United States v. Jepsen

289 F. Supp. 3d 971
CourtDistrict Court, N.D. Iowa
DecidedJanuary 26, 2018
DocketNo. CR 16–4019–MWB
StatusPublished

This text of 289 F. Supp. 3d 971 (United States v. Jepsen) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jepsen, 289 F. Supp. 3d 971 (N.D. Iowa 2018).

Opinion

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION...973

A. The Alleged Prior Conviction...973

B. The Current Proceedings...974

C. Arguments Of The Parties...974

II. LEGAL ANALYSIS...976

A. Applicable Standards...976

B. Discussion...976

1. Prior to what?...976
2. When was the "conviction" incurred?...977
a. Eighth Circuit interpretations of § 2252(b)(2) and § 2252A(b)(2)...977
b. Other principles of interpretation...980
3. Application of the interpretation...984

III. CONCLUSION...985

This motion raises the surprisingly rarely litigated question of whether and when a seeming prior conviction is actually a "prior conviction" for purposes of a sentencing enhancement in a criminal prosecution for possession of child pornography. It matters, because if the prior conviction is a "prior conviction" under federal law, the defendant faces a mandatory minimum sentence of 120 months. If the prior conviction is not a "prior conviction," there is no mandatory minimum.

Defendant Christopher Scott Jepsen has moved to strike part of the Indictment against him on a charge of violating 18 U.S.C. § 2252(a)(4)(B) (possession of child pornography) that seeks an enhanced penalty pursuant to 18 U.S.C. § 2252(b)(2) for a "prior conviction." Jepsen contends the alleged "prior conviction" was not "prior" to the date on which he allegedly violated § 2252(a)(4)(B). This is so, he contends, because his original sentence on the alleged "prior conviction" was vacated as "illegal," and a new sentence and judgment were not imposed until after he allegedly committed the current offense. In short, he argues that a "prior conviction" requires that he was not only found guilty, but sentenced, and a valid judgment entered before the date of the alleged commission of the § 2252(a)(4)(B) offense for the § 2252(b)(2)"prior conviction" enhancement to apply. Not surprisingly, the prosecution disagrees.

*973I. INTRODUCTION

A. The Alleged Prior Conviction

The focus of Jepsen's Motion, and hence, the focus of the following background is on Jepsen's alleged "prior conviction," rather than on the current charge against him. Jepsen admits that, on August 24, 2011, a jury in Iowa District Court for Crawford County found him guilty of two counts of sexual abuse in the third degree. The first was pursuant to IOWA CODE § 709.4(2)(c)(4), which applies when the victim was 14 or 15 years old and the defendant was at least four years older than the victim. The second was pursuant to IOWA CODE § 709.4(2)(b), which applies when the victim was 12 or 13 years old. On September 23, 2011, Jepsen was sentenced to two consecutive 10-year prison terms for the two counts of sexual abuse, but the state court suspended the prison sentences and placed Jepsen on probation for five years. See September 23, 2011, Judgment and Sentence (Suspended), Defendant's Exhibit A. Neither party appealed from that judgment.

In October 2014, the state moved to revoke Jepsen's probation based on his alleged admissions that he had used the internet to obtain child pornography. While preparing for the revocation proceedings, the state prosecutor noticed that Jepsen's original sentence on the second count of sexual abuse was illegal, because the age of the victim made the offense a forcible felony, so Jepsen was not eligible for a suspended sentence. Opinion of Iowa Court of Appeals, Defendant's Exhibit E, 3 (citing IOWA CODE § 702.11 ). Thus, the state filed a Motion To Correct Illegal Sentence, pursuant to Rule 2.24(5)(a) of the Iowa Rules of Criminal Procedure, which permits correction of an illegal sentence "at any time." Defendant's Exhibit B.

On January 29, 2016, the Iowa District Court held a hearing on the state's Motion To Correct Illegal Sentence, granted the motion, ruled that the initial sentence was illegal, and overruled Jepsen's contention that a corrected prison sentence would violate his right not to be subjected to double jeopardy. Transcript Of Hearing, Defendant's Exhibit C, 11:16-15:22. The court resentenced Jepsen to two concurrent, unsuspended 10-year prison terms. Id. at 36:24-37:7. That same day, the court filed a Corrected Judgment and Sentence, reiterating that, "[o]n the 24th day of August, 2011, Defendant was found guilty of the crime[s]" charged and stating Jepsen's corrected sentence on those charges. See January 29, 2016, Corrected Judgment and Sentence, Defendant's Exhibit D, 1-2. On February 1, 2016, the court filed an Order, which stated the following:

As further clarification of the court's Corrected Judgment and Sentence filed January 29, 2016, except to the extent any terms were reaffirmed and incorporated into the January 29, 2016, Corrected Judgment and Sentence, the court ORDERS that the September 23, 2011, Judgment and Sentence is void and vacated accordingly.

Plaintiff's Exhibit 1.

Jepsen appealed the Corrected Judgment and Sentence on the ground that the court's failure to credit his corrected sentence for the time he served on probation violated his double jeopardy rights. Opinion of Iowa Court of Appeals, Defendant's Exhibit E, at 2. On April 5, 2017, the Iowa Court of Appeals conditionally affirmed Jepsen's new sentence and remanded for the district court to give Jepsen credit for time served in an "alternate jail facility" or a residential treatment facility. Id. at 12. Jepsen sought further review by the Iowa Supreme Court, and that appeal remains pending.

*974B. The Current Proceedings

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Bluebook (online)
289 F. Supp. 3d 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jepsen-iand-2018.