United States v. Bennett

823 F.3d 1316, 2016 U.S. App. LEXIS 9643, 2016 WL 3034664
Court of Appeals for the Tenth Circuit·Decided May 26, 2016·No. 14-1384 and 14-1402·Published·Cited by 37 cases

Opinions

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

[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 3588(d) and are appropriate in this case.

R., Vol. Ill, 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 in[1320] volving 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).

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United States v. Bennett, 823 F.3d 1316, 2016 U.S. App. LEXIS 9643, 2016 WL 3034664 (10th Cir. 2016).

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