United States v. Wikkerink

• Decision Date: 31 October 2016
• Docket Number: No. 15-30152,15-30152
• Citation: 841 F.3d 327
• Parties: United States of America, Plaintiff–Appellee, v. Aaron Wikkerink, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

841 F.3d 327

United States of America, Plaintiff–Appellee,

v.Aaron Wikkerink, Defendant–Appellant.

No. 15-30152

United States Court of Appeals, Fifth Circuit.

Filed October 31, 2016

Carol Mignonne Griffing, U.S. Attorney's Office, Shreveport, LA, for Plaintiff–Appellee.

John Harvey Craft, Esq., New Orleans, LA, Brian David Landry, Esq., Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, Shreveport, LA, for Defendant–Appellant.

Aaron Wikkerink, Pro Se.

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Aaron Wikkerink pleaded guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). In calculating the range applicable to Wikkerink's offense under the U.S. Sentencing Guidelines (the “Guidelines”), the district court applied sentencing enhancements pursuant to § 2252A(b)(1) and U.S.S.G. § 4B1.5(a). On appeal, Wikkerink argues the district court erred in applying these sentencing enhancements to the calculation of his Guidelines range. Although the district court made a clear and obvious error that affected Wikkerink's substantial rights, we hold that the error does not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus we AFFIRM.

I. BACKGROUND

In October 2014, Wikkerink entered into an agreement in which he pleaded guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). A presentence report (“PSR”) was subsequently prepared to assist the district court in determining the appropriate sentence. The PSR revealed that Wikkerink's only previous conviction was for the Louisiana offense of aggravated incest, for which he had been sentenced to an eight-year term of imprisonment. Wikkerink had committed the Louisiana offense by sexually molesting his seven-year-old niece.¹ Based on this prior conviction, the PSR indicated that § 2252A(b)(1) imposed a minimum term of imprisonment of 15 years and a maximum term of 40 years. The PSR also found that Wikkerink was a “repeat and dangerous sex offender against minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense level of 34 and a criminal history category of V. After a three-level reduction for acceptance of responsibility, the PSR concluded that Wikkerink's total offense level was 31. Based on this total offense level and a criminal history category of V, the Guidelines range would have been 168 to 210 months. Because the statute of conviction imposed a mandatory minimum sentence, however, the PSR stated that the Guidelines range was 180 to 210 months.

During the sentencing hearing, the district court considered the recommendations made in the PSR and adopted the PSR's factual findings. The district court also stated that the maximum sentence under the Guidelines was 240 months, even though the PSR had calculated the maximum sentence as 210 months. The district court then imposed a sentence of 360 months of imprisonment and a five-year term of supervised release. The district court explained that this sentence, which was significantly above the Guidelines range, was just and reasonable under either U.S.S.G. § 5K2.0(a)(3) or 18 U.S.C. § 3553(a) because of Wikkerink's previous sex offense involving a child and the “very disturbing nature” and “high number” of pornographic videos and still images. Wikkerink orally objected to the sentence during the hearing, but he gave no reasons for his objection. After the sentence was imposed, Wikkerink timely appealed.

II. STANDARD OF REVIEW

Wikkerink asserts that this Court should conduct a de novo review of the sentencing enhancements applied to the calculation of his Guidelines range. “To preserve an issue for review on appeal, the defendant's objection must fully apprise the trial judge of the grounds for the objection so that evidence can be taken and argument received on the issue.” United States v. Musa , 45 F.3d 922, 924 n.5 (5th Cir. 1995). Wikkerink did not object to the PSR, which stated he was subject to sentencing enhancements under 18 U.S.C. § 2252A(b)(1) and U.S.S.G. § 4B1.5(a). At sentencing, Wikkerink's counsel stated that her client was “looking at, under the statutory guidelines or mandates, 15 to 40 years.” And Wikkerink's generic objection after the district court imposed the sentence did not apprise the district court of the enhancement issues he raises on appeal. See Musa , 45 F.3d at 924 & n.5.

In cases such as this, where “the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error.” United States v. Chavez–Hernandez , 671 F.3d 494, 497 (5th Cir. 2012). “Plain error occurs when: ‘(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights.’ ” United States v. Gonzalez–Terrazas , 529 F.3d 293, 296 (5th Cir. 2008) (quoting United States v. Villegas , 404 F.3d 355, 358 (5th Cir. 2005) ). “If each of these conditions is satisfied, we may exercise our discretion to correct the error only if ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Garza–Lopez , 410 F.3d 268, 272 (5th Cir. 2005) ).

III. DISCUSSION

Wikkerink argues that his previous Louisiana conviction for aggravated incest did not clearly constitute a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(1) or a “sex offense conviction” under U.S.S.G. § 4B1.5(a). Thus, he contends that the district court erred by applying sentencing enhancements to the calculation of his Guidelines range based on his previous state conviction.

Generally, courts employ a categorical approach when classifying a previous conviction for sentence enhancement purposes. See Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant's specific conduct.” United States v. Rodriguez , 711 F.3d 541, 549 (5th Cir. 2013) (en banc). A court must compare the elements of the statute of conviction for the prior offense with the elements of the “generic crime” warranting a sentencing enhancement. Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 2284, 186 L.Ed.2d 438 (2013).² The prior conviction qualifies the defendant for a sentencing enhancement “only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. at 2281.

When the statute of conviction is “divisible”—that is, “comprises multiple, alternative versions of the crime”—a court may apply the modified categorical approach “to determine which alternative formed the basis of the defendant's prior conviction.” Id. at 2281, 2284. In doing so, a court may review “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”³ Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps , 133 S.Ct. at 2281.

In the present case, the district court made a clear and obvious error when it relied solely on the PSR in concluding that Wikkerink's previous state conviction warranted sentencing enhancements under 18 U.S.C. § 2252A(b)(1) and U.S.S.G. § 4B1.5(a). See United States v. Martinez–Vega , 471 F.3d 559, 562 (5th Cir. 2006) ; Garza–Lopez , 410 F.3d at 274. However, we must ask “whether there is plain error at the time of appellate consideration.” Martinez–Vega , 471 F.3d at 562. Therefore, this Court can consider the statute of conviction and the record as supplemented on appeal to determine whether the Louisiana offense of aggravated incest falls within the definitions of a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(1) and a “sex offense conviction” under U.S.S.G. § 4B1.5(a). See United States v. Garcia–Arellano , 522 F.3d 477, 480 (5th Cir. 2008).

A. Enhancement Pursuant to § 2252A(b)(1)

First, Wikkerink argues that the district court erred in concluding that his aggravated incest conviction was a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(1). Section 2252A(b)(1) generally mandates a sentence of at least 5 years and not more than 20 years of imprisonment, but the statutory minimum increases to 15 years and the statutory maximum increases to 40 years if the defendant has a qualifying “prior conviction.” A qualifying prior conviction under § 2252A(b)(1) includes a conviction “under the laws of any State relating to ... sexual abuse.” The term “sexual abuse” is not defined in § 2252A(b)(1), but this Court has previously held that sexual abuse is a generic term that must be given its ordinary, common meaning. United States v. Hubbard , 480 F.3d 341, 348 (5th Cir. 2007). “We have repeatedly endorsed the definition of ‘sexual abuse’ set forth in Black's Law Dictionary, which is ‘an illegal or wrongful sex act, esp. one performed against a minor by an adult.’ ”

United States v. Vigil , 774 F.3d 331, 334 (5th Cir. 2014) (quoting Sexual Abuse , Black's Law Dictionary (9th ed. 2009)).

When Wikkerink committed his prior offense of aggravated incest in May 1999, the statute of conviction criminalized “engaging in any [enumerated] prohibited act ... with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of [several] biological, step, or adoptive relatives.” La. Stat. Ann. § 14:78.1(A) (Supp. 1998) (repealed). The statute then enumerated a long list of prohibited acts. § 14:78.1(B). Wikkerink contends that this definition of aggravated incest is far broader than the qualifying prior convictions...