749 F.3d 148 (2nd Cir. 2014), 13-602-cr, United States v. Lockhart

Docket Nº:13-602-cr
Citation:749 F.3d 148
Opinion Judge:Katzmann, Chief Judge
Party Name:UNITED STATES OF AMERICA, Appellee, v. AVONDALE LOCKHART, Defendant-Appellant
Attorney: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...
Judge Panel:Before: KATZMANN, Chief Judge, STRAUB and LOHIER, Circuit Judges.
Case Date:May 15, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 148

749 F.3d 148 (2nd Cir. 2014)

UNITED STATES OF AMERICA, Appellee,

v.

AVONDALE LOCKHART, Defendant-Appellant

No. 13-602-cr

United States Court of Appeals, Second Circuit

May 15, 2014

         Argued January 14, 2014

Page 149

         Defendant-Appellant Avondale Lockhart appeals from a judgment of conviction and sentence entered by the United States District Court for the Eastern District of New York (Johnson, J.), in which the district court applied the sentencing enhancement set forth in 18 U.S.C. § 2252(b)(2), which requires a minimum term of imprisonment of ten years. That enhancement applies when a defendant is found guilty of possessing child pornography and was previously convicted under state law of a crime " relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Because we find that § 2252(b)(2) does not require that a prior state-law aggravated sexual abuse or sexual abuse conviction involve a minor, the judgment of the district court is AFFIRMED.

         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 Defendant-Appellant.

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

          OPINION

Page 150

          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 Defendant-Appellant 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

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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...

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