United States v. Joshua Calhoun ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-16327
Plaintiff-Appellee, D.C. Nos. 2:19-cv-00082-JCM
2:15-cr-00249-JCM
v.
JOSHUA FORBES CALHOUN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 13, 2020**
Pasadena, California
Before: WARDLAW and VANDYKE, Circuit Judges, and CHOE-GROVES,***
Judge.
Joshua Calhoun appeals the district court’s denial of his 28 U.S.C. § 2255motion to vacate his sentence based on ineffective assistance of counsel. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Calhoun pleaded guilty in Colorado state court in 2007 to “Sexual Contact-
No Consent” in violation of Colorado Revised Statute § 18-3-404(1)(a). In the
proceedings below, Calhoun pleaded guilty to one count of receipt of child
pornography under 18 U.S.C. §§ 2252A(a)(2) and (b)(1). As part of his guilty
plea, Calhoun conceded that his previous Colorado conviction relates “to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward” under the relevant penalty provision, 18 U.S.C. § 2252A(b)(1),
which increased the mandatory minimum sentence from five years to fifteen years.
Based in part on this concession, the district court sentenced Calhoun to fifteen
years in prison and lifetime supervision. In relevant part, Calhoun’s 28 U.S.C. §
2255 motion contends that he received ineffective assistance of counsel when his
trial attorney failed to argue that his Colorado conviction was not a predicate
offense, either because the prior conviction was not a categorical match with the
penalty provision or because extenuating circumstances precluded trial counsel
from using the prior conviction as a predicate offense.
1. The district court correctly concluded that Calhoun’s trial attorney was
not ineffective for failing to argue that his Colorado conviction was not a
categorical match with 18 U.S.C. § 2252A(b)(1) because this argument is without
merit. United States v. Hill, 915 F.3d 669, 673 (9th Cir. 2019) (reviewing the
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denial of a § 2255 motion de novo); United States v. Sullivan, 797 F.3d 623, 635
(9th Cir. 2015) (reviewing whether a conviction supports a statutory mandatory
minimum enhancement de novo). The failure to raise a meritless argument does
not constitute ineffective assistance of counsel. Boag v. Raines, 769 F.2d 1341,
1344 (9th Cir. 1985).
Under 18 U.S.C. § 2252A(b), the sentencing court must apply an enhanced
sentence if, applying the categorical approach, the elements of Calhoun’s Colorado
conviction match, or at least “relat[e] to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” See United States v. Sinerius,
504 F.3d 737, 743 (9th Cir. 2007) (cleaned up). Because Calhoun was convicted
under a divisible statute—one that “comprises multiple, alternative versions of the
crime” of unlawful sexual contact, Descamps v. United States, 570 U.S. 254, 262
(2013)1—we apply the modified categorical approach and look only to Calhoun’s
specific crime of conviction, id. at 263–64.
1
State law and the record of Calhoun’s Colorado conviction demonstrate
that C.R.S. § 18-3-404 is a divisible statute, and that Calhoun was specifically
convicted of violating C.R.S. § 18-3-404(1)(a). See Mathis v. United States, 136 S.
Ct. 2243, 2249, 2256–57 (2016); compare, e.g., Page v. People, 402 P.3d 468, 471
(Colo. 2017) (listing the elements of “unlawful sexual contact” under section 18-3-
404(1)(a)), and Colo. Jury Instr., Criminal 3-4:20 (same), with People v. Madden,
111 P.3d 452, 456 (Colo. 2005) (en banc) (defining “the crime of third degree
sexual assault” under § 18-3-404(1.5)), and Colo. Jury Instr., Criminal 3-4:26
(setting out the elements of Unlawful Sexual Contact (Under Eighteen) under 18-3-
404(1.5)).
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The state crime of which Calhoun was convicted, C.R.S. § 18-3-404(1)(a), is
defined as the “knowing touching” of the victim’s “intimate parts,” even if they are
covered by clothing, for sexual “arousal, gratification or abuse,” without consent,
id. § 18-3-401(4). The offense categorically qualifies as “sexual abuse” because it
prohibits physical contact done for sexual gratification and without consent. See
Sinerius, 504 F.3d at 740–41 (holding that a similar Montana statute that
prohibited knowingly subjecting someone to “any sexual contact without consent”
“undeniably proscribe[d]” sexual acts that amounted to an “indecent assault” and,
therefore, “sexual abuse”).
2. The district court correctly concluded that Calhoun’s trial attorney was
not ineffective for failing to argue that extenuating circumstances disqualified the
use of his Colorado conviction as a predicate offense. See Boag, 769 F.2d at 1344.
Any argument that Calhoun’s prior conviction was too remote in time to qualify as
a predicate offense would fail because 18 U.S.C. § 2252A(b)(1) contains no time
limit and we have upheld sentence enhancements based on much older convictions.
See United States v. Farmer, 627 F.3d 416, 417 (9th Cir. 2010) (upholding a
sentence enhancement for a prior conviction from 21 years earlier for relating to
sexual abuse). We decline to reach Calhoun’s remaining arguments because they
amount to an improper attempt to collaterally attack his prior state conviction
through a § 2255 motion. See United States v. Daniels, 195 F.3d 501, 503–04 (9th
4
Cir. 1999).
AFFIRMED.
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