United States v. Gordon Sonnenberg ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1197
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Gordon Leroy Sonnenberg, *
*
Appellant. *
___________
Submitted: November 13, 2008
Filed: February 11, 2009
___________
Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Gordon Leroy Sonnenberg pleaded guilty to receipt of material involving the
sexual exploitation of minors, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1).
The district court1 concluded that Sonnenberg’s 1968 Iowa conviction for committing
lascivious acts with children triggered a sentencing enhancement under § 2252(b)(1)
and sentenced Sonnenberg to 262 months’ imprisonment. Sonnenberg challenges his
sentence, arguing that the district court erred in applying his Iowa conviction as an
enhancement. We affirm.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
I.
In 1968, Sonnenberg pleaded guilty to the crime of lascivious acts with
children, a violation of section 725.2 of the 1966 Code of Iowa. The statute
criminalized the following conduct:
Any person over eighteen years of age who shall willfully commit any
lewd, immoral, or lascivious act in the presence, or upon or with the
body or any part or member thereof, of a child of the age of sixteen
years, or under, with the intent of arousing, appealing to, or gratifying
the lusts or passions or sexual desires of such person, or such child, or of
corrupting the morals of such child . . . .
Sonnenberg was sentenced to a term of imprisonment of not more than three years.
On October 24, 2006, Sonnenberg was charged in a four-count indictment,
which included one count of receipt of material involving the sexual exploitation of
minors, in violation of chapter 110 of title 18 of the United States Code. The
mandatory minimum sentence and statutory maximum sentence for this crime increase
if 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
or ward.” 18 U.S.C. § 2252(b)(1).
After moving to exclude the application of the sentence enhancement based on
his Iowa conviction, Sonnenberg pleaded guilty to one count of receipt of material
involving the sexual exploitation of minors. The parties agreed that the adjusted
offense level was thirty-seven, with a guidelines sentencing range of 210 to 262
months’ imprisonment. Sonnenberg acknowledged that if his Iowa conviction for
lascivious acts with children qualified to enhance his sentence under 18 U.S.C. §
2252, he would face a maximum penalty of forty years’ imprisonment. If the Iowa
-2-
conviction did not trigger the enhancement, then the statutory maximum sentence
would be twenty years’ imprisonment.
The district court denied Sonnenberg’s motion to exclude, concluding that
Sonnenberg’s Iowa conviction “categorically qualifies as sexual abuse for purposes
of 18 U.S.C. § 2252(b)(1)” and ruling that the previous conviction would trigger the
statute’s sentence enhancement. After denying Sonnenberg’s request for a variance,
the district court sentenced Sonnenberg to 262 months’ imprisonment and lifetime
supervised release. This appeal followed.
II.
Sonnenberg contends that the district court erred in finding that his Iowa
conviction for lascivious acts with children triggered the enhanced sentencing range
set forth in 18 U.S.C. § 2252(b)(1). We review de novo his claim of error. United
States v. Weis, 487 F.3d 1148, 1151 (8th Cir. 2007); United States v. Lockwood, 446
F.3d 825, 827 (8th Cir. 2006).
A defendant convicted of receipt of material involving the sexual exploitation
of minors faces an increased statutory sentencing range under 18 U.S.C. § 2252(b)(1)
if he has a state conviction “relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” To determine whether the prior
offense qualifies as a predicate offense for the purpose of a sentence enhancement,
federal courts apply a categorical approach. Taylor v. United States, 495 U.S. 575,
600 (1990); United States v. Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008).
Under this approach, the sentencing court looks to the fact of conviction and the
statutory definition of the prior offense and determines whether the full range of
conduct encompassed by the state statute qualifies to enhance the sentence. Taylor,
495 U.S. at 600; Medina-Valencia, 538 F.3d at 833; Lockwood, 446 F.3d at 827. If
the statute criminalizes both conduct that would qualify a defendant for an
-3-
enhancement, as well as conduct that would not do so, the court may refer to the
charging document, the terms of a plea agreement, the transcript of the colloquy, jury
instructions, and other comparable judicial records to determine the basis for the guilty
plea or verdict. Shepard v. United States, 544 U.S. 13, 26 (2005); Medina-Valencia,
538 F.3d at 833; Lockwood, 446 F.3d at 827.
As an initial matter, we reject Sonnenberg’s contention that a state statute must
criminalize only sexual acts involving physical touching to be “relat[ed] to aggravated
sexual abuse, sexual abuse, and abusive sexual conduct involving a minor or ward.”
Although Sonnenberg urges us to adopt chapter 109A’s definitions of the sexual abuse
terms, all of which require physical contact, see 18 U.S.C. § 2241 (aggravated sexual
abuse); § 2242 (sexual abuse); § 2243 (sexual abuse of a minor or ward), the statute
does not instruct us to apply chapter 109A’s definitions.
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 this chapter, section 1591, chapter 71, chapter 109A,
chapter 117, or under section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward . . . such person shall be . . . imprisoned for
not less than 15 years nor more than 40 years.
§ 2252(b)(1) (emphasis added). Moreover, Sonnenberg pleaded guilty to receipt of
material involving the sexual exploitation of children, a violation of chapter 110, and
the punishment for his crime is set forth in that chapter. 18 U.S.C. § 2252. There is
no indication that Congress intended to import the definitions of chapter 109A to
chapter 110. To the contrary, chapter 110 includes a definitions section, and none of
the terms in dispute are defined. Furthermore, § 2252(b)(1) refers to several federal
statutes, a prior conviction under any of which would require a sentence enhancement.
-4-
Some of those statutes require a sexual act involving physical touching, but others do
not.2 As the Fifth Circuit noted:
Prior federal convictions for which the mandatory minimum sentence is
imposed are not limited to offenses in which there was actual sexual
contact between a defendant and the victim. We discern no intent on the
part of Congress to impose such a limitation with regard to prior
convictions under state law.
United States v. Hubbard, 480 F.3d 341, 347 (5th Cir. 2007) (holding that the
defendant’s prior state conviction for lewd or indecent proposals to a child related to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor
under § 2252A(b)(1), which uses language identical to § 2252(b)(1)).
Because the statute does not define aggravated sexual abuse, sexual abuse, or
abusive sexual conduct with a minor or ward, we give the terms their “ordinary,
contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979);
see United States v. Sinerius, 504 F.3d 737, 740-41 (9th Cir. 2007) (applying the
ordinary meaning of the term “sexual abuse” under § 2252A(b)); Hubbard, 480 F.3d
at 347 (concluding that Congress intended the sexual abuse terms in § 2252A(b) to
have their ordinary meanings); see also United States v. Montenegro-Recinos, 424
F.3d 715, 717 (8th Cir. 2005) (applying the ordinary meaning to the term “sexual
abuse of a minor” because the term was not defined in the sentencing guidelines);
United States v. Garcia-Juarez, 421 F.3d 655, 659 (8th Cir. 2005) (same). In the
sentencing guidelines context, we have cited favorably United States v. Padilla-Reyes,
247 F.3d 1158, 1163 (11th Cir. 2001), for its plain definition of the word “sexual” as
the intent to seek libidinal gratification. Medina-Valencia, 538 F.3d at 834; Garcia-
2
For example, § 2252 refers to article 120 of the Uniform Code of Military
Justice, which criminalizes indecent liberty with a child. That statute defines indecent
liberty as “indecent conduct, but physical contact is not required.”
-5-
Juarez, 421 F.3d at 659. Here we find instructive its definition of sexual abuse of a
minor: “[T]he phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or
nonphysical misuse or maltreatment of a minor for a purpose associated with sexual
gratification.” Padilla-Reyes, 247 F.3d at1163.
Finally, “[w]e must assume that Congress chose the words ‘relating to’ for a
purpose.” Weis, 487 F.3d at 1152 (quoting Hubbard, 480 F.3d at 347); see also
United States v. McCutchen, 419 F.3d 1122, 1126 (10th Cir. 2005) (noting that
Congress chose the term “relating to” rather than the word “is”). “The phrase ‘relating
to’ carries a broad ordinary meaning, i.e., to stand in some relation to; to have bearing
or concern; to pertain; refer; to bring into association or connection with.” Id.
(internal quotations and citations omitted). Sonnenberg’s prior conviction, then, must
stand in some relation to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward.
Given the above definition of sexual abuse and the interpretation of relating to,
Sonnenberg’s prior conviction qualifies as a sentence enhancement under § 2252 even
though the Iowa statute does not require physical contact. By the terms of the statute,
Sonnenberg either physically or nonphysically misused or maltreated a minor with the
intent to seek libidinal gratification. We hold that a conviction for lascivious acts with
children in violation of section 725.2 of the 1966 Code of Iowa categorically qualifies
to enhance Sonnenberg’s sentence.
We have also considered Sonnenberg’s argument that any ambiguity in the
statute requires resolution in his favor under the rule of lenity, and we find it to be
without merit. See Bernitt v. Martinez, 432 F.3d 868, 869 (8th Cir. 2005) (per curiam)
-6-
(“We do not resort to the rule of lenity where, as here, we can otherwise resolve the
ambiguity of the statute.”)
Conclusion
The judgment and sentence are affirmed.
______________________________
-7-