FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1303
(D.C. No. 1:15-CR-00031-JLK-1)
SHAWN CHEEVER, (D. Colo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Shawn Cheever pled guilty to one count of possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). The presentence report recommended that
he be subject to the enhanced sentencing provision of § 2252A(b)(2) because he had
previously been convicted of an offense “relating to . . . possession . . . of child
pornography.” Id. Cheever had a prior Colorado state conviction for sexual
exploitation of a child in violation of Colo. Rev. Stat. § 18-6-403(b.5). He objected
to the enhancement, but the district court overruled his objection. Cheever was
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
sentenced to ten years’ imprisonment, the statutory minimum under § 2252A(b)(2).
He timely appealed.
On appeal, Cheever concedes that his sole argument—that a Colorado
conviction for sexual exploitation of a child does not qualify as an offense relating to
possession of child pornography under § 2252A(b)(2)—is foreclosed by circuit
precedent. In United States v. Bennett, 823 F.3d 1316 (10th Cir. 2016), we held that
the defendant’s “prior Colorado misdemeanor conviction for sexual exploitation of a
child ‘relates to’ child pornography, and he is therefore eligible for the mandatory
minimum.” Id. at 1318. But see id. at 1327 (Hartz, J., concurring in part and
dissenting in part) (stating that because “the definition of child pornography in the
Colorado statute is broader than the definition of the term in the federal enhancement
statute . . . I would hold that the Colorado statute” does not qualify). “We are bound
by the precedent of prior panels absent en banc reconsideration or a superseding
contrary decision by the Supreme Court.” United States v. Killion, 7 F.3d 927, 930
(10th Cir. 1993) (italics omitted).
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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