited sexual conduct: His conduct during the April and May trips constituted two separate occasions under § 4B1.5, commentary note 4(B)(i).

This reasoning shows that the enhancement can apply without a prior sex-offense conviction and that separate occasions involving the same minor can establish the required pattern. The court relied on the two trips, rather than the manner in which the counts were grouped.

The opinion did not, however, undertake a separate, developed analysis of Greulich’s abandoned double-counting theory. It should not be read as resolving every possible objection concerning overlap between § 4B1.5(b)(1) and other sentencing provisions.

D. Questions Left Unresolved

The court expressly declined to decide:

• Whether these production and travel counts were properly grouped by trip under § 3D1.2(b).
• Whether Greulich’s proposed offense-type grouping was correct.
• Whether § 2G1.3(c)(1) applied to the travel counts, including whether his “primary purpose” argument correctly interpreted that provision.

Accordingly, affirmance did not endorse every aspect of the district court’s reasoning. Those questions remain available for decision in a case where their resolution changes the Guidelines calculation.

E. The District Court’s Alternative Sentencing Statement

The district court stated that it would impose 360 months even under Greulich’s proposed calculation. The Sixth Circuit recounted that statement but did not make it the basis of its harmless-error analysis. Instead, it relied on the stronger mathematical conclusion that the applicable Guidelines range never changed.

This distinction matters. The opinion does not establish that a sentencing court’s same-sentence declaration necessarily cures a Guidelines error that actually changes the range.

F. Potential Impact

The decision has several practical implications:

• Appellants must present a complete alternative calculation. Every independently applicable enhancement must remain in the calculation unless successfully challenged.
• Objections must be pursued on appeal. Raising an issue at sentencing does not substitute for briefing it in the opening appellate brief.
• Intermediate errors require consequential analysis. Different grouping arrangements or guideline provisions may produce the same ultimate range.
• Courts may avoid unnecessary interpretive rulings. Harmless-error analysis can resolve an appeal without deciding difficult Guidelines questions.
• The holding is narrow. Its unpublished designation and express reservation of the disputed issues limit its value as authority on grouping or the production cross-reference.

5. Complex Concepts Simplified

Procedural reasonableness

Whether the sentencing court followed the proper process, including correctly calculating the Guidelines. This differs from whether the sentence’s length is substantively reasonable.

Grouping

A Guidelines method for combining related counts so that multiple convictions do not simply produce the sum of separate offense levels.

Cross-reference

An instruction to use another guideline when specified facts are present. Here, the travel guideline could direct the court to the production guideline.

Pattern enhancement

An increase based on repeated prohibited sexual conduct. Under the provision applied here, two separate occasions were sufficient even though both involved the same victim.

Double counting

Using the same conduct in more than one part of a sentencing calculation. Such overlap is not automatically prohibited; its permissibility depends on the governing provisions. The abandoned objection received no separate extended treatment here.

Abandonment on appeal

Failure to pursue an issue in the opening appellate brief, even if the issue was raised in the trial court.

Harmless error

A mistake that does not justify reversal. Here, the alleged errors were harmless because correcting them would leave the applicable Guidelines range unchanged.

Downward variance

A sentence below the Guidelines recommendation based on the statutory sentencing factors. The district court imposed 360 months rather than the recommended 2,040 months.

6. Conclusion

United States v. David Greulich illustrates the interaction between appellate abandonment and harmless Guidelines error. Even accepting Greulich’s proposed grouping and cross-reference corrections, the applicable pattern enhancement produced the same final offense level and Guidelines sentence.

The decision’s significance lies in its disciplined focus on consequences: an alleged calculation error does not warrant reversal when correcting it changes nothing. It leaves the disputed grouping and cross-reference questions unresolved while underscoring the need to challenge every adjustment necessary to obtain the requested sentencing relief.