United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2010 Decided June 7, 2011
No. 09-3077
UNITED STATES OF AMERICA,
APPELLEE
v.
AARON BRUNS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00100)
Roman Martinez, former Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and Patricia
Z. Stewart, Assistant U.S. Attorneys. Roy W. McLeese III,
Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: A conviction for
possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) typically carries a maximum sentence of ten
years’ imprisonment. 18 U.S.C. § 2252A(b)(2). But if the
defendant “has a prior conviction . . . under the laws of any State
relating to . . . child pornography,” the statute requires a ten-year
minimum sentence. Ibid.1 The question in this appeal is
1
18 U.S.C. § 2252A(a)(5)(B) provides:
Any person who * * * knowingly possesses . . . any
book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an
image of child pornography that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer, or
that was produced using materials that have been
mailed, or shipped or transported in interstate or
foreign commerce by any means, including by
computer * * * shall be punished as provided by
subsection (b).
Subsection (b)(2) states:
Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or
imprisoned not more than 10 years, or both, but, if
such person has a prior conviction 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 aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor
or ward, or the production, possession, receipt,
3
whether Aaron Bruns had such a “prior conviction” under the
laws of the State of Michigan.
In 1999, Bruns, then nineteen years old, pled guilty in a
Michigan state court to distributing child pornography via the
Internet, a felony under Michigan law. The court accepted his
guilty plea, “assigned [him] to youthful trainee status” pursuant
to the Michigan Holmes Youthful Trainee Act, MICH. COMP.
LAWS §§ 762.11–.15, and imposed a sentence of three years’
probation. Two years later, the court granted Bruns an early
discharge and dismissed his case.
In 2009, in the United States District Court for the District
of Columbia, Bruns pled guilty to a one-count information
charging him with possessing child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B). In light of the Michigan proceed-
ing, the district court sentenced Bruns to ten years’ imprison-
ment. The court stated that it would have imposed a lesser
sentence but for the statute’s mandatory minimum.
The Michigan Holmes Act applies to persons who commit
a criminal offense between the ages of seventeen and twenty-
one. The Act authorizes Michigan courts to “assign” an
individual to youthful trainee status and sentence him “without
entering a judgment of conviction” if the individual pleads
guilty to an offense other than those the Act exempts. MICH.
COMP. LAWS § 762.11. Under the Act, an assignment to
youthful trainee status “is not a conviction for a crime” and the
individual “shall not suffer a civil disability or loss of right or
privilege” because of it. Id. § 762.14(2). If the individual
mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined
under this title and imprisoned for not less than 10
years nor more than 20 years.
4
successfully completes his sentence, the court dismisses the
case. Id. § 762.14(1).
This description of the Michigan Holmes Act seems—and
we emphasize “seems”—to indicate that the disposition of
Bruns’ guilty plea in the Michigan court was not a state-law
conviction. The district court nevertheless treated it as a
conviction for purposes of federal sentencing. The court relied
on the holding of Dickerson v. New Banner Institute, Inc., 460
U.S. 103 (1983), superseded by statute, Firearms Owners’
Protection Act, P.L. 99-308, § 101, 100 Stat. 449, 449-51
(1986), that the meaning of “convicted in any court” as used in
federal gun-control legislation did not depend on what consti-
tuted a conviction under state law. Absent a “plain indication to
the contrary,” the Court assumed that Congress would not make
the application of the federal law turn on the “vagaries of state
law.” Id. at 117, 119. “[F]or purposes of the federal gun control
laws, we equate a plea of guilty and its notation by the state
court, followed by a sentence of probation, with being ‘con-
victed.’” Id. at 114. An individual who pled guilty in state court
was therefore not eligible for a federal license to sell firearms
even though the state court later expunged the record of the
proceedings. Id. at 105.
Bruns points out the difference between the statutory
language in Dickerson—“convicted in any court”—and the
language of the child pornography statute—“has a prior convic-
tion . . . under the laws of any State relating to . . . child pornog-
raphy.” The reference to state law in 18 U.S.C. § 2252A(b)(2),
he says, signifies that Congress intended state law to determine
whether a person has a prior conviction. We shall assume,
without deciding, that Bruns is correct.
As Bruns emphasizes, the Michigan Holmes Act provides
that assignment to youthful trainee status is “not a conviction for
5
a crime” and does not result in a civil disability. MICH. COMP.
LAWS § 762.14(2). But another provision of Michigan law
treats such an assignment as a conviction when the defendant is
sentenced for committing a later offense.
For the vast majority of felony convictions under Michigan
law, the courts apply the Michigan sentencing guidelines to
determine the defendant’s minimum sentence. Id. §§ 777.1–.69.
Like their federal counterparts, the Michigan guidelines take
into account the class of the offense, the specific characteristics
of its commission and the defendant’s criminal history to
determine a sentencing range. Id. § 777.21. Absent a “substan-
tial and compelling reason,” the sentencing judge must impose
a minimum sentence within that range. Id. § 769.34(2)-(3).2
With respect to a defendant’s criminal history, the guide-
lines define a series of “prior record variables” based on the
number and severity of a defendant’s previous “convictions.”
Id. §§ 777.50-.55. For scoring these variables, the guidelines
state that “‘[c]onviction’ includes . . . [a]ssignment to youthful
trainee status” pursuant to the Holmes Act. Id. § 777.50(4)(a)(i).
We believe this provision, dealing directly with sentencing in
light of prior offenses, is the controlling state-law definition of
conviction, rather than the more general provision of the Holmes
Act.
In supplemental briefing, Bruns argues that the guidelines
provision would not “transform prior HYTA adjudications into
2
Michigan employs an indeterminate sentencing system. The
judge sentences a defendant to both a minimum and a maximum
sentence. MICH. COMP. LAWS §§ 769.8-.9. A defendant’s maximum
sentence in Michigan is typically set by statute, and his actual time
served is determined by the state parole board. See People v. Drohan,
715 N.W.2d 778, 789-91 (Mich. 2006).
6
‘convictions’ for all purposes under Michigan law.” Def.’s
Supp. Br. 5. But we are not concerned with all purposes. The
question is whether Bruns had a prior conviction under state law
for the purpose of determining Bruns’ minimum sentence. The
Michigan courts would answer that question affirmatively in
light of § 777.50(4)(a)(i), as the Sixth Circuit recognized in
Adams v. United States, 622 F.3d 608, 612 (6th Cir. 2010). See
People v. Jackson, 2008 WL 2037805, at *5 (Mich. Ct. App.
May 13, 2008).
The other state laws to which Bruns directs our attention
have no bearing on the question. Bruns pled guilty to possession
of child pornography—a felony subject to the sentencing
guidelines in Michigan, MICH. COMP. LAWS § 777.16g(1). That
these guidelines may not apply to the state-law crimes of first-
degree murder or treason does not matter. Section 2252A(b)(2)
does not apply to sentencing for those crimes either. Whether
Michigan’s habitual offender laws, MICH. COMP. LAWS
§§ 769.10-.12, would treat Bruns’ assignment as a conviction for
determining Bruns’ maximum sentence is also immaterial. We
are concerned with Bruns’ minimum federal sentence.
For the first time in his supplemental reply brief, Bruns
contends that use of the present tense in § 2252A(b)(2)—“‘has’
a prior state ‘conviction’”—forecloses any inquiry into whether
he “would have a prior conviction if, hypothetically, he were
instead being sentenced in state court.” Supp. Reply Br. 3.
Ordinarily, we do not address an argument first offered in a
reply brief. See Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 653
n.2 (D.C. Cir. 1991); Gen. Elec. Co. v. Jackson, 610 F.3d 110,
123 (D.C. Cir. 2010). But even if this argument were not
waived, it is unconvincing. Whether Bruns “has” a prior
conviction is a legal question. See Dickerson, 460 U.S. at 111-
12. Michigan law defines “conviction” differently for different
7
purposes.3 If state law governs whether Bruns had a “convic-
tion” within the meaning of § 2252A(b)(2), we must determine
if Michigan law would treat his Holmes Act assignment as a
prior conviction in sentencing proceedings for a later offense.
Cf. United States v. Jefferson, 88 F.3d 240, 245 (3d Cir. 1996).
And that is precisely what we are seeking to determine.
The bottom line is this: If Bruns had been convicted in state
court of the conduct for which he was sentenced in federal court,
his assignment under the Michigan Holmes Act would have
been treated as a “conviction” for determining his minimum
sentence. It follows that even if Michigan law determined his
minimum federal sentence, Bruns had a prior conviction under
Michigan law relating to child pornography.4 The district court
therefore properly imposed the ten-year mandatory minimum
sentence pursuant to 18 U.S.C. § 2252A(b)(2).
Affirmed.
3
For example, assignment to youthful trainee status pursuant to
the Holmes Act before October 1, 2004, is a conviction for the
purposes of Michigan’s Sex Offenders Registration Act. MICH. COMP.
LAWS § 28.722.
4
The Michigan sentencing statute instructs courts to ignore
convictions that precede a period of ten years or more between the
defendant’s discharge date from the prior conviction and his
commission of another offense. MICH. COMP. LAWS § 777.50(1). The
statute does not say, however, that an assignment to youthful trainee
status is any less a “conviction” if it was beyond the ten-year period.
In any event, Bruns pled guilty to possessing child pornography on or
about January 23, 2009. He was discharged from probation for his
Michigan offense in 2001.