U.S. v. Sinerius

• Citation: 504 F.3d 737
• Decision Date: 20 September 2007
• Docket Number: No. 06-30327.,06-30327.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Emil SINERIUS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 737

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Emil SINERIUS, Jr., Defendant-Appellant.

No. 06-30327.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2007.

Filed September 20, 2007.

Michael Donahoe, Senior Litigator, Federal Defenders of Montana, argued the cause for the defendant-appellant, and filed briefs; Anthony R. Gallagher, Federal Defender, was on the briefs.

Marcia Hurd, Assistant U.S. Attorney, Billings, MT, argued the cause for the plaintiff-appellee and filed a brief; William W. Mercer, U.S. Attorney, District of Montana, and Eric B. Wolf, Assistant U.S. Attorney, Billings, MT, were on the brief.

Appeal from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. No. CR-05-00024-CCL.

Before: B. FLETCHER, DIARMUID F. O'SCANNLAIN, and A. WALLACE TASHIMA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are called upon to determine whether a federal defendant's prior conviction for "sexual assault" under Montana state law triggers an enhanced penalty under the sentencing provisions applicable to his federal crimes.

I

In 2005, Arthur Emil Sinerius, Jr. was indicted by a federal grand jury for receipt of child pornography ("Count I") and possession of child pornography ("Count II"), in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B) respectively. Sinerius subsequently pled guilty to both counts, and also agreed to forfeiture of his computer pursuant to 18 U.S.C. § 2253. The government agreed, pending the determinations of the presentence investigation report ("PSR"), to recommend a sentence at the low end of the advisory guideline range.

The PSR determined that Sinerius's base offense level was 22 and then added two levels because the material involved a prepubescent minor or a minor under the age of 12, U.S.S.G. § 2G2.2(b)(2); four levels because the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, U.S.S.G. § 2G2.2(b)(4); two levels because the offense involved the use of a computer, U.S.S.G. § 2G2.2(b)(6); and four levels because the offense involved between 300 and 600 images, U.S.S.G. § 2G2.2(b)(7)(C). The PSR then subtracted two levels because Sinerius's conduct was limited to the receipt of child pornography and he did not traffic in such material, U.S.S.G. § 2G2.2(b)(1); and three levels for acceptance of responsibility, U.S.S.G. § 3E1.1. Accordingly, based on Sinerius's total offense level of 29 and Criminal History Category of II, the PSR calculated an advisory Guidelines range of 97 to 121 months. However, the PSR also determined that Sinerius's' prior conviction for sexual assault, in violation of Mont.Code Ann. § 45-5-502 (the "Montana sexual assault statute"), was a predicate offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," as defined by § 2252A(b). 18 U.S.C. §§ 2252A(b)(1),(2). The PSR thus concluded that § 2252A(b) required enhanced mandatory minimum sentences of 15 years for Count I and 10 years for Count II.¹

At his change of plea hearing, Sinerius admitted to his prior conviction and indicated that he agreed with the government's summary of the facts, including that "Sinerius is a registered sexual offender, having been convicted in Montana state court in 1994 of sexually abusing a minor female child."² Sinerius objected to the PSR, however, arguing that his prior Montana conviction did not categorically qualify as a predicate offense for enhancement purposes.

At the sentencing hearing, the district court ruled that Sinerius's Montana conviction was a predicate offense that required the enhanced mandatory minimum sentences provided by § 2252A(b) because it was an offense "relating to . . . sexual abuse, or abusive sexual conduct involving a minor or ward." Relying on the prior conviction, the court sentenced Sinerius to imprisonment of 180 months for receipt of child pornography (under § 2252A(b)(1)), and 120 months for possession of child pornography (under § 2252A(b)(2)), to run concurrently. The court also sentenced Sinerius to supervised release for a term of life, and ordered him to participate in treatment and to pay an assessment.

Sinerius appeals the sentence.

II

To determine whether Sinerius's conviction under the Montana sexual assault statute meets the definition of a predicate sex offense under § 2252A(b), we rely on the familiar two-step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999) (employing Taylor's categorical approach to interpret the phrase "sexual abuse of a minor" in 8 U.S.C. § 1101(a)(43)); see also United States v. Romm, 455 F.3d 990, 1005 (9th Cir.2006) (recognizing the parties' agreement that Taylor's categorical approach applies to a sentence enhancement under § 2252A(b)).

First, we examine the definition of the predicate offense in the federal statute. See United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.2006). Section 2252A(b) imposes an enhanced sentence on a defendant "if such person has a prior conviction . . . 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. § 2252A(b)(1),(2) (emphasis added). Thus, the relevant offenses under § 2252A(b) are those "relating to . . . aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." See Lopez-Solis, 447 F.3d at 1206.

Next, we look to the Montana sexual assault statute and compare its elements to the definition of the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor" under § 2252A(b). Lopez-Solis, 447 F.3d at 1206. Under this categorical approach, Sinerius's Montana conviction will qualify as a predicate sex offense only if the full range of conduct covered by the Montana statute falls within the meaning of those terms. Id.

A

Section 2252A(b) requires an enhanced sentence if Sinerius's Montana conviction is as an offense "relating to" either "aggravated sexual abuse," "sexual abuse," or "abusive sexual conduct involving a minor." We first consider whether Sinerius's conviction is an offense "relating to . . . sexual abuse."

Under the categorical approach, we follow our common practice in cases involving non-traditional offenses by defining the offense based on the "ordinary, contemporary, and common meaning of the statutory words." See Lopez-Solis, 447 F.3d at 1206-07 (citation omitted) (defining "sexual abuse of a minor" for purposes of the predicate offense under U.S.S.G. § 2L1.2).

We define the term "sexual abuse" by coupling the dictionary definition of "abuse" with the common understanding of "sexual." See id. at 1207; Baron-Medina, 187 F.3d at 1146. First, in the context of the Sentencing Guidelines, we have defined "abuse" to mean "misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on." Id. at 1207; United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir.2004) (quoting Webster's Third New Int'l Dictionary 8 (3d ed.1981)). We have explained that this definition "encompass[es] behavior that is harmful emotionally and physically." Lopez-Solis, 447 F.3d at 1207. Second, we have given the term "sexual" its ordinary and commonsense meaning. See id. Equipped with this understanding of § 2252A(b)'s definition of a predicate offense, we next consider the Montana statute under which Sinerius was convicted.

B

Under the categorical approach, we look only to the fact of Sinerius's prior conviction and the elements of the Montana offense to determine whether § 2252A(b)'s definition of "sexual abuse" covers the full scope the conduct prohibited by the Montana sexual assault statute. Id. at 1206.

The Montana statute undeniably proscribes acts that are "sexual" in nature. Mont.Code Ann. § 45-5-502. The statute prohibits knowingly subjecting "another person to any sexual contact without consent." Id. § 45-5-502(1). The relevant definitional provision describes "sexual contact" as "any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party." Id. § 45-2-101(60). In addition, the range of conduct the Montana statute proscribes is "abusive" because it necessarily involves physical "contact without consent." Id. § 45-5-502(1) (emphasis added). The physical touching of another person's sexual or intimate parts, for the purposes of sexual arousal or gratification and without consent, amounts to an "indecent assault on" that person. Lopez-Solis, 447 F.3d at 1207.

Nevertheless, Sinerius maintains that the Montana statute is over-inclusive vis-a-vis the offenses described in § 2252A(b) and, as a consequence, that his conviction therefore cannot categorically qualify as a predicate offense.

Under the categorical approach, even the least egregious conduct proscribed by the Montana statute must qualify as an offense "relating to . . . sexual abuse." See id. at 1206-07; Valencia v. Gonzales, 439 F.3d 1046, 1052 & n. 3 (9th Cir.2006). If such conduct does not qualify, the Montana statute is over-inclusive on its face.

The Montana statute provides that a victim less than 14 years old cannot consent to sexual contact if the offender's age exceeds his or her own by three or more years. Mont.Code Ann. § 45-5-502(5). Thus, one might consider the least egregious conduct proscribed by the Montana statute to involve ostensibly "consensual" sexual contact between a 16-year-old offender and a 13-year-old victim, but for the fact that the statute negates the victim's ability to consent. Even so, we have previously concluded this precise conduct constitutes sexual abuse. In Baron-Medina, we held that touching the body of a child under 14 years old...