“Sex Offense” Re-Defined for §4C1.1 Retroactive Reductions: Commentary on United States v. Khan (10th Cir. 2025)

Court of Appeals for the Tenth Circuit  |  Filed 12 Aug 2025  |  No. 24-2119

1. Introduction

On 12 August 2025, the Tenth Circuit delivered its unpublished but citable decision in United States v. Khan. Although technically an “Order and Judgment,” the ruling breaks new analytical ground on a fast-developing subject: the 2023 Sentencing-Commission amendment introducing §4C1.1—an across-the-board two-level decrease for “certain zero-point offenders.” The appellate court confronted two questions in the pro se appeal of Erik Bilal Khan, a defendant serving a 240-month sentence for multiple child-pornography convictions:

• Whether child-pornography convictions are “sex offenses” as used in §4C1.1, thereby disqualifying such offenders from the new zero-point reduction.
• Whether, assuming eligibility, the district court abused its discretion in refusing to cut Khan’s sentence under 18 U.S.C. § 3582(c)(2).

The Tenth Circuit answered the first in the affirmative and the second in the negative, affirming the denial of relief and clarifying the definitional reach of “sex offense” for the new guideline. Because the government simultaneously agreed that a previously sealed document should be opened, the panel issued a limited remand solely to unseal that record.

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited

Although the opinion is concise, it leans heavily on earlier case law and statutory-guideline cross-pollination:

• United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003)
  • Held that child-pornography distribution “is intrinsically related to the sexual abuse of children,” thereby constituting a “sex offense” when interpreting §5D1.2(b)(2).
  • Khan extends Kimler’s rationale to §4C1.1, despite defense arguments that the earlier case involved a different guideline.
• Dillon v. United States, 560 U.S. 817 (2010)
  • Supplies the two-step framework for § 3582(c)(2) proceedings: (1) eligibility per guideline/policy statements, (2) discretionary reduction under § 3553(a).
• United States v. Piper, 839 F.3d 1261 (10th Cir. 2016) & United States v. Lewis, 594 F.3d 1270 (10th Cir. 2010)
  • Recite the abuse-of-discretion standard and define when a decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
• Statutory Anchors: 18 U.S.C. §§ 3582(c)(2), 3553(a); Fed. R. Crim. P. 37; Fed. R. App. P. 12.1 & 32.1.

3.2 Court’s Legal Reasoning

The opinion’s reasoning unfolds in two logical stages, mirroring Dillon:

1. Step One – Eligibility Inquiry
   The panel reads §4C1.1(a)(5) in tandem with the definition at §4C1.1(b)(2)(A), which (at the 2023 version’s time) said “sex offense” means “an offense, perpetrated against a minor.” Applying ordinary principles of textualism, the court concluded that child-pornography crimes—though not involving in-person contact—are perpetrated against minors because the exploitation and continued distribution cause ongoing harm to the depicted child. Kimler supplies persuasive binding authority. Thus, Mr. Khan never clears the starting gate.
2. Step Two – Discretionary Assessment
   Assuming arguendo that Khan were eligible, the district court’s § 3553(a) analysis was fully articulated: enormous quantity of contraband, length of offending, recidivism risk, and still-below-guideline original sentence. The Tenth Circuit found no clearly erroneous factfinding or misapplication of the factors.

3.3 Impact of the Decision

• Guideline Uniformity: The ruling brings §4C1.1 into harmony with long-standing interpretations of “sex offense” elsewhere in the Guidelines, forestalling split authority among districts and circuits.
• Practical Sentencing Effects: Zero-point offenders convicted of all child-pornography provisions under Chapters 110 and 117 of Title 18 are now categorically excluded in the Tenth Circuit, limiting retroactive sentence-reduction motions filed under the 2023 amendment.
• National Ripple: While unpublished, the order is citable under Fed. R. App. P. 32.1. District judges inside the circuit will treat it as persuasive and likely controlling under the “persuasive-authority” doctrine. Other circuits lacking precedent may rely on Khan as an early blueprint.
• Policy Feedback: The Sentencing Commission, which in 2024 removed the words “perpetrated against a minor” from the definition of “sex offense,” may revisit whether that deletion alters the categorical bar; Khan will be part of the public-comment debate.

4. Complex Concepts Simplified

5. Conclusion

United States v. Khan delivers the first published (albeit non-precedential) circuit-level interpretation of §4C1.1’s “sex offense” exclusion. By importing the reasoning of Kimler and underscoring the enduring harms of child-pornography distribution, the Tenth Circuit closes the door on zero-point reductions for such offenders within its jurisdiction. The decision further reaffirms the breadth of district-court discretion at Step Two of the § 3582(c)(2) process. Practitioners representing child-pornography defendants should recalibrate any retroactive-reduction strategy accordingly, while policymakers and the Sentencing Commission may need to clarify whether the 2024 definitional tweak re-opens eligibility in the future. In the meantime, Khan stands as a cautionary precedent: textual nuance and categorical exclusions will often override an offender’s clean criminal-history slate.