United States v. Mills , 224 F. App'x 232 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS M. MILLS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-04-136)
Submitted: April 4, 2007 Decided: April 17, 2007
Before WILKINS, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Anthony F. Anderson, Melissa W. Friedman, Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, C. Patrick
Hogeboom, III, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis M. Mills appeals the sentence imposed by the district
court following Mills’ plea of guilty to knowingly receiving child
pornography that had been shipped in interstate commerce, see 18
U.S.C.A. § 2252A(a)(2)(A) (West Supp. 2006). Finding no error, we
affirm.
I.
In 2003, the Bureau of Immigration and Customs Enforcement, in
coordination with federal, state, and local law enforcement
officials, engaged in “Operation Falcon,” an investigation intended
to identify and arrest individuals producing, acquiring, and
distributing child pornography over the Internet. During the
course of the investigation, Mills was identified as a customer of
a business that engaged in the distribution of child pornography.
Mills was sent an advertisement purporting to be from “4-Reel
Videos,” a fictitious company. In response to the advertisement,
Mills indicated that he was interested in purchasing films
containing images of “pre-teen boys and young teen boys.” J.A. 191
(internal quotation marks omitted). Mills was then mailed a
catalogue that contained explicit descriptions of such films,
including the participants’ ages and an explicit statement that the
videos contained actual children, not adults portraying children.
Mills ordered two videos and was arrested after a controlled
delivery of the items to his home.
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At the time of his federal conviction, Mills had previously
been convicted under state law of sexual offenses involving minors:
(1) In January 1985, Mills pleaded guilty to three counts of
aggravated sexual battery, see Va. Code Ann. § 18.2-67.3(LexisNexis Supp. 2006); (2) in February 1985, Mills pleaded guilty
to two counts of aggravated sexual battery, see id.; and (3) in
August 1990, Mills pleaded guilty to yet another count of
aggravated sexual battery, see id. Based on these convictions,
the district court at sentencing determined that Mills was subject
to 18 U.S.C.A. § 2252A(b)(1) (West Supp. 2006), which requires a
statutory minimum sentence of 15 years when the 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.” Accordingly, the court imposed a sentence of
180 months imprisonment.
II.
Mills argues that the imposition of the 15-year minimum
sentence was error because (1) his prior convictions were not for
“sexual abuse” as defined by federal law, and (2) the convictions
are too remote in time to be considered for sentencing purposes.
Both of these are legal contentions subject to de novo review. See
United States v. Hecht, 470 F.3d 177, 179 (4th Cir. 2006).
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A.
Mills first contends that the district court erred in
considering his prior convictions as predicate convictions for
purposes of applying § 2252A(b)(1). Relying on Shepard v. United
States, 544 U.S. 13 (2005), Mills maintains that the district court
was precluded from considering anything other than the statutory
elements of the state offenses. See Shepard, 544 U.S. at 26(holding that in determining whether the defendant has a prior
conviction for “burglary” under the Armed Career Criminal Act, the
federal court may look only to “the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record
of this information”); see also Taylor v. United States, 495 U.S.
575, 602 (1990) (holding that in determining whether a prior
conviction is a “violent felony,” a court generally must “look
only to the fact of conviction and the statutory definition of the
prior offense”). According to Mills, because the federal statutory
definition of “sexual abuse” is not congruent with the Virginia
statutory definition of that term, his prior state convictions
cannot be considered in determining whether to apply the mandatory
minimum.
We reject Mills’ reasoning. Section 2252A(b)(1) provides for
application of the mandatory minimum if the defendant has
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previously been convicted of any state law crime “relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor.” 18 U.S.C.A. § 2252A(b)(1) (emphasis added).
This language is notably broader than that of the Armed Career
Criminal Act (ACCA), at issue in Shepard and Taylor, which provides
for a sentencing enhancement only if the defendant is convicted of
a felony that “has as an element the use ... of physical force” or
“is burglary, arson, or extortion, involves the use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.A. § 924(e)(2)(B)
(West 2000) (emphasis added). Whereas the plain language of the
ACCA requires a narrow inquiry, the plain language of § 2252A(b)(1)
clearly permits a broader inquiry--and, contrary to Mills’
assertion, not one tied to federal law definitions--into whether a
prior offense “relates to” sexual abuse of a minor. See United
States v. McCutchen, 419 F.3d 1122, 1126-27 (10th Cir. 2005)
(reaching this conclusion with respect to identical language of 18
U.S.C.A. § 2252(b)(2) (West Supp. 2006)); accord Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383-84 (1992) (noting that the
ordinary meaning of the phrase “relating to” “is a broad one”). We
therefore conclude that Shepard and Taylor did not preclude the
ruling of the district court that Mills had a predicate conviction
for purposes of § 2252A(b)(1).
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B.
Mills next contends that the district court should not have
considered his prior convictions because each of them is more than
ten years old. Although Mills concedes that the statutory language
says nothing about the age of prior convictions, he urges us to
“look to other sources”--specifically, the United States Sentencing
Guidelines--“for guidance.” Br. of Appellant Dennis M. Mills, at
13. We decline Mills’ invitation. Because the statutory language
is plain, and contains no limitation on the age of the predicate
conviction, the district court did not err in this respect. See
Coleman v. Cmty. Trust Bank (In re Coleman), 426 F.3d 719, 725 (4th
Cir. 2005) (stating that if the statutory language is plain, “the
sole function of the court is to enforce the statute according to
its terms” (internal quotation marks & alteration omitted)).
III.
For the reasons set forth above, we affirm Mills’ sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and oral argument would not aid the decisional process.
AFFIRMED
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