United States v. Shawn P. Caldwell , 655 F. App'x 730 ( 2016 )

Case: 15-14422 Date Filed: 07/05/2016 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14422
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cr-00028-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN P. CALDWELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 5, 2016)
Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Shawn Caldwell was sentenced to 20 years in prison for possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(2). His sentence was based on a
clause in § 2252A that authorizes 15 to 40 years in prison when a defendant “has a
Case: 15-14422 Date Filed: 07/05/2016 Page: 2 of 11
prior conviction . . . under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18
U.S.C. § 2252A(b)(1). Without a prior conviction like this, § 2252A(b)(1)
authorizes 5 to 20 years in prison for § 2252A(a)(2) violations. Id.
Caldwell argues his sentence is unlawful for four reasons. First, he argues
that the term “relating to” in § 2252A(b)(1) is unconstitutionally vague. Second,
he argues that an Iowa conviction for indecent contact with a child is not an
offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward.” Third, he argues that a jury needed to decide
if the Iowa offense was “relat[ed] to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” Fourth, he argues that his
prior conviction can’t be used to increase his sentence because he pleaded guilty to
the prior offense without admitting guilt. We reject each of these arguments and
affirm Caldwell’s sentence.
I.
Caldwell first claims that § 2252A(b)(1)’s “relating to” language makes the
statute unconstitutionally vague. In the alternative, he argues that the rule of lenity
requires us to construe this ambiguous language in his favor. Both are questions of
first impression for this Court.
2
Case: 15-14422 Date Filed: 07/05/2016 Page: 3 of 11
The Supreme Court has explained that the government violates the Fifth
Amendment “by taking away someone’s life, liberty, or property under a criminal
law so vague that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary enforcement.” Johnson v.
United States, __ U.S. __, __, 135 S. Ct. 2551, 2556 (2015). “These principles
apply not only to statutes defining elements of crimes, but also to statutes fixing
sentences.” Id. at 2257; see also United States v. Batchelder, 442 U.S. 114, 123,
99 S. Ct. 2198, 2204 (1979) (“[V]ague sentencing provisions may pose
constitutional questions if they do not state with sufficient clarity the consequences
of violating a given criminal statute.”). Also, these principles apply even if a
vague sentencing statute can be read to cover some conduct. See Johnson, 135 S.
Ct. at 2560–61 (“[A]lthough statements in some of our opinions could be read to
suggest otherwise, our holdings squarely contradict the theory that a vague
provision is constitutional merely because there is some conduct that clearly falls
within the provision’s grasp.”). Instead, the test for whether the vagueness
doctrine voids a law is whether the law is so incoherent that it either “denies fair
notice to defendants” or “invites arbitrary enforcement by judges.” Id. at 2557.
The rule of lenity creates a related but distinct limitation. This “canon of
strict interpretation of criminal statutes” is a “junior version of the vagueness
doctrine” and “ensures fair warning by so resolving ambiguity in a criminal statute
3
Case: 15-14422 Date Filed: 07/05/2016 Page: 4 of 11
as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S.
259, 266, 117 S. Ct. 1219, 1225 (1997) (quotation omitted). The canon “applies
not only to interpretations of the substantive ambit of criminal prohibitions, but
also to the penalties they impose.” Bifulco v. United States, 447 U.S. 381, 387,
100 S. Ct. 2247, 2252 (1980).
The statute at issue here requires a minimum 15-year prison sentence if a
defendant has “a prior conviction . . . under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward.” 18 U.S.C. § 2252A(b)(1). This language is identical to language
in 18 U.S.C. § 2252(b)(1) that also requires a minimum 15-year prison sentence.
The Supreme Court recently interpreted the identical § 2252(b)(1) language in
Lockhart v. United States, __ U.S. __, 136 S. Ct. 958 (2016), and held that the
term “involving a minor or ward” in “aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward” modifies only “abusive sexual
conduct” rather than all of “aggravated sexual abuse, sexual abuse, or abusive
sexual conduct.” Id. at 961.
Lockhart didn’t address the vagueness doctrine, but the opinion shows why
neither § 2252(b)(1) nor § 2252A(b)(1) are unconstitutionally vague. Lockhart
rejected the argument that § 2252(b)(1) should be construed using the rule of
lenity. Id. at 968. This shows that the Supreme Court saw no reason to doubt that
4
Case: 15-14422 Date Filed: 07/05/2016 Page: 5 of 11
§ 2252(b)(1) “ensures fair warning.” Lanier, 520 U.S. at 266, 117 S. Ct. at 1225
(quotation omitted). The Court interpreted the language in § 2252(b)(1) based on
what it called “a sensible grammatical principle buttressed by the statute’s text and
structure.” Id. Although Lockhart interpreted the phrase “involving a minor or
ward” rather than “relating to,” the opinion shows that the language of
§ 2252(b)(1) and § 2252A(b)(1) can be read and applied in a coherent way. 1 This
means § 2252A(b)(1) isn’t “so vague that it fails to give ordinary people fair notice
of the conduct it punishes.” Johnson, 135 S. Ct. at 2556.
Even without Lockhart, it’s clear that the phrase “relating to” doesn’t make
§ 2252(b)(1) and § 2252A(b)(1) unconstitutionally vague. Caldwell points to
nothing that suggests that those two words in any way compare to the
“indeterminacy of the wide-ranging inquiry required by the” language discussed in
Johnson. Id. at 2557. Nor does he argue that courts have struggled in any way to
make sense of either this phrase or any similar phrase in another context. And he
does not show that either executive or judicial interpretations of this term have
been at all inconsistent, unpredictable, or arbitrary. All he says is that “relating to”
can be read broadly, to cover many state offenses “relating to aggravated sexual
1
Even the two dissenting Justices in Lockhart agreed that § 2252(b)(1) had a coherent
meaning, although they thought a different one. See 136 S. Ct. at 977 (Kagan, J., dissenting).
They added that any ambiguities should be construed using the rule of lenity. See id.
5
Case: 15-14422 Date Filed: 07/05/2016 Page: 6 of 11
abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” This
breadth alone does not make the statute unconstitutionally vague.
II.
Caldwell next argues that his Iowa conviction for indecent contact with a
minor is not an offense “relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” When determining whether a
prior conviction qualifies as a predicate offense for sentencing purposes, courts
apply what is called a “categorical approach.” This means we look only to the
elements of the earlier conviction and compare those elements to the elements of
the offense mentioned in the federal statute. See generally Taylor v. United States,
495 U.S. 575, 110 S. Ct. 2143 (1990). For traditional offenses like burglary, this
comparison is based on the historical, generic definition of the offense. Id. at 598–
602, 110 S. Ct. at 2158-60. For non-traditional offenses like sexual abuse, we
simply interpret the plain language of the statute. See United States v. Ramirez-
Garcia, 646 F.3d 778, 784 (11th Cir. 2011).
We have interpreted the phrase “sexual abuse of minor” to “mean[] a
physical or nonphysical misuse or maltreatment of a minor for a purpose
associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d
1158, 1163 (11th Cir. 2001). This
includes acts that involve physical contact between the perpetrator and
the victim as well as acts that do not. . . . Furthermore, the modifier
6
Case: 15-14422 Date Filed: 07/05/2016 Page: 7 of 11
‘sexual’ does not limit the phrase’s scope to abuse of the physical
variety. Rather than describing the form of the abuse as a ‘sexual’
physical contact, we think the word ‘sexual’ in the phrase ‘sexual
abuse of a minor’ indicates that the perpetrator's intent in committing
the abuse is to seek libidinal gratification.
Id. We have thus held that “sexual abuse of a minor” is not limited “to instances
where the perpetrator is present in front of the minor, where the minor is aware of
the abuse, or where the perpetrator makes contact with the minor.” Ramirez-
Garcia, 646 F.3d at 784.
Also, we have “interpreted the phrase ‘relating to’ broadly in the context of
child exploitation offenses.” United States v. Mathis, 767 F.3d 1264, 1284 (11th
Cir. 2014) (per curiam). The Supreme Court
has also interpreted the phrase “relating to” in an inclusive fashion. In
Morales v. Trans World Airlines, Inc., the Court considered the phrase
in the context of 49 U.S.C. § 1305(a)(1) and determined that it means
“to stand in some relation; to have bearing or concern; to pertain;
refer; to bring into association with or connection with . . . .”
Likewise, although not binding on us, the Ninth Circuit has similarly
interpreted the statute in question, stating that Ҥ 2252A does not
simply mandate a sentencing enhancement for individuals convicted
of state offenses equivalent to sexual abuse. Rather, it mandates the
enhancement for any state offense that stands in some relation, bears
upon, or is associated with that generic offense.”
United States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012) (citations
omitted). McGarity held that § 2252A(b)(1) covered a Georgia state conviction for
“enticing a minor for indecent purposes,” even though the “conviction was not
predicated on touching or attempting to touch a minor” and was instead “founded
7
Case: 15-14422 Date Filed: 07/05/2016 Page: 8 of 11
upon [the defendant’s] discussions of illicit sexual acts with a minor.” Id. at 1261–
62. We held that these “actions necessarily related to ‘aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor.’” Id. at 1262.
Here, Caldwell was convicted of violating a statute that made it a crime to
commit[] any of the following acts with a child, not the person’s
spouse, with or without the child’s consent, for the purpose of
arousing or satisfying the sexual desires of either of them:
1. Fondle or touch the inner thigh, groin, buttock, anus, or
breast of the child;
2. Touch the clothing covering the immediate area of the inner
thigh, groin, buttock, anus, or breast of the child;
3. Solicit or permit a child to fondle or touch the inner thigh,
groin, buttock, anus, or breast of the person;
4. Solicit a child to engage in any act prohibited under section
709.8, subsection 1, 2, or 4.[2]
Iowa Code § 709.12 (1999). The district court ruled that “Caldwell’s conviction
under the Iowa Statute 709.12 is a qualifying predicate offense under
2252A(b)(1).” Caldwell says this was wrong because § 709.12 does not divide
into alternative crimes in the way required by Taylor v. United States, 495 U.S.
575, 110 S. Ct. 2143 (1990), and Descamps v. United States, 570 U.S. ___, 133 S.
2
This section made it a crime
to perform any of the following acts with a child with or without the
child’s consent unless married to each other, for the purpose of arousing or
satisfying the sexual desires of either of them:
1. Fondle or touch the pubes or genitals of a child.
2. Permit or cause a child to fondle or touch the person’s genitals or
pubes.
...
4. Inflict pain or discomfort upon a child or permit a child to inflict pain
or discomfort on the person.
Iowa Code § 709.8 (1999).
8
Case: 15-14422 Date Filed: 07/05/2016 Page: 9 of 11
Ct. 2276 (2013). But even if Caldwell is correct about the Iowa statute’s
divisibility, it doesn’t make a difference here. The entirety of § 709.12 defines an
offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor.” 18 U.S.C. § 2252A(b)(1). The first two subsections
criminalize direct sexual abuse, and the second two subsections criminalize the
solicitation of such abuse. Each of these subsections thus describes an offense
“relating to . . . sexual abuse or abusive sexual conduct involving a minor,” so §
2252A(b)(1) covers Caldwell’s conviction no matter which subsection of § 709.12
he violated.
Caldwell claims all of § 709.12 is not covered by § 2252A(b)(1) based on
United States v. Pierson, 544 F.3d 933 (8th Cir. 2008), which held that “conviction
under subsections 1 or 2 of § 709.12 would qualify as a prior conviction for
abusive sexual contact” but “conviction under subsections 3 or 4 would not.” Id. at
942. The Eighth Circuit did not explain this distinction. To the extent that court
relied upon the fact that subsections 1 and 2 criminalize direct physical contact and
subsections 3 and 4 criminalize “solicit[ing] or “permit[ting]” the same contact,
our precedent does not allow this distinction. We have held that “sexual abuse of
a minor” is not limited “to instances where the perpetrator is present in front of the
minor, where the minor is aware of the abuse, or where the perpetrator makes
contact with the minor.” Ramirez-Garcia, 646 F.3d at 784. We have also held that
9
Case: 15-14422 Date Filed: 07/05/2016 Page: 10 of 11
a conviction for “enticing a minor for indecent purposes” is “necessarily related to
‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor.’” McGarity, 669 F.3d at 1261–62; see also United States v. Johnson, 451
F.3d 1239, 1243 (11th Cir. 2006) (holding the same for the offense of “performing
a lewd act in front of a minor”). We must apply our precedent here.
III.
Caldwell makes two more arguments about his Iowa conviction, both of
which are squarely foreclosed by precedent. First, Caldwell argues that a jury
needed to decide if his Iowa offense “relat[es] to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” The Supreme Court
has long held that a judge can increase a sentence based on “the fact of a prior
conviction” even if a jury never found that fact. See, e.g., Alleyne v. United
States, 570 U.S. ___, __, 133 S. Ct. 2151, 2160 n.1 (2013). And this Court has
held that judges can decide which state offenses fall under a federal statute’s
reference to prior offenses because this is a question of law. See United States v.
Gibson, 434 F.3d 1234, 1247–48 (11th Cir. 2006). Indeed, Caldwell’s appeal brief
argues that § 2252A(a)(2) covers the Iowa offense “as a matter of law.” Caldwell
cites no precedent requiring a jury to decide this matter of law, and Gibson held
otherwise.
10
Case: 15-14422 Date Filed: 07/05/2016 Page: 11 of 11
Caldwell next argues that his prior conviction can’t be used to increase his
sentence because his guilty plea in Iowa court was based on North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), which held that criminal defendants may
plead guilty to crime while denying guilt. Id. at 38, 91 S. Ct. at 168. We treat
Alford pleas the same as any other guilty pleas for purposes of future sentencing.
See United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014) (per
curiam). So does Iowa law. See State v. Knight, 701 N.W.2d 83, 89 (Iowa 2005).
Ramirez-Gonzalez bars Caldwell’s claim that a conviction based on a Alford plea
can’t serve as the factual basis for increasing his sentence in federal court.3
AFFIRMED.
3
To be clear, Caldwell makes two separate claims about his Alford plea. First, he says
Alford pleas can’t ever serve as the factual basis for a higher sentence. Ramirez-Gonzales says
otherwise. Second, he says courts can’t use Alford pleas to identify the crime of conviction
when the statute of conviction is divisible into multiple crimes. Neither Ramirez-Gonzales nor
any other binding precedent seems to have addressed this second issue. Other courts have held
that the Sixth Amendment forbids this use of Alford pleas. See, e.g., United States v. Alston,
611 F.3d 219, 221 (4th Cir. 2010); United States v. Savage, 542 F.3d 959, 966 (2d Cir. 2008).
Because we conclude that it would make no difference in this case which part of the Iowa statute
Caldwell was convicted under, we do not decide this issue.
11