United States v. James Leonard Landry ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4355
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEONARD LANDRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00171-HCM-DEM-1)
Submitted: April 26, 2018 Decided: May 15, 2018
Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting
United States Attorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Leonard Landry pled guilty, pursuant to a plea agreement, to possession of
images of minors engaging in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(4)(B) (2012). The district court determined that Landry’s 2004 Virginia
conviction for taking indecent liberties with children, in violation of Va. Code Ann.
§ 18.2-370 (2004), qualifies as a crime that involves sexual abuse or abusive sexual
conduct, and therefore imposed a mandatory minimum 10-year sentence pursuant to 18
U.S.C. § 2252(b)(2). On appeal, Landry contends that the district court erred in applying
§ 2252(b)(2) because, he argues, the statute that formed the basis of his state conviction is
divisible, and at least one portion of that statute—Va. Code Ann. §18.2-370(B)—
punishes conduct that does not categorically constitute the generic offense of sexual
abuse of a minor, and no properly-considered documents demonstrate that he was
convicted of a subsection of § 18.2-370 that does categorically involve the sexual abuse
of a minor. We affirm.
“[W]hether the [district] court properly applied a statutory enhancement . . . [is] a
question of law that we review de novo.” United States v. Wynn, 786 F.3d 339, 341 (4th
Cir. 2015). “In determining whether [an] underlying sex offense is comparable to or
more severe than the enumerated federal offense,” this court uses the categorical
approach, comparing “the elements of the underlying offense of conviction—not the
underlying facts—with the elements of the federal offense.” United States v. Cammorto,
859 F.3d 311, 314 (4th Cir. 2017). “The categorical approach requires that courts
conduct a limited review of a prior conviction restricted to consideration of the elements
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of the offense and the fact of conviction.” United States v. Spence, 661 F.3d 194, 198
(4th Cir. 2011).
Defendants are subject to enhanced penalties under § 2252(b)(2) if they possess 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. § 2252(b)(2).
We have previously held “that ‘sexual abuse of a minor’ means the perpetrator’s physical
or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual
gratification.” United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008) (internal
quotation marks omitted).
At the time of Landry’s conviction, § 18.2-370 contained two subsections:
subsection (A) addressed an adult taking or proposing to a child, any of a variety of
explicitly sexual actions regarding the genitalia of a child or his own genitalia in the
presence of a child, or enticing, luring, persuading, or inviting a such child to enter any
place for one of these purposes. Subsection (B) applied to an adult who
knowingly and intentionally receives money, property, or any other
remuneration for allowing, encouraging, or enticing any person under the
age of 18 years to perform in or be a subject of sexually explicit visual
material as defined in § 18.2-374.1 or who knowingly encourages such
person to perform in or be a subject of sexually explicit material . . . .
Va. Code Ann. § 18.2-370(B). The statute further required that any action be undertaken
with “lascivious intent,” which is defined “for purposes of [§ 18.2-370] as a state of mind
that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire
and appetite.” Dietz v. Commonwealth, 804 S.E.2d 309, 315 (Va. 2017) (internal
quotation marks omitted).
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Landry does not contest that the conduct prohibited under subsection (A) qualifies
as sexual abuse of a minor, and we conclude that it does relate to “misuse or
maltreatment of a minor for a purpose associated with sexual gratification.” Diaz-Ibarra,
522 F.3d at 352. As to subsection (B), we have previously examined the contours of
“sexually explicit material” as used by another Virginia statute, § 18.2-374.1(B)(2), when
we reviewed a Virginia state conviction for production of child pornography, which
involved the production or attempted production of “sexually explicit material.” United
States v. Colson, 683 F.3d 507, 510 (4th Cir. 2012). We examined “the ‘most innocent
conduct’ prohibited by” § 18.2-374.1(B)(2)—the production of “lewd exhibitions of
nudity” of a minor—and determined that “the production or attempted production of a
‘lewd exhibition of nudity’ that utilizes a minor as its subject relates to sexual abuse and
abusive sexual conduct involving a minor.” Id. at 510-11.
Section § 18.2-370(B) differs slightly from the statute at issue in Colson, in that it
criminalizes allowing, encouraging, or enticing minors to participate in the production of
sexually explicit material, whereas § 18.2-374.1(B)(2) prohibits the production of such
material. But the difference is irrelevant for the purposes of 18 U.S.C. § 2252(b)(2).
Encouraging a minor to participate in the production of sexually explicit material relates
as much to the “nonphysical misuse or maltreatment of a minor for a purpose associated
with sexual gratification” as does the attempted production of such material.
Diaz-Ibarra, 522 F.3d at 353.
Landry proposes a number of hypothetical scenarios that, he posits, demonstrate
that § 18.2-370(B) penalizes conduct that does not qualify as sexual abuse or abusive
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sexual conduct. However, “[t]his Court has made clear that its focus on the minimum
conduct required for conviction does not give litigants or courts a green light to conjure
up fanciful fact patterns in an attempt to find some” conduct that falls outside of the
contours of the generic federal crime. United States v. Covington, 880 F.3d 129, 135 (4th
Cir. 2018) (brackets and internal quotation marks omitted). The scenarios that Landry
proposes are far-fetched, prosecutions under such circumstances have never occurred in
Virginia, and such prosecutions are unlikely ever to occur. See Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“To show that realistic probability, an
offender . . . must at least point to his own case or other cases in which the state courts in
fact did apply the statute in the . . . manner for which he argues.”).
Because all conduct proscribed by Va. Code Ann. § 18.2-370 categorically
involves abusive sexual conduct, the district court did not err in applying the mandatory
minimum sentence mandated by 18 U.S.C. § 2252(b)(2). Accordingly, we affirm the
district court’s judgment. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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