United States v. McCallum: Sixth Circuit Endorses Expansive Caregiver & Pattern-of-Activity Enhancements Under §§ 2G2.1(b)(5) and 4B1.5(b)(1)

Introduction

In United States v. Jeremy David McCallum, No. 24-1912 (6th Cir. July 23, 2025) (unpublished), the United States Court of Appeals for the Sixth Circuit confronted a familiar yet still controversial question: How broadly may district courts apply key child-exploitation sentencing enhancements—particularly when the defendant is not the victim’s parent and when no separate evidentiary hearing has been held?

Jeremy McCallum pleaded guilty to ten counts of sexual exploitation of children and one count of child-pornography possession. At sentencing the district court (E.D. Mich.) added two enhancements:

A two-level “caregiver” enhancement under U.S.S.G. § 2G2.1(b)(5).
A five-level “pattern of prohibited sexual conduct” enhancement for repeat and dangerous sex-offenders under § 4B1.5(b)(1).

McCallum received an 85-year sentence—well below the 290-year Guidelines maximum, yet far above the 25 years he sought. On appeal he alleged both procedural and substantive error. The Sixth Circuit disagreed and affirmed, producing an opinion that consolidates and slightly expands existing circuit doctrine in three principal ways:

It reiterates that a defendant can be deemed a “caregiver” even when he is merely a live-in romantic partner temporarily entrusted with the children.
It clarifies that a district court may rely solely on the documentary record, without a separate evidentiary hearing, to find caregiver status by a preponderance of the evidence.
It underscores that multiple images created over several years satisfy the “pattern” requirement of § 4B1.5(b)(1).

Summary of the Judgment

The Sixth Circuit—per Judge Clay, with Judges Gilman and Bloomekatz joining—held:

The district court procedurally committed no error in applying §§ 2G2.1(b)(5) and 4B1.5(b)(1).
No evidentiary hearing was required because the existing record established caregiver status by a preponderance of evidence.
The large archive of images spanning several years constituted a “pattern of activity involving prohibited sexual conduct.”
The 85-year sentence, although lengthy, was substantively reasonable in light of the seriousness of the offenses, the need for deterrence, and protection of the public.

Accordingly, the panel affirmed the judgment in full.

Analysis

A. Precedents Cited

The court anchored its reasoning in a line of Sixth Circuit authority on sentencing reasonableness and specific enhancements:

United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019) – Dual review for procedural and substantive reasonableness under abuse-of-discretion standard.
United States v. Adams, 873 F.3d 512 (2017) & Coppenger, 775 F.3d 799 (2015) – Deferential nature of abuse-of-discretion review.
United States v. Bailey, 931 F.3d 558 (2019) – Elements of procedural reasonableness.
United States v. Sweeney, 891 F.3d 232 (2018); Kerestes, 375 F. App’x 509 (2010); Sanderson, 2022 WL 1133114 – Broad construction of “custody, care, or supervisory control.”
United States v. Tolliver, 949 F.3d 244 (2020) – Preponderance standard at sentencing.
United States v. Paauwe, 968 F.3d 614 (2020); Corp, 668 F.3d 379 (2012); Hall, 733 F. App’x 808 (2018) – Application of § 4B1.5(b)(1).
United States v. Gates, 48 F.4th 463 (2022); Schrank, 975 F.3d 534 (2020) – Parameters of substantive reasonableness.
United States v. Greco, 734 F.3d 441 (2013) – Difficulty of overturning a below-Guidelines sentence.

These cases collectively laid the doctrinal groundwork for affirming the enhancements and the length of McCallum’s sentence.

B. Legal Reasoning

Caregiver Enhancement (§ 2G2.1(b)(5)).
The panel emphasized two doctrinal points:
- “Custody, care, or supervisory control” is interpreted broadly; formal legal status is unnecessary.
- Findings need only satisfy a preponderance of the evidence, with review limited to clear error.
Applying those principles, the court held that McCallum qualified because:
- He co-resided with at least one victim for years.
- The abuse typically occurred when biological parents were absent, implicitly entrusting him with supervision.
- The factual basis for the plea corroborated supervisory authority.
No evidentiary hearing was required: the presentence report, plea colloquy, and seized media sufficed.
Pattern-of-Activity Enhancement (§ 4B1.5(b)(1)).
The court reiterated that two or more separate occasions of prohibited sexual conduct trigger the enhancement. The discovery of images and videos spanning 2000–2011 across three victims easily met that standard.
Procedural Reasonableness.
The district court calculated the Guidelines range, considered § 3553(a) factors, explained its decision, and relied on uncontested record facts—fulfilling Bailey.
Substantive Reasonableness.
Despite McCallum’s limited criminal history and personal abuse, the egregious, protracted nature of his offenses justified 85 years. The sentence was below the 290-year advisory maximum, aligning with Greco.

C. Impact of the Judgment

While unpublished, the opinion carries persuasive force within the Sixth Circuit and beyond:

Lower Evidentiary Threshold. District courts may be more willing to apply the caregiver enhancement without live testimony if documentary evidence is robust.
Expanded Caregiver Definition. Live-in partners, babysitters, and other informal custodians remain squarely within § 2G2.1(b)(5), reinforcing prosecutorial leverage.
Pattern Enhancement Clarified. Multiple recordings over years—not necessarily multiple victims—satisfy § 4B1.5(b)(1), closing defense arguments based on temporal proximity.
Sentencing Discretion Affirmed. The court’s deference suggests that very long terms, even for first-time offenders, will survive appeal if grounded in record facts and articulated § 3553(a) factors.

Practitioners should expect the government to cite McCallum when seeking similar enhancements, and defense counsel must marshal concrete evidence—beyond mere argument—to rebut caregiver or pattern findings.

Complex Concepts Simplified

United States Sentencing Guidelines (U.S.S.G.): A detailed manual that recommends sentencing ranges based on offense characteristics and criminal history. Judges must calculate the range but may vary from it.
§ 2G2.1(b)(5) Caregiver Enhancement: Adds two offense levels if the victim was under the defendant’s custody, care, supervisory control, or if the defendant was a parent, relative, or legal guardian.
§ 4B1.5(b)(1) Pattern-of-Activity Enhancement: Adds five levels for defendants who commit a “covered sex crime” and on more than one occasion engage in prohibited sexual conduct with a minor.
Preponderance of the Evidence: The lowest civil burden of proof—meaning a fact is more likely than not to be true (i.e., >50%). Used at sentencing, not at trial.
Clear Error Review: Appellate standard requiring substantial deference; reversal only if the reviewing court has a “definite and firm conviction” that a mistake occurred.
Substantive vs. Procedural Reasonableness: Procedural looks at how the sentence was imposed (calculations, explanations). Substantive looks at how much time was imposed—whether it is fair and proportionate.

Conclusion

United States v. McCallum reinforces the Sixth Circuit’s wide reading of the caregiver and pattern-of-activity enhancements, lowering the evidentiary hurdles for their application and affirming harsh sentences for repeat child-exploitation offenders. Although unpublished, the opinion synthesizes and extends prior cases, making it a useful citation for prosecutors and judges confronting similar fact patterns. Defense practitioners, in turn, must marshal concrete, countervailing facts—rather than legalistic arguments—to avoid sweeping enhancements where children were even temporarily placed in the defendant’s care or where multiple exploitative images exist. The decision ultimately underscores the judiciary’s resolve to impose—and uphold—lengthy sentences to protect minors and deter future offenders.