United States v. Armes

• Decision Date: 26 March 2020
• Docket Number: No. 19-5539,19-5539
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James ARMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

953 F.3d 875

UNITED STATES of America, Plaintiff-Appellee,

v.James ARMES, Defendant-Appellant.

No. 19-5539

United States Court of Appeals, Sixth Circuit.

Argued: January 28, 2020

Decided and Filed: March 26, 2020

THAPAR, Circuit Judge.

Federal law mandates tough sentences for child pornographers—especially those with a history of sexual abuse. James Armes had such a history and received an enhanced sentence as a result. Because the district court got the law right and chose a reasonable sentence, we affirm.

I.

Armes pled guilty to five counts of producing, two counts of distributing, and one count of possessing child pornography. See 18 U.S.C. §§ 2251(a), 2252A(a)(2), 2252A(a)(5)(B). The images showed him molesting two members of his family—one an infant, the other a toddler—by fondling them and placing his genitals on various parts of their bodies.

This wasn’t Armes’s first run-in with the law over his sexual behavior. The presentence report related that in 2005 Armes pled guilty to two counts of Kentucky third-degree rape. See Ky. Rev. Stat. Ann. § 510.060 (West 2005). The report added: "According to the Indictment, the defendant engaged in sexual intercourse with a victim that was less than 16 years old ... while the defendant was over 21 years old." R. 25, Pg. ID 167 (PSR ¶ 84). Armes didn’t object to these statements or (for that matter) any other factual statements in the report.

These past convictions had sentencing consequences. Normally, the minimum prison terms for producing, distributing, and possessing child pornography are fifteen, five, and zero years (respectively). But those numbers rise to twenty-five, fifteen, and ten years for certain repeat sex offenders—including those with a past conviction under a state law "relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward[.]" 18 U.S.C. §§ 2251(e), 2252A(b)(1)–(2). The district court found that Armes’s past convictions for Kentucky third-degree rape qualified under this sentencing enhancement. So the court applied the enhancement, making Armes’s minimum sentence twenty-five years.

The Sentencing Guidelines recommended the maximum possible sentence—three hundred and fifty years. But the government asked for only seventy-five years. In the end, the district court varied even lower and went with fifty years.

Armes now challenges his sentence on two grounds: (1) his Kentucky rape convictions don’t trigger the sentencing enhancement, and (2) his fifty-year sentence is substantively unreasonable.

II.

The first challenge calls for some background. The bottom-line question is whether Armes’s state convictions relate to "aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward," as those terms are commonly understood. 18 U.S.C. §§ 2251(e), 2252A(b)(1)–(2) ; see United States v. Mateen , 806 F.3d 857, 862 (6th Cir. 2015) (holding that "sexual abuse" should be understood according to its "common meaning").¹ To answer that question, we apply the so-called "categorical approach," which means parsing the elements of Armes’s state offense to determine whether the offense necessarily relates to "sexual abuse" (or "aggravated sexual abuse" or "abusive sexual contact involving a minor or ward"). Mateen , 806 F.3d at 862 (cleaned up).

But there’s a complication: at the time of Armes’s conviction, Kentucky used the "third-degree rape" label for not one but three different ways of breaking the law:

(1) A person is guilty of rape in the third degree when:

(a) He engages in sexual intercourse with another person who is incapable of consent because he is mentally retarded;

(b) Being twenty-one (21) years old or more, he engages in sexual intercourse with another person less than sixteen (16) years old; or

(c) Being twenty-one (21) years old or more, he engages in sexual intercourse with another person less than eighteen (18) years old and for whom he provides a foster family home[.]

Ky. Rev. Stat. Ann. § 510.060 (West 2005). Since these three versions of third-degree rape had distinct sets of elements, they were distinct crimes. In the jargon of federal criminal law, the statute was "divisible," meaning that we use the "modified categorical approach" to determine the particular crime of conviction. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

All this means that for Armes’s sentencing enhancement to be proper, one of two things must be true. Option one: the district court had enough information to determine the particular crime of conviction, and that crime categorically qualifies under the enhancement. Option two: all three crimes categorically qualify under the enhancement. In this case both are true. Thus, the district court properly applied the enhancement.

A.

Start with option one. The presentence report said (1) that Armes pled guilty to two counts of third-degree rape and (2) that the indictment in that case alleged that Armes "engaged in sexual intercourse with a victim that was less than 16 years old ... while the defendant was over 21 years old." R. 25, Pg. ID 167 (PSR ¶ 84). That charge matches the elements of one (and only one) version of Kentucky third-degree rape. See Ky. Rev. Stat. Ann. § 510.060(1)(b) (West 2005).

If Armes was convicted of that offense, then this case boils down to an easy question: does the ordinary meaning of "sexual abuse" cover the statutory rape of a fifteen-year-old (or younger) by someone who’s at least twenty-one? Of course it does. To state the obvious, "sexual intercourse" is "sexual." And when an adult takes sexual advantage of a child or early teen, that’s "abuse." See, e.g. , United States v. Savoy , 280 F. App'x 504, 509 (6th Cir. 2008) ("At a minimum [the defendant’s] act could constitute statutory rape, and consequently sexual abuse."); United States v. Baron-Medina , 187 F.3d 1144, 1147 (9th Cir. 1999). In fact, the Supreme Court has held that "sexual intercourse" may be considered "abusive solely because of the ages of the participants" if the victim is younger than sixteen. Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1572, 198 L.Ed.2d 22 (2017) (interpreting "sexual abuse of a minor" as used in 8 U.S.C. § 1101(a)(43)(A) ). In short, if Armes’s past convictions were under then-current Ky. Rev. Stat. § 510.060(1)(b), then they fit comfortably within the terms of the sentencing enhancement.

So could the district court determine that this was Armes’s crime of conviction based on the presentence report? Well-settled principles tell us yes. If anything is certain in the oft-confusing world of the modified categorical approach, it’s that a court can use a formal charging document (i.e. , an indictment or information) to determine a defendant’s crime of conviction. Shepard v. United States , 544 U.S. 13, 16, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; see also, e.g. , United States v. Mahon , 444 F.3d 530, 535–36 (6th Cir. 2006). And if anything is certain in the world of sentencing procedure, it’s that a court "may accept any undisputed portion of the presentence report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A) (emphasis added); see, e.g. , United States v. Denson , 728 F.3d 603, 614 (6th Cir. 2013). Armes raised no objections to the report, so the district court properly adopted it in full—including its description of the charge in the indictment. And the district court properly relied on the charge to determine Armes’s crime of conviction.

But not so fast, says Armes: even if logic demands this result, binding circuit precedent bars it. See United States v. Wynn , 579 F.3d 567 (6th Cir. 2009). In Wynn , this court stated that a presentence report isn’t an acceptable " Shepard document"—that is, not a document courts may use under the modified categorical approach. See id. at 576–77. Based on this language from Wynn (and other cases that echo it), Armes concludes that the report’s description of the indictment wasn’t enough to pinpoint his crime of conviction. Only the indictment itself would do.

But as Chief Justice Marshall put it long ago, "[i]t is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia , 19 U.S. 264, 399, 6 Wheat. 264, 5 L.Ed. 257 (1821). To read our precedents as Armes does would disregard that maxim.

To see why, consider three prior cases: (1) Wynn ’s forerunner, United States v. Bartee , 529 F.3d 357 (6th Cir. 2008) ; (2) Wynn itself; and (3) United States v. Hockenberry , 730 F.3d 645 (6th Cir. 2013). Once we understand these three cases, the rest fall easily into place.

1. Start with Bartee . There, the defendant had a conviction for "engag[ing] in sexual contact ... under circumstances involving the commission of any other felony." 529 F.3d at 360 (quoting Mich. Comp. Laws § 750.520c(1)(c) ). The government argued this conviction should count as a "crime of violence" because it involved sexual contact with a minor. Id. at 360–61. True, the elements of the crime didn’t say anything about sex with a minor. See id. at 360. But "the underlying facts" showed that the victim was fifteen. Id. at 361.

The problem with this is that the categorical approach simply does not care about "underlying facts"—a phrase courts use to refer to the specific circumstances of a specific defendant’s violation of the law. See Mathis , 136 S. Ct. at 2252 (explaining that the categorical approach "avoid[s] any inquiry into the underlying facts" (quoting James v. United States , 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) )); Taylor v. United States , 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting the categorical approach in part to avoid the need for a "record of the underlying facts"). The only facts it cares about are the facts that were "integral to the defendant’s conviction"—the elements "necessarily found [by a jury] or...