Wednesday, February 28, 2007

Prior OK Conviction for Making Lewd Proposal to Minor Triggered 15-Year Mandatory Minimum Under 18 U.S.C. § 2252A(b)(1)

United States v. Hubbard, No. 05-10704 (5th Cir. Feb. 23, 2007) (Garza, Prado, Owen) (For unexplained reasons, Judge Garza concurred in the judgment only.)

Hubbard was convicted of distributing child pornography (18 U.S.C. § 2252A(a)(2)). He had a prior Oklahoma conviction for "attempting to make lewd or indecent proposals to a child under sixteen" under Okla. Stat. tit. 21, §§ 42(1), 1123(A)(1), (C) (2000). Although Hubbard believed the "minor" to be a 14-year-old girl, he had actually been making lewd or indecent proposals to an undercover cop.

The issue here was whether that Oklahoma conviction was "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," which would subject Hubbard to a 15-year mandatory minimum under § 2252A(b)(1). The court held that it was.

It first rejected the district court's conclusion that the Oklahoma offense could not be an offense "involving a minor" because it in fact involved an adult. Relying on the Fifth Circuit's prior interpretation of a federal statute (18 U.S.C. § 2242(b)) , the court held that it doesn't matter if the offense actually involved a minor as long as the defendant acted with the requisite intent and engaged in conduct constituting a substantial step towards committing the intended offense.

The court next rejected the district court's conclusion that an offense must involve actual sexual contact in order to qualify for the enhancement. It held that Congress did not intend to impose such a requirement, pointing to the broad phrase "relating to" preceding the listed offenses.

Moving on, the court rejected Hubbard's argument that "a state-law conviction will not trigger a minimum sentence under 18 U.S.C. § 2252A(b)(1) unless that prior conviction related to 'aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor' as defined by federal law." Slip op. at 11. The court instead held that the terms should be given their "ordinary, contemporary, and common meaning."

Finally, the court rejected Hubbard's contention that "the rule of lenity should be applied because . . . 18 U.S.C. § 2252A(b)(1) is 'opaque and ambiguous' in that it does not clearly impose a fifteenyear minimum sentence when a lewd proposal was made to a person the defendant believed to be a minor but who was in fact an adult." Slip op. at 16. The court didn't find the statute ambiguous.

The court ultimately held that "Hubbard was convicted under a state law relating to sexual abuse[,]" albeit without explaining why that was so. He was therefore subject to the 15-year mandatory minimum.


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