United States v. Hardin

• Decision Date: 25 May 2021
• Docket Number: No. 19-4556,19-4556
• Citation: 998 F.3d 582
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Timothy Scott HARDIN, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

998 F.3d 582

UNITED STATES of America, Plaintiff - Appellee,

v.Timothy Scott HARDIN, Defendant - Appellant.

No. 19-4556

United States Court of Appeals, Fourth Circuit.

Argued: March 10, 2021

Decided: May 25, 2021

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WYNN, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, vacated in part and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker joined. Judge Wynn wrote a dissenting opinion.

QUATTLEBAUM, Circuit Judge:

Appellant Timothy Hardin pled guilty to a single count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). On appeal, he asks us to vacate his sentence on two grounds. First, Hardin contends his prior conviction for Tennessee statutory rape does not categorically qualify under the federal child pornography statute for the recidivist enhancement as "relating to ... abusive sexual conduct involving a minor or ward ...." 18 U.S.C. § 2252A(b)(1).¹ As such, he argues the district court incorrectly applied the recidivist enhancement to his sentence. We disagree. Tennessee statutory rape categorically qualifies, and the district court's sentence properly applied the statutory recidivist enhancement.

Second, Hardin asserts that we should vacate the district court's imposition of a life term of supervised release and associated conditions because the court failed to explain its reasoning. On this argument, we agree. As such, we affirm in part, vacate in part and remand for further proceedings.

I.

The statutory penalty range for a § 2252A(a)(2) violation is ordinarily a minimum term of five years and a maximum term of twenty years. 18 U.S.C. § 2252A(b)(1). If, however, a defendant 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 ...," the penalty increases to a minimum of fifteen years and a maximum of forty years. Id . Central to this appeal is the fact that Hardin had a prior conviction for statutory rape in Tennessee from decades earlier.

The probation office's Presentence Investigation Report ("PSR") applied the enhanced penalty based on Hardin's prior statutory rape conviction and recommended a supervised release term of five years to life. Moreover, in addition to the mandatory and standard conditions of supervision, the PSR identified that the Standard Sex Offender Conditions adopted by the Western District of North Carolina may apply.

At his sentencing hearing, Hardin first objected to application of the statutory enhancement, arguing the Tennessee statute swept more broadly than the generic federal definition, and as such, captured conduct not "relat[ed] to abusive sexual conduct involving a minor." See 18 U.S.C. § 2252A(b)(1). The district court disagreed, relying on United States v. Colson , 683 F.3d 507 (4th Cir. 2012), to find that Tennessee statutory rape qualified as a predicate offense because it related to "the perpetrator's physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification." J.A. 73–74 (internal quotation marks omitted). According to the district court, while the guidelines’ range without the enhancement would be 135 to 168 months, the statutory enhancement resulted in an increase to the statutory mandatory minimum to 180 months. Accordingly, the district court imposed a sentence of 180 months of incarceration.

Additionally, the district court imposed the maximum supervised release term authorized under the statute—a lifetime term—and a variety of conditions, including "standard sex offender conditions of supervised release that have been adopted by the Court in this district." J.A. 99–100. Hardin objected to both the length of the term and several conditions. The district court overruled Hardin's objection to the length of the supervised release term, indicating it could later terminate supervised release if appropriate. In response to Hardin's objections to various standard sex offender conditions, first, regarding conditions limiting contact with children and prohibiting loitering or being in places where children may be present, the district court acknowledged Hardin's arguments. But it elected to leave those conditions in place, indicating it could address any modifications at Hardin's release. As to the conditions prohibiting Hardin's use of internet-enabled devices without permission or knowledge of the probation department, the district court acknowledged Hardin's objection. But it overruled it given this was not a per se ban. Finally, as to the employment condition prohibiting Hardin from working in a position or volunteering in any activity that involves direct or indirect contact with children, the district court acknowledged Hardin's argument. But again, the district court elected to leave the condition in place without explanation.

After the district court entered judgment, Hardin timely appealed. We have jurisdiction to hear his appeal under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

II.

We first evaluate whether Hardin's conviction for Tennessee statutory rape properly qualifies under the federal child pornography statute's recidivist enhancement as "relating to abusive sexual conduct involving a minor." 18 U.S.C. § 2252A(b)(1). This requires us to look at Tennessee statutory rape through the lens of the categorical approach. See Colson , 683 F.3d at 509–10. Under that approach, we look " ‘only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies’ as an offense ‘relating to’ the predicate offenses listed in 18 U.S.C. § 2252A(b)(1)." Id. at 510 (quoting United States v. Diaz-Ibarra , 522 F.3d 343, 348 (4th Cir. 2008) ).

To determine the most innocent conduct under the Tennessee statutory rape statute, we review its text:

(a) Statutory rape is sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four (4) years older than the victim.

Tenn. Code Ann. § 39-13-506 (1993).² The Supreme Court has told us that the most innocent conduct under a statutory rape statute looks not to conduct, but to age of the individuals. See Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1568, 198 L.Ed.2d 22 (2017) (defining the most innocent conduct under the categorical approach of a California law which criminalized "unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator and define[d] a minor as someone under age 18," as "consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21" (internal quotation marks omitted)). Here, under the Tennessee statute, the most innocent conduct covered would be consensual sex between a seventeen-year-old victim and a twenty-one-year-old defendant.

With that information in hand, we examine whether this conduct qualifies for the recidivist enhancement under 18 U.S.C. § 2252A(b)(1). The recidivist enhancement provides that:

if such person [who is in violation of Section 2252A(a)(2) ] 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 ... such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

18 U.S.C. § 2252A(b)(1) (emphasis added). Thus, if consensual sex between a seventeen-year-old victim and a twenty-one-year-old defendant "relat[es] to abusive sexual conduct involving a minor," such conduct qualifies under the enhancement, and Hardin's sentence should be affirmed. On the other hand, if such conduct does not qualify under the enhancement, the sentence must be vacated.³

To answer this question, we must interpret § 2252A(b)(1) ’s phrase "relating to abusive sexual conduct involving a minor." Fortunately, to do so, we need not create or interpret anything new. Rather, we need only substitute words and phrases contained in § 2252A(b)(1) with the proper meanings provided by both Congress and our binding precedent. We analyze this phrase in two composite parts—"abusive sexual conduct involving a minor" and "relating to."

We begin with the phrase "abusive sexual conduct involving a minor." Congress expressly defined "minor" for this enhancement statute. The defining statute states, "[f]or the purposes of [Chapter 110. Sexual Exploitation and Other Abuse of Children], ... ‘minor’ means any person under the age of eighteen years." 18 U.S.C. § 2256(1). Thus, after substituting the term "minor" with the statutory definition, the enhancement statute reads that a previous state conviction, like Tennessee statutory rape, qualifies under § 2252A(b)(1) if it relates to abusive sexual conduct involving a person under the age of eighteen.

Unpacking our phrase further, we turn to "abusive sexual conduct." Our decision in Colson squarely interprets that language. There, Colson had a prior conviction under Virginia law for "Production, Publication, Sale, or Possession, etc. of Obscene Items Involving Children."⁴ Colson , 683 F.3d at 509 (internal quotation marks omitted). We were asked whether his prior state conviction qualified for the § 2252A(b)(1) enhancement as "relating to abusive sexual conduct involving a minor." See id . at 510 (quoting 18 U.S.C. §...