United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE
August 14, 2018, Matthew O'Neal was charged with one
count of possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). [R. 10
(Federal Indictment).] On March 19, 2019, O'Neal appeared
for a Change of Plea Hearing. At the Hearing, the Court
directed the parties to brief the following issues:
(1) Whether O'Neal's prior misdemeanor conviction for
1st Degree Attempted Sexual Abuse (15-year-old victim)
triggers the enhanced penalties under 2252A(b)(2); and
(2) Whether 2252A(b)(2)'s enhanced penalty for
“offense involv[ing] a prepubescent minor or a minor
who had not attained 12 years of age” has a knowledge
element. That is, does the United States need to prove mens
rea as to the type of child pornography involved in the
offense in order to establish a violation of 2252A(a)(5)(B)?
(Court Order).] The Court will address each issue in turn.
before the Court is the United States' (“the
Government”) Motion for Leave to File Sealed Document.
[R. 32.] Without an opposing response from O'Neal, and
the Court being otherwise sufficiently advised, the
Government's Motion for Leave to File Sealed Document,
[R.32], is GRANTED.
The Enhanced Penalties Under § 2252A(b)(2)
violation of 18 U.S.C. § 2252A(a)(5)(B) calls for a
custody sentence of “not more than 10 years.” 18
U.S.C. § 2252A(b)(2). However, 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 . . . such
person shall be fined under this title and imprisoned for not
less than 10 years nor more than 20 years.”
Id. Prior to the federal charge at hand, on March
26, 2012, O'Neal pleaded guilty in Calloway Circuit Court
to criminal attempt to first degree sexual abuse in violation
of K.R.S. §§ 510.110 and 506.010. [R. 31-1
(Judgment/Sentence).] The Government argues that this state
charge triggers enhanced penalties pursuant to §
2552A(b)(2). [R. 31 at 2-7.] O'Neal disagrees.
Sixth Circuit has explained:
When deciding whether a prior state-law conviction triggers
an enhanced sentence, we begin with a categorical approach.
We look first to the “fact of conviction and the
statutory definition of the prior offense”-not the
facts underlying the conviction-to determine the nature of
the crime. If the state crime of conviction has the same
elements as the generic offense-“the offense as
commonly understood”-then the prior conviction can
serve to enhance the federal sentence.
United States v. Mateen, 806 F.3d 857, 859-60 (6th
Cir. 2015) (internal citations omitted). However, if the
state statute at hand is divisible, i.e., “comprises
multiple, alternative versions of the crime, ” the
Court may engage in the “modified categorical
approach.” Descamps v. United States, 570 U.S.
254, 262-64 (2013). If not all of the crimes listed in the
state statute match the generic offense, “a court needs
a way to find out which the defendant was convicted
of.” Id. at 264. Thus, the “job”
of the modified categorical approach is to “identify,
from among several alternatives, the crime of conviction so
that the court can compare it to the generic offense.”
Id. “Put another way, the purpose of the
modified categorical approach is simply to determine of what
elements the defendant was convicted so that the court can
apply the categorical approach.” United States v.
Davis, 751 F.3d 769, 776-77 (6th Cir. 2014) (citing
Descamps, 133 S.Ct. at 2281).
statute enhancement at issue here applies to an offender with
a prior state conviction “relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward.” 18 U.S.C. § 2252A(b)(2). The Sixth
Circuit has defined sexual abuse consistent with its common
meaning, stating that “sexual abuse . . . connotes the
use or treatment of so as to injure, hurt, or damage for the
purpose of sexual or libidinal gratification.” Mateen,
806 F.3d at 861.
to the state conviction, O'Neal pleaded guilty to
attempted first degree sexual abuse in violation of K.R.S.
§§ 510.110 and 506.010. Section 510.110 provides:
(1) A person is guilty of sexual abuse in the first degree
(a) He or she subjects another person to sexual contact by
forcible compulsion; or
(b) He or she subjects another person to sexual contact who
is incapable of consent because he or she:
1. Is physically helpless;
2. Is less than twelve (12) years ...