United States v. Lockhart

Decision Date15 May 2014
Docket NumberDocket No. 13–602–cr.
PartiesUNITED STATES of America, Appellee, v. Avondale LOCKHART, Defendant–Appellant.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Patrick S. Sinclair (Maria Cruz Melendez and David C. James, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

David A. Lewis, Assistant Federal Public Defender, Federal Defenders of New York, New York, NY, for DefendantAppellant.

Before: KATZMANN, Chief Judge, STRAUB and LOHIER, Circuit Judges.

KATZMANN, Chief Judge:

In this case, we must decide whether a sentencing provision that provides for a ten-year mandatory minimum term of imprisonment if a defendant was previously convicted “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)(2), requires that an “aggravated sexual abuse” or “sexual abuse” conviction involve a minor or ward, or whether only “abusive sexual conduct” is modified by the phrase “involving a minor or ward,” such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court's imposition of a ten-year sentence on DefendantAppellant Avondale Lockhart.

Background

In June 2010, after receiving information indicating that Lockhart had transferred money to a distributor of child pornography, federal agents initiated an undercover operation, in which they solicited Lockhart to purchase videos portraying child pornography from an agent-run service. Lockhart requested a number of videos from the agents, and on July 13, 2010, after obtaining a search warrant, the agents conducted a controlled delivery of the package ostensibly containing the videos Lockhart had ordered. Once Lockhart accepted the package, the agents executed the search warrant and seized Lockhart's laptop and external hard drive, which together contained over 15,000 images and at least nine videos depicting child pornography.

As a result of this investigation, Lockhart was indicted on March 24, 2011, on two counts: (1) attempted receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), based on his attempted purchase of videos containing child pornography from the undercover agents; and (2) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), based on the images and videos already on his computer and hard drive. On March 6, 2012, pursuant to a plea agreement, Lockhart pleaded guilty to count two of the indictment in the United States District Court for the Eastern District of New York. Count one of the indictment was thereafter dismissed.

Lockhart had previously been convicted in state court in April 2000 of first degree sexual abuse, in violation of New York Penal Law § 130.65(1). The arrest report from this earlier conviction alleges that Lockhart pinned down his fifty-three-year old girlfriend, ripped off her underpants, and attempted to penetrate her vagina with his penis. Lockhart received a sentence of five years' probation and was classified as a level-one sex offender as a result of this conviction.

The Presentence Report (“PSR”) prepared for Lockhart's sentencing calculated a recommended sentencing range of 78–97 months under the U.S. Sentencing Guidelines. However, the PSR adopted the government's position that Lockhart was subject to a mandatory minimum sentence of ten years under 18 U.S.C. § 2252(b)(2), which requires such a term of imprisonment if a person violates § 2252(a)(4) and “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)(2). The PSR thus recommended an effective range under the Sentencing Guidelines of 120 months due to Lockhart's prior conviction for sexual abuse in the first degree. In his sentencing submission, Lockhart argued that his prior conviction could not support the imposition of the mandatory minimum sentence because his sexual abuse offense did not involve a minor. The district court rejected Lockhart's position, concluding that the mandatory minimum applied, and imposed a ten-year sentence, to be followed by ten years' supervised release. This appeal followed.

Discussion

As discussed above, Lockhart pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4) and was sentenced pursuant to § 2252(b)(2). While § 2252(b)(2) generally requires no minimum sentence, in certain circumstances the statute provides for a mandatory minimum sentence of ten years. In its entirety, § 2252(b)(2) provides:

Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or 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, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

18 U.S.C. § 2252(b)(2) (emphasis added).1

Here, the district court found that Lockhart was subject to the mandatory minimum based on his prior state conviction for sexual abuse of an adult woman. On appeal, Lockhart challenges that conclusion, arguing that § 2252(b)(2)'s mandatory minimum does not apply if the victim of the prior sexual abuse offense is an adult, rather than a minor. Thus, the sole issue on appeal is whether the phrase “involving a minor or ward” modifies an entire category of state-law crimes—those “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct”—or whether “involving a minor or ward” modifies only its immediately preceding antecedent, “abusive sexual conduct.” We review de novo all questions of law relating to the district court's application of a federal sentence enhancement.” United States v. Beardsley, 691 F.3d 252, 257 (2d Cir.2012).2

In interpreting § 2252(b)(2), [w]e start, as we must, with the language of the statute,” giving the statutory terms their ‘ordinary or natural’ meaning.” Bailey v. United States, 516 U.S. 137, 144–45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (quoting Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)), superseded by statute on other grounds,Pub.L. No. 105–386,112 Stat. 3469 (1998) (codified as amended at 18 U.S.C. § 924(c)). Where, as here, the plain meaning is not pellucid, we can draw upon a variety of interpretive tools, including canons, statutory structure, and legislative history, to discern meaning. As to canons, we first consider which rule of statutory construction should inform our understanding of the phrase “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor”: the last antecedent rule or the series qualifier canon.

“Under the last antecedent rule, ‘a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows.’ United States v. Kerley, 416 F.3d 176, 180 (2d Cir.2005) (ellipsis omitted) (quoting Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)). Although the “rule is not an absolute and can assuredly be overcome by other indicia of meaning,” the last antecedent rule generally applies absent a contrary indication of meaning. Barnhart, 540 U.S. at 26, 124 S.Ct. 376 (citing 2A N. Singer, Sutherland on Statutory Construction § 47.33 at 369 (6th rev. ed.2000)). Relying on this presumption, the government contends that, as the district court concluded, the phrase “involving a minor or ward” modifies only “abusive sexual conduct,” and therefore Lockhart's prior state conviction for sexual abuse triggers the imposition of § 2252(b)(2)'s ten-year mandatory minimum sentence, regardless of the fact that the victim of his prior offense was an adult.

Lockhart argues in favor of the application of the contrary series qualifier canon of statutory construction, which “provides that a modifier at the beginning or end of a series of terms modifies all the terms.” United States v. Laraneta, 700 F.3d 983, 989 (7th Cir.2012). The series qualifier canon applies where [t]he modifying clause appear[s] ... at the end of a single, integrated list,” Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 344 n. 4, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005), and where the modifying clause “undeniably applies to at least one antecedent, and ... makes sense with all,” United States v. Bass, 404 U.S. 336, 339–40, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). Lockhart contends that this canon should be applied, as the phrase “involving a minor” appears at the end of the integrated list of three antecedents, all of which would “make[ ] sense” if limited by this modifying clause.

Lockhart and the government put forth various arguments to support reliance on their preferred canons. We are not fully persuaded that either canon applies unambiguously based on the language and structure of this statutory phrase alone. For example, while Lockhart is correct that the modifying clause “involving a minor” appears at the end of this particular list of state-law crimes, this is not the prototypical situation in which...

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