U.S. v. Weis

Decision Date17 May 2007
Docket NumberNo. 06-2996.,06-2996.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald Louis WEIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Donovan S. Robertson, argued, Rock Island, IL, for Defendant-Appellant.

John S. Courter, Asst. U.S. Atty., argued, Des Moines, IA, for Plaintiff-Appellee.

Before MELLOY, SMITH, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Donald Louis Weis pleaded guilty to receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court1 determined that Weis's prior conviction for assault with intent to commit sexual abuse triggered the statutory mandatory minimum provisions of 18 U.S.C. § 2252(b)(1). Accordingly, the district court sentenced Weis to the enhanced mandatory minimum term of incarceration: fifteen years. Weis appeals, arguing that his prior conviction is not a proper predicate felony pursuant to § 2252(b)(1), and that his sentence of fifteen years violates the Eighth Amendment's prohibition against cruel and unusual punishment. For the reasons set forth below, we affirm the judgment of the district court.

I. BACKGROUND

We rely primarily upon the presentence report (PSR) prepared by the United States Probation Office for the relevant background. Weis did not object to any factual information contained in the PSR. See United States v. Wintermute, 443 F.3d 993, 1005 (8th Cir.2006) (noting the court can accept as true any facts contained in the PSR to which the defendant does not object).

A. Criminal History

On August 29, 1996, Weis pleaded guilty to assault with intent to commit sexual abuse—no injury, a violation of Iowa Code § 709.11 and an aggravated misdemeanor. On November 1, 1996, Weis was given a two-year suspended term of imprisonment and sentenced to two years of probation. As a result of his conviction, Weis was required to register as a sex offender.

Weis's state conviction resulted from his sexual relationship with H.N., who was thirteen years old at the time of their first sexual encounter. Weis was twenty-four years old. Weis knew H.N.'s age and attempted to keep their relationship a secret from her parents. Weis and H.N. were sexually involved from September 1995 through April 1996. During that time, they had sexual intercourse an estimated 100 times.

B. Instant Offense

Weis resumed his relationship with H.N. after she turned eighteen. On April 25, 2004, H.N. called the Coralville, Iowa, Police Department and reported finding child pornography on a computer she shared with Weis. An officer responded to Weis's apartment, and H.N. showed the officer a digital photograph of a naked girl on the computer.

The Coralville officer then met with Weis. After being provided with Miranda warnings, Weis admitted he possessed child pornography. Weis consented to a search of his apartment, and officers seized a computer and related equipment. After conducting forensic analysis on the computer, officers found 1,334 images consisting of several different series. Each series featured a different girl, usually about ten years old. In the first picture, the girl would be dressed, and then, throughout the series of images, she would disrobe. The end of the series featured the girl completely naked. The photos focused on the girls' genitals or pubic area, and the girls were frequently posed in bedrooms or on beds. The girls were often posed unnaturally to suggest sexual coyness or a willingness to engage in sexual activity. In addition to the images, there were numerous empty folders with titles suggesting they previously contained, or were intended to contain, child pornography.

Federal investigators arrested Weis on September 15, 2004, and seized a second computer from his residence. Analysis of this computer revealed sixty-six images of children in various clothed and unclothed poses. In addition to the visual images, investigators also found fifteen written stories featuring themes of child and infant rape, sexual abuse, assault, and incest. The victims depicted in the stories were as young as five months old.

Weis made further admissions regarding child pornography. In statements given after he received Miranda warnings, he told officers he was sexually aroused by looking at photos of girls as young as eight years old and realized he had a problem. Weis explained he began viewing child pornography after his sexual involvement with H.N. in 1995 and 1996. Originally, he received photos via the Internet about once every week or two, but he progressed to downloading about twice a week. He upgraded from a dial-up Internet connection to a cable modem to be able to better access child pornography. He installed specialized software designed to obtain as many images as possible and began downloading images en masse from newsgroups online. He estimated he had roughly 2,000 images of child pornography on the computer seized on April 25, 2004.

On April 21, 2005, Weis pleaded guilty to one count of receiving child pornography. At Weis's sentencing, the district court concluded Weis's prior conviction rendered him subject to enhanced penalties, pursuant to 18 U.S.C. § 2252(b)(1). Weis objected to the use of his prior conviction as a predicate felony under § 2252(b)(1) and argued the sentence provided by the enhanced penalty provision—a term of incarceration between fifteen and forty years—violated the Eighth Amendment. The district court rejected Weis's arguments and imposed a sentence of fifteen years, the minimum term of incarceration allowed by statute. This appeal followed.

II. DISCUSSION

On appeal, Weis asserts two challenges to his sentence. First, Weis contends the district court erred in finding Weis's prior conviction for assault with intent to commit sexual abuse—no injury triggered the enhanced statutory mandatory minimum term of imprisonment set forth in 18 U.S.C. § 2252(b)(1). Second, Weis alleges the imposition of the fifteen-year mandatory minimum violates the Eighth Amendment prohibition against cruel and unusual punishment. Specifically, Weis argues the fifteen-year sentence is grossly disproportionate to his offense. As discussed below, we conclude these arguments are without merit.

We apply de novo review to both of Weis's claims of error. United States v. Bach, 400 F.3d 622, 627 (8th Cir.2005) (noting that constitutional claims and federal issues requiring statutory interpretation both receive de novo review).

A. Predicate Offense

Weis contends his prior conviction for assault with intent to commit sexual abuse—no injury is not a qualifying predicate offense under the enhanced sentencing provision of § 2252(b)(1) because it is not a conviction "relating to . . . abusive sexual conduct involving a minor." Weis asserts his prior conviction does not qualify because 1) the age of the victim is not an element of the offense, and 2) actual harm is not an element of the offense. We disagree.

Section 2252(b)(1) states, in pertinent part:

Whoever violates . . . subsection (a) shall be . . . imprisoned not less than 5 years and not more than 20 years, but 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 . . . such person shall be . . . imprisoned for not less than 15 years nor more than 40 years.

§ 2252(b)(1). Unlike other sentencing enhancement provisions that specify a prior conviction must contain a certain element, § 2252(b)(1) contains no explicit reference to elements. Cf. 18 U.S.C. § 924(e)(2)(B) (defining a violent felony triggering enhanced penalties under the Armed Career Criminal Act as a specifically enumerated crime or one having "as an element the use . . . of physical force").

Weis's argument assumes the elements of a prior conviction alone determine whether an offense triggers the enhanced penalties of § 2252(b)(1). We have previously rejected an elements-only approach to interpreting the applicable sentencing enhancement provision. See United States v. Trogdon, 339 F.3d 620, 621 (8th Cir. 2003) (construing § 2252A(b)(1), which uses language identical to that in § 2252(b)(1), and explaining that a court looks to the statute under which a defendant was previously convicted and then to the facts underlying the offense to determine whether a prior conviction triggers the enhanced penalties).2 The question is whether an offense is one "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," not whether any specific element is present. Accord United States v. Mills, ___ Fed.Appx. ___, ___, No. 05-5233, 2007 WL 1140329, at *2 (4th Cir. April 17, 2007) (concluding § 2252A(b)(1) permits inquiry beyond the elements of the prior offense in determining whether enhanced penalties apply); McCutchen, 419 F.3d at 1127 (rejecting an elements-only approach to § 2252(b)(2)). For example, in Trogdon we upheld the imposition of enhanced penalties pursuant to § 2252A(b)(1) based upon a defendant's prior conviction for sexual misconduct in the first degree, an offense that did not include the victim's age as an element, because the offense related to sexual abuse and the charging document indicated the victim was a minor. Trogdon, 339 F.3d at 621.

Applying this analysis to Weis's prior conviction, we agree with the district court that the enhanced penalties apply. Weis's prior conviction is for assault with intent to commit sexual abuse—no injury, a violation of Iowa Code § 709.11. Iowa Code § 709.11 states, in pertinent part: "Any person who commits an assault . . . with the intent to commit sexual abuse is guilty of . . . an aggravated misdemeanor if no injury results." The trial information to which Weis pleaded guilty specified the manner in which Weis violated § 709.11, stating that between September 1995 and April 1996 he "touch[ed], with the intent to have sexual intercourse, another, to wit:...

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