United States v. Dahl

• Decision Date: 18 August 2016
• Docket Number: No. 15-2271,15-2271
• Citation: 833 F.3d 345
• Parties: United States of America v. William S. Dahl, Appellant
• Court: U.S. Court of Appeals — Third Circuit

833 F.3d 345

United States of America

v.William S. Dahl, Appellant

No. 15-2271

United States Court of Appeals, Third Circuit.

Argued: June 8, 2016

Filed: August 18, 2016

Brett G. Sweitzer [ARGUED], Federal Community Defender Office for the, Eastern

District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant.

Bernadette A. McKeon [ARGUED], Michelle Rotella, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee.

Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges

OPINION

SCIRICA

, Circuit Judge

William Dahl pleaded guilty to multiple offenses involving the use of interstate commerce to engage minors in sexual activities.¹ Because Dahl had several prior Delaware convictions related to sexual activity with minors, the District Court sentenced him under the Repeat and Dangerous Sex Offender guideline, United States Sentencing Guideline § 4B1.5

, to the top-range sentence of 293 months in prison to be followed by 20 years of supervised release. Dahl argues for the first time on appeal that the District Court's application of U.S.S.G. § 4B1.5 was plain error because his prior state convictions are not categorically “sex offense convictions” under the Guidelines. In light of recent Supreme Court rulings, we agree and will remand for resentencing.

I.

In 2013, Dahl placed several advertisements on Craigslist seeking sexual encounters with young males. Two undercover law-enforcement agents, acting independently, replied to the advertisements, representing themselves as fifteen-year-old boys. Through email communications over the next few weeks, Dahl engaged in graphic sexual conversations, requested photographs of the boys, and attempted to arrange in-person sexual encounters. One of the undercover agents eventually agreed to meet Dahl at his house, ostensibly for a sexual encounter. Dahl was arrested after the detective called off the meeting.

Dahl has several prior Delaware convictions related to sexual activity with minors. Of relevance here, in 1991 he was convicted of first- and third-degree unlawful sexual contact relating to encounters with two seventeen-year-old boys. And in 2001, Dahl was convicted of second-degree unlawful sexual contact relating to an encounter with a fourteen-year-old boy in 1999.

Based on the application of U.S.S.G. § 2G1.3

(the prohibited sexual conduct guideline) and § 4A1.1 (the criminal history guideline), Dahl's Guidelines range would have been 121–151 months' imprisonment (Total Offense Level 29; Criminal History Category IV² ), absent any sentencing enhancements. However, the probation officer recommended, and the District Court found, that Dahl's prior state convictions were the equivalent of convictions for federal aggravated sexual abuse under 18 U.S.C. § 2241

(a Chapter 109A offense), and therefore “sex offense conviction” predicates under U.S.S.G. § 4B1.5. Accordingly, Dahl's Total Offense Level was increased from 29 to 34,³ and his Criminal History Category was increased from IV to V, yielding a Guidelines range of 235–293 months' imprisonment. The District Court found the high end of the range was appropriate and sentenced Dahl to 293 months' imprisonment.

Dahl objected to the application of U.S.S.G. § 4B1.5

, but on different grounds than he asserts on appeal. The issue of whether Dahl's prior Delaware convictions were improperly categorized as “sex offense convictions” under federal law was therefore unpreserved. We review an unpreserved objection for plain error.⁴

II.

Dahl contends the District Court committed plain error by failing to apply the categorical approach in determining whether his Delaware first- and third-degree unlawful sexual contact convictions constitute federal sex offense convictions under the federal repeat offender statute, 18 U.S.C. § 2426(b)(1)(B)

, and therefore subject Dahl to a heightened sentence under the career sexual offender guideline, § 4B1.5. The government responds that we should not apply the categorical approach, but should instead look to the actual conduct of conviction to determine whether it would constitute an offense under the federal statute. Specifically, it contends U.S.S.G. § 4B1.5 and 18 U.S.C. § 2426(b)(1)(B) require a factual approach because they refer to the requisite predicate offense in case-specific terms. Section 2426(b)(1)(B) refers to “a conviction for an offense ... consisting of conduct that would have been an offense” under certain federal statutes, and § 4B1.5 refers to a “sex offense conviction” as “any offense [under 18 U.S.C. § 2426(b)(1)(B) ], if the offense was perpetrated against a minor .” We disagree with the government. The District Court erred when it failed to apply the categorical approach.

The Supreme Court has explained that to determine whether a defendant's prior federal or state conviction qualifies as a predicate offense, sentencing courts must apply the categorical approach and “ ‘look only to the statutory definitions'—i.e. , the elements—of a defendant's prior offenses, and not ‘to the particular facts underlying those convictions.’ ” Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013)

(quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). If the statute of conviction has the same elements as the federal crime, then the prior conviction can serve as a predicate. “[S]o too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily ... guilty of all the [generic crime's] elements.’ ” Id. (quoting

Taylor , 495 U.S. at 599, 110 S.Ct. 2143

). But if the relevant state or federal statute “sweeps more broadly than the generic crime, a conviction under that law cannot count as a[ ] ... predicate, even if the defendant actually committed the offense in its generic form .” Id. (emphasis added). In other words, we look to the elements of the prior offense “to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute.” Hernandez–Cruz v. Att'y Gen. , 764 F.3d 281, 285 (3d Cir. 2014). The elements, not the facts, are key. Descamps , 133 S.Ct. at 2283.

In Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

, the Supreme Court explained that the “categorical approach” applies notwithstanding a predicate statute's reference to conduct. The Court found the Armed Career Criminal Act's (ACCA's) residual clause void for vagueness because application of the categorical approach compelled courts to determine the unconstitutionally vague “ordinary case” of a predicate statute's violation. Id. at 2557–58. But the Court upheld the use of the categorical approach generally, and rejected the argument by the government (and Justice Alito in dissent) that the “conduct” language of ACCA should trigger a factual approach. See

id. at 2561–62 (“[T]he dissent urges us to save the residual clause from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged.... In other words, the dissent suggests that we jettison for the residual clause (though not for the enumerated crimes) the categorical approach.... We decline the dissent's invitation.”). The Johnson Court explained that the important textual reference for triggering the categorical approach is “conviction,” not “conduct.” Id. at 2562 (“This emphasis on convictions indicates that ‘Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.’ ” (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 )).

In a recent decision, Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)

, the Court emphasized that a sentencing enhancement's use of the phrase “conviction” indicates Congress's intent to apply the categorical approach. 136 S.Ct. at 2252 (“By enhancing the sentence of a defendant who has three ‘previous convictions' ... rather than one who has thrice committed that crime—Congress indicated that the sentencer should ask only about whether ‘the defendant had been convicted of crimes falling within certain categories,’ and not about what the defendant had actually done.” (quoting Taylor , 495 U.S. at 600, 110 S.Ct. 2143 )).⁵

Johnson

and Mathis looked at ACCA, 18 U.S.C. § 924(e)(1)-(2)(B)(ii), whereas here we examine a part of the Code dealing with repeat sex offenders, 18 U.S.C. § 2426(b)(1)(B). But the categorical approach is not unique to ACCA, Mathis , 136 S.Ct. at 2251 n.2, and both ACCA and the repeat offender statute use the terms “conduct” and “conviction” in a similar manner.

ACCA's residual clause's description of a predicate conviction is:

[A] conviction [ ] for ... any crime ... that ... involves conduct that presents a serious potential risk of physical injury to another;

18 U.S.C. § 924(e)

(emphasis added).

The repeat offender statute's description of a predicate conviction is:

“[A] conviction for an offense ... consisting of conduct that would have been an offense under a chapter referred to in paragraph (1) if the conduct had occurred within the special maritime and territorial jurisdiction of the United States.

Id. § 2426(b)(1)(B) (emphasis added). The government's contention that § 924(e)(2)(B)(ii)

is “materially different” from § 2426(b)(1)(B) because it does not refer to “conduct” is misplaced. Furthermore, both statutes refer to “conviction”—the textual trigger for application of the categorical approach. See

Johnson , 135 S.Ct. at 2562.⁶

The government also contends that a factual inquiry, not a categorical approach, is required because the statute includes the qualifying language, “if the offense was perpetrated against a minor.” U.S.S.G. § 4B1.5

cmt. 3(A)(i). But as we held, and the Supreme Court affirmed, in Nijhawan

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