United States v. Mills

• Decision Date: 08 December 2016
• Docket Number: No. 16–40258,16–40258
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Taylor Alan MILLS, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

843 F.3d 210

UNITED STATES of America, Plaintiff–Appellee

v.Taylor Alan MILLS, Defendant–Appellant

No. 16–40258

United States Court of Appeals, Fifth Circuit.

Filed December 8, 2016

John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Travis Wiley Berry, I, Esq., Attorney, Corpus Christi, TX, Margaret Loraine Schmucker, Cedar Park, TX, for Defendant–Appellant.

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Taylor Alan Mills pleaded guilty pursuant to a plea agreement to coercion or enticement of a minor in violation of 18 U.S.C. § 2422(b) and was sentenced to a 300–month term of imprisonment to be followed by a life term of supervised release. Mills appeals his sentence, claiming that the district court should not have considered his prior Texas deferred adjudication for the purpose of enhancing his sentence and, in the alternative, that his 300–month sentence violates the Eighth Amendment. We affirm.

I.

On September 12, 2015, an undercover detective with the Corpus Christi Police Department posted an ad on the website Craigslist entitled "Family Fun Taboo." The ad read: "mother of two, young, hit me up if you want to hook up and have some family fun." Using the alias "Alan Pepsi," Mills responded and began communicating with the detective, who represented to Mills that she was a mother of two children ages 11 and 14.

At Mills's request, the detective sent him photographs of the two children, which were actually age-regressed photographs of two Corpus Christi police officers. In return, Mills sent the detective explicit photographs of himself and asked the detective to show the photographs to the two children. He also described various sex acts he intended to engage in with the children. The conversations culminated in Mills agreeing to meet the detective at a designated hotel to engage in sexual activity with the children. When Mills arrived at the pre-arranged meeting place, he was arrested. Mills admitted to the police that he had come to the hotel with the intent to have sex with the two children, whom he believed to be 11 and 14 years old. At the time of his arrest, Mills was in possession of a condom and other sex paraphernalia.

Mills pleaded guilty pursuant to a plea agreement to using a facility and means of interstate and foreign commerce—i.e., a telephone and a computer connected to the internet—to knowingly attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). In calculating Mills's advisory Sentencing Guidelines range for inclusion in his Pre-sentence Report, the probation office determined that Mills was a repeat and dangerous sex offender pursuant to U.S.S.G. § 4B1.5(a), because he had committed his instant offense subsequent to sustaining a prior sex offense conviction.

This determination was based on Mills's 2013 guilty plea in Texas state court to two counts of Online Solicitation of a Minor and one count of Indecency with a Child, in violation of Texas Penal Code §§ 33.021 and 21.11. In 2012, Mills began communicating with a 16–year–old high school student on Facebook, including sending her sexually-explicit messages. Mills additionally picked up the victim from her school on at least one occasion and, according to the victim, exposed himself to her while she was in his vehicle. For this offense, Mills received what Texas law refers to as a "deferred adjudication." After receiving and entering Mills's guilty plea and making a finding that the evidence substantiated Mills's guilt, the Texas court imposed ten years of confinement, but probated it to ten years of community supervision, subject to a number of conditions. At the time of sentencing for his instant federal offense, Mills was still under his Texas deferred adjudication probation term.

As a result of the § 4B1.5(a) repeat offender enhancement, Mills's criminal history was automatically raised to level V. Combined with a total offense level of 35, this produced an advisory Sentencing Guidelines range of 262 to 327 months of imprisonment. The enhancement did not increase the statutory maximum punishment for Mills's offense, which was life imprisonment. See 18 U.S.C. § 2422(b). The district court sentenced Mills within-guidelines to 300 months of imprisonment and a life term of supervised release.

Mills raises two issues on appeal: (1) whether the district court erred in determining that he qualified for the § 4B1.5(a) enhancement; and (2) whether his 300–month sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Mills raised both issues below, thus preserving them for review.

II.

A sentence is enhanced under § 4B1.5(a) when "the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction ." U.S.S.G. § 4B1.5(a) (emphasis added). Mills argues that his Texas deferred adjudication for Online Solicitation of a Minor and Indecency with a Child is not a prior "conviction" within the meaning of § 4B1.5(a). Section 4B1.5 does not expressly define the term "conviction," and neither party has identified any cases addressing the question of whether a deferred adjudication qualifies as a "sex offense conviction" for the purposes of the § 4B1.5(a) enhancement.

Whether the Sentencing Guidelines apply to a prior conviction is a question of federal law, which we review de novo. United States v. Vasquez , 298 F.3d 354, 356, 358 (5th Cir. 2002) ; United States v. Valdez–Valdez , 143 F.3d 196, 197–98 (5th Cir. 1998) ; United States v. Cisneros , 112 F.3d 1272, 1280 (5th Cir. 1997). State law can "be looked to ‘for informational purposes, but we are not bound by its treatment of a ... conviction when we apply the federal sentence-enhancement provisions.’ " Cisneros , 112 F.3d at 1280 (quoting United States v. Morales , 854 F.2d 65, 68 (5th Cir. 1988) ); see also Dickerson v. New Banner Inst., Inc. , 460 U.S. 103, 111–12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) ("Whether one has been ‘convicted’ within the language of the gun control statutes is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State.").

"This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of ‘conviction.’ " Dickerson , 460 U.S. at 112, 103 S.Ct. 986.

Under Texas law, a court may, upon receiving a guilty plea, "defer adjudication" in the case instead of entering a formal finding or judgment of guilt. This procedure is described in the Texas Code of Criminal Procedure:

[W]hen in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty ..., hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

TEX. CODE CRIM. PROC. art. 42.12, § 5(a) (West 2006). If the defendant violates a condition of community supervision, the court may then proceed to adjudicate guilt and assess a punishment. Id . at art. 42.12, § 5(b). If, however, the defendant successfully completes the community supervision term, the case, for most legal purposes, "disappears." Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (quoting Ex parte Hernandez , 705 S.W.2d 700, 702 (Tex. Crim. App. 1986) ). "In those circumstances, the proceedings are dismissed, the defendant is discharged, and the defendant is deemed not to have a conviction for many purposes" under Texas law.¹ Id .

Mills concedes that this court has consistently treated Texas deferred adjudications as "convictions" under the Sentencing Guidelines.² However, as Mills correctly points out, the sentencing provisions examined in many of our prior cases provide specific interpretive clues by either expressly defining the term "conviction" or by referencing commentary indicating that deferred adjudications qualify as convictions.³ Therefore, we agree with Mills that, although instructive, these prior holdings do not fully resolve the meaning of "conviction" as used in § 4B1.5(a). See DeLeon v. City of Corpus Christi , 488 F.3d 649, 652 (5th Cir. 2007) ; Cisneros , 112 F.3d at 1281.

Because § 4B1.5 does not expressly define "conviction," Mills urges us to depart from our prior understanding of the term and hold that, as used in § 4B1.5, "conviction" excludes deferred adjudications such as his. Mills argues that because the term is capable of multiple meanings, this court must apply the rule of lenity and give him the benefit of the reading that results in a shorter sentence. However, the rule of lenity is only applied where " ‘[a]fter seiz[ing] every thing from which aid can be derived,’ the Court is ‘left with an ambiguous statute.’ " Smith v. United States , 508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (alterations in original) (quoting United States v. Bass , 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ).

Mills relies on the Supreme Court's decision in Deal v. United States , 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), for the proposition that the term "conviction" "has long been understood" to be "ambiguous." In fact, the Court in that case came to the opposite conclusion, rejecting a defendant's similar suggestion that "conviction," left undefined, was ambiguous as used in 18 U.S.C. § 924(c)(1), which provides a sentencing enhancement for prior convictions of crimes of violence. Id. at 131–32, 113 S.Ct. 1993 ("[O]f course susceptibility [to multiple] meanings does not render the word ‘conviction,’ whenever it is used, ambiguous."). While acknowledging that "conviction," according to the dictionary, could have multiple meanings, the Court noted that the...