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Published: July 3, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer
A defendant convicted of receipt of movies depicting female minors in sexual acts cannot overturn his 15-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) with a claim that the trial court misinterpreted his earlier conviction for possession of obscene items involving children under Va. Code § 18.2-374.1(B)(2).
Defendant argues his 1984 conviction under the Virginia statute does not qualify as a predicate offense under § 2252A(b)(1) because the conviction did not, when considered under the categorical approach, relate to sexual abuse involving a minor. He contends that under the categorical approach, a sentencing court must take the most benign conduct that could support a conviction. According to defendant, because the Virginia statute arguably covers innocuous depictions of nudity, he could not be subject to a sentencing enhancement requiring a conviction that categorically relates to sexual abuse of a minor, as required by the federal enhancement statute.
We conclude defendant misreads the requirements for a conviction under Va. Code § 18.2-374.1 and reads too narrowly the scope of convictions that can serve as predicate offenses under § 2252A(b)(1).
Under the categorical approach, we do not delve into the facts of the prior conviction but generally look only to the fact of the conviction and the statutory definition of the prior offense. Under Shepard v. U.S., 544 U.S. 13 (2005), however, the categorical approach has an exception which allows review of other documents involved in the prior conviction that might reveal the facts on which the conviction necessarily rested. But in the present case, all the court records of defendant’s prior conviction had been destroyed due to the age of the conviction, and thus the government presented no documents acceptable under Shepard that would allow consideration of the specific conduct that led to defendant’s conviction. We therefore look in this case only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as an offense “relating to” the predicate offenses listed in 18 U.S.C. § 2242A(b)(1).
The hypothetical convictions postulated by defendant involving “innocent” or “innocuous” nude pictures of a minor are thus impossible under the Virginia courts’ interpretation of the statute. Innocuous exhibitions of nudity do not violate § 18.2-374.1 because they are not “lewd exhibitions” and thus do not constitute the “sexually explicit visual materials” targeted by the Virginia statute.
Moreover, 18 U.S.C. § 2252A(b)(1) does not require that the predicate conviction amount to “sexual abuse” or “abusive sexual conduct involving a minor.” Rather, a conviction qualifies as a predicate conviction merely if it relates to sexual abuse or abusive sexual conduct involving a minor or, indeed, even to child pornography. We have little difficulty concluding that defendant’s 1984 conviction for producing or making or attempting to prepare, produce or make sexually explicit visual material that uses or has as a subject a person less than 18 years old, under Virginia law, stands in some relation to, pertains to, concerns or has a connection with the sexual abuse of children, as well as the production of child pornography.
Judgment affirmed.
U.S. v. Colson (Niemeyer) No. 11-4709, June 25, 2012; USDC at Newport News, Va. (Davis) Patrick L. Bryant, FPD, for appellant; Elizabeth M. Yusi, AUSA, for appellee. VLW 012-2-138, 9 pp.
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