United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-30863
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES C. WELLES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
UDC No. 3:05-CR-138-1
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
James C. Welles pleaded guilty to on one count of
transporting child pornography and two counts of possession of
child pornography. Welles argues that the district court erred
in using his 2000 New York conviction for attempted possession of
a sexual performance by a child to enhance his sentence under 18
U.S.C. §§ 2252(b)(1) and (2). Both sections provide for
increased penalties if the defendant has a prior conviction
“relating to” a list of offenses consisting of “aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-30863
-2-
or ward, or the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,
or sex trafficking of children.” 18 U.S.C. §§ 2252(b)(1) and
(2). Welles argues that the statute does not allow for an
increased penalty based on a prior attempt offense. The
Government argues that the plain reading of the statute provides
for the enhanced penalty because the phrase “relating to”
includes attempt offenses for the listed crimes. This is a
question of statutory construction which is reviewed de novo.
See United States V. Phillips, 303 F.3d 548, 550 (5th Cir. 2002).
Whether the phrase “relating to” gives a clear indication
that Congress intended for the penalties for a violation of 18
U.S.C. § 2252A to be increased for a prior attempt crime has been
decided by this court in United States v. Hubbard, No. 05-10704,
slip op. 1-17 (5th Cir. Feb. 23, 2007). The panel in Hubbard
cited Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992), to hold that the phrase “related to” is to be interpreted
broadly. Hubbard, No. 05-10704, slip op. at 10-11. The panel
rejected the application of the rule of lenity to 18 U.S.C.
§ 2252A(b)(1) because the statute is not ambiguous. Id. at 16.
Hubbard addressed the language of 18 U.S.C. § 2252A(b)(1), but
the language in 18 U.S.C. § 2252(b)(1) and 18 U.S.C. § 2252(b)(2)
in question in this case is essentially identical with respect to
whether the statute may be interpreted to provide an enhanced
penalty for a prior offense of attempt that is “related to” one
No. 06-30863
-3-
of the generic offenses listed. The reasoning of Hubbard is
compelling. The use of Welles’s 2000 New York conviction for
attempted possession of sexual performance by a child to enhance
his sentence under 18 U.S.C. §§ 2252(b)(1) and (2) was not error.
Welles argues that his prior conviction from New York could
not be used to enhance his current sentence because the prior
conviction was the result of an unknowing and involuntary plea.
The district court overruled this collateral attack at sentencing
based on Curtis v. United States, 511 U.S. 485 (1994), that such
a collateral attack was not available under the language of 18
U.S.C. § 2252. Welles has not shown that the district court
erred on this point.
AFFIRMED.