US v. Strickland

Decision Date19 April 2010
Docket NumberNo. 08-30091.,08-30091.
Citation601 F.3d 963
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dennis STRICKLAND, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

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Anthony R. Gallagher, Federal Defender, and Michael Donahoe (argued), of Helena, MT, for defendant-appellant Dennis Strickland.

Will W. Mercer, United States Attorney, Ryan M. Archer (argued), Marcia Hurd, and Eric B. Wolff, Assistant United States Attorneys, of Billings, MT, for the United States.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, SIDNEY R. THOMAS, BARRY G. SILVERMAN, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge CALLAHAN; Concurrence by Cheif Judge KOZINSKI; Concurrence by Judge THOMAS; Dissent by Judge BERZON; Dissent by Judge REINHARDT.

CALLAHAN, Circuit Judge:

Dennis Strickland appeals following his guilty-plea conviction for receipt and possession of child pornography. He challenges the government's proof at sentencing that a prior Maryland conviction for child abuse was a predicate offense relating to sexual abuse of a minor under 18 U.S.C. § 2252A(b)(1) and (2) resulting in an increased statutory minimum and maximum sentence. To show that the prior Maryland conviction was a predicate offense, the government offered a Maryland court docket sheet and sex offender registration documents signed by Strickland from the states of Washington and Montana. We affirm the district court's judgment on the basis that the docket sheet for the Maryland conviction establishes that the predicate offense was for sexual abuse of a child, and accordingly, do not reach the question of whether the district court could consider Strickland's sex offender registration forms.

I

Strickland was charged in a two-count indictment with Receipt of Child Pornography (Count I), in violation of 18 U.S.C. § 2252A(a)(2), and Possession of Child Pornography (Count II), in violation of 18 U.S.C. § 2252A(a)(5)(B). He pleaded guilty to both counts without a plea agreement. Strickland's presentence report ("PSR") noted that he had been convicted in Maryland in 2002 for child abuse.1 The PSR described the incidents of abuse in graphic detail, and treated the conviction as a sexual offense. Strickland subsequently pleaded guilty, and the prior sexual offense triggered heightened statutory minimum and maximum sentences.2 The PSR determined that Strickland's total offense level was 35, his criminal history category was III, and his advisory sentencing guideline range was 210 to 262 months.

Strickland objected that his Maryland conviction was not categorically a predicate offense under 18 U.S.C. § 2252A(b) and could not be used to enhance his statutory penalties. Strickland reasoned that the Maryland statute proscribed both physical and sexual abuse of a minor, and was therefore over-inclusive because a prior conviction solely for physical abuse would not be a qualifying offense under § 2252A(b). He argued that the government failed to introduce acceptable documentation to prove that his prior offense was related to sexual abuse.3

At the sentencing hearing, the government introduced several documents in support of the enhancement. It offered an uncertified docket sheet from the Circuit Court for Baltimore County, Maryland, showing that in July 2002, Strickland had been charged with one count of "child abuse" pursuant to MARYLAND CODE ART. 27, § 35C; two counts of sexual offense-fourth degree; two counts of attempted sexual offense-fourth degree; and one count of perverted practice. In November 2002, Strickland pleaded guilty to the count of "child abuse" and the other charges were dismissed. Under the heading "Docket Information," the docket sheet stated: "Registration required under Criminal Procedure Sec. 11-704. Defendant to register DNA. Defendant is a child sex offender."

The government also offered sex offender registration documents signed by Strickland from the states of Washington and Montana. Strickland had registered in these states as required by their laws when he had moved to those states following his Maryland conviction.

The district court held that the Baltimore County docket sheet was part of the state court record and therefore could properly be considered. The court concluded that the docket sheet was accurate beyond a reasonable doubt given the other information and evidence before the court, including the two state sexual offender registration forms. The court overruled Strickland's objection and concluded that the PSR calculations were correct. The court sentenced Strickland to concurrent terms of 240 months incarceration on each count of the indictment.

Strickland appealed and a three-judge panel of our court affirmed the district court's judgment, holding that the sex offender registration forms could be considered when determining the nature of Strickland's 2002 Maryland conviction. United States v. Strickland, 556 F.3d 1069, 1070(9th Cir.2009). We then voted to rehear this appeal en banc. United States v. Strickland, 569 F.3d 956, 957 (9th Cir. 2009).

II

On appeal, Strickland argues that the government failed to produce judicially noticeable documents sufficient to prove that his Maryland conviction for child abuse was a predicate offense under 18 U.S.C. § 2252A(b). He contends that the court misapplied the modified categorical approach and improperly relied on the PSR, the Maryland docket sheet, and the two sex offender registration forms when determining that his prior conviction was a predicate offense. "We review de novo a district court's conclusion that a prior conviction qualifies for a sentencing enhancement." United States v. Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir.2008).

A defendant convicted for violating § 2252A is subject to an enhanced sentence if he has a prior state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor." 18 U.S.C. § 2252A(b)(1), (2). We have broadly interpreted this statute to apply not simply to state offenses that are equivalent to sexual abuse, but rather to "any state offense that stands in some relation, bears upon, or is associated with that generic offense." United States v. Sinerius, 504 F.3d 737, 743 (9th Cir.2007).

The determination of whether a prior conviction qualifies as a predicate sex offense under § 2252A(b) is governed by the categorical approach announced in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical approach "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143. This approach requires a comparison of the elements of the state criminal offense with the predicate offense as defined in the federal statute. Sinerius, 504 F.3d at 740. Here, the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor" found in § 2252A(b) must be compared with the elements of the Maryland child abuse statute under which Strickland was convicted. Under this approach, a conviction under the Maryland statute will categorically qualify as a predicate offense "only if the full range of conduct covered by theMaryland statute falls within the meaning of those terms." Id.; see also United States v. Baza-Martinez, 464 F.3d 1010, 1014(9th Cir.2006) ("In order for a violation of the state statute to qualify as a predicate offense, the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision.") (internal quotation marks and citation omitted) (alteration in original).

The government here concedes that Strickland's conviction for the Maryland offense of child abuse is not categorically an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor" because at the time of Strickland's offense the Maryland statute defined child abuse to include both "physical injury" and "sexual abuse."4 The Maryland statute thus covered conduct that is broader than the conduct contemplated by § 2252A(b), which requires that the prior offense be related to sexual abuse to qualify for an enhanced federal sentence. Because the full range of conduct covered by the Maryland statute does not fall within the meaning of the federal statute, Strickland's prior conviction is not categorically a predicate offense under § 2252A(b).

Where, as here, the state statute is broader than the federal definition of a predicate offense, "we must use the so called modified categorical approach, which requires us to determine—if we can—whether the conduct for which the defendant was convicted fits within the federal definition of the offense." United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir.2008) (en banc) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In doing so, the Supreme Court has directed that the inquiry is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). This list, however, is illustrative and other "documents of equal reliability may also be considered." Snellenberger, 548 F.3d at 701. Our purpose is to determine whether documentation or judicially noticeable facts clearly establish that the defendant pleaded guilty to facts covered by the predicate offense. United States v. Gomez-Leon, 545 F.3d 777, 783-84 (9th Cir.2008) (noting that "we may make a limited inquiry into the facts of the underlying conviction to determine whether the conviction was based on all of the elements of a qualifying predicate offense") (...

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