U.S. v. Breitweiser, CRIMA1:01CR50201JEC.

• Decision Date: 17 September 2002
• Docket Number: No. CRIMA1:01CR50201JEC.,CRIMA1:01CR50201JEC.
• Citation: 220 F.Supp.2d 1374
• Parties: UNITED STATES of America v. Russell A. BREITWEISER, Defendant(s).
• Court: U.S. District Court — Northern District of Georgia

220 F.Supp.2d 1374

UNITED STATES of America v. Russell A. BREITWEISER, Defendant(s).

No. CRIMA1:01CR50201JEC.

United States District Court, N.D. Georgia, Atlanta Division.

September 17, 2002.

E. Vaughn Dunnigan, Assistant United States Attorney, Atlanta, GA, for U.S.

Paul Stephen Kish, Federal Defender Program, Atlanta, GA, for defendant.

SUPPLEMENT TO COURT'S ORAL RULING AT SENTENCING

CARNES, District Judge.

Background

Following a jury trial, defendant was convicted of engaging in and causing sexual contact with another person, in violation of 18 U.S.C. §§ 2244(a)(3) and 2247(a). The conviction arose out of defendant's contact with a fourteen year old girl whom he was seated next to on an interstate airline flight. On August 15, 2002, this Court held a second sentencing hearing in the above case and imposed sentence. Prior to doing so, the Court addressed several legal matters, including the question of the statutory maximum in this case. In doing so, the Court touched briefly on its reasoning for concluding that the applicable recidivist statute applies here. This written Order provides case citations for the cases mentioned by the Court at the sentencing hearing and it articulates, more formally, the Court's reasoning.

Specifically, the question before the Court was whether 18 U.S.C. § 2247(a), which is the recidivist provision applicable to the sexual offense statute in this case, applied here. If applicable, this section would serve to double the statutory maximum otherwise provided. Stated another way, application of the recidivist statute would double the statutory maximum from two (2) to four (4) years. 18 U.S.C. § 2247(a).

The prior predicate state conviction in this case¹ emanated from a New Jersey statute that proscribed the endangerment and debauching of minor children. Defendant has argued that although this statute encompassed conduct that would trigger application of the federal recidivist statute, it also covered conduct that would lie outside the ambit of that recidivist statute. Accordingly, defendant argued that because it is conceivable that his prior conduct did not implicate the elements required to trigger the recidivist statute, this prior conviction cannot constitute a predicate offense for purposes of the federal recidivist statute.

Categorical Approach — Case Law

Accordingly, the question before this Court turned on whether the Court was required to apply a "categorical" approach, which allows one only to look at the elements of the prior offense, or instead whether one could look to the facts underlying that conviction to discern whether the conduct committed by the defendant fit the elements required for enhancement as a predicate offense. Defendant argued that a categorical approach would mean that the recidivist statute could not apply in this case. If one instead examined whether the defendant had actually committed specified conduct that was the subject of a prior conviction, however, defendant conceded that the recidivist statute would apply here.

The Court noted that the categorical approach had been followed by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), wherein the latter construed the Armed Career Criminal statute (ACC), 18 U.S.C. § 924(e), to require that approach.² This Court construed the Supreme Court's decision to be driven by its interpretation of the language of the statute, not by a determination that all recidivist statutes can look only to the elements of the underlying prior statute of conviction. Indeed, this Court noted that the Eleventh Circuit has confirmed that the wording of the provision is pivotal. For example, in United States v. Fulford, 267 F.3d 1241, 1250 (11th Cir.2001), the Eleventh Circuit noted that because the language in the "three strikes statute," 18 U.S.C. § 3559(c)(2)(D), differs from that at issue in Taylor, Taylor's categorical approach does not necessarily control. Nevertheless, independently construing the statute before it, the panel ultimately concluded that a categorical approach was required by the language of the statute before it. Likewise, in United States v. Spell, 44 F.3d 936, 938-40 (11th Cir.1995), the Eleventh Circuit held that because the career offender provision of the Sentencing Guidelines required one to look at the conduct for which the defendant was convicted in the case at issue, the sentencing court erred in taking a categorical approach. Cf. United States v. Gonzalez-Lopez, 911 F.2d 542, 546-47 (11th Cir. 1990) (where sentencing enhancement provision of the Sentencing Guidelines conditioned enhancement on conduct that is included "as an element" of an offense, the inquiry is legal, not factual).

Section § 2426(b) Is Not Necessarily Subject To A Categorical Approach

Section 2247, the recidivist statute applicable in this case, is triggered only upon proof of a "prior sex offense conviction." 18 U.S.C. § 2247(a). Section 2247(b) refers the reader to § 2426(b) for a definition of that term. Section 2426(b)(1)(B) provides that a "prior sex offense conviction" is a conviction under State law for an "offense consisting of conduct" that would be an offense under federal law, if that conduct had occurred in federal jurisdiction.

As this Court noted at the sentencing hearing, it concluded that § 2426(b) called for an inquiry into the conduct committed by the defendant, not the categorical approach advocated by the defendant. The Court reached this conclusion primarily because of the difference in the language of this statute, as opposed to that contained in the ACC, which was construed in Taylor. As the latter had a provision that looked to the elements of the underlying statute, the Supreme Court concluded that Congress intended that the same sort of approach was required in construing the provision of this same statute that referenced "burglary" as a predicate offense. With regard to § 2426(b), however, there is no direction that one look to the elements of a statute when determining whether a given statute constitutes a predicate offense. Instead, the statute defines a "prior sex offense conviction" as "a conviction for an offense ... under State law for an offense consisting of conduct that would have been an offense under [§ 2244(a)(3)]." (emphasis added.) The Court concludes that one can therefore look to the conduct for which the defendant was convicted.

Here, it is undisputed that the conduct underlying defendant's plea of guilty to the New Jersey charge constituted abusive sexual contact, under § 2244(a)(3), and would therefore constitute an appropriate predicate crime to trigger the recidivist statute. Indeed, in his plea colloquy, defendant admitted to "petting" two different thirteen year old girls, including touching their breasts. Defendant does not dispute that such conduct would violate § 2244(a)(3).

The Court also concludes, for reasons other than just the above linguistic analysis, that Congress likely did not intend to adopt a cramped, categorical approach. As the Government has noted, there are a myriad of different State iterations of child molestation charges, using different verbiage to describe similar conduct. Not all statutes are narrowly drawn to include only certain specified conduct; instead many, like this New Jersey statute, are drafted broadly. Under defendant's argument, if an offender happened to live in a state that used broadly drafted statutes that encompassed conduct other than just the proscribed sexual contact, the defendant could never be considered a recidivist, even if he had engaged in, and been convicted for, the most egregious prior molestation of children. It would seem odd, given the recognition of the propensity of pedophiles for recidivism and the danger that this risk poses to children, that Congress would want the potential for an enhanced statutory maximum to depend on the fortuity of the language of a given state statute.

Moreover, there is another logical reason why Congress might want to use the narrow, categorical approach in the ACC or the "three strikes" statute, but not use as limited an approach in the federal sexual abuse statutes. Specifically, Congress provides for very different sorts of punishment in the two different types of statute. The ACC and the "three strikes" provisions call for greatly increased mandatory sentences. With regard to the former, which is triggered when a defendant is convicted of possessing a firearm after having three prior predicate felony convictions, the statute calls for a mandatory minimum sentence of fifteen years. With regard to the "three strikes" provision, this statute calls for a mandatory life sentence when a defendant is convicted of a violent felony and has been convicted on two previous occasions of defined predicate offenses. Given the lengthy sentences that are mandated by these recidivist statutes, it is understandable that Congress would choose to more narrowly define the prerequisites for triggering the enhancement.

Sections 2247 and 2426, the recidivist statutes at issue here, however, only increase the statutory maximum for the offense and do not determine the particular sentence that an actual defendant will receive. Although it has become a familiar response to particular noteworthy instances of criminal conduct for Congress to raise the statutory maxima of applicable statutes, those who are involved in actual federal sentencings are well aware that these measures rarely have any impact on a sentence. What determines a sentence is the Sentencing Guidelines range. Because the Guidelines range infrequently approaches the statutory maximum anyway, an increase of that maximum usually has no impact on sentence.

Given the limited impact that an increase in the statutory maximum of a statute will generally have, it therefore seems odd that Congress would want to narrowly proscribe the application of a recidivist provision that...