USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-14182 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN P. PEEBLES,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:21-cr-00034-MCR-1 ____________________ USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 2 of 8
2 Opinion of the Court 21-14182
Before LUCK, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: There are two issues in this sentencing appeal. First, whether the district court’s enhancement of Kevin Peebles’s sen- tence under 18 U.S.C. § 2252A(b)(2) violated the Constitution. And second, whether the court plainly erred in concluding that Pee- bles’s conviction under Virginia’s sexual battery statute was a valid predicate offense. We answer both questions in the negative, and thus affirm. I. BACKGROUND
In 2021, a grand jury indicted Peebles on a single count of possessing child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). Peebles pleaded guilty, and the district court accepted his plea. Peebles’s presentence investigation report calculated his to- tal adjusted offense level to be twenty-seven and assigned him a criminal history category of “IV.” Relevant to this appeal, Peebles’s criminal history included a 2010 Virginia conviction, entered upon a no-contest plea, for two counts of misdemeanor sexual battery. Normally, this criminal history category and total adjusted offense level would result in a sentencing guidelines range of 100-to-125 months in prison. Section 2252A(b)(2), however, contains a man- datory minimum of 120 months. Peebles’s Virginia conviction USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 3 of 8
21-14182 Opinion of the Court 3
triggered the mandatory minimum, which then replaced the lower guidelines range. Peebles objected to the report, arguing that the sentencing enhancement did not apply because his Virginia conviction was not a valid Section 2252A(b)(2) predicate. As relevant here, he argued that Virginia’s sexual battery statute, Section 18.2-67.4, did not re- quire the victim to be a minor, a fact that he alleged rendered the statute overbroad as compared to Section 2252A(b)(2). The district court rejected Peebles’s objection and concluded that, applying the categorical approach, Virginia sexual battery was a valid predicate under Section 2252A(b)(2). The court sentenced Peebles to the mandatory minimum followed by a lifetime term of supervised re- lease, and Peebles timely appealed. II. STANDARDS OF REVIEW
We ordinarily review both questions of constitutional law and a district court’s determination that a statutory mandatory minimum applies de novo. United States v. Whatley, 719 F.3d 1206, 1213–14 (11th Cir. 2013); United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). When there is no contemporaneous objection before the district court, however, we review a sentenc- ing challenge only for plain error. United States v. Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005). USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 4 of 8
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III. DISCUSSION
A. The District Court’s Application of the Categorical Ap- proach Did Not Violate the Constitution
Peebles first argues that the district court’s enhancement of his sentence violated the Constitution by relying on “Virginia plea documents [that] were constitutionally infirm.” Specifically, he as- serts that the court improperly applied the modified categorical ap- proach to consider his Virginia Alford plea in violation of the Sixth Amendment. We disagree for two reasons. First, the record shows that the district court did not apply the modified categorical ap- proach at all. Instead, the court concluded that “all of the acts crim- inalized by Virginia’s sexual battery statute required commission of an act” that would trigger a mandatory-minimum sentence un- der Section 2252A(b)(2). That inquiry, relying on nothing more than the fact of Peebles’s conviction for Virginia sexual battery and the text of the statute at issue, is a commonplace application of the categorical approach. See, e.g., United States v. Kushmaul, 984 F.3d 1359, 1364 (11th Cir. 2021). Second, even if the district court had applied the modified categorical approach, we have held that “[a]n Alford plea is a guilty plea where the defendant maintains a claim of innocence to the underlying criminal conduct charged but ad- mits that sufficient evidence exists to convict him of the offense.” United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014). Thus, consideration of Peebles’s plea would not have USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 5 of 8
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violated the constitution. See Shepard v. United States, 544 U.S. 13 (2005) (allowing for the use of plea agreements). B. The District Court Did Not Plainly Err in Concluding That Virginia Sexual Battery is a Valid Predicate Under Section 2252A(b)(2)
Peebles also argues that his sentencing enhancement was unlawful because Virginia sexual battery is not a valid predicate of- fense under Section 2252A(b)(2). He claims that the Virginia sexual battery statute does not categorically “relate to” sexual abuse be- cause the term “sexual abuse” should be defined by reference to 18 U.S.C. § 2242, which he asserts requires direct skin-to-skin contact with the victim. Importantly, Peebles never raised this overbreadth argument before the district court, instead focusing his objection on the fact that Virginia sexual battery did not require a minor vic- tim. Thus, to the degree that Peebles argues this new theory on appeal, we review only for plain error. “Plain error occurs if (1) there was error, (2) that was plain, (3) that affected the defendant's substantial rights, and (4) that seriously affected the fairness, integ- rity, or public reputation of judicial proceedings.” United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (internal quotation marks omitted). To determine whether a defendant’s prior conviction quali- fies as a valid predicate offense capable of supporting a sentencing enhancement, we apply the categorical approach. Kushmaul, 984 F.3d at 1364. This means that we look only to the elements of the USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 6 of 8
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statute under which the defendant was convicted and not the facts underlying that conviction. Id. We compare the elements of that statute to the generic offenses mentioned in the federal sentencing provision, focusing on the least culpable conduct able to support a conviction under the former. Id.
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USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-14182 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KEVIN P. PEEBLES,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:21-cr-00034-MCR-1 ____________________ USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 2 of 8
2 Opinion of the Court 21-14182
Before LUCK, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: There are two issues in this sentencing appeal. First, whether the district court’s enhancement of Kevin Peebles’s sen- tence under 18 U.S.C. § 2252A(b)(2) violated the Constitution. And second, whether the court plainly erred in concluding that Pee- bles’s conviction under Virginia’s sexual battery statute was a valid predicate offense. We answer both questions in the negative, and thus affirm. I. BACKGROUND
In 2021, a grand jury indicted Peebles on a single count of possessing child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). Peebles pleaded guilty, and the district court accepted his plea. Peebles’s presentence investigation report calculated his to- tal adjusted offense level to be twenty-seven and assigned him a criminal history category of “IV.” Relevant to this appeal, Peebles’s criminal history included a 2010 Virginia conviction, entered upon a no-contest plea, for two counts of misdemeanor sexual battery. Normally, this criminal history category and total adjusted offense level would result in a sentencing guidelines range of 100-to-125 months in prison. Section 2252A(b)(2), however, contains a man- datory minimum of 120 months. Peebles’s Virginia conviction USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 3 of 8
21-14182 Opinion of the Court 3
triggered the mandatory minimum, which then replaced the lower guidelines range. Peebles objected to the report, arguing that the sentencing enhancement did not apply because his Virginia conviction was not a valid Section 2252A(b)(2) predicate. As relevant here, he argued that Virginia’s sexual battery statute, Section 18.2-67.4, did not re- quire the victim to be a minor, a fact that he alleged rendered the statute overbroad as compared to Section 2252A(b)(2). The district court rejected Peebles’s objection and concluded that, applying the categorical approach, Virginia sexual battery was a valid predicate under Section 2252A(b)(2). The court sentenced Peebles to the mandatory minimum followed by a lifetime term of supervised re- lease, and Peebles timely appealed. II. STANDARDS OF REVIEW
We ordinarily review both questions of constitutional law and a district court’s determination that a statutory mandatory minimum applies de novo. United States v. Whatley, 719 F.3d 1206, 1213–14 (11th Cir. 2013); United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). When there is no contemporaneous objection before the district court, however, we review a sentenc- ing challenge only for plain error. United States v. Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005). USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 4 of 8
4 Opinion of the Court 21-14182
III. DISCUSSION
A. The District Court’s Application of the Categorical Ap- proach Did Not Violate the Constitution
Peebles first argues that the district court’s enhancement of his sentence violated the Constitution by relying on “Virginia plea documents [that] were constitutionally infirm.” Specifically, he as- serts that the court improperly applied the modified categorical ap- proach to consider his Virginia Alford plea in violation of the Sixth Amendment. We disagree for two reasons. First, the record shows that the district court did not apply the modified categorical ap- proach at all. Instead, the court concluded that “all of the acts crim- inalized by Virginia’s sexual battery statute required commission of an act” that would trigger a mandatory-minimum sentence un- der Section 2252A(b)(2). That inquiry, relying on nothing more than the fact of Peebles’s conviction for Virginia sexual battery and the text of the statute at issue, is a commonplace application of the categorical approach. See, e.g., United States v. Kushmaul, 984 F.3d 1359, 1364 (11th Cir. 2021). Second, even if the district court had applied the modified categorical approach, we have held that “[a]n Alford plea is a guilty plea where the defendant maintains a claim of innocence to the underlying criminal conduct charged but ad- mits that sufficient evidence exists to convict him of the offense.” United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014). Thus, consideration of Peebles’s plea would not have USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 5 of 8
21-14182 Opinion of the Court 5
violated the constitution. See Shepard v. United States, 544 U.S. 13 (2005) (allowing for the use of plea agreements). B. The District Court Did Not Plainly Err in Concluding That Virginia Sexual Battery is a Valid Predicate Under Section 2252A(b)(2)
Peebles also argues that his sentencing enhancement was unlawful because Virginia sexual battery is not a valid predicate of- fense under Section 2252A(b)(2). He claims that the Virginia sexual battery statute does not categorically “relate to” sexual abuse be- cause the term “sexual abuse” should be defined by reference to 18 U.S.C. § 2242, which he asserts requires direct skin-to-skin contact with the victim. Importantly, Peebles never raised this overbreadth argument before the district court, instead focusing his objection on the fact that Virginia sexual battery did not require a minor vic- tim. Thus, to the degree that Peebles argues this new theory on appeal, we review only for plain error. “Plain error occurs if (1) there was error, (2) that was plain, (3) that affected the defendant's substantial rights, and (4) that seriously affected the fairness, integ- rity, or public reputation of judicial proceedings.” United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (internal quotation marks omitted). To determine whether a defendant’s prior conviction quali- fies as a valid predicate offense capable of supporting a sentencing enhancement, we apply the categorical approach. Kushmaul, 984 F.3d at 1364. This means that we look only to the elements of the USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 6 of 8
6 Opinion of the Court 21-14182
statute under which the defendant was convicted and not the facts underlying that conviction. Id. We compare the elements of that statute to the generic offenses mentioned in the federal sentencing provision, focusing on the least culpable conduct able to support a conviction under the former. Id. If the generic offenses are crimes not developed in the common law, we define them based on their “ordinary, contemporary, and common meaning.” Id. (quoting Ramirez-Garcia, 646 F.3d at 783). Virginia’s sexual battery statute provides in relevant part that “[a]n accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10 . . . the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse . . . .” Va. Code. Ann. § 18.2-67.4. The Code’s definition of “sexual abuse” includes “an act committed with the intent to sex- ually molest, arouse, or gratify any person, where . . . [t]he accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts.” Id. § 18.2- 67.10(6)(a). “Intimate parts” are defined as the “genitalia, anus, groin, breast, or buttocks of any person, or the chest of a child un- der the age of 15.” Id. § 18.2-67.10(2). The relevant federal sentenc- ing enhancement applies if the 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.” 18 U.S.C. § 2252A(b)(2). As an initial matter, any preserved challenge based on the Virginia statute’s lack of a minor-victim requirement fails in the USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 7 of 8
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light of the Supreme Court’s holding in Lockhart v. United States that the phrase “involving a minor or ward” only modifies the last of Section 2252A(b)(2)’s predicate offenses. 577 U.S. 347, 356–57 (2016). Thus, Virginia sexual battery may serve as a valid predicate despite the lack of a minor-victim requirement so long as it cate- gorically “relates to” sexual abuse. Peebles’s new argument about skin-to-skin contact fails as well. We have broadly defined “relating to” in Section 2252A(b)(2) to mean that a valid predicate must “stand in some relation, bear upon, or be associated with sexual abuse.” Kushmaul, 984 F.3d at 1365 (cleaned up). And we have specifically rejected the argument that a Florida statute was categorically broader than Section 2252A(b)(2)’s “abusive sexual conduct involving a minor or ward” offense based on the state statute’s lack of a direct skin-to-skin con- tact requirement. Id. at 1365–67. But even assuming that Peebles is correct and that “sexual abuse” in Section 2252A(b)(2) has a skin- to-skin contact requirement by virtue of Section 2242, we still can- not say that the district court plainly erred because Peebles has not shown that either “the explicit language of a statute or rule” or “precedent from the Supreme Court or this Court,” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)), directly re- solves the issue so as to render it “clear under current law,” id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). USCA11 Case: 21-14182 Date Filed: 09/12/2022 Page: 8 of 8
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IV. CONCLUSION
For the foregoing reasons, Peebles’s sentence is AFFIRMED.