United States v. Galo

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

2-6-2001

United States v. Galo
Precedential or Non-Precedential:

Docket 99-3870

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Filed February 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3870

UNITED STATES OF AMERICA

v.

ANDREW F. GALO,

Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
Criminal No. 99-cr-05000
District Judge: Hon. Alan N. Bloch

Argued: May 9, 2000

Before: *GREENBERG and McKEE, Circuit Judges, and
GARTH, Senior Circuit Judge

(Opinion Filed: February 6, 2001)

_________________________________________________________________
* Honorable Morton I. Greenberg assumed Senior Status on June 30,
2000.
 SHELLY STARK, ESQ.
Federal Public Defender
W. PENN HACKNEY, ESQ.
Asst. Federal Public Defender
KAREN SIRIANNI GERLACH, ESQ.
(Argued)
Asst. Federal Public Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, PA 15222
Attorneys for Appellant

HARRY LITMAN, ESQ.
United States Attorney
BONNIE R. SCHLUETER, ESQ.
Asst. United States Attorney
MARY BETH BUCHANAN, ESQ.
(Argued)
Asst. United States Attorney
633 U. S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Andrew Galo appeals the sentence that was imposed
following his conditional plea of guilty to pr oduction of
material depicting the sexual exploitation of childr en, in
violation of 18 U.S.C. S 2251(a), and possession of material
depicting the sexual exploitation of a minor , in violation of
18 U.S.C. S 2252(a)(4)(B). He argues that these statutes are
unconstitutional per se, and as applied to him. He also
challenges the district court's use of his prior state court
convictions to enhance his sentence and impose a
mandatory minimum sentence of 15 years imprisonment.
We hold that Congress validly exer cised its authority under
the Commerce Clause in enacting SS 2251(a) and
2252(a)(4)(B), and that those statutes are not
unconstitutional as applied to Galo. We do, however, agree
that the sentencing court erred in enhancing his sentence

2
based upon his prior state court convictions, and we will
therefore remand for resentencing.

I. FACTUAL BACKGROUND.

In 1996, Galo was in a relationship with Sheila H. She
had a young daughter whom we will refer to as Jessica H.
Jessica H. had previously been sexually abused by one of
her mother's boyfriends. That abuse caused Childr en and
Youth Services ("CYS") to temporarily r emove Jessica from
her home. She had been placed back in her home befor e or
during Galo's relationship with her mother .

At some point, Galo persuaded Sheila H. to per mit
Jessica H., then thirteen years old, to spend a night at his
apartment. Galo accomplished this by threatening to tell
CYS that Sheila H. had previously permitted Jessica H. to
have contact with him. This would have jeopar dized
Sheila's custody of her daughter because Galo had a state
criminal record, the nature of which we discuss below.
Sheila knew that Jessica should not have been per mitted to
be in Galo's company without supervision because of Galo's
background. Galo also threatened to have the utilities at
Sheila H.'s residence turned off unless Jessica spent time
with him. The utilities were register ed in his name. In
addition to threats and coercion, Galo also cajoled Sheila by
telling her that he might one day be Jessica's step-father,
and suggesting that he and Jessica therefor e needed time
to get acquainted.

On the evening of March 1, 1999 Jessica did stay with
Galo. During her visit he took approximately 21 sexually
explicit nude photographs of her after instructing her to
pose nude and expose her genitals. Jessica knew that Galo
had a temper and she was therefore appar ently too afraid
to resist or refuse.

Galo took the undeveloped film containing these
photographs to an Eckerd Drug Store for pr ocessing.
However, the photo manager there stopped processing the
film and alerted police as soon as she discover ed the
sexually explicit nature of the photographs. Police
responded and arrested Galo when he r eturned to pick-up
the developed photographs. Initially Galo told the police

3
that the film belonged to a friend in Ohio, but he later
changed his story and admitted that he knew the child in
the photographs was naked. He denied having inter course
with her and claimed that he only wanted to see if the
pictures would "come out." Police obtained a search
warrant of Galo's residence and seized 10 additional
pictures of Jessica, as well as pictures of Galo's nieces.
Some of the pictures were of girls in their underwear while
others were fully clothed. Police also seized a.35mm Vivitar
camera that was later identified as being the camera that
took the indecent photographs. Subsequent investigation
disclosed that the indecent pictures of Jessica had been
processed on Kodak paper. The photographic paper, film,
and Vivitar camera had all been manufactur ed outside of
Pennsylvania.

II. PROCEDURAL HISTORY.

On April 6, 1999, a federal grand jury charged Galo in a
two count indictment. Count One charged him with
production of material depicting the sexual exploitation of
children, in violation of 18 U.S.C. S 2251(a), and Count Two
charged him with possession of material depicting the
sexual exploitation of a minor, in violation of 18 U.S.C.
S 2252(a)(4)(B). Galo filed a motion to dismiss the
indictment alleging that SS 2251(a) and 2252(a)(4)(B) were
unconstitutional. He also claimed that application of the
statutes to him deprived him of equal protection of the
laws.

On July 29, 1999, the district court denied Galo's motion
to dismiss the indictment and Galo immediately enter ed a
conditional plea of guilty to both counts of the indictment.
He preserved the following issues for appeal:

(a) Whether Title 18, United States Code, Section
2251(a) is a valid exercise of the authority granted to
Congress under the Commerce Clause.

(b) Whether the evidence supporting the jurisdictional
element of Title 18, United States Code, Section
2251(a) is sufficient under the Commerce Clause.

4
 (c) Whether Title 18, United States Code, Section
2252(a)(4)(B) is a valid exercise of the authority granted
to Congress under the Commerce Clause.

(d) Whether the evidence supporting the jurisdictional
element of Title 18, United States Code, Section
2252(a)(4)(B) is sufficient under the Commer ce Clause.

The court accepted Galo's plea and thereafter r equested
that Galo and the government file briefs addressing
whether Galo's prior state convictions would subject him to
the mandatory minimum sentence of 15 years, contained in
18 U.S.C. S 2251(d). Galo argued that he was not subject to
the mandatory minimum sentence because the state
convictions did not relate to the sexual exploitation of
children as required under S 2251(d). The district court
disagreed and concluded that Galo's prior state court
convictions did subject him to the mandatory minimum.
Consequently, the district court sentenced Galo to a term of
imprisonment of 15 years (180 months), followed byfive
years of supervised release.

This appeal followed.

III. DISCUSSION.

A. Constitutional Challenge to
18 U.S.C. SS 2251(a) AND 2252(b)(4)(B).

As noted above, Galo pled guilty to violating 18 U.S.C.
SS 2251(a) and 2252(a)(4)(B). Section 2251(a), is captioned
"Sexual Exploitation of Children," and pr ovides in relevant
part as follows:

Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, . .. any
sexually explicit conduct for the purpose of pr oducing
any visual depiction of such conduct, shall be
punished as provided under subsection (d), if such
person knows or has reason to know that such visual
depiction will be transported in interstate or for eign
commerce or mailed, if that visual depiction was
produced using materials that have been mailed,
shipped, or transported in interstate or for eign

5
 commerce by any means, including by computer, or if
such visual depiction has actually been transported in
interstate or foreign commerce or mailed.

18 U.S.C. S 2251(a) (emphasis added). Section 2252(a)(4)(B),
is captioned "Certain activities relating to material involving
the sexual exploitation of minors," and pr ovides in relevant
part:

(a) Any person who . . . (4) either . . . (B) knowingly
possesses 1 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any
visual depiction that has been mailed, or has been
shipped or transported in interstate or foreign
commerce, or which was produced using materials
which have been mailed or so shipped or transported
by any means including computer, if -- (i) the
producing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and (ii)
such visual depiction is of such conduct; shall be
punished as provided in subsection (b) of this section.

18 U.S.C. S 2252(b)(4)(B). After Galo was sentenced, we
decided United States v. Rodia, 194 F .3d 465 (3d Cir. 1999),
cert. denied, ___ U.S. ___, 120 S. Ct. 2008 (2000). There we
held that Congress enacted S 2252(a)(4)(B) pursuant to a
valid exercise of authority under the Commer ce Clause.
Section 2252(a)(4)(B) imposes criminal liability on anyone
who possesses child pornography that has not itself
traveled in interstate commerce, so long as one of the
materials used to create the pornography has traveled in
interstate commerce. We reasoned that Congress could
have rationally concluded that intrastate possession of
child pornography created a demand that substantially
affected interstate commerce. Accor dingly, Congress could
regulate intrastate possession of child por nography under
the Commerce Clause in order to ef fectively regulate its
impact on interstate commerce. Although Rodia focused
only on S 2252(a)(4)(B), the same reasoning governs our
analysis of S 2251(a) because both statutes contain the
same jurisdictional element.

As we explained in Rodia, "[a] jurisdictional element [or
hook] . . . refers to a provision in a federal statute that

6
requires the government to establish specific facts justifying
the existence of federal jurisdiction in connection with any
individual application of the statute." Rodia at 471. Here,
the requirement that at least one of the materials used to
produce the child pornography travel in interstate
commerce provides the jurisdictional hook. Consequently,
we find that Rodia forecloses Galo's attack upon the
constitutionality of SS 2252 (a) and 2252 (a)(4)(B).
Nonetheless, even though we are clearly bound by our
holding in Rodia,1 Galo argues that Rodia was wrongly
decided. He asserts that Rodia ignor es the jurisdictional
requirement contained in S 2254(b)(4)(B). Galo misreads
Rodia.

In Rodia we concluded that the jurisdictional hook of
S 2252(a)(4)(B) does not achieve the goal of limiting the
reach of the statute to "activity that has a substantial effect
on interstate commerce." 194 F.3d at 468. We recognized
that the "jurisdictional element -- the r equirement that
precursor materials like film or cameras moved in interstate
commerce -- is only tenuously related to the ultimate
activity regulated: interstate possession of child
pornography." Id. at 473. W e noted that, "[a]s a practical
matter, the limiting jurisdictional factor is almost useless
here, since all but the most self-sufficient child
pornographers will rely on film, cameras, or chemicals that
traveled in interstate commerce and will ther efore fall
within the sweep of the statute." Id. Nevertheless, we held
that Congress was empowered to enact the statute under
the Commerce Clause because "Congress rationally could
have believed that intrastate possession of por nography has
substantial effects on interstate commer ce." Id. at 468.2
_________________________________________________________________

1. See United States Court of Appeals for the Third Circuit Internal
Operating Procedure 9.1.

2. There are three broad categories of activity that Congress can regulate
under the Commerce Clause: (1) the channels of interstate commerce; (2)
the instrumentalities of interstate commerce; and (3) those activities
having a substantial relation to interstate commerce. United States v.
Lopez, 514 U.S. 549, 559 (1995). In Rodia , we found that categories (1)
and (2) were not pertinent to our analysis and turned our attention to
category (3), which was at the "heart of the matter." 194 F.3d at 473-
474.

7
Galo argues that Rodia was incorr ectly decided because we
ignored the reality that Congress had criminalized purely
intrastate, local activity. However, despite Galo's argument
to the contrary, we were well aware that the statute
"criminaliz[ed] an activity that is not dir ectly linked to
interstate commerce." Id. at 468. However, as we noted
there, the fact that purely local activity is criminalized is
not fatal to the statute.

The precise question before us is whether it was within
Congress's power under the Commerce Clause to enact
18 U.S.C. S 2254(a)(4)(B), which imposes criminal
liability on individuals who possess child por nography
that has not itself traveled in interstate commer ce as
long as one of the materials from which the
pornography was created . . . has so traveled.

Id. at 468. Rodia answers the inquiry in the affirmative and
Galo's attack on the constitutionality of the statute is
therefore to no avail.

His assertion that the statute is unconstitutional as
applied to him is also without merit as our analysis in
Rodia clearly shows that Congress could pr operly regulate
intrastate possession of child pornography pr oduced by
materials that had traveled in interstate commer ce.3
Consequently, we will affirm the judgment of conviction.

B. Sentence Enhancement Pursuant to
18 U.S.C. S 2251(d).

Galo's challenge to the district court's sentencing
enhancement is more troubling. 18 U.S.C.S 2251(d)
provides in relevant part:

Any individual who violates . . . this section shall be
fined under this title or imprisoned not less than ten
(10) years nor more than twenty (20) years, but if such
person has one prior conviction under this chapter[18
U.S.C. S 2251 et seq.], . . . or under the laws of any
State relating to the sexual exploitation of children,
_________________________________________________________________

3. As noted above, the camera and film that Galo used both traveled in
interstate commerce.

8
 such person shall be fined under this title and
imprisoned for not less than fifteen (15) years nor more
than thirty (30) years . . . .

Galo's enhancement is based upon two guilty pleas he
entered in state court in 1990. In January of that year
Galo's niece told New Kensington, Pennsylvania police that
Galo had been sexually abusing her from her pr eschool
years up to fifth grade. According to the niece, the abuse
initially consisted of vaginal touching, but it pr ogressed to
oral sex and intercourse. The abuse stopped when the niece
told her mother. However, she also told police that Galo had
sexually abused her brothers. The police subsequently
questioned her brothers, and they confir med that Galo had
also sexually abused them.

Galo's older nephew, then age 18, told police that Galo
had been sexually abusing him for the past six years. The
abuse consisted of oral and anal sex, and touching of each
other's genitals. Galo's younger nephew, then age 16, told
the police that Galo had sexually abused him at various
times from the time he was 6 to the time he r eached 13.
That abuse also consisted of oral sex and touching of
genitalia.

On February 16, 1990, Galo was charged in the Court of
Common Pleas of Westmoreland County, Pennsylvania, with
two counts of involuntary deviate sexual inter course, two
counts of corruption of minors, two counts of endangering
the welfare of children and four counts of indecent assault.

On March 16, 1991, Galo appeared befor e a state trial
judge and pled guilty to corruption of minors, endangering
the welfare of children and indecent assault. Charges of
involuntary deviate sexual intercourse wer e dropped
pursuant to a plea agreement. The court accepted the plea
and sentenced Galo to one and one-half to thr ee years
imprisonment. When Galo was finally released from custody
on that sentence he began his parole. As a condition of that
parole he was required to complete a sexual offender
program and he was prohibited from r esiding in a home
where minors were present. He was on parole when he
became involved with Sheila.

9
The district court relied upon the transcript of Galo's
guilty plea hearing in state court, the elements of the state
offenses he pled guilty to, and the relevant proof offered by
the state in its prosecution of Galo, and deter mined that
Galo's prior state conviction "related to the sexual
exploitation of children" for purposes of an enhancement
under S 2251(d). However, in reaching that conclusion, the
court necessarily focused on Galo's conduct, as opposed to
the elements of the offenses he was convicted of in state
court.4

Galo now argues that the district court incorr ectly
concluded that he had been convicted of violating state
laws "relating to the sexual exploitation of children," as
required to enhance his sentence. He insists that the
district court was required to follow a"categorical
approach" in deciding whether the enhancement provisions
of S 2251(d) applied. Under the "categorical approach," the
_________________________________________________________________

4. As calculated by the U. S. Probation Office, Galo's total offense level
was 28 and his criminal history category was II, yielding a guideline
range for imprisonment of 87 months (7.25 years) to 108 months (9
years). Presentence Report ("PSR") atPP 29, 32, 64. However, the
statutorily required minimum sentence for violating S 2251(a) is 120
months (10 years) for individuals who have never been convicted of any
of the federal crimes specified in S 2251(d) or convicted of an offense
relating to the sexual exploitation of childr en under the law of any
state.
18 U.S.C. S 2251(d). The statutorily r equired minimum sentence for
violating S 2251(a) is 180 months (15 years) for individuals who have one
prior conviction for any of the federal crimes specified in S 2251(d) or
one
prior conviction for an offense relating to the sexual exploitation of
children under the law of any state. Id. Pursuant to U.S.S.G. S 5G1.1(b),
"[w]here a statutorily requir ed minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence."

Section 2251(d) further provides that if a defendant has 2 or more
convictions "under this chapter [18 U.S.C.S 2251 et seq.] or chapter
109A, or chapter 117, or under the laws of any State relating to the
sexual exploitation of children, such person shall be . . . imprisoned not
less than 30 years nor more than life." However, in the district court the
parties agreed that although Galo pled guilty to multiple offenses, those
prior offenses would amount to only one prior conviction for purposes of
sentence enhancement under S 2251(d), because his pleas were entered
simultaneously. App. at 149-151.

10
sentencing court can look only to the fact of conviction and
the statutory definition of the prior offense. The court's
analysis is not controlled by the conduct giving rise to the
conviction. Taylor v. United States, 495 U.S. 575, 600-602
(1990).

In Taylor, the defendant conditionally pled guilty to being
a convicted felon-in-possession of a firear m in violation of
18 U.S.C. S 922(g)(1). That plea subjected him to the
sentencing enhancement contained in 18 U.S.C. S 924(e)
which provides as follows:

(1) In the case of a person who violates section 922(g)
of this title and has three previous convictions by any
court . . . for a violent felony . . . such person shall be
fined not more than $25,000 and imprisoned not less
than fifteen years. . . .

(2) As used in this subsection--

. . . . .

"(B) the term `violent felony' means any crime
punishable by imprisonment for a term exceeding one
year . . . that--

"(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or

"(ii) is burglary [or other specified offenses] or otherwise
involves conduct that presents a serious potential risk
of physical injury to another.

Id. at 578. Taylor conceded that his prior convictions for
assault and robbery counted toward the enhancement
because they involved the use of physical for ce against
persons. However, he argued that the district court could
not rely upon two burglary convictions in deciding if he
qualified for an enhanced sentence under S 924(e). He
insisted that under the law of the state wher e he was
convicted (Missouri), his convictions "did not involve
`conduct that presents a serious potential risk of physical
injury to another.' " Id. at 579. The Court of Appeals for the
Fifth Circuit affirmed the enhancement based upon its
conclusion that "the word burglary inS 924(e)(2)(B)(ii)

11
means burglary however a state chooses to define it." Id.
(internal quotation marks omitted).

The issue before the Supreme Court was whether a
sentencing court applying S 924(e) "must look only to the
statutory definitions of the prior offenses, or whether the
court may consider other evidence concerning the
defendant's prior crimes." 495 U.S. at 600. After carefully
examining the legislative history, and noting that the text of
the statute grounded the enhancement on prior
"convictions" for specified crimes, the Court held that the
enhancement focused the sentencing court's inquiry"on the
elements of the statute of conviction, not [on] the facts of
each defendant's conduct." Id. With one narrow exception
not relevant to our analysis the Court concluded:

the only plausible interpretation of S 924(e)(2)(B)(ii) is
that, like the rest of the enhancement statute, it
generally requires the trial court to look only to the fact
of conviction and the statutory definition of the prior
offense.

Id., at 602. "The Court also noted that the "practical
difficulties and potential unfairness of a factual approach
are daunting [because] [i]n all cases where the Government
alleges that the defendant's actual conduct fit the generic
definition of burglary, the trial court would have to
determine what that conduct was." Id ., at 601.

Although a factual approach would be possible in some
cases where the charging instrument disclosed the actual
theories of the case as presented to the jury, it would often
not be possible to discern the nature of a defendant's prior
conduct. Application of the enhancement in such instances
would therefore result in inequitable treatment from state
to state or even within a given jurisdiction based only upon
the specificity of the charging instrument or the availability
of the jury instructions, or trial transcript. Such difficulties
are avoided where a sentencing court applying the S 924(e)
enhancement looks only to the elements of the prior offense
of conviction as defined by state law.

This categorical approach has not been limited to the
enhancement under S 924(e). In Roussos v. Menifee, 122
F.3d 159, 162-63 (3d Cir. 1997) we r elied, in part, on the

12
Taylor rationale and held that the Bur eau of Prisons had
erred when considering enhancement factors and not
focusing on the elements of the offense of conviction in
construing "convicted of a nonviolent offense" for purposes
of awarding a sentence reduction under 18 U.S.C.
S 3621(e)(2)(B).

The language of the relevant statute her e is even clearer
than the text of the statutes involved in T aylor and
Roussos. As noted above, S 2251(d) applies when an
individual has "one prior conviction . . . under the laws of
any State relating to the sexual exploitation of children." As
in Taylor, the language expressly refers to a "conviction,"
not to "conduct" relating to the sexual exploitation of
children. In order to uphold the enhancement here, we
would have to read S 2251(d) as applying when the
defendant has "previously been convicted under the laws of
any state based upon conduct relating to the sexual
exploitation of children." The language ofS 2251(d) does not
fairly support that interpretation.

In his thoughtful dissent, Judge Garth reminds us that
in United States v. Watkins, 54 F .3d 163 (3rd Cir. 1995), we
noted that the enhancement contained in S 924(e) does
allow a sentencing court to apply that enhancement based
upon a defendant's actual conduct in certain instances. See
Dissent at 28. In Watkins we stated:

when the "statutory definition of the prior of fense" is
broad enough to permit conviction based on conduct
that falls outside of the scope of S 924(e)(2)(B) [here,
outside the scope of 18 U.S.C. S 2251(d)], it becomes
necessary to look beyond the statute of conviction.
Only in such cases may the sentencing court look to
the facts of the particular case in order to determine
whether the trier of fact necessarily found elements
that would qualify the offense as a "violent felony"
under S 924(e)(2)(B).

54 F.3d at 166. However, that pr onouncement referred to
the Supreme Court's discussion of situations where a state
statute is so broad that it encompasses of fenses that serve
as predicates for enhancement under S 924(e), as well as
offenses that do not. In Taylor, the Court held that the

13
burglary enhancement contained in S 924(e) applied
whenever a defendant had a prior conviction for a crime
that had the same elements as "generic" bur glary, no
matter how the crime was labeled under state law. Taylor,
495 U.S. at 599-600. Accordingly, the Court concluded that

a person has been convicted of burglary for purposes of
a S 924(e) enhancement if he is convicted of any crime,
regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into,
or remaining in, a building or structur e, with intent to
commit a crime.

Id. at 599. When a given state statute defined burglary
more narrowly than generic burglary (such as not requiring
the intent to commit a felony or a violent crime following
entry) there was clearly no problem as the prior conviction
must, by definition, include the elements of generic
burglary. However, some states define burglary to include
unprivileged entry of a vehicle. In such cases the prior
conviction would not necessarily satisfy the elements of
generic burglary. However, in such a case, if the defendant
had actually been convicted of entering a building, he/she
would have committed a generic burglary even though the
statute's definition included conduct that could not serve
as an enhancement under S 924(e). The Court stated:

A few States' burglary statutes, . . . define burglary
more broadly, e.g., by eliminating the r equirement that
the entry be unlawful, or by including places, such as
automobiles and vending machines, other than
buildings. . . . Also, there may be offenses under some
States' laws that, while not called "burglary,"
correspond in substantial part to generic bur glary. . . .
This question requires us to address a more general
issue--whether the sentencing court in applying
S 924(e) must look only to the statutory definitions of
the prior offenses, or whether the court may consider
other evidence concerning the defendant's prior crimes.
The Courts of Appeals uniformly have held that
S 924(e) mandates a formal categorical approach,
looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying

14
 those convictions. We find the reasoning of these cases
persuasive.

Id. at 600 (citations omitted).

It was in this context that we made our pronouncement
in Watkins.

Watkins argued that the prosecution's reliance upon
documentary evidence to establish that his prior state
convictions qualified as enhancements under S 924(e) failed
to meet the government's burden of pr oof at sentencing. We
rejected that argument because the uncontested facts in
the presentence report established that W atkins' prior
convictions were predicate offenses under S 924(e). We
stated:

Here, the information provided in the presentence
report enabled the district court to ascertain with
certainty the statutes of conviction and the statutes of
conviction encompass only conduct that falls within
the scope of S 924(e)(2)(B)(i) and (ii). . . . Watkins is
forced to argue for a per se rule that certified copies of
the judgments of conviction are requir ed in every case
before a sentencing court may determine that the
defendant's prior convictions are for "violent felonies"
within the meaning of S 924(e)(2)(B). W e find no
persuasive justification for such an inflexible rule and
decline to adopt it.

Watkins, 54 F.3d at 167-8 (emphasis added).

However, our discussion in Watkins can not be divorced
from the focus of the Supreme Court's inquiry in Taylor.
There, the Court had to discern what Congress intended
when it amended the applicable statute in 1986. When
S 924(e) was originally enacted in 1984 it included burglary
as a predicate offense for enhancing a sentence of one
convicted of violating 18 U.S.C. S 922(g)(1) (a felon in
possession of a firearm). However , "[b]urglary was defined
in the statute itself as `any felony consisting of entering or
remaining surreptitiously within a building that is property
of another with intent to engage in conduct constituting a
Federal or State offense.' " T aylor, 495 U.S. at 581. The
current version of S 924(e) was enacted into law when

15
Congress passed the Career Criminals Amendment Act of
1986. Id. at 577. Those amendments made thr ee changes
in the original 1984 enactment. "This amendment .. .
expanded the predicate offenses triggering the sentence
enhancement from "robbery or bur glary" to "a violent felony
or a serious drug offense"; it defined the term "violent
felony" to include "burglary"; and it deleted the pre-existing
definition of burglary." Id. 582. Thus, in Taylor, the Court
had to examine the legislative history of the amendments to
determine if Congress intended a substantive change in
what constituted a predicate offense under S 924(e). The
Court concluded that the omission did not mean that
Congress intended to change the definition of burglary.

The legislative history as a whole suggests that the
deletion of the 1984 definition of burglary may have
been an inadvertent casualty of a complex drafting
process. In any event, there is nothing in the history to
show that Congress intended in 1986 to r eplace the
1984 "generic" definition of burglary with something
entirely different. Although the omission of a pre-
existing definition of a term often indicates Congress'
intent to reject that definition, we draw no such
inference here.

Id. at 589-90 (citations omitted).

Having established that a burglary, as originally defined,
remained a predicate offense, the Court held that
sentencing courts must adopt the "categorical approach" in
determining if a state conviction for bur glary constituted a
"burglary" for purposes of S 924(e). As noted above, when a
given state statute includes conduct as burglary that would
not constitute "generic burglary," the sentencing court can
only accomplish the required inquiry if itfirst determines if
the prior conviction was tantamount to "generic burglary"
as originally defined in S 924(e). Thus, in Watkins, we
acknowledged that the sentencing court must "look beyond
the statute of conviction" when a defendant has a prior
conviction under a statute that labels conduct as a
burglary that would traditionally not be defined as burglary
(such as illegally entering of a vehicle with the intent to
commit a crime). In that situation, the prior "burglary"
conviction can only serve as a predicate of fense under

16
S 924(e) if the defendant's conduct constituted a "generic
burglary." Otherwise, there was no conviction for "burglary"
under S 924(e). Accordingly, our decision in Watkins does
not allow a sentencing court to impose an enhancement
under S 2251(d) based on conduct that did not result in a
conviction for a crime relating to sexual exploitation of
children, and the dissent's reliance upon our language in
Watkins is misplaced.

We are similarly unpersuaded by the dissent's reliance
upon United States v. Sweeten, 933 F .2d 765, 769 (9th Cir.
1991), and United States v. Barney. 955 F.2d 635 (10th Cir.
1992). See dissent at 27. In Sweeten, the district court
refused to count a prior conviction for "bur glary of a
habitation" in Texas as a predicate of fense under S 924(e)
because Texas defined "habitation" to include vehicles. The
sentencing court concluded that it was therefor e not a
conviction for " `burglary' in a generic sense" under Taylor.
Sweeten, 933 F.2d 767. The government appealed, and the
Court of Appeals for the Ninth Circuit r eversed because the
statute in question defined "habitation" to include
"vehicles." Accordingly, the statute was limited to such
vehicles as "trailers, campers, and mobile homes-- whose
primary purpose is to serve as a dwelling and not as a
mode of transportation." Id. at 770. Ther efore, the
defendant's conviction for burglary of a habitation was
consistent with "generic burglary," and the conviction
constituted a predicate offense underS 924(e). In reaching
this conclusion the court relied only upon the elements of
the offense and did not allow an inquiry into the conduct
that violated the Texas statute. Thus, contrary to the
inference raised in Judge Garth's dissent, the court stated:
"we agree that it would have been err or for the district
court to inquire into the facts underlying Sweeten's Texas
conviction." Id at 769.

Similarly, in Barney, the defendant had been convicted
under a Wyoming statute that defined bur glary to include
unauthorized entry into "a building, occupied structure or
vehicle," with the intent of committing a crime. 955 F.2d at
638.5 The court of appeals upheld the sentencing court's
_________________________________________________________________

5. The case actually involved two defendants. W e limit our discussion to
the court's analysis of Trombley's prior conviction. The court did not

17
enhancement of the defendant's sentence because the
transcript of the guilty plea colloquy from the prior
burglaries established that he had illegally entered a
building, not a vehicle. Therefore, his prior burglary
convictions satisfied the elements of "generic burglary"
under S 924(e). Again, however, the court stated the limits
of the inquiry. The court stated:

In determining whether a person has been convicted of
a crime which may be counted toward enhancement
under Taylor, a court must employ a"categorical
approach," rather than inquire into underlying facts.
This requires a comparison of the elements of the
relevant state statute with the basic elements of
burglary identified in the Taylor decision.

955 F.2d at 638 (citations omitted). The court's holding was
based upon the fact that "Taylor allows `the sentencing
court to go beyond the mere fact of conviction in a narrow
range of cases where a jury was actually r equired to find all
the elements of generic burglary.' " Id. at 639 (quoting
Taylor, 110 S.Ct. at 2160).

Our situation is quite different. As noted above, the
statute that governs Galo's enhancement r equires a "prior
conviction of . . . laws . . . relating to the sexual exploitation
of children." Therefore the enhancement is governed by
whether the law the defendant previously violated relates to
"sexual exploitation of children." Section 2251(d) does not
require a sentencing court to deter mine if the prior
conviction satisfies the generic elements of a crime as does
S 924(e). Rather, the sentencing court need only determine
if the statute (not the conduct) the defendant was
previously convicted of relates to the sexual exploitation of
children. "Moreover, our conclusion is consistent with the
practical considerations that guided the Court's analysis in
Taylor. As the Court noted ther e, "the practical difficulties
and potential unfairness of a factual appr oach are
_________________________________________________________________

allow one of Barney's prior convictions to serve as a predicate offense
because there was no indication from the guilty plea colloquy or
indictment from the prior convition that Bar ney had the intent to
commit a crime when he entered the "bur glarized" structures. The
structures were open to the public. 955 F .2d at 640.

18
daunting." 495 U.S. at 601. We have pr eviously cautioned
that "[a] case-by-case, fact specific appr oach [to applying an
enhancement statute] . . . could force sentencing courts to
hold mini-trials, hear evidence and witnesses and otherwise
engage in a detailed examination of the specific facts
involved in the prior offense," all of which "would be
avoided with a categorical approach [that focuses on the
elements of the prior offense]." United States v. Preston, 910
F.2d 81, 85 n.3 (3d Cir. 1990).

Section S 2251(d) incorporates the categorical approach
because it focuses the sentencing court's attention on the
statutory definition of a prior conviction. It is the elements
of a given statute, not the conduct that violates it that
determines if the statute relates to sexual exploitation of
children.

We conclude, therefore, that the district court erred when
it considered Galo's prior conduct in determining whether
he was subject to the S 2251(d) enhancement. The court
should have focused only on the statutory definitions of
those prior convictions.

Accordingly, we must examine the statutory definitions of
the crimes Galo was previously convicted of and determine
whether they are state "laws . . . r elating to the sexual
exploitation of children."

As recited earlier, Galo's state convictions were for two
counts each of : (1) Corruption of Minors in violation of 18
PA. CONS. STAT. ANN. S 6301; (2)Endangering the Welfare of
a Child in violation of 18 PA. CONS. STAT. ANN. S 4304; and
(3) Indecent Assault in violation of 18 PA. CONS. STAT. ANN.
S 3126(a)(1) and (a)(2).

Corruption of Minors is defined as follows:

Whoever, being of the age of 18 years and upwards, by
any act corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids, abets,
entices or encourages any such minor in the
commission of any crime, or who knowingly assists or
encourages such minor in violating his or her par ole or
any order of court, commits a misdemeanor of the first
degree.

19
18 PA. CONS. STAT. ANN. S 6301 (emphasis added). It is
readily apparent that although the statute can include
conduct relating to the sexual exploitation of children, it
pertains with equal force to conduct such as gambling,
underage drinking or drug use. The statute is aimed at
conduct of any nature that tends to corrupt children. It is
broad enough to include allowing a minor to view an "R"
rated video.

In deciding what conduct can be said to corrupt the
morals of a minor, the common sense of the
community, as well as the sense of decency, pr opriety
and the morality which most people entertain is
sufficient to apply the statute to each particular case,
and to individuate what particular conduct is r endered
criminal by it.

Commonwealth v. Decker, 698 A.2d 99, 101 (Pa. Super.
1997) (internal quotation marks omitted); see also
Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416 (1992)
(fraternities prosecuted for corrupting the morals of minors
based upon underage drinking).

Endangering the Welfare of a Child is defined as follows:

A parent, guardian, or other person supervising the
welfare of a child under 18 years of age commits an
offense if he knowingly endangers the welfar e of the
child by violating a duty of care, protection or support.

18 PA. CONS. STAT. ANN. S 4304. The statute clearly relates to
a breach of the duty of care rather than sexual abuse or
exploitation. It includes such conduct as par ents refusing
to obtain medically necessary treatment for a child based
upon religious beliefs. See Commonwealth v. Barnhat, 497
A.2d 616, 623 (Pa. Super. 1985) ) (par ent prosecuted for
refusing to obtain medical treatment for child defended
charges of endangering welfare of child, and involuntary
manslaughter by explaining "if I would go to a doctor I
would be turning my back on my faith."). It also
criminalizes such negligent parental conduct as leaving a
plastic bag too close to a sleeping infant who subsequently
suffocates. Commonwealth v. Fewell, 654 A.2d 1109 (Pa.
Super., 1995), and intentional physical assaultive behavior
of a nonsexual nature. Commonwealth v. V ining, 744 A.2d

20
310 (Pa. Super. 2000) (adult caregiver prosecuted for burns
and beatings inflicted on toddler left in her car e).

Indecent assault is a much closer call, because it
obviously relates to the sexual nature of an offender's
conduct. However, it criminalizes, and r elates to,
nonconsensual indecent touching regardless of the victim's
age. Pennsylvania law establishes that this of fense is
committed when

[a] person who has indecent contact6 with the
complainant or causes the complainant to have
indecent contact with the person is guilty of indecent
assault if: (1) the person does so without the
complainant's consent; (2) the person does so by
forcible compulsion;. . . .

18 PA. CONS. STAT. ANN. S 3126(a)(1) and (a)(2). Galo's
conduct would have constituted a violation of this statute
regardless of the age of his victims. Although a minor could
be the victim of this, or either of Galo's other two state
offenses, none of the statutory definitions of those three
crimes establish a conviction under "laws r elating to the
sexual exploitation of children."7

The government argues that applying the categorical
approach would produce an "absur d result" because "the
enhanced penalty provisions of 18 U.S.C. S 2251(d) would
only apply to defendants convicted in states with statutes
that are specifically titled `sexual exploitation of children,'
or that use these terms in their statutory definitions."
Government's Br. at 31. We disagree. The S 2251(d)
enhancement would apply if a defendant had a prior state
conviction for involuntary deviate sexual inter course as
_________________________________________________________________

6. "Indecent contact" is defined in 18 PA. CONS. STAT. ANN. S 3101 as
"[a]ny
touching of the sexual or other intimate parts of the person for the
purpose of arousing or gratifying sexual desir e in either person."

7. The dissent's contention that "[a]ll three of the Pennsylvania statutes
under which Galo was previously convicted ar e broad enough to include
`sexual exploitation of children,' depending on the underlying facts, . .
.",
see dissent at 28, is really little mor e than an assertion that Galo was
previously convicted of conduct relating to the sexual exploitation of
children. This is not what the statute r equires.

21
defined under the law of Pennsylvania. That of fense
imposes criminal liability for engaging "in deviate sexual
intercourse8 with a complainant: . . . who is less than 13
years of age. . . ." 18 PA. CONS. STAT. ANN. S 3123(a)(6). The
definition does not contain the term "sexual exploitation of
children." Nevertheless, a prior conviction for this category
of involuntary deviate sexual intercourse would subject a
defendant to the S 2251(d) enhancement because the
conviction would be for a crime relating to the sexual
exploitation of children. Similarly, a prior conviction for
statutory rape would establish a conviction "under the laws
of any State relating to the sexual exploitation of children"
and subject a defendant to the S 2251(d) enhancement.9
Congress intended to condition enhancement under
S 2251(d) on precisely this kind of prior conviction rather
than on generic convictions that relate to sexual
exploitation of minors only because of the specific conduct
of the accused. As the Supreme Court noted in Taylor, only
in this way can the enhancement be applied in a manner
that is both uniform and practical.

In sum, because Galo has not previously been convicted
for violating a law relating to the sexual exploitation of
children, the district court improperly applied the S 2251(d)
enhancement to Galo's sentence.

IV.

For all of the above reasons, we reject Galo's
constitutional challenge to SS 2251(a) and 2242(a)(4)(B).
However, because none of Galo's prior state convictions
were convictions "under the laws of any State relating to
_________________________________________________________________

8. "Deviate sexual intercourse," under Pennsylvania statutory law, is
defined as, inter alia, "[s]exual intercourse per os or per anus between
human beings." 18 PA. CONS. STAT. ANN. S 3101. "Sexual intercourse
[i]n
addition to its ordinary meaning, includes intercourse per os or per
anus, with some penetration however slight; emission is not required."
Id.

9. The Pennsylvania Crimes Code, in a subsection of the rape statute,
imposes criminal liability on any individual who"engages in sexual
intercourse with a complaint . . . [w]ho is less than 13 years of age." 18
PA. CONS. STAT. ANN. S 3121(a)(6).

22
the sexual exploitation of children," he is not subject to the
S 2251(d) enhancement. Therefore, we will vacate Galo's
sentence and remand for resentencing. 10
_________________________________________________________________

10. Although we hold that the specific enhancement in S 2251(d) does
not apply, we do not suggest that the sentencing court ought to ignore
that conduct in calculating an appropriate sentence under the
Sentencing Guidelines. His prior conduct is clearly relevant to
determining his sentence even though it is not be a predicate offense
under S 2251(d).

23
GARTH, Circuit Judge, concurring in part and dissenting in
part.

I am obliged to write separately because, even though I
agree with the majority's disposition of Galo'sfirst three
issues on appeal,1 I disagr ee strongly with its failure to
recognize that the District Court's enhancement of Galo's
sentence should be approved and, therefor e, affirmed.

Galo complains that his sentence was improperly
enhanced by the District Court because, claims Galo, he
did not suffer a state (Pennsylvania) conviction for sexually
exploiting children.2 Unfortunately, the majority of this
panel has agreed with him by narrowly construing 18
U.S.C. S 2251(d). My reading of case authority, particularly
Taylor v. United States, 495 U.S. 575 (1990), and a
common-sense reading of S 2251(d) and the relevant
Pennsylvania statutes to which Galo pled guilty, as well as
my review of Galo's plea colloquies and his pr esentence
report, convince me otherwise. Moreover , I fear that the
crabbed interpretation by the majority of the provisions of
S 2251(d) would preclude sentence enhancements that are
not only warranted but that Congress intended. Let me
develop this point.

I.

Galo had been indicted in 1990 in Westmor eland County,
Pennsylvania on a ten-count information which charged
him with corruption of minors,3 endangering the welfare of
_________________________________________________________________

1. Galo had claimed that Congress has not validly exercised its
Commerce Clause authority in enacting 18 U.S.C.S 2251(a) and
S 2252(a)(4)(B)--both of which pertain to the sexual exploitation of
children and child pornography. As the majority so aptly holds--a
holding with which I agree--our decision in United States v. Rodia, 194
F.3d 465 (3d Cir. 1999), cert. denied, 120 S.Ct. 2008 (2000), puts Galo's
claims to rest.

2. The District Court enhanced Galo's sentence under 18 U.S.C.
S 2251(d), sentencing him to 15 years, the minimum sentence with the
enhancement. If there had been no enhancement, the range of sentence
to which Galo was subject under the statute was ten to twenty years.

3. 18 Pa. C.S. S 6301.

24
children,4 indecent assault, 5 and involuntary deviate sexual
intercourse.6 These of fenses had been committed against
his two nephews--both of whom were minors. Galo pled
guilty to all counts other than the involuntary deviate
sexual intercourse counts, which were dismissed pursuant
to a plea agreement after his pleas of guilty to the other
eight counts. The information about these convictions is
found in Galo's presentence report, to which Galo never
objected. Through his pleas of guilty, Galo also admitted to
the facts giving rise to the eight counts of the information
in Westmoreland County.

Thereafter, in 1999, Galo was char ged in a two-count
indictment in federal court with the production of material
depicting the sexual exploitation of children. The majority,
in its opinion, has detailed that indictment and has
described Galo's prior sexual abuse of his niece fr om
preschool years to fifth grade. As the majority opinion has
noted, Galo's abuse of his niece included vaginal touching,
oral sex, and intercourse. His earlier abuse of his nephews
included oral and anal sex and touching their genitals.

These acts of Galo have never been denied, have never
been contradicted, and, as I have recited above, Galo never
objected to their inclusion in the presentence report that
was prepared in connection with his federal indictment.
Indeed, the plea colloquies conducted both by the District
Court judge and by Judge Ackerman in the Court of
Common Pleas of Westmoreland County not only flesh out
the actions taken by Galo relating to his explicit sexual
conduct with his nephews and niece, but also infor m Galo
in great detail of the criminal consequences to which he
was subject in terms of sentence for those actions.

I stress this point because, as I understand the majority
opinion, it holds that, despite Galo's explicit admissions of
his acts through his pleas of guilty, the statutory
definitions of the crimes of which Galo was convicted are
claimed not to be specifically related to the sexual
_________________________________________________________________

4. 18 Pa. C.S. S 4304.

5. 18 Pa. C.S. S 3126.

6. 18 Pa. C.S. S 3123.

25
exploitation of children and so, says the majority, the
District Court improperly applied the S 2251(d)
enhancement to Galo's sentence. Let me explain why I
believe the majority was 180 degrees of f the mark in this
conclusion.

II.

First, I believe that the majority has erred in interpreting
the term "relating to" as narr owly as it did. Second, the
majority has failed to recognize that the gravamen of the
Supreme Court's decision in Taylor v. United States, 495
U.S. 575 (1990), was that no court should be called upon
to conduct fact finding with respect to the prior state
indictments, nor should sentencing courts ignor e
undisputed facts in connection with prior state convictions.
Third, the majority has also failed to r ecognize that this
Court and several of our sister Circuits have interpreted
Taylor to permit sentencing courts to review prior guilty
pleas and the descriptions of prior convictions in
presentence reports in order to deter mine the nature of a
prior conviction for sentencing enhancement purposes.
Thus, the sentencing court is not confined to the
mechanistic reading of a statute which, as the majority
apparently contends, must contain the r elevant "magic
terms" (in our case, "sexual exploitation of children").
Rather, as both Taylor7 and the cases I discuss below
instruct us, we can look beyond the words of the statute
giving rise to the enhanced sentence.

III.

Though the Supreme Court intended to for eclose the
need for mini-trials for sentencing courts to deter mine the
elements of a prior conviction, because it did not desire "the
sentencing court to engage in an elaborate factfinding
_________________________________________________________________

7. While I agree with my colleagues that Taylor does prescribe a
"categorical approach," which would appear to restrict the sentencing
court to look only at the fact of prior conviction and the statutory
definition of the prior offense, Taylor in fact goes further, as I point
out
here, and as the cases which have interpr eted Taylor have held.

26
process regarding the defendant's prior offenses," Taylor,
495 U.S. at 601, it by no means prohibited sentencing
courts from determining the elements of prior convictions
by reference to admissions through guilty pleas and to
unambiguous documents to which the defendant did not
object, such as indictments and presentence r eports.

Several Circuit courts have interpreted the Supreme
Court's decision in Taylor. In United States v. Sweeten, in
which the district court had enhanced the defendant's
sentence under 18 U.S.C. S 924(e) based on, inter alia, a
Texas conviction following a guilty plea for burglary of a
habitation, the Ninth Circuit explained: "T o say, as Taylor
clearly does, that a sentencing court may not inquir e into
the underlying facts of a prior conviction is not to say that
the original judgment and corresponding criminal statute
are the only materials that a sentencing court may or
should consider." 933 F.2d 765, 769 (9th Cir. 1991).

Accordingly, the Ninth Circuit held in Sweeten that it was
proper to consider the defendant's plea of guilty to the
Texas conviction and his indictment, because
"[c]onsideration of these additional documents, when
proffered by the government at sentencing, does not require
any searching inquiry into the underlying facts of a
defendant's conviction." 933 F.2d at 769. Therefore, held
the Ninth Circuit, "it is error for a district court . . . to
restrict its consideration to the original judgment of
conviction and corresponding criminal statute if also
presented with documentation or judicially noticeable facts
that clearly establish that the conviction is a pr edicate
conviction for enhancement purposes." Sweeten , 933 F.2d
at 769-70.

The Tenth Circuit considered a similar issue in
connection with a S 924(e) sentencing enhancement in
United States v. Barney. 955 F.2d 635 (10th Cir. 1992). The
Court held that:

where enhancement is sought on the basis of a
conviction obtained through a guilty plea, the
sentencing court may look to the underlying indictment
or information and the text of the guilty plea to
determine whether the defendant was char ged with

27
 and admitted conduct which falls without question
within the ambit of Taylor's generic definition.

955 F.2d at 639.

Finally, in United States v. Watkins, this Court considered
application of the S 924(e) sentencing enhancement in a
case where the defendant had previously been convicted of
five violent felonies and had argued that his sentence
should not have been enhanced without requiring the
Government to produce a certified copy of each prior
judgment of conviction. 54 F.3d 163 (3d Cir . 1995). After
analyzing Taylor, Judge Stapleton of our Court held that
these certified copies of judgments of conviction were not
required to establish that Watkins' prior convictions were
for violent felonies, stating that (just as in Galo's case):

when the "statutory definition of the prior of fense" is
broad enough to permit conviction based on conduct
that falls outside of the scope of S 924(e)(2)(B) [here,
outside the scope of 18 U.S.C. S 2251(d)], it becomes
necessary to look beyond the statute of conviction.
Only in such cases may the sentencing court look to
the facts of the particular case in order to determine
whether the trier of fact necessarily found elements
that would qualify the offense as a "violent felony"
under S 924(e)(2)(B).

54 F.3d at 166. Of even greater significance, we noted that
"[i]t is well established in this cir cuit, and all others, that a
sentencing court may rely on the facts set forth in the
presentence report when their accuracy is not challenged
by the defendant." Watkins, 54 F .3d at 166-67.

IV.

Applying Taylor and its progeny to this case, I would hold
that the sentencing court properly looked at the state court
plea colloquy to determine whether the prior convictions
were "relating to the sexual exploitation of children." All
three of the Pennsylvania statutes under which Galo was
previously convicted are broad enough to include "sexual
exploitation of children," depending on the underlying facts,
as set forth in the state court information, Galo's two guilty

28
pleas, and the federal presentence report. Indeed, the
majority readily concedes that violations of these statutes
could include sexual exploitation of children, (See Maj. Op.
at 19-20), but inexplicably does not extend this r easoning
to examine and report upon the underlying char ging
documents, as instructed in Taylor and in our precedent in
Watkins.

18 Pa. C.S. S 6301, "Corruption of minors," provides:
"Whoever, being of the age of 18 years and upwards, by any
act corrupts or tends to corrupt the morals of any minor
less than 18 years of age . . . commits a misdemeanor of
the first degree." 18 Pa. C.S. S 6301(a)(1). As the majority
points out, the phrase "by any act" clearly"can include
conduct relating to the sexual exploitation of children," in
addition to other conduct. (Maj. Op. at 19-20.)

18 Pa. C.S. S 4304, "Endangering welfar e of children,"
provides that "[a] parent, guar dian, or other person
supervising the welfare of a child under 18 years of age
commits an offense if he knowingly endangers the welfare
of the child by violating a duty of care, pr otection or
support." 18 Pa. C.S. S 4304(a). Such a duty of care is
certainly violated by sexually exploiting the child.

Finally, 18 Pa. C.S. S 3126, "Indecent assault," provides
that "[a] person who has indecent contact with the
complainant or causes the complainant to have indecent
contact with the person is guilty of indecent assault if[ ] the
person does so without the complainant's consent[or] the
person does so by forcible compulsion." 18 Pa. C.S.
S 3126(a)(1) and (2). By its language ("indecent contact"),
this statute manifestly concerns sexual exploitation, as the
majority admits, stating that "it obviously r elates to the
sexual nature of an offender's conduct," (Maj. Op. at 21),
and the sexual conduct obviously may involve a minor , as
the statute has no age restriction.8
_________________________________________________________________

8. The majority has characterized the Pennsylvania statute proscribing
indecent assault as "a much closer call." It r ecognizes that the statute
criminalizes conduct such as Galo's nonconsensual indecent touching of
his nephews and admits that Galo's conduct would have constituted a
violation of this statute regardless of the age of his victims. Then,
unaccountably, it states, "[a]lthough a minor could be the victim of this,
or either of Galo's other two offenses, none of the statutory definitions
of
those three crimes establish a conviction under`laws relating to the
sexual exploitation of children.' " (Maj. Op. at 21.)

29
Because all of the Pennsylvania statutes under which
Galo was convicted include "sexual exploitation of children"
and are overbroad, the District Court pr operly went
"beyond the mere fact of conviction," Taylor, 495 U.S. at
602, in deciding to apply the S 2251(d) sentencing
enhancement. As I have demonstrated, the Ninth and T enth
Circuits have permitted district courts to look at the
underlying guilty pleas under Taylor, and this Court has
held in Watkins that the presentence report may be
considered in a sentence-enhancing context as well. I have
reviewed Galo's state court plea colloquy, his plea colloquy
in District Court, and the presentence r eport in this case,
none of which, if consulted by the majority, have been
discussed in its opinion, and I cannot understand how the
Government's position that Galo had a prior conviction
relating to the sexual exploitation of childr en can be
rejected.

V.

Let me revisit the relevant proceedings in the Court of
Common Pleas and in the District Court for a moment. In
the plea colloquy in state court, the state court judge
explained: "Now I'm going to explain the counts to which
you will be pleading guilty. And you will notice that this is
what the Commonwealth would be required to prove if you
pled not guilty. This is what you are admitting by pleading
to these charges." He then outlined four elements that the
Commonwealth would have to prove before Galo could be
convicted of the two counts of corruption of minors, 18 Pa.
C.S. S 6301: 1) "that Jerry Galo was a child under eighteen
years of age"; 2) "that at the time you wer e over eighteen
years of age"; 3) "that you engaged in indecent contact with
Jerry Galo"; and 4) "that that contact corrupted or tended
to corrupt his morals." As to the second count of corruption
of minors, the government "would have to pr ove those same
elements in regard to Scott Galo." As the state court judge
explained corruption of minors to Galo, "indecent contact"9
_________________________________________________________________

9. I do not believe that the majority would dispute that "indecent
contact" qualifies as "sexual exploitation." The majority points out that
this term is defined as "[a]ny touching of the sexual or other intimate
parts of the person for the purpose of arousing or gratifying sexual
desire in either person." (Maj. Op. at 21 n.6 (quoting 18 Pa. C.S.
S 3101).)

30
was an essential element of the offense and an element to
which Galo pled guilty. Galo, through his plea of guilty,
admitted these facts and elements.

The state court judge set forth three elements for the two
counts of endangering the welfare of childr en, 18 Pa. C.S.
S 4304: 1) "that Jerry Galo was under eighteen years of
age"; 2) "that you owed a duty of care, protection or support
to him"; and 3) "that you violated that duty and endangered
his welfare by having indecent contact with him." The state
court judge stated that "[t]he same elements would have to
be proven in count ten but in regar d to Scott Galo." Once
again, Galo pled guilty to two counts of endangering the
welfare of a child, for which "indecent contact" was an
element of the offense. Galo, through his plea of guilty,
admitted these facts and elements.

Finally, the state court judge explained that indecent
assault, 18 Pa. C.S. S 3126, has two elements: 1) "that you
had indecent assault or contact with another person and
that person was not your spouse"; and 2) "that the contact
was made without that person's consent." The state court
judge explained that "[t]he person referred to in count four
is Jerry Galo" and "[t]he parallel char ge is at count nine
with regard to Scott Galo," both of whose status as children
would have to be proven with respect to the counts of
corruption of minors and endangering the welfar e of
children. Galo, through his plea of guilty, admitted these
facts and elements.

By the terms of the plea colloquy, Galo pled guilty to
these eight counts in state court involving "indecent
contact," i.e., "sexual exploitation," with children.
Additionally, the presentence report described Galo's state
court conviction under prior convictions. The pr esentence
report stated that Galo was charged in state court after his
niece informed the New Kensington police that Galo had
been sexually abusing her brothers (his nephews), and the
police interviewed the two nephews. According to the
presentence report and as I noted earlier , the abuse of the
elder nephew "consisted of oral and/or anal sex and
touching of each other's penis," and the abuse of the
younger nephew "consisted of touching each other's penis
and later of oral sex."

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These charges have never been contradicted, and Galo's
admissions have never been denied. This case does not
require judicial fact finding or mini-trials, nor does it
require a review of subjective, disputable evidence of Galo's
actions to justify the enhanced sentence. These
uncontradicted charges and Galo's admissions are integral
to Galo's state court convictions and leave no uncertainty
as to the content of Galo's prior convictions. They each
relate to sexual exploitation of childr en. Thus we do not
encounter the problem foreseen by the Supr eme Court in
Taylor when it expressed concer n about adding another
level of fact finding to the sentencing pr oceedings.

VI.

Because of the broad nature of the Pennsylvania statutes
under which Galo was convicted, the District Court
properly conducted further inquiry under T aylor and
determined that, in Galo's case, the of fenses to which he
pled guilty in state court related to "sexual exploitation of
children." The District Court's decision to apply the
sentencing enhancement to Galo's sentence was well in line
with Supreme Court precedent and pr ecedent from this and
other Circuits. Accordingly, I respectfully dissent from the
majority's failure to affirm the District Court's enhanced
sentence of Galo.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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