U.S. v. Randolph

• Decision Date: 07 April 2004
• Docket Number: No. 03-1620.,No. 03-1810.,03-1620.,03-1810.
• Citation: 364 F.3d 118
• Parties: UNITED STATES of America, Appellant in 03-1810 v. William H. RANDOLPH, Appellant in 03-1620
• Court: U.S. Court of Appeals — Third Circuit

364 F.3d 118

UNITED STATES of America, Appellant in 03-1810 v. William H. RANDOLPH, Appellant in 03-1620

No. 03-1620.

No. 03-1810.

United States Court of Appeals, Third Circuit.

Argued January 9, 2004 in 03-1810.

Submitted January 9, 2004 in 03-1620.

Filed: April 7, 2004.

Karen S. Gerlach (argued), Office of Federal Public Defender, Pittsburgh, PA, for Appellant in 03-1620.

Bonnie R. Schlueter, Paul M. Thompson (argued), Office of United States Attorney, Pittsburgh, PA, for Appellant 03-1810.

Before: BARRY and SMITH, Circuit Judges, and POLLAK, District Judge^*.

POLLAK, District Judge.

William H. Randolph appeals from a judgment of conviction for sexual exploitation of children under 18 U.S.C. § 2251(a). Randolph contends that the sexual exploitation statute, 18 U.S.C. § 2251(a), is unconstitutional on its face and as applied to him.¹ We disagree, and we therefore affirm the judgment of conviction.

Randolph also appeals from the imposition of an enhanced prison sentence — a fifteen-year minimum sentence plus eight months for a total of 188 months — imposed pursuant to 18 U.S.C. § 2251(d). Section 2251(d) mandates a ten-year minimum sentence for individuals convicted of sexual exploitation under section 2251(a), with enhancement to a fifteen-year minimum for any violator of section 2251(a) previously convicted under a state law "relating to the sexual exploitation of children," and enhancement to a thirty-year minimum for one with two or more such prior convictions. Randolph had previously pled guilty in a Georgia court to three counts of child molestation, and the District Court treated that guilty plea to three consolidated counts as one prior child molestation conviction, thus requiring a sentence of at least fifteen years. Randolph contends that child molestation is not "sexual exploitation of children" within the meaning of section 2251(a). We reject that contention. Further, we agree with the government, which has likewise appealed from the sentence, that the three Georgia child molestation counts, although aggregated in one indictment, constitute three prior sexual exploitation convictions, thereby mandating a thirty-year minimum sentence. Accordingly, on remand, it will be necessary for the District Court to re-sentence Randolph.

I.

On September 28, 2000, state and federal officials executed a search warrant at Randolph's residence. The search produced sexually explicit photographs of an eleven-year-old girl and a homemade videotape of Randolph engaging in sexually explicit conduct with a seven-year-old girl. Both girls were identified as granddaughters of Randolph's next-door neighbor. Randolph was arrested, and on October 5, 2001, a federal grand jury returned an indictment against him on two counts of sexual exploitation of children, 18 U.S.C. § 2251(a), and one count of possession of child pornography, 18 U.S.C. § 2252(a)(4)(B). Randolph moved to dismiss the indictment for lack of jurisdiction, contending that sections 2251(a) and 2252(a)(4)(B) represent unconstitutional exercises of Congress's authority under the Commerce Clause. On September 10, 2002, the District Court denied Randolph's motion to dismiss. Subsequently, on September 26, 2002, Randolph entered a conditional guilty plea to the sexual exploitation charges, reserving his right to appeal the denial of his motion to dismiss.

Randolph had a history of criminal sexual acts involving children. Of particular relevance to this appeal, Randolph pled guilty in 1978 to three counts of child molestation in violation of Georgia law. Each count involved a different victim under fourteen years of age. According to Randolph's presentence report, between January 1 and August 9, 1977, Randolph exposed his male sex organ in the presence of one victim and placed his hand and finger upon and near her female sex organ; caused the second victim to expose her breast and upper torso; and caused the third victim to expose her female sex organ and lower body. Randolph was sentenced to five years' probation.²

Section 2251(d) imposes progressively harsher penalties for violations of section 2251 depending on the defendant's criminal record. For first-time offenders, section 2251(d) prescribes a minimum sentence of ten years. For those with "one prior conviction under this chapter ... or under the laws of any State relating to the sexual exploitation of children," the minimum sentence is fifteen years. For offenders with "2 or more prior convictions" of this nature, the minimum is thirty years.³

Relying on Randolph's 1978 Georgia guilty plea, the presentence report stated that Randolph had one prior conviction relating to the sexual exploitation of children, subjecting him to a minimum sentence of fifteen years in prison. Both parties objected. Randolph claimed he had no such prior conviction, arguing that the crime of child molestation for which he was convicted in 1978 did not "relat[e] to the sexual exploitation of children" as envisioned by section 2251(d). The government argued that Randolph had "2 or more" such prior convictions, contending (1) that the three counts of child molestation to which Randolph pled guilty in 1978 constituted three prior "sexual exploitation" convictions, and (2) that one of the two counts of sexual exploitation to which Randolph pled guilty in the present case represented a "prior conviction."

The District Court rejected both parties' objections and adopted the presentence report's conclusion that Randolph had one prior conviction for purposes of section 2251(d), meriting a mandatory minimum of fifteen years. Based on Randolph's total offense level and criminal history category, the presentence report had calculated Randolph's applicable guideline sentencing range to be 151 to 188 months in prison. Taking into account what the District Court, in agreement with the presentence report, deemed to be the statutory minimum sentence of fifteen years (180 months), Randolph's sentencing range was 180 to 188 months. The District Court sentenced Randolph to 188 months (fifteen years and eight months) in prison, to be followed by five years of supervised release. Randolph timely appealed his judgment of conviction, and both parties appealed the District Court's imposition of the fifteen-year minimum.

We apply a plenary standard of review to issues of statutory interpretation, United States v. Sanders, 165 F.3d 248, 250 (3d Cir.1999), and to questions regarding a statute's constitutionality. United States v. Rodia, 194 F.3d 465, 469 (3d Cir.1999).

II.

Randolph contends first that 18 U.S.C § 2251(a) is unconstitutional on its face and as applied to him in this case. Section 2251(a) provides in relevant part:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

18 U.S.C. § 2251(a). Citing the Supreme Court's opinion in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Randolph argues that Congress exceeded its authority under the Commerce Clause when it enacted section 2251(a). Ruling on this precise issue in United States v. Galo, 239 F.3d 572 (3d Cir.2001), this court held three years ago that section 2251(a), along with section 2252(a)(4)(B), represents a constitutional exercise of Congress's authority under the Commerce Clause. We found that Congress rationally could have believed that intrastate possession of pornography has substantial effects on interstate commerce. Id. at 575-76. This panel has no authority to depart from binding Third Circuit precedent, and we therefore affirm Randolph's conviction.

III.

A.

Randolph also contests the District Court's imposition of a 188-month sentence, the sentence having taken as its predicate that section 2251(d) required the District Court to impose a sentence of at least fifteen years. Section 2251(d) requires a ten-year minimum sentence for individuals convicted of sexual exploitation of children under section 2251(a), and prescribes enhancements for those offenders who have previously been convicted under a state law "relating to the sexual exploitation of children." The District Court concluded that the Georgia child molestation statute under which Randolph was convicted in 1978 met this requirement. At the time of Randolph's guilty plea in 1978, Georgia's child molestation statute prohibited "any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person." Ga.Code Ann. § 26-2019 (1978).⁴

Randolph maintains that "sexual exploitation of children" is a term of art relating exclusively to crimes involving the production of visual depictions of minors engaged in sexually explicit conduct. Because the production of visual depictions is not a necessary element of the crime of child molestation under Georgia law, Randolph argues, his 1978 guilty plea cannot serve as grounds for a sentence enhancement under section 2251(d).

Once again, our decision in Galo serves as a guidepost for our analysis. In that case, we discussed at length what constituted a state conviction "relating to the sexual exploitation of children," explaining that the determining factor was the statutory definition of the underlying crime. Galo, 239 F.3d at 581-82. We observed that a state law prohibiting statutory rape would qualify as "relating to the sexual...