United States v. Moore

71 F.4th 392

Opinion

Case: 22-10412 Document: 00516798671 Page: 1 Date Filed: 06/23/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED June 23, 2023 No. 22-10412 Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Sherman Moore,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-309-1 ______________________________

Before Smith, Higginson, and Willett, Circuit Judges. Jerry E. Smith, Circuit Judge: This case presents a pure question of statutory interpretation: What does the phrase “relating to the sexual exploitation of children” in 18 U.S.C. § 2251(e) mean? The statute in question, titled “Sexual exploitation of chil- dren,” criminalizes offenses relating to child pornography. It then provides a mandatory sentencing enhancement for those who have two or more prior state convictions “relating to the sexual exploitation of children.” Sherman Moore has two state convictions for indecent exposure to children. The government contends that those convictions “clearly” relate Case: 22-10412 Document: 00516798671 Page: 2 Date Filed: 06/23/2023

No. 22-10412

“to the sexual exploitation of children,” so Moore should be subject to the enhancement. Moore counters that “sexual exploitation of children,” in this context, applies only to offenses relating to child pornography, so his sen- tence is not subject to the enhancement. We hold that 18 U.S.C. § 2251(e)’s use of the phrase “relating to the sexual exploitation of children” refers to any criminal sexual conduct involv- ing children. Moore’s convictions for indecent exposure to a child neatly fall within that broad category, so we affirm the judgment of sentence.

I. Sherman Moore pleaded guilty of indecent exposure to a child under Texas Penal Code § 21.11(a)(2) in 1992 and was placed on deferred adjudi- cation probation. He was convicted under the same statute in 1995 for a sepa- rate offense and sentenced to eight years in prison. After serving six years, he was placed on parole. In 2021, Moore pleaded guilty of sexual exploitation of children under 18 U.S.C. § 2251(a). The presentence report (“PSR”) did not include the sentencing enhancement, but the government requested it in an objection to the PSR. The government contended that Moore’s two state convictions for indecent exposure to a child made him subject to the enhancement. Over Moore’s response, the district court agreed and sentenced Moore to 35 years’ imprisonment. Moore appeals, contending that his prior convictions are not convic- tions “relating to the sexual exploitation of children.”

II. Moore properly preserved the issue in the district court. Our review is thus de novo. United States v. Hubbard, 480 F.3d 341, 344 (5th Cir. 2007) (“We review the district court’s interpretation of a federal statute, as well as

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its determinations regarding a prior conviction, de novo.” (footnotes omitted)).

III. To determine whether a defendant’s convictions under an indivisible state law qualify as “predicate offenses” under a federal statute, we “‘look only to the statutory definitions’—i.e., the elements—of a defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’”1 Descamps v. United States, 570 U.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). We then “line[] up that crime’s elements alongside those of the generic offense and see[] if they match.” United States v. Mendez-Henriquez, 847 F.3d 214, 218 (5th Cir. 2017) (quoting Mathis v. United States, 579 U.S. 500, 505 (2016)). So to determine whether Moore is subject to § 2251(e)’s sentencing enhancement provision, we must first determine the conduct enumerated in the generic offense (convictions “relating to the sexual exploitation of chil- dren”) and then decide whether the elements of the Texas indecent- exposure-to-a-child statute match.

A. We begin by untangling the meaning of “relating to the sexual exploi- tation of children.” We chart our course by laying out the proverbial direc- tions of the statutory-interpretation rubric. Plain meaning is always the start. When interpreting statutory lan- guage, words are given their ordinary, plain meanings, and language must be

_____________________ 1 The parties do not dispute that § 21.11(a)(2) of the Texas Penal Code is indivisible—it contains “a single . . . set of elements to define a single crime.” Mathis v. United States, 579 U.S. 500, 504–05 (2016).

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enforced unless ambiguous. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). This court is “authorized to deviate from the literal language of a statute only if the plain language would lead to absurd results, or if such an interpretation would defeat the intent of Congress.” Kornman & Assocs., Inc. v. United States, 527 F.3d 443, 451 (5th Cir. 2008). But “[t]ext should never be divorced from context.” United States v. Koutsostamatis, 956 F.3d 301, 306 (5th Cir. 2020). Depending on the phrase, context can mean both the immediate clause and “the broader context of the statute as a whole.” Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Statutory history, “the record of enacted changes Congress made to the rele- vant statutory text over time,” can also provide helpful context. BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (emphasis removed); see also Thomas v. Reeves, 961 F.3d 800, 817 n.45 (5th Cir. 2020) (en banc) (Willett, J., concurring). If applicable, canons of construction can be used to resolve remaining ambiguity. See generally Yates v. United States, 574 U.S. 528 (2015). In very rare cases, we may look to legislative history, but “[o]nly after application of the principles of statutory construction, including the canons of construc- tion.” Kornman, 527 F.3d at 451 (quoting Carrieri v. Jobs.com, Inc., 393 F.3d 508, 518–19 (5th Cir. 2004)). Regardless, its use is generally discouraged in this circuit.2 If these tools can’t get us out of stalemate, ties go to the runner—the

_____________________ 2 Den Norske Stats Oljeselskap As. v. HeereMac Vof, 241 F.3d 420, 428 (5th Cir. 2001) (“[L]egislative history is relegated to a secondary source behind the language of the statute in determining congressional intent; even in its secondary role legislative history must be used cautiously.” (quoting Boureslan v. Aramco, 857 F.2d 1014, 1018 (5th Cir. 1988))); see also Thomas, 961 F.3d at 817 n.45 (Willett, J., concurring).

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rule of lenity functions to resolve intractable ambiguity in a criminal defen- dant’s favor. United States v. Granderson, 511 U.S. 39, 54 (1994). That sorted, we turn to the text.

B. The title of 18 U.S.C. § 2251 is “Sexual exploitation of children.” Subsections (a)–(d) prohibit various activities relating to child pornography. Subsection (e) then provides two potential sentencing enhancements. First, a person is given a minimum of 25 years “if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography.” Second, a person is given a minimum of 35 years “if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children.” This case turns on the meaning of “relating to the sexual exploitation of children” as used in the last clause of the two-conviction enhancement provision. Plain Meaning The phrase “relating to the sexual exploitation of children” is not defined in § 2251. See also id. § 2256 (applicable-definitions section). We thus begin by looking to the term’s “plain meaning at the time of enact- ment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020).

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We fail to see a plain meaning of the term in isolation. The government provides us with dictionary definitions from a smat- tering of time periods: In 2019, Black’s Law Dictionary defined “sexual exploitation” as “[t]he use of a person, esp. a child, in prostitution, pornog- raphy, or other sexually manipulative activity,”3 in 2007, one of Merriam- Webster’s definitions of “exploit” was “to make use of meanly or unfairly for one’s own advantage,”4 and in 2010, one of the New Oxford American Dictionary’s definitions of “exploit” was to “use (a situation or person) in an unfair or selfish way.”5 These definitions are too vague to define the term clearly for our purposes. And although dictionaries can help decide plain meaning, they can’t resolve ambiguity on their own. Yates, 574 U.S. at 537. We need to look outside the phrase to decide what it means in context. Statutory Structure & Context Section 2251 has some unusual structural elements, but none that sig- nifies a clear meaning of “relating to the sexual exploitation of children.” The government contends that because the other federal statutes referenced in the sentence-enhancement provisions (“chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice)”) include offenses other than child por- nography, “[i]t is implausible that Congress intended to include so many prior federal offenses, but chose to restrict qualifying state offenses to child pornography production.” See United States v. Sanchez, 440 F. App’x 436, 440 (6th Cir. 2011). Perhaps.

_____________________ 3 Sexual exploitation, Black’s Law Dictionary (11th ed. 2019). 4 Exploit, Merriam-Webster’s Dictionary (11th ed. 2007). 5 Exploit, The New Oxford American Dictionary (3d ed. 2010).

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On the other hand, Moore points out that the one-conviction pro- vision includes a federal predicate that the two-conviction provision does not: 18 U.S.C. § 1591, which criminalizes the “[s]ex trafficking of children or by force, fraud, or coercion.” Moore claims that this discrepancy destroys any presumption of parallelism between the two provisions, and therefore, the government cannot be correct that the phrase “relating to the sexual exploi- tation of children” in the two-conviction provision means more than just child pornography. But even if Moore is correct that this lack of parallelism was inten- tional, his conclusion does not follow. The claim that the state convictions included in the one-conviction provision (listing “aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex traf- ficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography”) is not to be interpreted identically to the two-conviction provision (“relating to the sex- ual exploitation of children”) might be true, but that does not necessarily mean that “relating to the sexual exploitation of children” includes only child pornography-related offenses. So the lack of parallelism also leads to a dead end. The broader statutory context, however, proves more helpful. Titles, when written by Congress,6 can be a helpful tool for statutory interpretation. See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (“[S]tatutory titles and section headings are ‘tools available for the resolution of a doubt about the meaning of a statute.’” (quoting Porter v. Nussle, 534 U.S. 516, 528 (2002))). And here, the section that criminalizes

_____________________ 6 This title was written by Congress. See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, sec. 2(a), 92 Stat. 7.

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activities related to child pornography is titled “Sexual exploitation of chil- dren.” That is a strong point in Moore’s favor. But the rest of the context goes the other way. The chapter in which the section appears is titled “Sexual exploitation and other abuse of chil- dren” and includes prohibitions against such things as failure to report child abuse. See, e.g., 18 U.S.C. § 2258. Section 2251 is followed by § 2251A, titled “Selling or buying of children”; § 2252, titled “Certain activities relating to material involving the sexual exploitation of minors”; and § 2252A, titled “Certain activities relating to material constituting or containing child por- nography.” This hodgepodge of usage seems to evidence that Congress did not have a clear definition in mind for the term “sexual exploitation.” Further, the Adam Walsh Child Protection and Safety Act of 2006 (“CPSA”),7 which amended § 2251(e), uses the phrase “child exploitation” in a broader sense than just child pornography. Section 701 of the act defines “child exploitation enterprise” (for the purposes of § 2252A) to include sex- ual abuse of a minor victim, and section 704, which relates to “additional prosecutors for offenses relating to the sexual exploitation of children,” describes “offenses relating to the sexual exploitation of children” as includ- ing types of sexual abuse against a minor victim. That context strongly suggests that the term refers to a broader swath of conduct than just child pornography. The section’s enactment history confirms that interpretation. The first version of the current § 2251 was enacted in 1978, and although it was titled “Sexual exploitation of children,” the phrase “relating to the sexual exploitation of children” was not used in the original enhance-

_____________________ 7 Pub. L. No. 109-248, 120 Stat. 587.

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ment provision. Instead, an offender would be subject to an enhancement if he had “a prior conviction under this section.”8 The phrase in question was first used in 1996, when an amendment split the enhancement into two parts—one amount of enhancement for one prior conviction and a greater amount of enhancement for two prior convictions.9 The wording for both enhancements was identical—if the relevant conviction was “under this chapter or chapter 109A, or under the laws of any State relating to the sexual exploitation of children,” the offender was subject to the enhancement. Id. After 1996, the sentencing-enhancement provisions were minorly amended several times to add more predicate enhancements, generally expanding the scope of what predicate convictions made an offender eligible for each enhancement. In 1998, chapter 117 was added,10 and in 2003, chap- ter 71 and section 920 of title 10 (article 120 of the Uniform Code of Military Justice) were added.11 Then, as part of the CPSA, Congress amended the one-conviction enhancement by replacing the term “sexual exploitation of children” with “aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child por- nography.”12 The two-conviction enhancement was left the same—the

_____________________ 8 Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, sec. 2(a), 92 Stat. 7. 9 Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, sec. 121, 110 Stat. 3009. 10 Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, sec. 201, 112 Stat. 2974. 11 PROTECT Act, Pub. L. No. 108-21, sec. 507, 117 Stat. 650 (2003). 12 Pub. L. No. 109-248, sec. 206(b)(1), 120 Stat. 587.

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offender’s sentence would be enhanced if he had “2 or more prior con- victions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children.” There isn’t a clear reason why Congress would have amended the predicate convictions for the one-conviction enhancement but not for the two-conviction enhancement; but the judicial understanding of the phrase at the time of the amendment confirms our understanding of the phrase as incorporating more than just convictions for offenses relating to child pornography. Before the 2006 amendment, at least two circuits interpreted § 2251(e)’s use of the phrase “relating to the sexual exploitation of children” as including conduct beyond activities relating to child pornography. See Randolph, 364 F.3d 118, 122 (3d Cir. 2004); United States v. Smith, 367 F.3d 748, 751 (8th Cir. 2004) (per curiam). Yet when Congress amended § 2251(e) in 2006, it did not change its use of the phrase in the two-conviction provision. Though the 2006 amendment was not a full re-enactment, Con- gress’s choice to amend part of 2251(e) but not all of it may be a sign of Con- gressional acquiescence in the existing judicial interpretation of the phrase.13 Considering the broader statutory context, the government is correct: The phrase “relating to the sexual exploitation of children,” in this context, easily encompasses a broader swath of conduct than just conduct relating to

_____________________ 13 See Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of a[] . . . judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” (collecting cases)); see also Caleb Nelson, Stat- utory Interpretation 478–85 (2011) (discussing the presumption of “ratification- by-reenactment” while noting its weaknesses).

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child pornography.14

IV. Having determined that the phrase “relating to the sexual exploitation of children” stretches beyond child pornography, we must define what con- duct does fit within its scope. Moore does not provide a recommendation. The government stresses that we should adopt the term’s “common, ordin- ary meaning,” which is undoubtably true but not sufficiently helpful. For example, the government asks us to define the term as “taking advantage of children for selfish and sexual purposes.” Later, it states that the term should mean “taking advantage of or using children for sexual purposes.” Neither of these definitions is precise enough to be workable. The circuits that have interpreted the phrase broadly have adopted a variety of definitions. The Fourth Circuit defines it as “to take advantage of children for selfish and sexual purposes.” United States v. Mills, 850 F.3d 693, 697 (4th Cir. 2017). The Sixth Circuit broadly states that it “evinces a Congressional intent to define [the phrase] to extend to child-sexual-abuse offenses as well as child-pornography-related offenses,” United States v. Sykes, 65 F.4th 867, 889 (6th Cir. 2023), and the Third Circuit does not appear to have a working definition, United States v. Pavulak, 700 F.3d 651, 675 (3d Cir. 2012); Randolph, 364 F.3d at 122. The Eighth Circuit says that it refers to “any criminal sexual conduct with a child” because, “[b]y its very nature, any criminal sexual conduct with a child takes advantage of, or exploits, a child sexually.” Smith, 367 F.3d at 751. The First Circuit agrees, stating that it “unambiguously refers to any criminal sexual conduct involv- ing children.” United States v. Winczuk, 67 F.4th 11, 17 (1st Cir. 2023).

_____________________ 14 Because the phrase is unambiguous in context, we have no reason to reach legislative history or the rule of lenity.

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For several reasons, that last reading is the best fit. First, it is a broad definition of the term, which seems proper because of the use of “relating to.” The ordinary meaning of “relating to” is “broad” and means “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.’” Hub- bard, 480 F.3d at 347–48 (quoting Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992)); see also Relate, Black’s Law Dictionary (5th ed. 1979). It thus makes sense to interpret the phrase “relating to the sexual exploitation of children” in a broad sense, such as any criminal sexual con- duct involving children. Second, it tracks persuasive authority. In United States v. Ary, 892 F.3d 787, 788 (5th Cir. 2018), this court described a broad list of crimes as “qualifying prior convictions for the sexual exploitation of children.” The section at issue in Ary, 18 U.S.C. § 2252, is titled “Certain activities relating to material involving the sexual exploitation of minors,” and § 2252(b)(1), similarly to § 2251(e)(1), increases the mandatory minimum sentence when “such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children.” In Ary, we repeatedly summarized that list as “con- viction[s] for sexual exploitation.” 892 F.3d at 788, 789. Ary’s summary of § 2252(b)(1)’s predicate convictions does not bind our interpretation of § 2251(e), and its description of the relevant convictions as types of “sexual exploitation” is likely dictum, but the opinion does provide persuasive authority for adopting a definition of the phrase as broad as any criminal sex- ual conduct involving children.

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Third, the definition we adopt is workable and contains limiting prin- ciples. Though broad enough to encompass a wide range of predicate con- victions, “sexual” and “children” are bright-line terms that can provide easy guidance to lower courts and litigants alike.

V. Armed with the proper definition of “relating to the sexual exploita- tion of children,” we return to Moore. His convictions are both under Texas Penal Code § 21.11(a)(2), which prohibits indecent exposure to a child. The parties agree that the elements of the offense (at the time of Moore’s convic- tions) were (1) that the child was within the protected age group [younger than seventeen] and not married to the accused, (2) that a child was present, (3) that the accused had the intent to arouse or gratify some- one’s sexual desire, (4) that the accused knew that a child was present, and (5) that the accused exposed his anus or genitals. Yanes v. State, 149 S.W.3d 708, 710 (Tex. App.—Austin 2004, pet. ref’d) (alteration in original) (citing Tex. Penal Code Ann. § 21.11(a)(2) (West 2003)); see also Uribe v. State, 7 S.W.3d 294, 296–97 (Tex. App.— Austin 1999, pet. ref’d). Such conduct is unequivocally criminal sexual conduct involving chil- dren. Moore was convicted under the statute twice. The district court thus did not err in applying the 35-year sentencing enhancement. AFFIRMED.