United States v. Darin Kaufmann ( 2019 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 18-2742
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    DARIN KAUFMANN,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Indiana, Fort Wayne Division.
    No. 15-cr-59 — Theresa L. Springmann, Chief Judge.
    ____________________
    ARGUED SEPTEMBER 6, 2019 — DECIDED OCTOBER 9, 2019
    ____________________
    Before EASTERBROOK, KANNE, and BRENNAN, Circuit
    Judges.
    KANNE, Circuit Judge. For certain federal crimes involving
    sexual exploitation of minors, a federal statute—
    18 U.S.C. § 2252(b)—increases the mandatory minimum sen-
    tence when the defendant has a prior conviction “under the
    laws of any State relating to,” among other things, “posses-
    sion … of child pornography.” Darin Kaufmann pled guilty
    to two federal crimes involving sexual exploitation of a minor.
    2                                                  No. 18-2742
    The district court imposed an enhanced mandatory minimum
    sentence under § 2252(b) because Kaufmann has prior convic-
    tions for possession of child pornography under an Indiana
    statute. Kaufmann challenged his sentence, arguing that his
    prior state convictions do not support a § 2252(b) enhance-
    ment because the Indiana statute of his convictions criminal-
    ized conduct broader than the federal version of possession of
    child pornography.
    In United States v. Kraemer, we held that a § 2252(b) en-
    hancement does not require the state statute of conviction to
    be the same as or narrower than the analogous federal law.
    
    933 F.3d 675
    (7th Cir. 2019). Rather, the words “relating to” in
    § 2252(b) expand the range of enhancement-triggering con-
    victions. 
    Id. at 679–83.
    Under Kraemer, Kaufmann’s Indiana
    convictions are ones “relating to … possession … of child por-
    nography” and thus support the mandatory minimum en-
    hancement. Adhering to our decision in Kraemer, we affirm
    Kaufmann’s sentence.
    I. BACKGROUND
    Kaufmann arranged to care for an elderly man in ex-
    change for room and board. The living arrangement ended
    when police arrested Kaufmann for stealing money from the
    man. As the man’s family packed Kaufmann’s belongings,
    they discovered child pornography. A grand jury indicted
    Kaufmann on charges of receiving and possessing materials
    involving sexual exploitation of a minor, in violation of
    18 U.S.C. § 2252(a)(2) and (a)(4), and Kaufmann pled guilty to
    both offenses without a plea agreement.
    The mandatory minimum sentence for this pair of convic-
    tions is enhanced to fifteen years if the defendant has a prior
    No. 18-2742                                                              3
    conviction “under the laws of any State relating to aggravated
    sexual abuse, sexual abuse, or abusive sexual conduct involv-
    ing a minor or ward, or the production, possession, receipt,
    mailing, sale, distribution, shipment, or transportation of child
    pornography.” 18 U.S.C. § 2252(b)(1) (emphases added).1
    The district court concluded that this enhancement applies
    because Kaufmann has prior convictions for possession of
    child pornography in violation of Indiana Code
    § 35-42-4-4 (2007). The court accordingly sentenced Kauf-
    mann to an aggregate fifteen-year term of imprisonment, fol-
    lowed by five years of supervised release. Kaufmann ap-
    pealed that sentence, contesting the district court’s determi-
    nation that his Indiana convictions trigger the enhancements
    under § 2252(b).
    II. ANALYSIS
    We review de novo a district court’s determination that a
    state conviction supports a sentencing enhancement under
    § 2252(b). 
    Kraemer, 933 F.3d at 679
    .
    Kaufmann argues that this determination calls for the
    “categorical” approach of Taylor v. United States, 
    495 U.S. 575
    1 Both subsection (b)(1) and subsection (b)(2) enhance the mandatory
    minimum sentence for certain crimes involving sexual exploitation of mi-
    nors. Subsection (b)(1) imposes a fifteen-year minimum for some crimes
    (including Kaufmann’s conviction under § 2252(a)(2)) while subsection
    (b)(2) imposes a ten-year minimum for other crimes (including Kauf-
    mann’s conviction under § 2252(a)(4)). For each subsection, the enhance-
    ment may be triggered by a prior conviction “under the laws of any State
    relating to aggravated sexual abuse, sexual abuse, or abusive sexual con-
    duct involving a minor or ward, or the production, possession, receipt,
    mailing, sale, distribution, shipment, or transportation of child pornogra-
    phy.” 18 U.S.C. § 2252(b)(1), (2).
    4                                                      No. 18-2742
    (1990). Under that approach, we compare the elements of the
    state offense to the elements of the comparable federal of-
    fense. 
    Kraemer, 933 F.3d at 679
    . Only if the state offense is the
    same as or narrower than the federal offense does the state
    conviction trigger an enhancement. 
    Id. Kaufmann contends
    that the “relating to” language in § 2252(b) does not broaden
    the scope of state offenses that qualify as predicates for an en-
    hancement.
    Applying this categorical approach to Kaufmann’s Indi-
    ana convictions, Kaufmann argues that the underlying Indi-
    ana statute criminalizing possession of child pornography is
    broader than federal possession of child pornography and
    therefore cannot support an enhancement under § 2252(b).
    A federal statute supplies the applicable definition of child
    pornography:
    any visual depiction, including any photograph, film,
    video, picture, or computer or computer-generated image
    or picture, whether made or produced by electronic, me-
    chanical, or other means, of sexually explicit conduct,
    where—
    (A) the production of such visual depiction involves the use
    of a minor engaging in sexually explicit conduct;
    (B) such visual depiction is a digital image, computer im-
    age, or computer-generated image that is, or is indistin-
    guishable from, that of a minor engaging in sexually ex-
    plicit conduct; or
    (C) such visual depiction has been created, adapted, or
    modified to appear that an identifiable minor is engag-
    ing in sexually explicit conduct.
    18 U.S.C. § 2256(8).
    No. 18-2742                                                           5
    Kaufmann argues that the Indiana statute captures not
    only possession of materials falling within this definition of
    “child pornography,” but also possession of materials falling
    outside it. He specifically contends that the Indiana statute en-
    compasses possession of images that do not depict an actual
    minor.
    Kaufmann is right that the Indiana statute does not repli-
    cate the federal definition of child pornography. But it
    demonstrates at least substantial overlap in content. The state
    statute reads:
    A person who knowingly or intentionally possesses:
    (1)   a picture;
    (2)   a drawing;
    (3)   a photograph;
    (4)   a negative image;
    (5)   undeveloped film;
    (6)   a motion picture;
    (7)   a videotape;
    (8)   a digitized image; or
    (9)   any pictorial representation;
    that depicts or describes sexual conduct by a child who the
    person knows is less than sixteen (16) years of age or who
    appears to be less than sixteen (16) years of age, and that
    lacks serious literary, artistic, political, or scientific value
    commits possession of child pornography, a Class D felony.
    I.C. § 35-42-4-4(c) (2007).
    Setting aside all overlapping content, Kaufmann urges us
    to engage in an element-by-element comparison. In other
    words, he argues that the categorical approach ought to apply
    to § 2252(b) and, accordingly, that the provision’s “relating
    6                                                    No. 18-2742
    to” language does not broaden the scope of enhancement-
    triggering offenses.
    Kaufmann’s position runs into a critical problem: his ar-
    guments are incompatible with our decision in United States
    v. Kraemer—a case we decided after the parties submitted
    their briefs here.
    In Kraemer, we held that the categorical approach does not
    apply to § 2252(b)(2) because the “relating to” language in
    that provision broadens the state criminal convictions that
    support an 
    enhancement. 933 F.3d at 683
    . We determined that
    Kraemer’s conviction for first-degree sexual assault under a
    Wisconsin law was a prior conviction “‘relating to’ abusive
    sexual conduct involving a minor.” 
    Id. at 684
    (quoting
    § 2252(b)(2)). Even though the state law swept more broadly
    than the federal law—by setting the victim’s maximum age at
    thirteen years while the federal law set the victim’s maximum
    age at twelve years—the state conviction still triggered the
    sentencing enhancement. 
    Id. In reaching
    this conclusion, we reasoned that “relating to”
    in § 2252(b)(2) “retains its usual broad meaning.” 
    Id. at 682
    (contrasting the usual broad meaning of “relating to” with the
    limited meaning of “relating to” in the Immigration and Na-
    tionality Act’s removal provision). That is, it means “to stand
    in some relation; to have bearing or concern; to pertain; refer;
    to bring into association with or connection with.” 
    Id. at 679
    (quoting Morales v. Trans World Airlines, Inc., 
    504 U.S. 374
    , 383
    (1992)). We further explained that Congress typically uses this
    phrase “to reach any subject that has ‘a connection with, or
    reference to,’ the topics the statute enumerates.” 
    Id. (quoting Coventry
    Health Care of Mo., Inc. v. Nevils, 
    137 S. Ct. 1190
    , 1197
    (2017)).
    No. 18-2742                                                    7
    As in Kraemer, the state statute of conviction here indisput-
    ably bears a connection to a topic enumerated in § 2252(b). In-
    deed, the Indiana statute addresses the same harm—sexual
    exploitation of minors—that the enhancement provision tar-
    gets. And the state statute addresses that harm by criminaliz-
    ing conduct that federal law deems possession of child por-
    nography: knowing possession of images depicting sexual
    conduct by actual minors. There is no doubt, then, that under
    Kraemer, Kaufmann’s convictions under Indiana Code
    § 35-42-4-4 are ones “relating to … possession … of child por-
    nography.”
    Kaufmann does not argue that the Indiana statute bears no
    connection to, or falls outside the “heartland” of, federal pos-
    session of child pornography. 
    Kraemer, 933 F.3d at 684
    . In-
    stead, he asserts that Kraemer was wrongly decided and
    presses for the categorical approach.
    Regardless whether Kaufmann’s Indiana convictions
    would trigger an enhancement under the categorical ap-
    proach, his prior convictions support an enhancement under
    Kraemer. And we adhere to our Kraemer decision today. Kauf-
    mann’s state convictions thus qualify as predicates for the en-
    hanced mandatory minimum sentence, and we reject Kauf-
    mann’s challenge.
    III. CONCLUSION
    Following our decision in Kraemer, Kaufmann’s prior state
    convictions trigger the sentencing enhancements of § 2252(b).
    The district court’s sentencing decision based on the en-
    hanced fifteen-year mandatory minimum is AFFIRMED.
    

Document Info

Docket Number: 18-2742

Judges: Kanne

Filed Date: 10/9/2019

Precedential Status: Precedential

Modified Date: 10/9/2019