United States v. Bennett

• Decision Date: 26 May 2016
• Docket Number: Nos. 14–1384,14–1402,s. 14–1384
• Parties: United States of America, Plaintiff–Appellant/Cross–Appellee, v. Clifton Brett Bennett, Defendant–Appellee/Cross–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

823 F.3d 1316

United States of America, Plaintiff–Appellant/Cross–Appellee
v.
Clifton Brett Bennett, Defendant–Appellee/Cross–Appellant.

Nos. 14–1384
14–1402

United States Court of Appeals, Tenth Circuit.

May 26, 2016

William A. Glaser, Appellate Section, Criminal Division (Leslie R. Caldwell, Assistant Attorney General, and Sung–Hee Suh, Deputy Assistant Attorney General, Appellate Section, Criminal Division, United States Department of Justice, and John F. Walsh, United States Attorney, and Robert M. Russel, Chief, Appellate Section, United States Attorney's Office, Denver, Colorado, with him on the briefs), United States Department of Justice, Washington, DC, for Appellant/Cross–Appellee.

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for Appellee–Cross–Appellant.

Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.

TYMKOVICH, Chief Judge.

Clifton Bennett pleaded guilty to federal child pornography charges and the district court sentenced him to fifty-seven months of imprisonment to be followed by several conditions of supervised release. Bennett and the United States each contend the district court erred at sentencing.

The government argues the court should have found Bennett had a prior Colorado conviction relating to child pornography, which would trigger a ten-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(2). We agree that Bennett's prior Colorado misdemeanor conviction for sexual exploitation of a child “relates to” child pornography, and he is therefore eligible for the mandatory minimum.

Bennett also appeals, challenging the district court's imposition of a special condition of supervised release that requires he undergo mandatory testing for sexual attraction to minors. But we are faced with too many speculative factors, too far in the future, to make a decision sounding in constitutional principles, so we dismiss Bennett's cross-appeal without prejudice on ripeness grounds.

I. Background

The United States Postal Inspection Service searched Clifton Bennett's Colorado Springs apartment and discovered thousands of images of child pornography and child erotica, featuring boys ranging from toddlers through young teenagers. Bennett pleaded guilty to knowingly possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B).¹

823 F.3d 1319

This was not Bennett's first conviction for sex-related conduct involving children. In 1997, he pleaded guilty to sexual exploitation of a child, a misdemeanor under Colorado law, and was sentenced to 140 days in jail.

Based on this prior conviction, the parties disagreed whether federal law required a ten-year mandatory minimum under 18 U.S.C. § 2252A(b)(2). Looking at the Colorado statute, the district court concluded that because the Colorado law punished a broader range of activities than the federal crime of possession of child pornography, the prior conviction is not a child pornography offense for statutory purposes. The court sentenced Bennett to fifty-seven months of imprisonment and ten years of supervised release.

At sentencing, Bennett also objected to the condition of supervised release that required him to undergo a test for sexual attraction to minors using a device called a penile plethysmograph.² The district court rejected this challenge and concluded:

I have sufficient concern for the young men—the under-age men in the community, that I think that in this particular case, to effectively supervise and treat the defendant, and to protect the community; in particular, these young boys from additional crimes by the defendant, that both the computer internet access limitation and the proposed sex offender evaluation treatment condition of supervised release, which would include, if necessary, plethysmograph examination, does comport with the statutory requirements of 18 United States Code Section 3583(d) and are appropriate in this case.

R., Vol. III, at 27.

II. Discussion

We first discuss whether Bennett's prior state misdemeanor conviction triggers the mandatory minimum enhancement. We conclude it does. We then turn to the special condition requiring plethysmograph testing, and conclude that the imposition of testing is too speculative at this point for us to consider Bennett's due process challenge. He can challenge the testing if and when it is actually imposed.

A. Mandatory Minimum Enhancement

Under 18 U.S.C. § 2252A(b)(2), the mandatory minimum applies if Bennett's prior conviction relates to a variety of state sexual abuse and child pornography crimes:

Whoever violates ... subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, 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

823 F.3d 1320

a minor or ward, or the production, possession , receipt, mailing, sale, distribution, shipment, or transportation of child pornography , such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

18 U.S.C. § 2252A(b)(2) (emphasis added).³ The district court determined whether the prior Colorado conviction counted for enhancement purposes using the so-called categorical approach.

1. Categorical Approach

The government argues that under the categorical approach Bennett's 1997 Colorado conviction for sexual exploitation of a child qualifies as a prior conviction relating to the possession of child pornography. Under this assessment, it contends the court may only consider whether the elements of the Colorado statute categorically relate to the possession of child pornography. Bennett disagrees that the categorical approach applies. He contends that our decision United States v. McCutchen , 419 F.3d 1122 (10th Cir. 2005), requires that we must find his prior conduct actually relates to the possession of child pornography. And because the limited record does not disclose his prior conduct, we could not make that determination.

But a careful reading of McCutchen confirms that the proper analytical framework begins with the categorical approach. In McCutchen, the defendant pleaded guilty to knowing possession of child pornography under 18 U.S.C. § 2252(a)(2) ⁴ and (1)(4)(B). 419 F.3d at 1123. McCutchen had a prior conviction—a guilty plea for sexual battery under Kansas law. The question was whether that prior conviction related to abusive sexual conduct involving a minor . Although sexual battery could be committed against children or adults, McCutchen had in fact abused an eight-year-old. Id. at 1124. The district court found that where the statutory language of the prior conviction was broad enough to encompass crimes that would trigger the enhancement and crimes that would not, it was allowed to look beyond the elements of the offense. United States v. McCutchen , No. 04–10140–01, at 4 (D. Kan. Dec. 15, 2004), aff'd , 419 F.3d 1122 (10th Cir. 2005).

We affirmed the district court. In doing so, we “reject[ed] the narrow categorical approach to application of § 2252(b)(2) advocated by McCutchen .” McCutchen , 419 F.3d at 1127 (emphasis added). But we did not upset the general presumption that the categorical approach applies.⁵ Rather, we merely rejected the notion that courts must focus “exclusively” on the elements of the prior conviction and are confined “solely” to the elements of the statute. Id. at 1126–27. We found “no basis” to require sentencing courts to “focus exclusively on the elements of a defendant's prior state conviction in determining whether such conviction triggers application of the sentence enhancement provisions.” Id. at 1126.

823 F.3d 1321

Thus, in applying § 2252A(b)(2) we start with the categorical approach, even if we do not end there. Consequently, we first ask whether the language of the prior conviction categorically triggers the enhancement. If not, we may proceed beyond the categorical approach if two pre-requisites are met. First, we must have access to court documents such as those approved of in Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), that demonstrate the elements of the crime the defendant committed. Second, the statute of prior conviction must be divisible, Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2282, 186 L.Ed.2d 438 (2013), meaning the statute lists alternative ways it may be violated.

Other circuits apply a similar approach. For example, in applying § 2252(b)(2), the Ninth Circuit explained that a court may apply a modified categorical approach if (1) the statute of prior conviction criminalizes more conduct than the federal triggering offense, and (2) the statute of prior conviction is divisible. United States v. Sullivan , 797 F.3d 623, 635 (9th Cir. 2015), petition for cert. filed , (Jan. 26, 2016) (No. 15–7875) (applying the categorical...