United States v. Randolph

• Court: Court of Appeals for the Third Circuit
• Decided: April 7, 2004
• Docket: 03-1620
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

4-7-2004

USA v. Randolph Precedential or Non-Precedential: Precedential

Docket No. 03-1620

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Recommended Citation "USA v. Randolph" (2004). 2004 Decisions. Paper 751. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/751

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Karen S. Gerlach (argued) Office of Federal Public Defender UNITED STATES COURT OF 1001 Liberty Avenue APPEALS 1450 Liberty Center FOR THE THIRD CIRCUIT Pittsburgh, PA 15222 ____________ Attorney for Appellant in 03-1620 Nos. 03-1620, 03-1810 ____________ Bonnie R. Schlueter Paul M. Thompson (argued) UNITED STATES OF AMERICA, Office of United States Attorney Appellant in 03-1810 700 Grant Street Suite 400 v. Pittsburgh, PA 15219

WILLIAM H. RANDOLPH, Attorneys for Appellant 03-1810 Appellant in 03-1620 ____________ ____________ OPINION OF THE COURT Appeal from the United States District ____________ Court for the Western District of Pennsylvania POLLAK, District Judge. (D.C. Cr. No. 01-235) District Judge: Honorable William L. William H. Randolph appeals Standish from a judgment of conviction for sexual ____________ exploitation of children under 18 U.S.C. Argued January 9, 2004 in 03-1810 § 2251(a). Randolph contends that the Submitted January 9, 2004 in 03-1620 sexual exploitation statute, 18 U.S.C. § 2251(a), is unconstitutional on its face Before: BARRY and SMITH, Circuit and as applied to him.1 We disagree, and Judges, and POLLAK, District Judge*

(Filed: April 7, 2004) 1 Randolph was indicted under two ____________ statutes, 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B), and moved to dismiss the indictment on the ground that both statutes are unconstitutional. After the motion was denied, Randolph pled guilty * The Honorable Louis H. Pollak, to two counts under § 2251(a), reserving Senior District Judge for the Eastern his right to challenge the denial of the District of Pennsylvania, sitting by motion to dismiss, and the government designation. dismissed the count under we therefore affirm the judgment of requiring a sentence of at least fifteen conviction. years. Randolph contends that child molestation is not “sexual exploitation of Randolph also appeals from the children” within the meaning of section imposition of an enhanced prison 2251(a). We reject that contention. sentence – a fifteen-year minimum Further, we agree with the government, sentence plus eight months for a total of which has likewise appealed from the 188 months – imposed pursuant to 18 sentence, that the three Georgia child U.S.C. § 2251(d). Section 2251(d) molestation counts, although aggregated mandates a ten-year minimum sentence in one indictment, constitute three prior for individuals convicted of sexual sexual exploitation convictions, thereby exploitation under section 2251(a), with mandating a thirty-year minimum enhancement to a fifteen-year minimum sentence. Accordingly, on remand, it for any violator of section 2251(a) will be necessary for the District Court to previously convicted under a state law re-sentence Randolph. “relating to the sexual exploitation of children,” and enhancement to a thirty- I. year minimum for one with two or more such prior convictions. Randolph had On September 28, 2000, state and previously pled guilty in a Georgia court federal officials executed a search to three counts of child molestation, and warrant at Randolph’s residence. The the District Court treated that guilty plea search produced sexually explicit to three consolidated counts as one prior photographs of an eleven-year-old girl child molestation conviction, thus and a homemade videotape of Randolph engaging in sexually explicit conduct with a seven-year-old girl. Both girls were identified as granddaughters of § 2252(a)(4)(B). In his brief on appeal, Randolph’s next-door neighbor. Randolph not only maintains his Randolph was arrested, and on October challenge to the constitutionality of 5, 2001, a federal grand jury returned an § 2251(a) but renews his challenge to the indictment against him on two counts of constitutionality of § 2252(a)(4)(B). But sexual exploitation of children, 18 U.S.C. since he did not plead guilty to a count § 2251(a), and one count of possession under § 2252(a)(4)(B), Randolph is not of child pornography, 18 U.S.C. in a position to challenge the § 2252(a)(4)(B). Randolph moved to constitutionality of that statute. In any dismiss the indictment for lack of event, it is a matter of no consequence in jurisdiction, contending that sections the present case, for, as will be 2251(a) and 2252(a)(4)(B) represent demonstrated infra, we have previously unconstitutional exercises of Congress’s held that both § 2251(a) and authority under the Commerce Clause. § 2252(a)(4)(B) are constitutional.

2 On September 10, 2002, the District Section 2251(d) imposes Court denied Randolph’s motion to progressively harsher penalties for dismiss. Subsequently, on September 26, violations of section 2251 depending on 2002, Randolph entered a conditional the defendant’s criminal record. For guilty plea to the sexual exploitation first-time offenders, section 2251(d) charges, reserving his right to appeal the prescribes a minimum sentence of ten denial of his motion to dismiss. years. For those with “one prior conviction under this chapter . . . or Randolph had a history of under the laws of any State relating to the criminal sexual acts involving children. sexual exploitation of children,” the Of particular relevance to this appeal, minimum sentence is fifteen years. For Randolph pled guilty in 1978 to three offenders with “2 or more prior counts of child molestation in violation convictions” of this nature, the minimum of Georgia law. Each count involved a is thirty years.3 different victim under fourteen years of age. According to Randolph’s Relying on Randolph’s 1978 presentence report, between January 1 Georgia guilty plea, the presentence and August 9, 1977, Randolph exposed report stated that Randolph had one prior his male sex organ in the presence of one conviction relating to the sexual victim and placed his hand and finger exploitation of children, subjecting him upon and near her female sex organ; to a minimum sentence of fifteen years in caused the second victim to expose her prison. Both parties objected. Randolph breast and upper torso; and caused the claimed he had no such prior conviction, third victim to expose her female sex arguing that the crime of child organ and lower body. Randolph was molestation for which he was convicted sentenced to five years’ probation.2 in 1978 did not “relat[e] to the sexual exploitation of children” as envisioned

2 Randolph also entered a guilty plea 3 in 1989 to two counts of indecent assault The PROTECT Act, signed into law and two counts of corruption of minors on April 30, 2003, amended the penalty in violation of Pennsylvania law. In provisions of section 2251(d) by creating 1995 he pled guilty to harassment after a new section 2251(e). As section being charged with indecent assault on a 2251(e) applies only to crimes committed female whose age is not apparent from after April 30, 2003, and the offenses the record. It appears from the record that are the subject of this appeal took that these prior convictions did not factor place no later than 2000, it is not section into the District Court’s determination of 2251(e) but the pre-PROTECT Act the appropriate sentence enhancement version of section 2251(d) that governs under 18 U.S.C. § 2251(d). Randolph’s sentence.

3 by section 2251(d). The government interpretation, United States v. Sanders, argued that Randolph had “2 or more” 165 F.3d 248, 250 (3d Cir. 1999), and to such prior convictions, contending (1) questions regarding a statute’s that the three counts of child molestation constitutionality. United States v. Rodia, to which Randolph pled guilty in 1978 194 F.3d 465, 469 (3d Cir. 1999). constituted three prior “sexual exploitation” convictions, and (2) that II. one of the two counts of sexual exploitation to which Randolph pled Randolph contends first that 18 guilty in the present case represented a U.S.C § 2251(a) is unconstitutional on its “prior conviction.” face and as applied to him in this case. Section 2251(a) provides in relevant part: The District Court rejected both parties’ objections and adopted the Any person who employs, presentence report’s conclusion that uses, persuades, induces, Randolph had one prior conviction for entices, or coerces any purposes of section 2251(d), meriting a minor to engage in, . . . any mandatory minimum of fifteen years. sexually explicit conduct Based on Randolph’s total offense level for the purpose of and criminal history category, the producing any visual presentence report had calculated depiction of such conduct, Randolph’s applicable guideline shall be punished as sentencing range to be 151 to 188 provided under subsection months in prison. Taking into account (d), if such person knows what the District Court, in agreement or has reason to know that with the presentence report, deemed to such visual depiction will be the statutory minimum sentence of be transported in interstate fifteen years (180 months), Randolph’s or foreign commerce or sentencing range was 180 to 188 months. mailed, if that visual The District Court sentenced Randolph depiction was produced to 188 months (fifteen years and eight using materials that have months) in prison, to be followed by five been mailed, shipped, or years of supervised release. Randolph transported in interstate or timely appealed his judgment of foreign commerce by any conviction, and both parties appealed the means, including by District Court’s imposition of the fifteen- computer, or if such visual year minimum. depiction has actually been transported in interstate or We apply a plenary standard of foreign commerce or review to issues of statutory mailed.

4 18 U.S.C. § 2251(a). Citing the Supreme molestation statute under which Court’s opinion in United States v. Randolph was convicted in 1978 met this Lopez, 514 U.S. 549 (1995), Randolph requirement. At the time of Randolph’s argues that Congress exceeded its guilty plea in 1978, Georgia’s child authority under the Commerce Clause molestation statute prohibited “any when it enacted section 2251(a). Ruling immoral or indecent act to or in the on this precise issue in United States v. presence of or with any child under the Galo, 239 F.3d 572 (3d Cir. 2001), this age of 14 years with the intent to arouse court held three years ago that section or satisfy the sexual desires of either the 2251(a), along with section child or the person.” Ga. Code Ann. 2252(a)(4)(B), represents a constitutional § 26-2019 (1978).4 exercise of Congress’s authority under the Commerce Clause. We found that Randolph maintains that “sexual Congress rationally could have believed exploitation of children” is a term of art that intrastate possession of pornography relating exclusively to crimes involving has substantial effects on interstate the production of visual depictions of commerce. Id. at 575-76. This panel has minors engaged in sexually explicit no authority to depart from binding Third conduct. Because the production of Circuit precedent, and we therefore visual depictions is not a necessary affirm Randolph’s conviction. element of the crime of child molestation under Georgia law, Randolph argues, his III. 1978 guilty plea cannot serve as grounds for a sentence enhancement under A. section 2251(d).

Randolph also contests the Once again, our decision in Galo District Court’s imposition of a 188- serves as a guidepost for our analysis. In month sentence, the sentence having that case, we discussed at length what taken as its predicate that section 2251(d) constituted a state conviction “relating to required the District Court to impose a the sexual exploitation of children,” sentence of at least fifteen years. Section explaining that the determining factor 2251(d) requires a ten-year minimum was the statutory definition of the sentence for individuals convicted of underlying crime. Galo, 239 F.3d at sexual exploitation of children under 581-82. We observed that a state law section 2251(a), and prescribes prohibiting statutory rape would qualify enhancements for those offenders who have previously been convicted under a state law “relating to the sexual 4 The statute has since been amended exploitation of children.” The District and recodified as Ga. Code Ann. § 16-6- Court concluded that the Georgia child 4.

5 as “relating to the sexual exploitation of the question whether findings of guilt children,” as would a state law under separate counts contained in a prohibiting involuntary deviate sexual single indictment should be treated as intercourse with a child under the age of multiple convictions or as one thirteen. Id. at 583. Neither statutory conviction. Moreover, we are aware of rape nor involuntary deviate sexual no prior judicial construction of the word intercourse with a child necessarily “conviction” in the context of section involves the production of visual 2251(d). depictions. Accordingly, Randolph’s argument is unavailing. The District The meaning of “conviction” has Court properly considered Randolph’s been closely examined, however, in cases guilty plea to charges of child involving similar sentence enhancement molestation as grounds for a sentence provisions. In Deal v. United States, 508 enhancement under section 2251(d). U.S. 129 (1993), the Supreme Court faced this question with respect to 18 B. U.S.C. § 924(c)(1), which provides for an enhanced penalty when the defendant The lone remaining question, has a “second or subsequent conviction” then, is how severe a sentence for carrying a firearm during a crime of enhancement is merited. If Randolph’s violence. Thomas Lee Deal was charged guilty plea in 1978 to three counts of in one multicount indictment with child molestation under Georgia law is multiple offenses arising from six armed considered as a single conviction, as the robberies he committed over a four- District Court concluded, then section month period. A jury convicted Deal of, 2251(d) prescribes a fifteen-year inter alia, six counts of carrying and minimum sentence. If, however, using a firearm during the robberies in Randolph’s 1978 guilty plea counts as violation of section 924(c)(1). The three convictions, as the government district court sentenced Deal to five years contends, then section 2251(d) compels a in prison on the first count and to the thirty-year minimum. enhanced penalty of twenty years on each of the other five counts. On appeal, Deal The term “conviction” is not argued that the word “conviction” in defined anywhere in chapter 110 of the section 924(c)(1) could refer not only to U.S. Code, and there is no indication in a “verdict of guilt,” of which there had the legislative history of the statute been six, but also to an “entry of final containing the sentence enhancement judgment” of conviction. Because there provisions at issue, the Child had been only one entry of final Pornography Prevention Act of 1996, judgment in his case, Deal reasoned that Pub. L. No. 104-208, § 121, 110 Stat. there was no “second or subsequent” 3009, 3009-30, that Congress considered conviction to trigger the enhanced

6 sentence. sentencing provision of section 924(c)(1). Applying the rationale of The Court rejected Deal’s Deal, we rejected Couch’s argument. argument, holding that the word Explaining that “a plea of guilt . . . is “conviction” in section 924(c)(1) refers equivalent to the same declaration made to the finding of guilt by a judge or jury. by a judge or jury,” id. at 254, we Deal, 508 U.S. at 132. Because the jury concluded that the three firearms counts had found Deal guilty of six counts under to which Couch pled guilty constituted section 924(c)(1), each count after the three convictions, and that the district first constituted a “second or subsequent court thus properly applied the enhanced conviction” meriting an enhanced sentencing provision. Id. at 254-56. penalty. See id. at 533 n.1. The fact that the counts had been contained in a single The courts have also addressed indictment did not alter the Court’s this issue in the context of 18 U.S.C. analysis. § 924(e)(1), the Armed Career Criminal Act. Pursuant to section 924(e)(1), a Although Deal involved findings defendant convicted of unlawful of guilt by a jury, we have applied the possession of a firearm under 18 U.S.C. rationale of Deal to a defendant’s guilty § 922(g) receives an enhanced sentence plea in United States v. Couch, 291 F.3d if he “has three previous convictions . . . 251 (3d Cir. 2002). Bryan Couch pled for a violent felony or serious drug guilty to, inter alia, three counts of offense, or both, committed on occasions discharging a firearm during a crime of different from one another.” The courts violence in violation of section of appeals have uniformly held that a 924(c)(1). The district court imposed an defendant’s conviction in a single enhanced sentence of twenty-five years5 judicial proceeding for multiple counts each for two of the three counts, and arising from separate criminal episodes is Couch appealed, arguing that because he treated as multiple convictions under entered one guilty plea to all three counts section 924(e)(1). See, e.g., United of a single indictment, no one count States v. Maxey, 989 F.2d 303, 306 (9th represented a “second or subsequent Cir. 1993); United States v. Samuels, 970 conviction” subject to the enhanced F.2d 1312, 1315 (4th Cir. 1992); United States v. Roach, 958 F.2d 679, 684 (6th Cir. 1992); United States v. Herbert, 860 5 F.2d 620, 622 (5th Cir. 1988); United Between Deal and Couch, Congress States v. Rush, 840 F.2d 580, 581 (8th amended section 924(c)(1), increasing Cir. 1988); United States v. Greene, 810 the sentence enhancement for a “second F.2d 999, 1000 (11th Cir. 1986). or subsequent conviction” from 20 years to 25. Act of Nov. 13, 1998, Pub. L. No. Finally, courts have interpreted 105-386, § 1(a)(1), 112 Stat. 3469, 3469.

7 “conviction” similarly in the context of discretion either to impose or to waive 21 U.S.C. § 841(b)(1)(A), which the enhanced sentencing provisions . . . prescribes penalties for the manufacture, by opting to charge and try the defendant distribution, or possession of a controlled either in separate prosecutions or under a or counterfeit substance. Section multicount indictment.” Id. at 133. 841(b)(1)(A) imposes an enhanced Whereas prosecutors have authority to sentence of life in prison if a drug charge or not to charge a particular offender has “two or more prior offense, authority to determine the convictions for a felony drug offense . . . punishment for a charged offense rests .” 21 U.S.C. § 841(b)(1)(A). The three exclusively with Congress and the courts. circuits that have addressed the issue See id. at 134 n.2. have determined that, under this section, multiple counts of a single indictment The construction of section constitute separate convictions, as long 2251(d) adopted by the District Court as they arise from separate and distinct also has the potential to create a second criminal episodes. See United States v. troublesome result – a result that we Gray, 152 F.3d 816, 821-22 (8th Cir. think Congress could not have intended. 1998); United States v. Ford, 88 F.3d Under such a reading, “defendants whose 1350, 1365-66 (4th Cir. 1996); United guilty pleas are taken serially for each States v. Pace, 981 F.2d 1123, 1132 count will be subjected to much harsher (10th Cir. 1992), abrogated in part on sentences than equally culpable other grounds by Edwards v. United defendants who plead guilty to multiple States, 523 U.S. 511 (1998). counts simultaneously.” Couch, 291 F.3d at 255. Considerations of fairness We are persuaded that the logic counsel against producing such an employed in the cases cited above should outcome.6 guide us in our interpretation of section 2251(d) as well. Deal and Couch exposed two serious problems with the 6 Randolph also urges us to look for interpretation of “conviction” adopted by guidance to Georgia’s recidivist statute, the District Court in the present case. which would count Randolph’s guilty First, such a reading of section 2251(d) plea to three counts of child molestation has the potential to undermine the as one conviction rather than three. See separation of powers by endowing Ga. Code Ann. § 17-10-7(d) (“For the prosecutors with an “extraordinary new purpose of this Code section, conviction power.” Deal, 508 U.S. at 134 n.2. As of two or more crimes charged on the Court observed in Deal, a rule separate counts of one indictment or dictating that a multicount indictment accusation . . . shall be deemed to be one can produce only a single conviction conviction.”). This provision is “would give a prosecutor unreviewable inapposite, because the definition of a

8 Accordingly, we hold that under Conclusion 18 U.S.C. § 2251(d), the three counts of child molestation to which Randolph For the foregoing reasons, we pled guilty in 1978 constituted three prior reject Randolph’s constitutional convictions, sufficient to trigger the challenge to 18 U.S.C. § 2251(a), and thirty-year minimum sentence for a affirm the judgment of conviction. defendant who has “2 or more prior However, we conclude that Randolph convictions . . . under the laws of any should have received the sentence State relating to the sexual exploitation enhancement mandated by 18 U.S.C. of children.” 7 § 2251(d) for a defendant with “2 or more prior convictions . . . under the laws of any State relating to the sexual term contained in a federal statute is a exploitation of children.” 8 Therefore, we question of federal, not state, law. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983) (interpreting the context of 18 U.S.C. § 924(c)(1). See “convicted” in context of gun control United States v. Casiano, 113 F.3d 420, statutes). 425-26 (3d Cir. 1997). We need not determine the 7 We do not express an opinion on applicability of the separate criminal whether the “separate criminal episode” episode test to section 2251(d) in test should apply to cases like the present reaching our decision. Even if we were one involving 18 U.S.C. § 2251(d). to apply the test, it would clearly be Under the separate criminal episode test, satisfied here. The three counts of child individual counts of a single indictment molestation to which Randolph pled are considered separate convictions only guilty in 1978 involved three different if they arise from separate and distinct victims, and conduct that occurred at criminal episodes. This test appears different times over a seven-month explicitly in 18 U.S.C. § 924(e)(1), period. which refers to convictions for offenses 8 “committed on occasions different from In its cross-appeal, the government one another,” and has been read into 21 makes a second argument to support the U.S.C. § 841(b)(1)(A) by the courts. imposition of a thirty-year minimum See, e.g., United States v. Millard, 139 sentence. Under section 2251(d), a F.3d 1200, 1209 (8th Cir. 1998) (“If two minimum sentence of thirty years is convictions result from acts forming a prescribed for a violator of section 2251 single criminal episode, they should be “if such person has 2 or more prior treated as a single conviction for convictions under this chapter [18 U.S.C. sentencing enhancement under section §§ 2251-2260], . . . or under the laws of 841(b)(1)(A).”). We have held, any State relating to the sexual however, that this test does not apply in exploitation of children.” The

9 will vacate Randolph’s sentence and remand to the District Court for resentencing.

government contends that even if Randolph’s 1978 guilty plea to three Georgia child molestation counts were considered one conviction, Randolph would still have two prior convictions for purposes of section 2251(d), because one of the two counts of sexual exploitation of children to which Randolph pled guilty in the present case should be deemed a “prior conviction[] under this chapter.” Because we find that Randolph already has “2 or more prior convictions” by virtue of his 1978 guilty plea, we need not reach this question.