USCA11 Case: 22-11039 Document: 41-1 Date Filed: 04/12/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11039
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADLEY DIEFFENBACHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00504-MSS-CPT-1
____________________
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2 Opinion of the Court 22-11039
Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Bradley Dieffenbacher appeals from his sentence of 444
months’ imprisonment for two counts of enticing a minor to en-
gage in sexual activity, two counts of enticing a minor for the pur-
pose of producing child pornography, and one count of commit-
ting a felony involving a minor while being required to register as
a sex offender. On appeal, he argues that the district court erred in
holding that his prior state conviction for attempted use of a child
in a sexual performance under New York Penal Law §§ 110.00 and
263.05 qualified as a conviction relating to the sexual abuse of a mi-
nor, which triggered
18 U.S.C. § 2251(e)’s 25-year mandatory-min-
imum statutory enhancement. After careful review, we affirm.
We ordinarily review de novo the district court’s determi-
nation that a prior conviction triggers a statutory sentencing en-
hancement. United States v. Miller,
819 F.3d 1314, 1316 (11th Cir.
2016). However, we are not required to vacate a sentence and re-
mand if the district court would have likely sentenced the defend-
ant in the same way without the error. United States v. Kapordelis,
569 F.3d 1291, 1314 (11th Cir. 2009). Additionally, following the
Supreme Court’s decision in United States v. Booker,
543 U.S. 220,
226–27 (2005), the Sentencing Guidelines are no longer mandatory.
In deciding whether a defendant’s prior conviction qualifies
as a predicate offense for a sentencing enhancement, federal courts
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22-11039 Opinion of the Court 3
usually apply the “categorical approach,” meaning we look only to
the elements of the statute under which the defendant was con-
victed and not at the facts underlying the prior conviction. Mathis
v. United States,
579 U.S. 500, 504, 512 (2016). We then compare
the statute’s elements to the generic offenses listed in the federal
sentencing-enhancement statute.
Id. at 504–05. If a generic offense
is non-traditional, i.e., a crime not developed in the common law,
we define it using its “ordinary, contemporary, and common
meaning.” United States v. Ramirez-Garcia,
646 F.3d 778, 783 (11th
Cir. 2011) (quotation omitted).
Under the categorical approach, a prior conviction is pre-
sumed to have “rested upon nothing more than the least of the acts
criminalized” or the “least culpable conduct.” Donawa v. U.S.
Att’y Gen.,
735 F.3d 1275, 1280, 1283 (11th Cir. 2013) (quotation
omitted). If the elements of the prior offense are either “the same
as, or narrower than, those of the generic offense,” then any con-
viction under the statute qualifies. Descamps v. United States,
570
U.S. 254, 257 (2013). If, however, the elements of the state offense
are broader than those of the generic offense, then courts deter-
mine the statute’s divisibility. Mathis, 579 U.S. at 505. A statute is
indivisible if it “sets out a single . . . set of elements to define a single
crime,” even if it provides for alternative means of committing the
offense. Id. at 504–05. A statute is divisible if it “list[s] elements in
the alternative, . . . defin[ing] multiple crimes.” Id. at 505. We ap-
ply the “modified” categorical approach for divisible statutes,
which allows us to “look[ ] to a limited class of documents (for
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4 Opinion of the Court 22-11039
example, the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a defend-
ant was convicted of.” Id. at 505–06.
Section 2251 of Title 18 of the U.S. Code criminalizes activity
involving the sexual exploitation of minors. A conviction under
§ 2251 ordinarily carries a 15-year minimum term of imprisonment
and a 30-year maximum.
18 U.S.C. § 2251(e). Where, however, a
defendant has “one prior conviction . . . under the laws of any State
relating to [i] aggravated sexual abuse, [ii] sexual abuse, [iii] abusive
sexual contact involving a minor or ward, or [iv] sex trafficking of
children, or [v] the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,”
the mandatory minimum increases to 25 years, and the maximum
penalty increases to 50 years.
Id. (emphases added).
New York’s use-of-a-child-in-a-sexual-performance statute
provides that:
A person is guilty of the use of a child in a sexual per-
formance if knowing the character and content
thereof he employs, authorizes or induces a child less
than seventeen years of age to engage in a sexual per-
formance or being a parent, legal guardian or custo-
dian of such child, he consents to the participation by
such child in a sexual performance.
N.Y. Penal Law § 263.05. Here, “sexual performance” is “any per-
formance or part thereof which . . . includes sexual conduct by a
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22-11039 Opinion of the Court 5
child less than seventeen years of age.”
Id. § 263.00(1). “[P]erfor-
mance” is “any play, motion picture, photograph or dance. Perfor-
mance also means any other visual representation exhibited before
an audience.” Id. § 263.00(4). And, “[s]exual conduct” is “actual or
simulated sexual intercourse, oral sexual conduct, anal sexual con-
duct, sexual bestiality, masturbation, sado-masochistic abuse, or
lewd exhibition of the genitals.” Id. § 263.00(3).
New York courts have interpreted the term “lewd” as “‘char-
acterized by lust, obscene or indecent’ . . . , ‘showing or intended
to excite lust or sexual desire, esp. in an offensive way’ . . . and ‘of-
fensive to accepted standards of decency.’” People v. Pinkoski,
752
N.Y.S.2d 421, 424 (App. Div. 2002) (citing dictionary and thesaurus
definitions). To decide if a “lewd exhibition of the genitals” has
occurred, New York courts consider “the combined effect of the
setting, attire, pose and emphasis on the genitals and whether [the
exhibition] is designed to elicit a sexual response in the viewer.”
People v. Horner,
752 N.Y.S.2d 147, 149–50 (App. Div. 2002). The
actions and intent of the person who uses the child -- rather than
those of the victim child -- are what matters, since “[t]he lewd char-
acter of the [exhibition] and its prurient appeal is not a characteris-
tic of the child [victim], but of the exhibition which the [defendant]
sets up for an audience that consists of himself or likeminded pedo-
philes.”
Id. at 150 (quotation omitted). The child’s genitals need
not be uncovered for the exhibition to qualify as lewd. See
id.
Because sexual abuse crimes were not found at common
law, we give the term “sexual abuse” a plain meaning that
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6 Opinion of the Court 22-11039
comports with common usage. Ramirez-Garcia,
646 F.3d at 783.
Specifically, we’ve defined “sexual abuse of a minor” as “a perpe-
trator’s 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). We have rea-
soned that “‘[m]isuse’ or ‘maltreatment’ are expansive words that
include many different acts” and “focus on the abuser’s purpose,
rather than any apparent harm to the [victim].” Ramirez-Garcia,
646 F.3d at 784 & n.10. Additionally, we’ve held that sentencing
courts should broadly interpret the term “sexual abuse” in as-
sessing whether a prior state conviction qualifies as a predicate of-
fense under § 2551(e), based on the inclusiveness of the phrase “re-
lating to” in the statute. United States v. McGarity,
669 F.3d 1218,
1261–63 (11th Cir. 2012), abrogated on other grounds by Paroline
v. United States,
572 U.S. 434 (2014); see also United States v. Kush-
maul,
984 F.3d 1359, 1365 (11th Cir. 2021).
So, in McGarity, we held that a defendant’s state conviction
for enticing a minor for indecent purposes warranted an increased
sentence under § 2251(e), even though the state conviction did not
require touching or attempted touching of a minor.
669 F.3d
at 1261–63; see also United States v. Johnson,
451 F.3d 1239, 1243
(11th Cir. 2006) (noting that a defendant’s prior state convictions
for “performing a lewd act in front of a minor” qualified as predi-
cate offenses under §§ 2251(e) and 2252A, a related statute provid-
ing enhanced penalties for prior state convictions involving “abu-
sive sexual conduct”); United States v. Maupin,
520 F.3d 1304, 1308
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22-11039 Opinion of the Court 7
(11th Cir. 2008) (per curiam) (holding that a nolo contendere plea
to state charges for possession of child pornography constituted a
prior state conviction within the meaning of § 2252A(b)(1) and (2)).
It is a “central tenet of interpretation” that “a statute is to be
considered in all its parts when construing any one of them.” Lex-
econ Inc. v. Milberg Weis Bershad Hynes & Lerach,
523 U.S. 26, 36
(1998). Further, when a legislature uses one word in part of a stat-
ute and a different word in another part, courts should presume
that the legislature did so intentionally. See McCarthan v. Dir. of
Goodwill Indus. Suncoast, Inc.,
851 F.3d 1076, 1089 (11th Cir. 2017)
(en banc) (noting that, “[w]hen Congress uses ‘different language
in similar sections,’ we should give those words different mean-
ings” (citation omitted)).
Here, the district court did not err in finding that Dieffen-
bacher’s conviction for attempted use of a child in a sexual perfor-
mance under
N.Y. Penal Law § 263.05 qualified as a state convic-
tion relating to the sexual abuse of a minor for purposes of
§ 2551(e). Dieffenbacher argues that -- regardless of whether
N.Y.
Penal Law § 263.05 is divisible 1 -- the least-culpable conduct crimi-
nalized under the statute would be a 16-year-old’s “permitting”
1 We agree that we need not decide whether the statute is divisible. See Daye
v. U.S. Att’y Gen.,
38 F.4th 1355, 1361 (11th Cir. 2022), cert. denied sub nom.
Daye v. Garland,
143 S. Ct. 569 (2023) (assuming without deciding that the
statute is not divisible and applying the categorical approach); Gelin v. U.S.
Att’y Gen.,
837 F.3d 1236, 1242 (11th Cir. 2016) (assuming without deciding
that the statute is not divisible and applying the categorical approach).
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8 Opinion of the Court 22-11039
another 16-year-old to dance privately in a sexually suggestive way
that emphasizes his or her covered genitals. In this “consensual”
circumstance, says Dieffenbacher, neither teen misuses or mal-
treats the other. Donawa,
735 F.3d at 1280, 1283.
However, as we’ve noted, § 263.05 requires proof that a per-
son “employ[ed], authorize[d] or induce[d]” a minor to participate
in the sexual performance.
N.Y. Penal Law § 263.05. The plain
meaning of each of these terms at the time § 263.05 became law
implies a degree of control by one individual over another. Indeed,
at the time of § 263.05’s enactment in 1977, Webster’s New Colle-
giate Dictionary (8th ed. 1976) (“Webster’s”), defined “employ” as
“to make use of; to occupy (as time) advantageously; to use or en-
gage the services of; to provide with a job that pays wages or a sal-
ary.” It defined “authorize” as “to invest, esp. with legal authority;
to establish by or as if by authority.” Id. It defined “induce” as “to
lead on, move by persuasion or influence; to call forth or bring
about by influence or stimulation.” Id. The same version of the
dictionary defined “consent” as “compliance in or approval of what
is done or proposed by another; agreement as to action or opinion”
and “permit” as “to consent to expressly or formally; to give leave;
to make possible.” Id.
Applying these definitions here, we conclude that an individ-
ual cannot “employ, authorize or induce” another person if that
individual does not have some degree of control or authority over
the other. In other words, if two minors are equally situated, the
statute would not be violated when one minor “permitted” the
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22-11039 Opinion of the Court 9
other to participate in a sexual performance, because the first mi-
nor would not be employing, authorizing, or inducing the other.
But, by contrast, if one minor had some degree of control over the
other, the minor employing, authorizing, or inducing the other mi-
nor would be misusing or maltreating a minor for libidinal gratifi-
cation under the statute, and, thus, the offense would fit within the
generic federal definition of “sexual abuse.” Descamps,
570 U.S. at
257; Padilla-Reyes,
247 F.3d at 1163.
This interpretation of the terms “employ,” “authorize,” and
“induce” is supported by the fact that the second part of the statute
is phrased differently. See Lexecon,
523 U.S. at 36; McCarthan,
851
F.3d at 1089. While the first part of the statute uses these three
terms, which imply that some degree of control or authority is
needed, the second part of the statute applies to a “parent, legal
guardian or custodian of such child . . . [who] consents to the par-
ticipation by such child in a sexual performance.”
N.Y. Penal Law
§ 263.05. In contrast to “employ,” “authorize,” and “induce,” Web-
ster’s definition of “consent” is more similar to “permits,” which is
defined in part as “to consent,” and is distinguishable from the for-
mer three terms in that “consent” does not imply that an individual
must exert some degree of power or authority over another.
Moreover, the Second Circuit has held that “any conviction
under [New York Penal Law § 263.05] categorically constitutes
‘sexual abuse of a minor’ under
8 U.S.C. § 1101(a)(43)(A),” which is
the immigration statute that defines “aggravated felony” for pur-
poses of removal. See Oouch v. U.S. Dep’t of Homeland Sec., 633
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10 Opinion of the Court 22-
11039
F.3d 119, 126 (2d Cir. 2011). Our decision here is wholly consistent
with the Second Circuit’s, as well as our Court’s broad interpreta-
tion of the words “relating to” found in
18 U.S.C. § 2251(e), and
weighs in favor of holding that the district court did not err in find-
ing that Dieffenbacher’s § 263.05 conviction qualified as a state con-
viction relating to the sexual abuse of a minor. McGarity,
669 F.3d
at 1261–63. So, even if the statute does not require a perpetrator to
show authority over a minor, an exact categorical match is not nec-
essary in this context because any conviction under the New York
statute necessarily “relat[es] to . . . sexual abuse.”
18 U.S.C. §
2251(e).
For these reasons, the district court did not err in determin-
ing that Dieffenbacher qualified for § 2251(e)’s one-prior-convic-
tion enhanced-penalty provision. But in any event, the record
demonstrates that the district court would have likely imposed the
same 444-month sentence, even without the application of the
§2251(e) enhancement. Kapordelis,
569 F.3d at 1314. This is be-
cause applying the 25-year mandatory-minimum statutory en-
hancement at § 2251(e) did not affect the lower-end of Dieffen-
bacher’s guideline range for Counts 1 through 4 of his conviction,
which remained at 324 months. As the record reflects, Dieffen-
bacher was sentenced at the low end of the guideline range for
Counts 1 through 4, in addition to the mandatory consecutive 120-
month term of imprisonment for Count 5. Further, the district
court already had the discretion to impose a downward variance
from the advisory guideline range, but chose not to do so. See
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22-11039 Opinion of the Court 11
Booker, 543 U.S. at 225–26. Accordingly, any error committed by
the district court in applying the 25-year mandatory-minimum stat-
utory enhancement at § 2251(e) was harmless, and we affirm Dief-
fenbacher’s sentence.
AFFIRMED.
