U.S. v. Hunter, 06-CR-08-LRR.

• Citation: 511 F.Supp.2d 961
• Decision Date: 18 December 2006
• Docket Number: No. 06-CR-08-LRR.,06-CR-08-LRR.
• Parties: UNITED STATES of America, Plaintiff, v. Jeremy HUNTER, Defendant.
• Court: U.S. District Court — Northern District of Iowa

Page 961

511 F.Supp.2d 961

UNITED STATES of America, Plaintiff, v. Jeremy HUNTER, Defendant.

No. 06-CR-08-LRR.

United States District Court, N.D. Iowa, Cedar Rapids Division.

December 18, 2006.

Casey D. Jones, Asst. Fed Public Defender, Cedar Rapids, IA, for Defendant.

Sean R. Berry, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

SENTENCING MEMORANDUM

LINDA R. READE, District Judge.

I. INTRODUCTION

In this sentencing, the court must decide two important legal issues: (1) whether Defendant Jeremy Hunter's two prior convictions in state court for Incest trigger an enhanced statutory sentencing range, pursuant to 18 U.S.C. § 2252A(b)(2); and (2) whether a five-level upward adjustment for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor" is appropriate, pursuant to USSG § 2G2.2(b)(5).

II. PROCEDURAL BACKGROUND

On January 20, 2006, the government charged Defendant in a one-count Indictment. The government alleged Defendant knowingly possessed and attempted to possess child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

On April 4, 2006, Defendant and the government signed a plea agreement. Defendant agreed to plead guilty to Count 1 of the Indictment. The parties agreed to litigate the two legal issues discussed above. On April 18, 2006, Defendant pled guilty to the Indictment.

On August 14, 2006, the United States Probation Office ("USPO") prepared a Presentence Investigation Report ("PSIR"). On September 11, 2006, the USPO revised the PSIR. On October 18, 2006, the government and Defendant filed their respective sentencing memoranda. On November 13, 2006, the government and Defendant filed responses.

On November 27, 2006, sentencing proceedings commenced at a hearing ("Hearing") held before the undersigned. Assistant United States Attorney Sean R. Berry represented the government. Assistant Federal Public Defender Casey D. Jones represented Defendant. Defendant was personally present.

At the Hearing, the parties fully argued the two disputed issues and submitted them for the court's decision. The court informed the parties that it would issue the instant Sentencing Memorandum and continued the remainder of the Hearing to December 22, 2006, at 11:30 a.m.

In the instant Sentencing Memorandum, the court analyzes the legal issues fully presented to the court to date. When the Hearing resumes, the court shall receive argument on any remaining issues, allow Defendant to address the court if he wishes, and pronounce sentence in a manner consistent with the instant Sentencing Memorandum.

III. ENHANCED STATUTORY SENTENCING RANGE

Congress provided for an enhanced statutory sentencing range of ten to twenty years' imprisonment for a convicted child pornographer, if the government proves that the child pornographer "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor...." 18 U.S.C. § 2252A(b)(2).¹ The government contends Defendant has two prior convictions for Incest, in violation of Iowa Code § 726.2 (1995), and thus the enhanced statutory sentencing range applies. Defendant contends the Incest convictions do not "relat[e] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor...." 18 U.S.C. § 2252A(b)(2). This issue is a question of federal law. See United States v. Storer, 413 F.3d 918, 921 (8th Cir.2005), enforced, 199 Fed.Appx. 593, 2006 WL 2827865 (8th Cir.2006).

The court begins its analysis with an examination of the elements of the prior convictions. See, e.g., United States v. Trogdon, 339 F.3d 620, 621 (8th Cir.2003) (examining elements first). Iowa's Incest statute criminalizes "perform[ing] a sex act with another whom the person knows to be related to the person ... as ... [a] brother or sister ...." Iowa Code § 726.2. The elements of Incest are:

(1) the defendant performed a sex act with another person;

(2) the defendant was related to that person as [a] ... brother or sister; and

(3) at such time, the defendant knew that they were so related.

Id.; accord Iowa' Crim. Jury Instr. § 2600.1 (2006).

If the court only considers the elements of Iowa Code § 726.2, it is not apparent that Defendant's Incest convictions , are "relat[ed] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor." 18 U.S.C. § 2252A(b)(2). Force² is not an essential element of Incest. Iowa Code § 726.2; see State v. McCall, 245 Iowa 991, 63 N.W.2d 874, 879 (Iowa 1954) (interpreting similarly worded predecessor statute and holding that force, violence and lack of consent are not essential elements of Incest) (citing State v. Jones, 233 Iowa 843, 10 N.W.2d 526, 527 (Iowa 1943)). Likewise, a defendant is not required to have sex with a minor to commit Incest. Iowa Code § 726.2 (requiring only that the defendant have sex "with another"); cf. United States v. Hiler, 1 Morris 330, 331 (Iowa 1844) (holding that both parties to the incestuous activity had to be over the age of sixteen, because materially different predecessor statute explicitly required it). In other words, Incest can be committed with or without force, as well as with a minor or with an adult. Iowa Code § 726.2.

To show that Defendant's Incest convictions involved force and sex with minors, the government offered seven exhibits into evidence at the Hearing. The exhibits are various documents filed in the state court proceedings: Government Exhibit 1 (Original Trial Information and Minutes of Testimony), Government Exhibit 2 (Amended and Substituted Trial Information); Government Exhibit 3 (Transcript of Guilty Plea Proceedings); Government Exhibit 4 (Order on Guilty Plea); Government Exhibit 5 (Transcript of Judgment and Sentence); Government Exhibit 6 (Order on Judgment and Sentence); and Government Exhibit 7 (Iowa Department of Correctional Services Presentence Investigation Report).

The exhibits show that Defendant repeatedly raped both his minor brother and his minor sister in 1995, and that such rapes were the factual basis for his Incest convictions. Defendant neither contests that he raped his brother or sister, nor offers a different factual basis for his Incest convictions. Compare PSIR ¶¶ 34-35 (detailing rapes as the factual basis for the Incest convictions), with Addendum to PSIR (setting forth Defendant's objections). Rather, Defendant contends that the court may not consider the government's exhibits, because § 2252A(b)(2).forbids the court from considering anything beyond the statute of conviction. In other words, the court must adopt an "elementsonly" approach to § 2252A(b)(2).

Trogdon forecloses Defendant's argument. In Trogdon, the Eighth Circuit Court of Appeals explicitly rejected an elements-only approach to 18 U.S.C. § 2252A(b)(2). The Eighth Circuit Court of Appeals stated that, when the sentencing court cannot determine from the elements whether the conviction is a qualifying predicate offense under § 2252A(a)(2)(A), the court "must proceed to examine the underlying facts of the prior offense...." Trogdon, 339 F.3d at 621; see also United States v. Harding, 172 Fed Appx. 910, 912-13 (11th Cir.2006) (examining charges in a criminal information), cert. denied, ___ U.S. ___, 127 S.Ct. 88, 166 L.Ed.2d 81 (2006); United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir.2005) (observing that Congress's Use of "relating to" in § 2252(b)(2) "indicates its intent to allow a sentencing court to look beyond the mere elements of a prior state conviction"); United States v. Rezin, 322 F.3d 443, 448 (7th Cir.2003) ("It would be stranger still if someone whose prior conviction did involve abusive sexual conduct with a minor escaped the heavier punishment [under § 2252(b)(2)] because the age of the victim was not an element of the particular offense for which he was con victed." (Emphasis in original.)). But see United States v. Galo, 239 F.3d 572, 582 (3d Cir.2001) ("It is the elements of a given statute, not the conduct that violates it that determines if the statute relates to the sexual exploitation of children.").³

In the alternative, Defendant contends that Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), limits what evidence the court may consider beyond the elements of the statute of conviction. At the Hearing, Defendant objected to the admission of Government Exhibit 1 (Original Trial Information and Minutes of Testimony), Government Exhibit 5 (Transcript of Judgment and Sentence) and Government Exhibit 7 (Iowa Department of Correctional Services Presentence Investigation Report) as inadmissible under Shepard. The court admitted these three exhibits subject to the objection and unconditionally admitted the rest.

In Shepard, the Supreme Court held that sentencing courts are "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," when assessing whether defendants are subject to a sentencing enhancement under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA").⁴ Shepard, 544 U.S. at 16, 125 S.Ct. 1254; accord id. at 26, 125 S.Ct. 1254 (stating that the "enquiry ... is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information"). Sentencing courts cannot look to police reports or complaint applications. See generally id.

Neither the Supreme Court nor the Eighth Circuit Court of Appeals have extended Shepard's analysis of the ACCA to 18 U.S.C. § 2252A(b)(2). Although Trogdon indicated the court may look beyond the elements of the prior offense, it does not state what particular evidence the court may consider. See Trogdon, 339...