United States Court of Appeals
For the Eighth Circuit
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No. 16-4529
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Edward Grimes
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 17, 2017
Filed: May 1, 2018
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Before COLLOTON and GRUENDER, Circuit Judges, and READE,1 District
Judge.
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GRUENDER, Circuit Judge.
Edward Grimes was sentenced to 228 months’ imprisonment after pleading
guilty to attempted distribution of child pornography, attempted receipt of child
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
pornography, and possession of child pornography. See 18 U.S.C. § 2252(a)(2) &
(4). In arriving at this sentence, the district court2 concluded that Grimes’s prior
sex-crimes convictions triggered an enhanced statutory sentencing range for each
offense, see id. § 2252(b)(1) & (2), and that he qualified for a pattern-of-activity
enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 2G2.2(b)(5). Grimes now challenges his sentence, arguing that the Government
failed to prove that he qualified for either enhancement. We affirm.
I.
Law enforcement developed an interest in Grimes during an investigation into
a digital album containing child pornography that was posted on the image-hosting
site “IMGSRC.RU.” By examining the user account of the album’s creator, agents
with the Department of Homeland Security’s Cyber Crimes Center were able to trace
email and IP addresses to Grimes. They then verified his identity by matching a
picture of a nude man holding a cat from a related album with Grimes’s Missouri
driver’s license photograph. Based on this information, officers secured a search
warrant for Grimes’s residence. Though he initially denied possessing or distributing
child pornography, a forensic investigation of the hard drives and electronic-storage
devices found at his home yielded numerous images and videos of nude children,
including prepubescent children engaged in sex acts. Officers also discovered that
a message sent from Grimes’s email account contained images of nude children.
Grimes was subsequently charged in a three-count indictment for attempted
distribution of child pornography, attempted receipt of child pornography, and
possession of child pornography. See 18 U.S.C. § 2252(a)(2) & (4). The distribution
and receipt counts each carried a statutory minimum sentence of 5 years and a
2
The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri.
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maximum of 20 years, see id. § 2252(b)(1), while the possession count had no
statutory minimum and a maximum of 10 years, see id. § 2252(b)(2). Before Grimes
pleaded guilty, however, the Government gave notice that it would seek enhanced
mandatory sentencing ranges for all three counts under 18 U.S.C. § 2252(b)(1) and
(2), based on his prior New York convictions for first-degree sexual abuse and
second-degree sodomy. See N.Y. Penal Law § 130.65 (McKinney 1965); id.
§ 130.45. The presentence investigation report (“PSR”) likewise recommended
enhancing the sentencing ranges based on these convictions. Thus, the resulting
sentencing ranges were 15 to 40 years for the distribution and receipt counts and 10
to 20 years for the possession count. The PSR also concluded that Grimes qualified
for a five-level guidelines enhancement for engaging in a pattern of activity involving
the sexual abuse or exploitation of a minor. See U.S.S.G. § 2G2.2(b)(5).
At Grimes’s sentencing hearing, the Government offered five exhibits to
establish his prior convictions. This evidence included New York certificates of
disposition, charging documents, and supporting affidavits. In response, Grimes
argued that the district court could not consider these records for purposes of the
enhancements because they fell outside the limited set of documents authorized by
Shepard v. United States. See 544 U.S. 13, 20-21 (2005). He also suggested that this
evidence failed to prove the specific subsections under which he was convicted and
that this deficiency precluded the enhancement of his sentence because the New York
offenses criminalized conduct that exceeded the scope of both enhancements.
The district court overruled Grimes’s objections and found that he qualified for
both enhancements. After determining that the resulting guidelines range was 180
to 210 months’ imprisonment, the court varied upward and sentenced him to
concurrent 228-month sentences. The court clarified that, based on its consideration
of the factors contained in 18 U.S.C. § 3553(a), it would have arrived at this sentence
even if it had sustained all of his objections. Grimes timely appealed, arguing that the
Government failed to prove that he qualified for either enhancement.
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II.
A.
Grimes first challenges the enhancement of his statutory sentencing ranges
under § 2252(b)(1) and (2). These twin provisions provide for an increase in the
mandatory minimum and maximum sentences applicable to the offenses set out in
§ 2252(a) where a defendant has a prior state conviction “relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
18 U.S.C. § 2252(b)(1) & (2). In considering challenges involving this enhancement,
“we review the district court’s factual findings for clear error and its interpretation
and application of statutory sentencing provisions de novo.” United States v. Sumner,
816 F.3d 1040, 1043 (8th Cir. 2016). Because even one qualifying conviction is
sufficient for an enhanced sentencing range and because New York second-degree
sodomy qualifies under these provisions, we limit our analysis to this conviction.
Grimes claims that the Government failed to establish the statutory subsection
under which he was convicted because the certificates of disposition and other
exhibits do not qualify as Shepard documents and, as a result, the district court was
prohibited from considering them. See 544 U.S. at 20-21. Yet, as Grimes has
acknowledged, the version of N.Y. Penal Law § 130.45 in effect at the time of his
conviction criminalized only sodomy with a minor less than fourteen years old, unlike
the current multi-offense statute. See N.Y. Penal Law § 130.45 (McKinney 2003).
Thus, at least with respect to this conviction, there is no lack of clarity as to the
specific statutory offense of conviction. In any event, “[t]he facts of this case do not
implicate . . . Shepard [because t]he district court did not look to the Certificate of
Disposition for underlying facts of [Grimes’s] offense . . . [but rather] as proof of the
existence of the prior conviction.” See United States v. Neri-Hernandes, 504 F.3d
587, 591 (5th Cir. 2007) (emphasis added). Therefore, we conclude that the district
court did not clearly err in determining that Grimes was convicted of second-degree
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sodomy,3 and we proceed to consider whether the court erred in finding that this
offense qualifies under § 2252(b)(1) and (2).
These provisions provide for enhanced sentencing ranges for all three counts
if Grimes has even one prior conviction “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” See 18 U.S.C.
§ 2252(b)(1) & (2). As we explained in United States v. Sonnenberg, “Because the
statute does not define aggravated sexual abuse, sexual abuse, or abusive sexual
conduct with a minor or ward, we give the terms their ordinary, contemporary,
common meaning.” 556 F.3d 667, 671 (8th Cir. 2009) (internal quotation marks
omitted). Moreover, “[t]he phrase ‘relating to’ carries a broad ordinary meaning, i.e.,
to stand in some relation to; to have bearing or concern; to pertain; refer; to bring into
association or connection with.” Id. Thus, this enhancement applies if New York
second-degree sodomy “stand[s] in some relation to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” See id.
At the time of Grimes’s conviction, a person committed second-degree sodomy
when, “being eighteen years old or more, he engage[d] in deviate sexual intercourse
with another person less than fourteen years old.” See N.Y. Penal Law § 130.45
3
Grimes correctly notes that the Government bears the burden of proving the
contested fact of his conviction by a preponderance of the evidence. See United
States v. Poor Bear, 359 F.3d 1038, 1041 (8th Cir. 2004). To the extent that he
challenges the reliability of the certificates of disposition and other exhibits, the
operative question is whether the information contained therein “has sufficient indicia
of reliability to support its probable accuracy.” See U.S.S.G. § 6A1.3(a); see also
Neri-Hernandes, 504 F.3d at 591-92. Although we acknowledge that some New
York certificates of disposition may require closer examination in other cases, see
United States v. Green, 480 F.3d 627, 633-34 (2d Cir. 2007) (discussing the
reliability of New York certificates of disposition involving pre-1990 convictions
under multi-offense criminal statutes), we see no reason to doubt the validity of the
certificate of disposition here concerning Grimes’s second-degree sodomy conviction.
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(McKinney 1965). New York further defined “deviate sexual intercourse” as “sexual
conduct between persons not married to each other consisting of contact between the
penis and the anus, the mouth and penis, or the mouth and the vulva.” See People v.
Griffith, 435 N.Y.S.2d 767, 769 (N.Y. App. Div. 1981). Grimes does not dispute that
the plain terms of this offense fall within the broad definition we have adopted for
“abusive sexual conduct involving a minor,” and indeed, it would be difficult to do
so. See Sonnenberg, 556 F.3d at 671 (defining this phrase as “a perpetrator’s physical
or nonphysical misuse or maltreatment of a minor for a purpose associated with
sexual gratification”). Instead, Grimes claims that the sodomy offense is “overbroad
in only requiring a sexual act, not the requisite mens rea,” which we read as a
reference to the lack of a specific-intent requirement concerning the victim’s age.
However, the conviction at issue in Sonnenberg—Iowa lascivious acts with
children—qualified under § 2252(b)(1) despite the absence of any such requirement.
See id. Further, we see no basis for adopting Grimes’s position that “the crime[] of
. . . abusive sexual conduct with a minor or ward, require[s] a specific criminal intent
[based on its] ‘ordinary, contemporary, common meaning.’” Despite his assertion to
the contrary, United States v. Thunderhawk does not require a mens rea showing as
to the victim’s age, see 799 F.3d 1203, 1208 (8th Cir. 2015), and it is telling that the
federal offense of “sexual abuse of a minor” expressly rejects any “state of mind proof
requirement” concerning age, see 18 U.S.C. § 2243(d)(1). Thus, we conclude that
Grimes’s sodomy conviction qualifies under § 2252(b)(1) and (2), and accordingly,
the district court did not error in enhancing his statutory sentencing ranges.
B.
Grimes also claims that the district court erred in applying the five-level
enhancement under U.S.S.G. § 2G2.2(b)(5) because the Government failed to prove
that he had engaged in a pattern of activity involving the sexual abuse or exploitation
of a minor. “[W]e review the district court’s application of the Guidelines de novo
and the court’s factual findings for clear error.” United States v. Poe, 764 F.3d 914,
917 (8th Cir. 2014). Moreover, as we recently explained in United States v. Dace:
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An incorrect Guidelines calculation is harmless error where the district
court specifies [that] the resolution of a particular issue did not affect the
ultimate determination of a sentence . . . . While in some cases a court
sentencing a defendant under an incorrect Guidelines range may require
remand without any further showing of prejudice, when a district court’s
detailed explanation for the sentence imposed makes clear that the judge
based the sentence he or she selected on factors independent of the
Guidelines, the error may be harmless.
842 F.3d 1067, 1069 (8th Cir. 2016) (internal quotation marks omitted).
Even assuming that the district court erred in applying the pattern-of-activity
enhancement, any such error would be harmless. As in Dace, the district court varied
upward from the guidelines range, making clear that it would have reached this
conclusion based on its analysis of the § 3553(a) factors even if it had sustained
Grimes’s objection to the five-level enhancement. See id. at 1069-70. In particular,
the court emphasized the nature and circumstances of the child-pornography offenses,
which involved “shocking behavior”; Grimes’s history and characteristics, including
his convictions for child molestation; the need to protect the public; the impact on the
children who were victims of Grimes’s instant and prior offenses; and the potential
victimization of other children. See 18 U.S.C. § 3553(a). Thus, based on the district
court’s thorough discussion of the § 3553(a) factors underlying its decision to vary
upward and its clear explanation for why it would have imposed the same sentence
even if it had sustained Grimes’s objection to the pattern-of-activity enhancement, we
conclude that any error as to the application of U.S.S.G. § 2G2.2(b)(5) was harmless.
III.
Accordingly, we affirm Grimes’s sentence.
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