NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0362n.06
No. 07-4506 FILED
May 22, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellant. ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
CHARLES COLE, JR., )
) OPINION
Defendant-Appellee. )
BEFORE: KENNEDY, NORRIS, and COLE, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Charles Cole, Jr., pleaded guilty to three
counts: transportation of visual depictions of minors, 18 U.S.C. § 2252(a)(1); transportation of child
pornography, 18 U.S.C. § 2252A(a)(1); and possession of child pornography, 18 U.S.C. §
2252A(a)(5)(B). These statutes each include a provision calling for a sentencing enhancement if
the defendant has been previously convicted of a state crime “relating to” enumerated sex crimes
involving minors. 18 U.S.C. § 2252(b)(1); 18 U.S.C. § 2252A(b). In 1999, defendant was convicted
of “possession of matter portraying a sexual performance by a minor” in violation of Kentucky law.
Ky. Rev. Stat. § 531.335. While the government took the position below that this prior conviction
required enhancement of defendant’s sentence, the district court declined to do so. The government
now appeals.
I.
No. 07-4506
United States v. Cole
On October 8, 2006, the local police responded to a phone call from a gas station in Mentor,
Ohio. One of the station attendants had reported that a suspicious vehicle was in the parking lot and
had been there for approximately two hours, its engine running the entire time. When the police
responded, the officers identified defendant as the driver of the vehicle and learned that he had an
outstanding Massachusetts warrant for distribution of obscene material. The officers arrested
defendant and searched his vehicle incident to the arrest, ultimately discovering a laptop computer
and hundreds of compact disks, among other things.
While being interviewed later by officers of the local police department, defendant said some
of the digital media seized from his vehicle contained images of adult males engaging in sexual
activity with infants. He also said he had received the child pornography, both images and videos,
from a friend who lived in Massachusetts. At that point, the officers obtained a search warrant for
the digital media discovered in defendant’s vehicle. The search produced thousands of image files
and hundreds of video files, many of which contained depictions of minors engaged in various sexual
activities.
On April 11, 2007, a federal grand jury returned a three-count indictment charging defendant
with the three counts mentioned earlier. Defendant entered into a plea agreement on all counts and
sentenced defendant to 120 months of incarceration on each count, to run concurrently and to be
followed by ten years of supervised release.
II.
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No. 07-4506
United States v. Cole
The sole issue on appeal is whether the district court erred when it declined to enhance
defendant’s sentence based upon his prior Kentucky conviction. We review that determination de
novo. United States v. McGrattan, 504 F.3d 608, 610 (6th Cir. 2007).
As the government conceded below and reiterated during oral argument to this court,
McGrattan controls the resolution of this appeal. Following McGrattan, the district court applied
the modified categorical approach outlined in Shepard v. United States, 544 U.S. 13 (2005), in an
effort to determine whether defendant’s Kentucky conviction was sufficiently similar to his federal
crimes to trigger a sentencing enhancement. Shepard permits sentencing courts to go beyond simply
looking to the “fact of conviction and the statutory definition of the prior offense,” Taylor v. United
States, 495 U.S. 575, 602 (1990), and also consider “the terms of the charging document, the terms
of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some comparable judicial record of this
information.” Shepard, 544 U.S. at 26. When making a Shepard analysis sentencing courts may
not consider documents such as police reports, recommendations prepared by a probation officer,
or complaint applications, United States v. Calloway, 189 F. App’x 486, 490-91 (6th Cir. 2006).
As the parties and the district court all have recognized, at the time of defendant’s conviction in
1999, the Kentucky statute at issue, Ky. Rev. Stat. § 531.335,1 was overbroad because it “facially
1
The statute reads as follows:
A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge
of its content, character, and that the sexual performance is by a minor, he or she knowingly has in his or her
possession or control any matter which visually depicts an actual sexual performance by a minor person.
Ky. Rev. Stat. § 531.335(1). “Sexual performance” is defined in these terms:
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No. 07-4506
United States v. Cole
criminalize[d] every instance in which a child is photographed while willfully and intentionally
exhibiting his or her genitals” without requiring proof that “the exhibition of the genitals by the
minor was volitional and in a lewd manner.” Purcell v. Commonwealth, 149 S.W.3d 382, 390-93
(Ky. 2004).2 By contrast, the federal statutes of conviction define “sexually explicit conduct” as
“lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v).
Thus, before Purcell was decided, an individual could have violated Ky. Rev. Stat. § 531.335 even
though the “performance” was not done in a “lewd manner.” In defendant’s case, we are precluded
from considering anything about the specifics of his conviction beyond those items permitted under
the modified categorical approach, none of which establishes that his conviction included the “lewd
manner” element. As such, it cannot be used to enhance his sentence because it is not categorically
equivalent to the federal statutes of conviction.
In light of Purcell and McGrattan, the government does not press this argument with any
force. Instead, it asks us to adopt the more expansive reading of the “relating to” language taken by
other circuits. See, e.g., United States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (rather than
trying to match the elements of the state and federal statutes, the offenses listed in the “relating to”
provision should be given their ordinary and common meaning); United States v. Hubbard, 480 F.3d
341, 347 (5th Cir. 2007) (“We must assume that Congress chose the words ‘relating to’ [in §
“Sexual performance” means any performance or part thereof which includes sexual conduct by a minor.
Ky. Rev. Stat. § 531.300(6).
2
W hile Purcell concerned a related Kentucky statute, Ky. Rev. Stat. § 531.320, it applies equally to Ky. Rev.
Stat. § 531.335.
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No. 07-4506
United States v. Cole
2252A(b)(1)] for a purpose.”); United States v. Weis, 487 F.3d 1148, 1152 (8th Cir. 2007)
(construing “relating to” broadly in § 2252); United States v. McCutchen, 419 F.3d 1122, 1127 (10th
Cir. 2005) (same)). According to the ninth circuit,
[Section] 2252A does not simply mandate a sentencing enhancement for individuals
convicted of state offenses equivalent to sexual abuse. Rather, it mandates the
enhancement for any state offense that stands in some relation, bears upon, or is
associated with that generic offense.
Id. at 743. While we readily concede that there is a surface appeal to the more expansive approaches
adopted by our sister circuits, McGrattan considered similar cases advanced by the government and
rejected them in favor of the Shepard analytical framework. 504 F.3d at 612. We are bound by prior
published opinions of this court. Sixth Cir. R. 206(c).
III.
The judgment is affirmed.
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