United States v. Prophet, 989 F.3d 231 (3d Cir. 2021). Amendment 801, which added a mens rea requirement to the 2-level enhancement for distribution of child pornography at §2G2.2(b)(3)(F), is not retroactive. The amendment narrowed the scope of the enhancement and was therefore a substantive change, not a clarifying one.
United States v. Aguirre-Miron, 988 F.3d 683 (3d Cir. 2021). It was plain error not to group the defendant’s three child pornography production counts with his receipt and possession of child pornography counts. The counts grouped under §3D1.2(c) because the defendant received a pattern enhancement under §2G2.2(b)(5) on his receipt and possession counts “based on the conduct embodied in his production counts.”