United States v. Randolph

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

4-7-2004

USA v. Randolph
Precedential or Non-Precedential: Precedential

Docket No. 03-1620

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PRECEDENTIAL Karen S. Gerlach (argued)
Office of Federal Public Defender
UNITED STATES COURT OF 1001 Liberty Avenue
APPEALS 1450 Liberty Center
FOR THE THIRD CIRCUIT Pittsburgh, PA 15222
____________
Attorney for Appellant in 03-1620
Nos. 03-1620, 03-1810
____________ Bonnie R. Schlueter
Paul M. Thompson (argued)
UNITED STATES OF AMERICA, Office of United States Attorney
Appellant in 03-1810 700 Grant Street
Suite 400
v. Pittsburgh, PA 15219

WILLIAM H. RANDOLPH, Attorneys for Appellant 03-1810
Appellant in 03-1620 ____________
____________
OPINION OF THE COURT
Appeal from the United States District ____________
Court for the
Western District of Pennsylvania POLLAK, District Judge.
(D.C. Cr. No. 01-235)
District Judge: Honorable William L. William H. Randolph appeals
Standish from a judgment of conviction for sexual
____________ exploitation of children under 18 U.S.C.
Argued January 9, 2004 in 03-1810 § 2251(a). Randolph contends that the
Submitted January 9, 2004 in 03-1620 sexual exploitation statute, 18 U.S.C. §
2251(a), is unconstitutional on its face
Before: BARRY and SMITH, Circuit and as applied to him.1 We disagree, and
Judges, and POLLAK, District Judge*

(Filed: April 7, 2004) 1
Randolph was indicted under two
____________ statutes, 18 U.S.C. §§ 2251(a) and
2252(a)(4)(B), and moved to dismiss the
indictment on the ground that both
statutes are unconstitutional. After the
motion was denied, Randolph pled guilty
*
The Honorable Louis H. Pollak, to two counts under § 2251(a), reserving
Senior District Judge for the Eastern his right to challenge the denial of the
District of Pennsylvania, sitting by motion to dismiss, and the government
designation. dismissed the count under
we therefore affirm the judgment of requiring a sentence of at least fifteen
conviction. years. Randolph contends that child
molestation is not “sexual exploitation of
Randolph also appeals from the children” within the meaning of section
imposition of an enhanced prison 2251(a). We reject that contention.
sentence – a fifteen-year minimum Further, we agree with the government,
sentence plus eight months for a total of which has likewise appealed from the
188 months – imposed pursuant to 18 sentence, that the three Georgia child
U.S.C. § 2251(d). Section 2251(d) molestation counts, although aggregated
mandates a ten-year minimum sentence in one indictment, constitute three prior
for individuals convicted of sexual sexual exploitation convictions, thereby
exploitation under section 2251(a), with mandating a thirty-year minimum
enhancement to a fifteen-year minimum sentence. Accordingly, on remand, it
for any violator of section 2251(a) will be necessary for the District Court to
previously convicted under a state law re-sentence Randolph.
“relating to the sexual exploitation of
children,” and enhancement to a thirty- I.
year minimum for one with two or more
such prior convictions. Randolph had On September 28, 2000, state and
previously pled guilty in a Georgia court federal officials executed a search
to three counts of child molestation, and warrant at Randolph’s residence. The
the District Court treated that guilty plea search produced sexually explicit
to three consolidated counts as one prior photographs of an eleven-year-old girl
child molestation conviction, thus and a homemade videotape of Randolph
engaging in sexually explicit conduct
with a seven-year-old girl. Both girls
were identified as granddaughters of
§ 2252(a)(4)(B). In his brief on appeal,
Randolph’s next-door neighbor.
Randolph not only maintains his
Randolph was arrested, and on October
challenge to the constitutionality of
5, 2001, a federal grand jury returned an
§ 2251(a) but renews his challenge to the
indictment against him on two counts of
constitutionality of § 2252(a)(4)(B). But
sexual exploitation of children, 18 U.S.C.
since he did not plead guilty to a count
§ 2251(a), and one count of possession
under § 2252(a)(4)(B), Randolph is not
of child pornography, 18 U.S.C.
in a position to challenge the
§ 2252(a)(4)(B). Randolph moved to
constitutionality of that statute. In any
dismiss the indictment for lack of
event, it is a matter of no consequence in
jurisdiction, contending that sections
the present case, for, as will be
2251(a) and 2252(a)(4)(B) represent
demonstrated infra, we have previously
unconstitutional exercises of Congress’s
held that both § 2251(a) and
authority under the Commerce Clause.
§ 2252(a)(4)(B) are constitutional.

2
On September 10, 2002, the District Section 2251(d) imposes
Court denied Randolph’s motion to progressively harsher penalties for
dismiss. Subsequently, on September 26, violations of section 2251 depending on
2002, Randolph entered a conditional the defendant’s criminal record. For
guilty plea to the sexual exploitation first-time offenders, section 2251(d)
charges, reserving his right to appeal the prescribes a minimum sentence of ten
denial of his motion to dismiss. years. For those with “one prior
conviction under this chapter . . . or
Randolph had a history of under the laws of any State relating to the
criminal sexual acts involving children. sexual exploitation of children,” the
Of particular relevance to this appeal, minimum sentence is fifteen years. For
Randolph pled guilty in 1978 to three offenders with “2 or more prior
counts of child molestation in violation convictions” of this nature, the minimum
of Georgia law. Each count involved a is thirty years.3
different victim under fourteen years of
age. According to Randolph’s Relying on Randolph’s 1978
presentence report, between January 1 Georgia guilty plea, the presentence
and August 9, 1977, Randolph exposed report stated that Randolph had one prior
his male sex organ in the presence of one conviction relating to the sexual
victim and placed his hand and finger exploitation of children, subjecting him
upon and near her female sex organ; to a minimum sentence of fifteen years in
caused the second victim to expose her prison. Both parties objected. Randolph
breast and upper torso; and caused the claimed he had no such prior conviction,
third victim to expose her female sex arguing that the crime of child
organ and lower body. Randolph was molestation for which he was convicted
sentenced to five years’ probation.2 in 1978 did not “relat[e] to the sexual
exploitation of children” as envisioned

2
Randolph also entered a guilty plea
3
in 1989 to two counts of indecent assault The PROTECT Act, signed into law
and two counts of corruption of minors on April 30, 2003, amended the penalty
in violation of Pennsylvania law. In provisions of section 2251(d) by creating
1995 he pled guilty to harassment after a new section 2251(e). As section
being charged with indecent assault on a 2251(e) applies only to crimes committed
female whose age is not apparent from after April 30, 2003, and the offenses
the record. It appears from the record that are the subject of this appeal took
that these prior convictions did not factor place no later than 2000, it is not section
into the District Court’s determination of 2251(e) but the pre-PROTECT Act
the appropriate sentence enhancement version of section 2251(d) that governs
under 18 U.S.C. § 2251(d). Randolph’s sentence.

3
by section 2251(d). The government interpretation, United States v. Sanders,
argued that Randolph had “2 or more” 165 F.3d 248, 250 (3d Cir. 1999), and to
such prior convictions, contending (1) questions regarding a statute’s
that the three counts of child molestation constitutionality. United States v. Rodia,
to which Randolph pled guilty in 1978 194 F.3d 465, 469 (3d Cir. 1999).
constituted three prior “sexual
exploitation” convictions, and (2) that II.
one of the two counts of sexual
exploitation to which Randolph pled Randolph contends first that 18
guilty in the present case represented a U.S.C § 2251(a) is unconstitutional on its
“prior conviction.” face and as applied to him in this case.
Section 2251(a) provides in relevant part:
The District Court rejected both
parties’ objections and adopted the Any person who employs,
presentence report’s conclusion that uses, persuades, induces,
Randolph had one prior conviction for entices, or coerces any
purposes of section 2251(d), meriting a minor to engage in, . . . any
mandatory minimum of fifteen years. sexually explicit conduct
Based on Randolph’s total offense level for the purpose of
and criminal history category, the producing any visual
presentence report had calculated depiction of such conduct,
Randolph’s applicable guideline shall be punished as
sentencing range to be 151 to 188 provided under subsection
months in prison. Taking into account (d), if such person knows
what the District Court, in agreement or has reason to know that
with the presentence report, deemed to such visual depiction will
be the statutory minimum sentence of be transported in interstate
fifteen years (180 months), Randolph’s or foreign commerce or
sentencing range was 180 to 188 months. mailed, if that visual
The District Court sentenced Randolph depiction was produced
to 188 months (fifteen years and eight using materials that have
months) in prison, to be followed by five been mailed, shipped, or
years of supervised release. Randolph transported in interstate or
timely appealed his judgment of foreign commerce by any
conviction, and both parties appealed the means, including by
District Court’s imposition of the fifteen- computer, or if such visual
year minimum. depiction has actually been
transported in interstate or
We apply a plenary standard of foreign commerce or
review to issues of statutory mailed.

4
18 U.S.C. § 2251(a). Citing the Supreme molestation statute under which
Court’s opinion in United States v. Randolph was convicted in 1978 met this
Lopez, 514 U.S. 549 (1995), Randolph requirement. At the time of Randolph’s
argues that Congress exceeded its guilty plea in 1978, Georgia’s child
authority under the Commerce Clause molestation statute prohibited “any
when it enacted section 2251(a). Ruling immoral or indecent act to or in the
on this precise issue in United States v. presence of or with any child under the
Galo, 239 F.3d 572 (3d Cir. 2001), this age of 14 years with the intent to arouse
court held three years ago that section or satisfy the sexual desires of either the
2251(a), along with section child or the person.” Ga. Code Ann.
2252(a)(4)(B), represents a constitutional § 26-2019 (1978).4
exercise of Congress’s authority under
the Commerce Clause. We found that Randolph maintains that “sexual
Congress rationally could have believed exploitation of children” is a term of art
that intrastate possession of pornography relating exclusively to crimes involving
has substantial effects on interstate the production of visual depictions of
commerce. Id. at 575-76. This panel has minors engaged in sexually explicit
no authority to depart from binding Third conduct. Because the production of
Circuit precedent, and we therefore visual depictions is not a necessary
affirm Randolph’s conviction. element of the crime of child molestation
under Georgia law, Randolph argues, his
III. 1978 guilty plea cannot serve as grounds
for a sentence enhancement under
A. section 2251(d).

Randolph also contests the Once again, our decision in Galo
District Court’s imposition of a 188- serves as a guidepost for our analysis. In
month sentence, the sentence having that case, we discussed at length what
taken as its predicate that section 2251(d) constituted a state conviction “relating to
required the District Court to impose a the sexual exploitation of children,”
sentence of at least fifteen years. Section explaining that the determining factor
2251(d) requires a ten-year minimum was the statutory definition of the
sentence for individuals convicted of underlying crime. Galo, 239 F.3d at
sexual exploitation of children under 581-82. We observed that a state law
section 2251(a), and prescribes prohibiting statutory rape would qualify
enhancements for those offenders who
have previously been convicted under a
state law “relating to the sexual 4
The statute has since been amended
exploitation of children.” The District
and recodified as Ga. Code Ann. § 16-6-
Court concluded that the Georgia child
4.

5
as “relating to the sexual exploitation of the question whether findings of guilt
children,” as would a state law under separate counts contained in a
prohibiting involuntary deviate sexual single indictment should be treated as
intercourse with a child under the age of multiple convictions or as one
thirteen. Id. at 583. Neither statutory conviction. Moreover, we are aware of
rape nor involuntary deviate sexual no prior judicial construction of the word
intercourse with a child necessarily “conviction” in the context of section
involves the production of visual 2251(d).
depictions. Accordingly, Randolph’s
argument is unavailing. The District The meaning of “conviction” has
Court properly considered Randolph’s been closely examined, however, in cases
guilty plea to charges of child involving similar sentence enhancement
molestation as grounds for a sentence provisions. In Deal v. United States, 508
enhancement under section 2251(d). U.S. 129 (1993), the Supreme Court
faced this question with respect to 18
B. U.S.C. § 924(c)(1), which provides for
an enhanced penalty when the defendant
The lone remaining question, has a “second or subsequent conviction”
then, is how severe a sentence for carrying a firearm during a crime of
enhancement is merited. If Randolph’s violence. Thomas Lee Deal was charged
guilty plea in 1978 to three counts of in one multicount indictment with
child molestation under Georgia law is multiple offenses arising from six armed
considered as a single conviction, as the robberies he committed over a four-
District Court concluded, then section month period. A jury convicted Deal of,
2251(d) prescribes a fifteen-year inter alia, six counts of carrying and
minimum sentence. If, however, using a firearm during the robberies in
Randolph’s 1978 guilty plea counts as violation of section 924(c)(1). The
three convictions, as the government district court sentenced Deal to five years
contends, then section 2251(d) compels a in prison on the first count and to the
thirty-year minimum. enhanced penalty of twenty years on each
of the other five counts. On appeal, Deal
The term “conviction” is not argued that the word “conviction” in
defined anywhere in chapter 110 of the section 924(c)(1) could refer not only to
U.S. Code, and there is no indication in a “verdict of guilt,” of which there had
the legislative history of the statute been six, but also to an “entry of final
containing the sentence enhancement judgment” of conviction. Because there
provisions at issue, the Child had been only one entry of final
Pornography Prevention Act of 1996, judgment in his case, Deal reasoned that
Pub. L. No. 104-208, § 121, 110 Stat. there was no “second or subsequent”
3009, 3009-30, that Congress considered conviction to trigger the enhanced

6
sentence. sentencing provision of section
924(c)(1). Applying the rationale of
The Court rejected Deal’s Deal, we rejected Couch’s argument.
argument, holding that the word Explaining that “a plea of guilt . . . is
“conviction” in section 924(c)(1) refers equivalent to the same declaration made
to the finding of guilt by a judge or jury. by a judge or jury,” id. at 254, we
Deal, 508 U.S. at 132. Because the jury concluded that the three firearms counts
had found Deal guilty of six counts under to which Couch pled guilty constituted
section 924(c)(1), each count after the three convictions, and that the district
first constituted a “second or subsequent court thus properly applied the enhanced
conviction” meriting an enhanced sentencing provision. Id. at 254-56.
penalty. See id. at 533 n.1. The fact that
the counts had been contained in a single The courts have also addressed
indictment did not alter the Court’s this issue in the context of 18 U.S.C.
analysis. § 924(e)(1), the Armed Career Criminal
Act. Pursuant to section 924(e)(1), a
Although Deal involved findings defendant convicted of unlawful
of guilt by a jury, we have applied the possession of a firearm under 18 U.S.C.
rationale of Deal to a defendant’s guilty § 922(g) receives an enhanced sentence
plea in United States v. Couch, 291 F.3d if he “has three previous convictions . . .
251 (3d Cir. 2002). Bryan Couch pled for a violent felony or serious drug
guilty to, inter alia, three counts of offense, or both, committed on occasions
discharging a firearm during a crime of different from one another.” The courts
violence in violation of section of appeals have uniformly held that a
924(c)(1). The district court imposed an defendant’s conviction in a single
enhanced sentence of twenty-five years5 judicial proceeding for multiple counts
each for two of the three counts, and arising from separate criminal episodes is
Couch appealed, arguing that because he treated as multiple convictions under
entered one guilty plea to all three counts section 924(e)(1). See, e.g., United
of a single indictment, no one count States v. Maxey, 989 F.2d 303, 306 (9th
represented a “second or subsequent Cir. 1993); United States v. Samuels, 970
conviction” subject to the enhanced F.2d 1312, 1315 (4th Cir. 1992); United
States v. Roach, 958 F.2d 679, 684 (6th
Cir. 1992); United States v. Herbert, 860
5 F.2d 620, 622 (5th Cir. 1988); United
Between Deal and Couch, Congress
States v. Rush, 840 F.2d 580, 581 (8th
amended section 924(c)(1), increasing
Cir. 1988); United States v. Greene, 810
the sentence enhancement for a “second
F.2d 999, 1000 (11th Cir. 1986).
or subsequent conviction” from 20 years
to 25. Act of Nov. 13, 1998, Pub. L. No.
Finally, courts have interpreted
105-386, § 1(a)(1), 112 Stat. 3469, 3469.

7
“conviction” similarly in the context of discretion either to impose or to waive
21 U.S.C. § 841(b)(1)(A), which the enhanced sentencing provisions . . .
prescribes penalties for the manufacture, by opting to charge and try the defendant
distribution, or possession of a controlled either in separate prosecutions or under a
or counterfeit substance. Section multicount indictment.” Id. at 133.
841(b)(1)(A) imposes an enhanced Whereas prosecutors have authority to
sentence of life in prison if a drug charge or not to charge a particular
offender has “two or more prior offense, authority to determine the
convictions for a felony drug offense . . . punishment for a charged offense rests
.” 21 U.S.C. § 841(b)(1)(A). The three exclusively with Congress and the courts.
circuits that have addressed the issue See id. at 134 n.2.
have determined that, under this section,
multiple counts of a single indictment The construction of section
constitute separate convictions, as long 2251(d) adopted by the District Court
as they arise from separate and distinct also has the potential to create a second
criminal episodes. See United States v. troublesome result – a result that we
Gray, 152 F.3d 816, 821-22 (8th Cir. think Congress could not have intended.
1998); United States v. Ford, 88 F.3d Under such a reading, “defendants whose
1350, 1365-66 (4th Cir. 1996); United guilty pleas are taken serially for each
States v. Pace, 981 F.2d 1123, 1132 count will be subjected to much harsher
(10th Cir. 1992), abrogated in part on sentences than equally culpable
other grounds by Edwards v. United defendants who plead guilty to multiple
States, 523 U.S. 511 (1998). counts simultaneously.” Couch, 291
F.3d at 255. Considerations of fairness
We are persuaded that the logic counsel against producing such an
employed in the cases cited above should outcome.6
guide us in our interpretation of section
2251(d) as well. Deal and Couch
exposed two serious problems with the 6
Randolph also urges us to look for
interpretation of “conviction” adopted by
guidance to Georgia’s recidivist statute,
the District Court in the present case.
which would count Randolph’s guilty
First, such a reading of section 2251(d)
plea to three counts of child molestation
has the potential to undermine the
as one conviction rather than three. See
separation of powers by endowing
Ga. Code Ann. § 17-10-7(d) (“For the
prosecutors with an “extraordinary new
purpose of this Code section, conviction
power.” Deal, 508 U.S. at 134 n.2. As
of two or more crimes charged on
the Court observed in Deal, a rule
separate counts of one indictment or
dictating that a multicount indictment
accusation . . . shall be deemed to be one
can produce only a single conviction
conviction.”). This provision is
“would give a prosecutor unreviewable
inapposite, because the definition of a

8
 Accordingly, we hold that under Conclusion
18 U.S.C. § 2251(d), the three counts of
child molestation to which Randolph For the foregoing reasons, we
pled guilty in 1978 constituted three prior reject Randolph’s constitutional
convictions, sufficient to trigger the challenge to 18 U.S.C. § 2251(a), and
thirty-year minimum sentence for a affirm the judgment of conviction.
defendant who has “2 or more prior However, we conclude that Randolph
convictions . . . under the laws of any should have received the sentence
State relating to the sexual exploitation enhancement mandated by 18 U.S.C.
of children.” 7 § 2251(d) for a defendant with “2 or
more prior convictions . . . under the
laws of any State relating to the sexual
term contained in a federal statute is a exploitation of children.” 8 Therefore, we
question of federal, not state, law. See
Dickerson v. New Banner Inst., Inc., 460
U.S. 103, 111-12 (1983) (interpreting the context of 18 U.S.C. § 924(c)(1). See
“convicted” in context of gun control United States v. Casiano, 113 F.3d 420,
statutes). 425-26 (3d Cir. 1997).
We need not determine the
7
We do not express an opinion on applicability of the separate criminal
whether the “separate criminal episode” episode test to section 2251(d) in
test should apply to cases like the present reaching our decision. Even if we were
one involving 18 U.S.C. § 2251(d). to apply the test, it would clearly be
Under the separate criminal episode test, satisfied here. The three counts of child
individual counts of a single indictment molestation to which Randolph pled
are considered separate convictions only guilty in 1978 involved three different
if they arise from separate and distinct victims, and conduct that occurred at
criminal episodes. This test appears different times over a seven-month
explicitly in 18 U.S.C. § 924(e)(1), period.
which refers to convictions for offenses
8
“committed on occasions different from In its cross-appeal, the government
one another,” and has been read into 21 makes a second argument to support the
U.S.C. § 841(b)(1)(A) by the courts. imposition of a thirty-year minimum
See, e.g., United States v. Millard, 139 sentence. Under section 2251(d), a
F.3d 1200, 1209 (8th Cir. 1998) (“If two minimum sentence of thirty years is
convictions result from acts forming a prescribed for a violator of section 2251
single criminal episode, they should be “if such person has 2 or more prior
treated as a single conviction for convictions under this chapter [18 U.S.C.
sentencing enhancement under section §§ 2251-2260], . . . or under the laws of
841(b)(1)(A).”). We have held, any State relating to the sexual
however, that this test does not apply in exploitation of children.” The

9
will vacate Randolph’s sentence and
remand to the District Court for
resentencing.

government contends that even if
Randolph’s 1978 guilty plea to three
Georgia child molestation counts were
considered one conviction, Randolph
would still have two prior convictions for
purposes of section 2251(d), because one
of the two counts of sexual exploitation
of children to which Randolph pled
guilty in the present case should be
deemed a “prior conviction[] under this
chapter.” Because we find that Randolph
already has “2 or more prior convictions”
by virtue of his 1978 guilty plea, we need
not reach this question.