United States v. Donald Louis Weis ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2996
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*
United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the Southern
* District of Iowa.
v. *
*
Donald Louis Weis, *
*
Defendant-Appellant. *
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Submitted: March 14, 2007
Filed: May 17, 2007 (corrected May 25, 2007)
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Before MELLOY, SMITH, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Donald Louis Weis pleaded guilty to receiving child pornography, in violation
of 18 U.S.C. § 2252(a)(2). The district court1 determined that Weis’s prior conviction
for assault with intent to commit sexual abuse triggered the statutory mandatory
minimum provisions of 18 U.S.C. § 2252(b)(1). Accordingly, the district court
sentenced Weis to the enhanced mandatory minimum term of incarceration: fifteen
years. Weis appeals, arguing that his prior conviction is not a proper predicate felony
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
pursuant to § 2252(b)(1), and that his sentence of fifteen years violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. For the reasons set
forth below, we affirm the judgment of the district court.
I. BACKGROUND
We rely primarily upon the presentence report (PSR) prepared by the United
States Probation Office for the relevant background. Weis did not object to any
factual information contained in the PSR. See United States v. Wintermute, 443 F.3d
993, 1005 (8th Cir. 2006) (noting the court can accept as true any facts contained in
the PSR to which the defendant does not object).
A. Criminal History
On August 29, 1996, Weis pleaded guilty to assault with intent to commit
sexual abuse—no injury, a violation of Iowa Code § 709.11 and an aggravated
misdemeanor. On November 1, 1996, Weis was given a two-year suspended term of
imprisonment and sentenced to two years of probation. As a result of his conviction,
Weis was required to register as a sex offender.
Weis’s state conviction resulted from his sexual relationship with H.N., who
was thirteen years old at the time of their first sexual encounter. Weis was twenty-
four years old. Weis knew H.N.’s age and attempted to keep their relationship a secret
from her parents. Weis and H.N. were sexually involved from September 1995
through April 1996. During that time, they had sexual intercourse an estimated 100
times.
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B. Instant Offense
Weis resumed his relationship with H.N. after she turned eighteen. On April
25, 2004, H.N. called the Coralville, Iowa, Police Department and reported finding
child pornography on a computer she shared with Weis. An officer responded to
Weis’s apartment, and H.N. showed the officer a digital photograph of a naked girl
on the computer.
The Coralville officer then met with Weis. After being provided with Miranda
warnings, Weis admitted he possessed child pornography. Weis consented to a search
of his apartment, and officers seized a computer and related equipment. After
conducting forensic analysis on the computer, officers found 1,334 images consisting
of several different series. Each series featured a different girl, usually about ten years
old. In the first picture, the girl would be dressed, and then, throughout the series of
images, she would disrobe. The end of the series featured the girl completely naked.
The photos focused on the girls’ genitals or pubic area, and the girls were frequently
posed in bedrooms or on beds. The girls were often posed unnaturally to suggest
sexual coyness or a willingness to engage in sexual activity. In addition to the images,
there were numerous empty folders with titles suggesting they previously contained,
or were intended to contain, child pornography.
Federal investigators arrested Weis on September 15, 2004, and seized a second
computer from his residence. Analysis of this computer revealed sixty-six images of
children in various clothed and unclothed poses. In addition to the visual images,
investigators also found fifteen written stories featuring themes of child and infant
rape, sexual abuse, assault, and incest. The victims depicted in the stories were as
young as five months old.
Weis made further admissions regarding child pornography. In statements
given after he received Miranda warnings, he told officers he was sexually aroused by
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looking at photos of girls as young as eight years old and realized he had a problem.
Weis explained he began viewing child pornography after his sexual involvement with
H.N. in 1995 and 1996. Originally, he received photos via the Internet about once
every week or two, but he progressed to downloading about twice a week. He
upgraded from a dial-up Internet connection to a cable modem to be able to better
access child pornography. He installed specialized software designed to obtain as
many images as possible and began downloading images en masse from newsgroups
online. He estimated he had roughly 2,000 images of child pornography on the
computer seized on April 25, 2004.
On April 21, 2005, Weis pleaded guilty to one count of receiving child
pornography. At Weis’s sentencing, the district court concluded Weis’s prior
conviction rendered him subject to enhanced penalties, pursuant to 18 U.S.C.
§ 2252(b)(1). Weis objected to the use of his prior conviction as a predicate felony
under § 2252(b)(1) and argued the sentence provided by the enhanced penalty
provision—a term of incarceration between fifteen and forty years—violated the
Eighth Amendment. The district court rejected Weis’s arguments and imposed a
sentence of fifteen years, the minimum term of incarceration allowed by statute. This
appeal followed.
II. DISCUSSION
On appeal, Weis asserts two challenges to his sentence. First, Weis contends
the district court erred in finding Weis’s prior conviction for assault with intent to
commit sexual abuse—no injury triggered the enhanced statutory mandatory
minimum term of imprisonment set forth in 18 U.S.C. § 2252(b)(1). Second, Weis
alleges the imposition of the fifteen-year mandatory minimum violates the Eighth
Amendment prohibition against cruel and unusual punishment. Specifically, Weis
argues the fifteen-year sentence is grossly disproportionate to his offense. As
discussed below, we conclude these arguments are without merit.
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We apply de novo review to both of Weis’s claims of error. United States v.
Bach, 400 F.3d 622, 627 (8th Cir. 2005) (noting that constitutional claims and federal
issues requiring statutory interpretation both receive de novo review).
A. Predicate Offense
Weis contends his prior conviction for assault with intent to commit sexual
abuse—no injury is not a qualifying predicate offense under the enhanced sentencing
provision of § 2252(b)(1) because it is not a conviction “relating to . . . abusive sexual
conduct involving a minor.” Weis asserts his prior conviction does not qualify
because 1) the age of the victim is not an element of the offense, and 2) actual harm
is not an element of the offense. We disagree.
Section 2252(b)(1) states, in pertinent part:
Whoever violates . . . subsection (a) shall be . . . imprisoned not less than
5 years and not more than 20 years, but if such person has a prior
conviction . . . under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor . . .
such person shall be . . . imprisoned for not less than 15 years nor more
than 40 years.
§ 2252(b)(1). Unlike other sentencing enhancement provisions that specify a prior
conviction must contain a certain element, § 2252(b)(1) contains no explicit reference
to elements. Cf. 18 U.S.C. § 924(e)(2)(B) (defining a violent felony triggering
enhanced penalties under the Armed Career Criminal Act as a specifically enumerated
crime or one having “as an element the use . . . of physical force”).
Weis’s argument assumes the elements of a prior conviction alone determine
whether an offense triggers the enhanced penalties of § 2252(b)(1). We have
previously rejected an elements-only approach to interpreting the applicable
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sentencing enhancement provision. See United States v. Trogdon, 339 F.3d 620, 621
(8th Cir. 2003) (construing § 2252A(b)(1), which uses language identical to that in §
2252(b)(1), and explaining that a court looks to the statute under which a defendant
was previously convicted and then to the facts underlying the offense to determine
whether a prior conviction triggers the enhanced penalties).2 The question is whether
an offense is one “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor,” not whether any specific element is present. Accord
United States v. Mills, No. 05-5233, 2007 WL 1140329, at *2 (4th Cir. April 17,
2007) (concluding § 2252A(b)(1) permits inquiry beyond the elements of the prior
offense in determining whether enhanced penalties apply); McCutchen, 419 F.3d at
1127 (rejecting an elements-only approach to § 2252(b)(2)). For example, in Trogdon
we upheld the imposition of enhanced penalties pursuant to § 2252A(b)(1) based upon
a defendant’s prior conviction for sexual misconduct in the first degree, an offense
that did not include the victim’s age as an element, because the offense related to
sexual abuse and the charging document indicated the victim was a minor. Trogdon,
339 F.3d at 621.
2
To the extent Trogdon provides for an unlimited examination of the facts
underlying a prior conviction, it has been abrogated by Shepard v. United States, 544
U.S. 13, 26 (2005). Shepard considered what materials a court could rely upon in
determining whether a defendant’s prior conviction after a guilty plea qualified as a
“generic burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).
The principles articulated in Shepard limit the sources a court can consult in
considering the nature of a prior conviction to facts included in 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.” Shepard, 544 U.S. at 26. Trogdon’s rejection
of the elements-only approach to the sentencing enhancement provision in
§ 2252A(b)(1) was not undermined by Shepard and remains applicable “so long as the
district court limits itself to the documents outlined in Shepard” when considering a
prior conviction. United States v. McCutchen, 419 F.3d 1122, 1128 (10th Cir. 2005)
(applying Shepard to § 2252(b)(2), a sentencing enhancement provision using the
same language as § 2252(b)(1)).
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Applying this analysis to Weis’s prior conviction, we agree with the district
court that the enhanced penalties apply. Weis’s prior conviction is for assault with
intent to commit sexual abuse—no injury, a violation of Iowa Code § 709.11. Iowa
Code § 709.11 states, in pertinent part: “Any person who commits an assault . . . with
the intent to commit sexual abuse is guilty of . . . an aggravated misdemeanor if no
injury results.” The trial information to which Weis pleaded guilty specified the
manner in which Weis violated § 709.11, stating that between September 1995 and
April 1996 he “touch[ed], with the intent to have sexual intercourse, another, to wit:
H.J.N, d.o.b. 12/23/81.” Here, as in Trogdon, the age of the victim was not an element
of the offense, but the victim’s age was specifically alleged in the charging document.
The date of birth listed in the trial information clearly identifies Weis’s victim as a
minor; she was thirteen and fourteen years old during the duration of the offense.
Thus, Weis’s prior conviction “involv[ed] a minor.”
Weis’s prior conviction is also one “relating to . . . abusive sexual conduct,”
whether or not the statute under which he was convicted required actual harm. “We
must assume that Congress chose the words ‘relating to’ for a purpose.” United States
v. Hubbard, 480 F.3d 341, 347 (5th Cir. 2007) (construing the penalty enhancement
language in § 2252A). The phrase “relating to” carries a “broad” “ordinary meaning,”
i.e., “‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring
into association with or connection with . . . .’” Morales v. Trans World Airlines Inc.,
504 U.S. 374, 383 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979))
(construing “relating to” as used in a different statutory context). Weis’s prior
conviction required “intent to commit sexual abuse.” Such a mens rea demonstrates
the offense is one “relating to” sexual abuse. Further, in pleading guilty, Weis
admitted he touched his victim with the intent to have sexual intercourse, as charged
in the trial information. Such conduct falls well within the broad meaning of “relating
to . . . abusive sexual conduct.” See, e.g., Hubbard, 480 F.3d at 350 (holding that a
state-law conviction for making a lewd proposal to a minor is a prior conviction
“relating to sexual abuse”).
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The district court correctly concluded Weis’s prior conviction triggered the
enhanced penalty provision of § 2252(b)(1).
B. Eighth Amendment
The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII. A sentence that is “grossly disproportionate” to the crime
committed violates the Eighth Amendment’s bar against cruel and unusual
punishment. Solem v. Helm, 463 U.S. 277, 288 (1983). Although this “narrow
proportionality principle,” Harmelin v. Michigan, 501 U.S. 957, 997 (1991)
(Kennedy, J., concurring in part and concurring in judgment), applies to both capital
sentences and terms of years, “outside the context of capital punishment, successful
challenges to the proportionality of particular sentences are exceedingly rare.” Id. at
1001 (quotations and alterations omitted); see also Ewing v. California, 538 U.S. 11,
22-24 (2003) (applying the proportionality principles contained in Justice Kennedy’s
concurrence in Harmelin).
In considering whether a sentence is unconstitutionally disproportionate to a
crime, “[w]e first address the gravity of the offense compared to the harshness of the
penalty.” Ewing, 538 U.S. at 28. Weis pleaded guilty to receiving child pornography,
a violation of 18 U.S.C. § 2252(a)(2). In committing this offense, Weis utilized
specialized software to efficiently download lascivious photographs of ten-year-old
girls. Weis estimated he had 2,000 images of child pornography on one of his
computers. Law enforcement officers examined the two computers used by Weis and
uncovered multiple images of child pornography, as well as a number of empty
folders with titles suggesting a connection to child pornography. Between twenty and
150 of the thousands of visual images on Weis’s computers met the statutory
definition of a depiction of a minor engaging in sexually explicit conduct. See 18
U.S.C. § 2256.
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As evinced by the conduct underlying Weis’s conviction, this is a grave offense.
Weis’s attempt to minimize the harm associated with his crime fails. Weis argues this
crime is a “non-violent offense,” noting he “did not perpetrate the admittedly highly
destructive primary harm on the children depicted in the images.” This attempt to
divorce the consumption of child pornography from the harm inflicted upon its
victims has been rejected by Congress, see Child Pornography Prevention Act of
1996, Pub. L. No. 104-208 § 121, 110 Stat. 3009, 3009-27 (1996) (“[T]he existence
of and traffic in child pornographic images creates the potential for many types of
harm in the community and presents a clear and present danger to all children.”), and
the Supreme Court. See Osborne v. Ohio, 495 U.S. 103, 109-11 (1990) (
acknowledging that possession of child pornography creates a market for its
production, which results in the exploitation of children). In addition, this court has
recognized that defendants guilty of receiving child pornography victimize the
children depicted in the pictures. See United States v. Rugh, 968 F.2d 750, 756 (8th
Cir. 1992) (deciding that the primary victims in a receipt of child pornography case
were the identifiable children in the images, not only society at large). We cannot
ignore the victims harmed by Weis’s criminal conduct, and there are many victims.
In addition, Weis committed the instant offense after already having a
conviction “relating to . . . abusive sexual conduct involving a minor.” Weis admitted
his illegal sexual relationship with H.N instigated his interest in child pornography.
The gravity of Weis’s offense is heightened by this link between his prior offense
against a child and his continuing victimization of children by receiving child
pornography.
Having discussed the gravity of Weis’s offense, we now consider the severity
of the sentence imposed. Notably, the sentence Weis received is less than the twenty-
year statutory maximum authorized for receipt of child pornography without a prior
conviction, and it is substantially less than the forty-year maximum applicable to
recidivists. See § 2252(b)(1). It is rare for a term of years within the authorized
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statutory range to violate the Eighth Amendment. See Harmelin, 501 U.S. at 1001(Kennedy, J., concurring in part and concurring in judgment) (noting the infrequency
of successful Eighth Amendment challenges to non-capital sentences).
Fifteen years is a harsh punishment; however, we agree with the sentiment
expressed by the Seventh Circuit when considering a recidivist sentenced to fifteen
years for distribution of child pornography:
[I]t is entirely reasonable for Congress to have heightened
concern–expressed in harsher punishments–with individuals . . . who
have already been convicted of sexually abusing a minor yet will not or
cannot comport their conduct to the dictates of the law.
United States v. Gross, 437 F.3d 691, 694 (7th Cir. 2006). The mandatory term of
fifteen years “was duly enacted by Congress as a punishment for those who had
repeatedly taken illicit advantage of one of the most vulnerable segments of our
society, its children.” United States v. MacEwan, 445 F.3d 237, 250 (3rd Cir. 2006).
“Recidivism has long been recognized as a legitimate basis for increased punishment.”
Ewing, 538 U.S. at 25.
Weis’s sentence “is not ‘the rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of gross
disproportionality.’” Id. at 30 (quoting Harmelin, 501 U.S. at 1005). Thus, we hold
that Weis’s sentence of fifteen years, imposed for receipt of child pornography after
a prior conviction relating to sexual abuse of a minor, does not violate the Eighth
Amendment.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
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