U.S. v. Brown

• Decision Date: 23 June 2008
• Docket Number: No. 07-8065.,07-8065.
• Citation: 529 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ARI BROWN, aka Roger William Brown, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

529 F.3d 1260

UNITED STATES of America, Plaintiff-Appellee, v. ARI BROWN, aka Roger William Brown, Defendant-Appellant.

No. 07-8065.

United States Court of Appeals, Tenth Circuit.

June 23, 2008.

Terry J. Harris, Terry J. Harris, P.C., Cheyenne, WY, for Defendant-Appellant.

Gregory A. Phillips, Assistant United States Attorney (John R. Green, Acting United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff-Appellee.

Before HENRY, Chief Judge, O'BRIEN, and TYMKOVICH, Circuit Judges.

HENRY, Chief Judge.

Ari Brown pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The plea agreement stipulated that Mr. Brown would receive either five or ten years' imprisonment, dependent upon whether the sentencing court treated his previous conviction under Article 134 of the Uniform Code of Military Justice (UCMJ) as a predicate sentence-enhancer under § 2252A. The court ultimately sentenced Mr. Brown to ten years' imprisonment.

On appeal, Mr. Brown argues that the sentencing court erred by treating his UCMJ conviction as a predicate enhancer under § 2252A. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and because: (1) Mr. Brown's previous conviction was under Article 134, and not 18 U.S.C. § 2252; (2) the plain language of § 2252A does not include UCMJ Article 134 convictions as sentence-enhancers; and (3) applying the plain language of the statute would not lead to an irrational result, we reverse the district court's imposition of a ten-year sentence.

I. BACKGROUND

In December 2006, Mr. Brown knowingly possessed a computer that contained images of child pornography. Each digital image had been mailed, shipped, or transported in interstate commerce. In April 2000, Mr. Brown, previously a member of the military, was convicted of similar crimes while stationed at Fort Campbell, Kentucky. Mr. Brown was charged with, among other things, four violations of the UCMJ Article 134 (codified at 10 U.S.C. § 934). The only charge that was not dismissed alleged that Mr. Brown violated UCMJ Article 134 when he, while on active duty: "[v]iolated 18 U.S.C. § 2252 by wrongfully distributing one or more visual depictions of a minor engaging in sexually explicit conduct." Rec. vol. II, Doc. 35, at 23. The Charge Sheet and Court-Martial Order show that the actual charge and conviction was "VIOLATION OF THE UCMJ, ARTICLE 134." Rec. vol. II, doc. 35, at 18, 23. Mr. Brown pleaded guilty to this charge.

In relation to the December 2006 crime, Mr. Brown was initially indicted in federal district court for four felony counts of possession of child pornography, in violation of § 2252A(a)(5)(B), and a fifth felony count of failure to register and update registration in violation of the Sex Offender Registration and Notification Act. Mr. Brown eventually entered into a plea agreement stipulating that he would plead guilty to Count Four of the indictment (possession of child pornography), and further stipulating to a sentence of either five or ten years' imprisonment, depending upon how the sentencing court treated his prior UCMJ Article 134 conviction. The plea agreement stated that Mr. Brown "should be sentenced to a term of 5 years if his prior April 7, 2000 conviction at Fort Campbell, Kentucky, does not qualify as a prior conviction for purposes of 18 U.S.C. § 2252A(b)(2). If, on the other hand, [Mr. Brown]'s prior ... conviction ... does qualify as a prior conviction for purposes of 18 U.S.C. § 2252A(b)(2) he agrees and stipulates to a sentence of 10 years imprisonment." Rec. vol. II, doc. 33, at 8. The determination regarding whether the prior conviction qualified as a sentence-enhancer was to be left to the discretion of the district court.

The Probation Office completed its pre-sentence investigation report ("PSR") and determined that an Article 134 conviction did not qualify as a sentence-enhancing prior conviction under § 2252A(b)(2). The probation officer mainly relied upon the plain language of the statute of § 2252A. Section 2252A(b)(2) provides for an enhanced sentencing range of no less than ten years' imprisonment if the defendant:

has a prior conviction under this chapter [18 U.S.C. §§ 2251 et seq.], chapter 71 [18 U.S.C. §§ 1460 et seq.], chapter 109A [18 U.S.C. §§ 2241 et seq.], or chapter 117 [18 U.S.C. §§ 2421 et seq.], 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. ...

18 U.S.C. § 2252A(b)(2) (emphasis added). The probation officer noted that had Congress meant to include Article 134 convictions, it could, and would, have done so explicitly. See Rec. vol. 5, at 9, ¶ 23 ("[T]he fact that Congress listed certain statutes is an indication that it intended to exclude unlisted statutes.") (quoting United States v. Stuckey, 220 F.3d 976, 985 (8th Cir.2000)).

The sentencing court rejected the probation officer's recommendation, concluding that Mr. Brown's Article 134 conviction did qualify as a sentence-enhancing prior conviction because to read § 2252A otherwise "makes the text of that statute absurd." Rec. vol. III, at 32. In accordance with the plea agreement, the court sentenced Mr. Brown to 120 months' (ten years') imprisonment.

II. DISCUSSION

We review a district court's legal determination regarding sentencing de novo. United States v. Flanders, 491 F.3d 1197, 1217 (10th Cir.2007). On appeal, Mr. Brown argues that his prior conviction under UCMJ Article 134 is not included under § 2252A as a sentence-enhancer, because (1) UCMJ Article 134 convictions resulting from assimilation of crimes enumerated in § 2252 are not prior convictions under that chapter, but are convictions under Article 134; (2) the statute's plain language indicates that it was not meant to be included; and (3) not including Article 134 convictions is neither absurd nor irrational. We will address these arguments in turn.

A. Mr. Brown was indicted and convicted under UCMJ Article 134

UCMJ Article 134 provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital ... shall be punished at the discretion of [a court-martial].

10 U.S.C. § 934 (emphasis added).

There is no specific military code for the particular crime of which Mr. Brown was found guilty. Instead, he was convicted under clause 3 of Article 134 ("all conduct of a nature to bring discredit upon the armed forces ...") which is something of a catchall provision. In order to convict Mr. Brown, the military court assimilated the elements of the crime from § 2252 — a federal child pornography statute.

Again, § 2252A(b)(2) mandates that prior convictions "under this chapter" count as sentence-enhancers. The government argues that when a UCMJ Article 134 clause 3 conviction results from assimilation of a crime enumerated in § 2252, it is "a prior conviction under this chapter" for purposes of sentence-enhancement. For the following reasons, we disagree.

Mr. Brown's prior conviction is for a violation of Article 134 — the catchall provision — and not § 2252. First, we are persuaded by the plain and ordinary meaning of the phrase "under this chapter." We agree with the Fourth Circuit that to be convicted "under" a statute, has a clear meaning. See Escobar v. United States Immigration & Naturalization Serv., 935 F.2d 650, 653 (4th Cir.1991). In this case, it means "governed by" or "subject to" § 2252. "Contrary to [the government]'s contention, it does not mean `as defined by' or `related or akin to'" § 2252. Id. The D.C. Circuit has also rejected a "creative reading" of "under," concluding that the word means "subject to" or "by reason of the authority of." St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 450 (D.C.Cir.1989). Mr. Brown's previous military convictions were obtained "by reason of the authority of" UCMJ Article 134, not § 2252.

Second, we look to previous courts' answers to the question. In United States v. Almendarez, 46 C.M.R. 814, 817, 1972 WL 14501 (1972), the military court instructed that "[i]n military courts, as opposed to district courts of the United States, prosecution in these cases [assimilating crimes] is for violation of Article 134 and not of the United States Code section directly." (emphasis added). Although Mr. Brown's Charge Sheet and the resulting General Court-Martial Order contain "specifications" referring to acts in violation of § 2252, the Charge Sheet shows that the actual charge and conviction was "VIOLATION OF THE UCMJ, ARTICLE 134." Rec. vol. II, doc. 35, at 18. In addition, the Court-Martial Order reads: "Charge II: Article 134. Plea: Guilty. Finding: Guilty." Id. at 23-24.

The United States Air Force Court of Criminal Appeals has categorized an analogous conviction as under Article 134. See United States v. Sanchez, 59 M.J. 566 (2003) ("At a general court-martial ... a military judge sitting alone convicted the appellant ... of two violations of Article 134, UCMJ, 10 U.S.C. § 934. ... [T]he second offense involved possession of 23 visual depictions of child pornography, contrary to 18 U.S.C. § 2252A(a)(5)(A)."). This classification is consistent with the court's instruction in Almendarez, above.

Further, the conclusion that the conviction is for Article 134 and not § 2252 is consistent with our previous holding in Swisher v. Moseley, 442 F.2d 1331 (10th Cir.1971). In Swisher, an Army private maintained that the court-martial did not have jurisdiction, because a violation of the Dyer Act, 18 U.S.C. § 2312, is only cognizable in civilian courts. We held that the court-martial did in fact...