In United States v. Mendonsa, --- F.4th ---, No. 25-1517 (9th Cir. 2026), the Court affirmed Louis Mendonsa’s sentence for possessing and distributing child pornography in a case in which the district court applied the five-level sentencing enhancement in U.S.S.G. § 2G2.2(b)(5) for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”
Defendant Louis Mendonsa appeals his 292-month sentence for possessing and distributing child pornography. The district court applied the five-level sentencing enhancement in Section 2G2.2(b)(5) of the United States Sentencing Guidelines for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Consistent with the Guidelines commentary, the district court interpreted the pattern enhancement to encompass Mendonsa’s prior sex abuse convictions that were over 30 years old.Mendonsa contends that the pattern enhancement unambiguously applies only to conduct related to the offense of conviction, and that under Kisor v. Wilkie, 588 U.S. 558 (2019), the district court’s deference to the Guidelines commentary was inappropriate. Alternatively, he argues that even if his prior convictions may be considered for the pattern enhancement, the district court erred under the categorical approach by considering the underlying factual record from his state convictions to determine that the enhancement applied.We hold that the pattern enhancement is ambiguous and deference to the Guidelines commentary is appropriate. Moreover, the categorical approach does not apply because the enhancement focuses on a defendant’s conduct rather than prior convictions, and the district court neither clearly erred in finding the enhancement satisfied nor abused its discretion in considering hearsay evidence concerning Mendonsa’s state convictions.Here, although the commentary’s definition of sexual abuse or exploitation references specific federal provisions, it applies to the “conduct described in” those statutes. U.S.S.G. § 2G2.2 cmt. n.1. The definition of a “pattern of activity” also expressly extends to “instances” of sexual abuse regardless of whether they “resulted in a conviction.” Id. The enhancement thus turns on whether the defendant engaged in qualifying conduct, not whether a prior conviction categorically qualifies. Accordingly, the categorical approach does not apply to Mendonsa’s § 288(a) convictions.We hold that § 2G2.2(b)(5) is ambiguous as to whether the pattern enhancement reaches conduct outside the offense of conviction and that the Commission’s interpretation permitting consideration of such conduct is reasonable and entitled to deference. Because the district court properly applied the enhancement, we affirm Mendonsa’s sentence.
