USA v. Prentiss K. Madden

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13697
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRENTISS K. MADDEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20248-JEM-1
____________________
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 21-13697
Before J ILL PRYOR , BRANCH, and L UCK , Circuit Judges.
PER C URIAM :
Prentiss Madden pleaded guilty to charges involving child
pornography and an animal crush video, and the district court sen-
tenced him to 262 months’ imprisonment. On appeal, Madden ar-
gues that the district court applied a sentencing enhancement for
engaging in a pattern or activity involving the sexual abuse or ex-
ploitation of a minor without sufficient evidence. We affirm.
I.
Madden was arrested in March 2021 after agents with the
Department of Homeland Security became aware of child pornog-
raphy in an online storage folder linked to him. When the agents
searched Madden’s home, they recovered two cell phones that
Madden later admitted were his. The phones contained more child
pornography as well as videos of Madden, a licensed veterinarian,
sexually molesting dogs. Madden pleaded guilty to three counts of
receiving child pornography, one count of possessing child pornog-
raphy, and one count of creating an animal crush video.
The presentence investigation report included messages
found on Madden’s phones in which Madden told a friend he had
had sex with children on several different occasions. Several of the
messages referenced a boy who had apparently turned sixteen in
2019 but with whom Madden claimed to have been sexually active
for two years by that time. The presentence investigation report
assigned Madden a base offense level of 22. With several
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 2 of 6

-- 2 of 6 --

21-13697 Opinion of the Court 3
sentencing enhancements (and a reduction for Madden’s ac-
ceptance of responsibility), Madden had a total offense level of 37,
for a guidelines range of 210 to 260 months’ imprisonment.
The sentencing enhancement relevant here added five
points to Madden’s offense level for a “pattern of activity involving
the sexual abuse or exploitation of a minor.” U.S.S.G.
§ 2G2.2(b)(5). Madden objected to this enhancement. He argued
that there was insufficient evidence he’d engaged in sexual activity
with the minor victim twice before the minor turned sixteen—the
minimum for the “pattern of activity” enhancement to apply.
At sentencing, the government called Department of Home-
land Security Agent Leah Ortiz—the investigator who had exe-
cuted the search warrant at Madden’s home—to testify about Mad-
den’s sexual relationship with the minor victim. Agent Ortiz testi-
fied that the minor victim had identified himself in a frame of a
video that depicted him and Madden having sex inside of a car
when the minor victim was fifteen. Agent Ortiz testified that the
victim stated he and Madden had sex “two or three times” and that
Madden once suggested that they have sex together with a third
person. Based on the dates Madden sent some of the text messages
that referenced sex with the minor victim, Agent Ortiz concluded
that the two had engaged in sexual conduct multiple times before
the minor victim turned sixteen. And based on Agent Ortiz’s testi-
mony and the content of messages from Madden’s phone, the dis-
trict court overruled Madden’s objections to the section 2G2.2(b)
sentencing enhancement.
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 21-13697
II.
We review the district court’s findings of fact for clear error
and its application of the sentencing guidelines to the facts de novo.
See United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021). “For
a finding to be clearly erroneous, this Court must be left with a
definite and firm conviction that a mistake has been committed.”
Id. (quoting
United States v. Rothenberg, 610 F.3d 621, 642 (11th
Cir. 2010)).
III.
The sentencing guidelines call for a five-level increase to a
defendant’s offense level if “the defendant engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor.”
U.S.S.G. § 2G2.2(b)(5). A “pattern of activity” means “any combi-
nation of two or more separate instances” of conduct prohibited
under various statutes, including 18 U.S.C. section 2243.
Id.
§ 2G2.2 cmt. n.1. Section 2243, in turn, prohibits “engag[ing] in a
sexual act with another person” between the ages of twelve and
sixteen. 18 U.S.C. § 2243(a)(1).
Madden argues that the district court erred when it en-
hanced his sentence after finding he had engaged in a pattern of
sexual abuse or exploitation of a minor. He contends that the gov-
ernment did not present sufficient evidence for the district court to
conclude that he had engaged in sexual activity on
multiple occa-
sions before the minor victim turned sixteen. Madden gives four
reasons to support his position: (1) the minor victim could not re-
member how many times he’d had sex with Madden; (2) the minor
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 4 of 6

-- 4 of 6 --

21-13697 Opinion of the Court 5
victim could not “pinpoint[]”
when he’d had sex with Madden; (3)
Madden’s text messages could be interpreted as “bragging” and did
not prove he’d had sex with the minor victim; and (4) the govern-
ment provided specific evidence of only one instance—the one cap-
tured on video—of sexual conduct before the minor victim turned
sixteen.
None of these reasons leaves us with “a definite and firm
conviction” that the district court got the facts wrong.
See Isaac,
987 F.3d at 990. At sentencing, Madden conceded that the video of
him having sex once with the minor victim was authentic. Alt-
hough the minor victim could not remember exactly how many
times he’d had sex with Madden, he did state that it was “two or
three” times—either of which would satisfy the definition of a “pat-
tern of activity” under the guidelines.
See U.S.S.G. § 2G2.2 cmt.
n.1. The minor victim further stated that he and Madden had sex
multiple times before the minor victim’s sixteenth birthday. Mad-
den argues that Agent Ortiz’s testimony about the minor victim’s
interview with investigators was “unspecific and unreliable” evi-
dence. But although the minor victim could not remember exactly
how many times he’d had sex with Madden, the evidence consist-
ently pointed to it being more than once.
We likewise see no clear error in the district court’s evalua-
tion of Madden’s text messages. Madden argues that these text
messages were simply “bragging” and not reliable evidence. But
the minor victim’s statements and Madden’s text messages corrob-
orated one another. For example, one text message Madden sent
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 21-13697
to a third person suggested that the two of them have sex with the
minor victim together. Madden remarked that the minor victim
was sixteen at that point but that he’d been having sex with the
minor victim “for two years already.” This text message corrobo-
rated the minor victim’s statement that Madden had suggested the
two of them having sex with a third person. It was not clear error
for the district court to conclude that the corroboration between
this text message and the minor victim’s interview indicated that
the sexual activity mentioned in other of Madden’s text messages
had really occurred.
In short, none of Madden’s arguments leads us to find clear
error in the district court’s findings of fact. And on those facts, it
was proper to apply the section 2G2.2(b) sentencing enhancement.
AFFIRMED.
USCA11 Case: 21-13697 Document: 32-1 Date Filed: 01/13/2023 Page: 6 of 6

-- 6 of 6 --