University of Chicago Legal Forum


Sentencing enhancements are applied in a number of circumstances, one of which is the use of a minor in the commission of a crime. But the law is unsettled as to whether a defendant’s affirmative act is necessary for implementation of this particular sentencing enhancement under section 3B1.4. An alleged circuit split existed, with some circuits utilizing an affirmative act approach and other circuits utilizing a reasonable foreseeability approach. Recently, circuits have been applying a hybrid approach that applies the sentencing enhancement when the defendant has affirmatively acted to use the minor in the crime, but in cases involving a conspiracy the enhancement may be applied if a co-conspirator’s use of the minor was reasonably foreseeable. This Comment argues for a widespread implementation of that hybrid approach. This Comment demonstrates that use of the hybrid approach is consistent with the language of section 3B1.4 and the applicable section 1B1.3(a) concerning the factors that determine the sentencing guidelines range, and it stays true to the purpose of deterring the use of minors in the commission of an offense.

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