United States v. Andrew F. Galo

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’s first three issues on appeal,1 I disagree strongly with its failure to recognize that the District Court’s enhancement of Galo’s sentence should be approved and, therefore, 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. § 2251(d). My reading of case authority, particularly Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and a common-sense reading of § 2251(d) and the relevant Pennsylvania statutes to which Galo pled guilty, as well as my review of Galo’s plea colloquies and his presentence report, convince me otherwise. Moreover, I fear that the crabbed interpretation by the majority of the provisions of § 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 West-moreland County, Pennsylvania on a ten-count information which charged him with corruption of minors,3 endangering the welfare of children,4 indecent assault,5 and involuntary deviate sexual intercourse.6 These offenses 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.

*585Thereafter, in 1999, Galo was charged 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 from 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 inform 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 exploitation of children and so, says the majority, the District Court improperly applied the § 2251(d) enhancement to Galo’s sentence. Let me explain why I believe the majority was 180 degrees off the mark in this conclusion.

II.

First, I believe that the majority has erred in interpreting the term “relating to” as narrowly 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), was that no court should be called upon to conduct fact finding with respect to the prior state indictments, nor should sentencing courts ignore undisputed facts in connection with prior state convictions. Third, the majority has also failed to recognize 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 relevant “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 foreclose 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 process regarding the defendant’s prior offenses,” Taylor, 495 U.S. at 601, 110 S.Ct. 2143, 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 reports.

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. § 924(e) *586based on, inter alia, a Texas conviction following a guilty plea for burglary of a habitation, the Ninth Circuit explained: “To say, as Taylor clearly does, that a sentencing court may not inquire 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 “[cjonsideration 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 predicate conviction for enhancement purposes.” Sweeten, 933 F.2d at 769-70.

The Tenth Circuit considered a similar issue in connection with a § 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 charged with 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 § 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 offense” is broad enough to permit conviction based on conduct that falls outside of the scope of § 924(e)(2)(B) [here, outside the scope of 18 U.S.C. § 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 § 924(e)(2)(B).

54 F.3d at 166. Of even greater significance, we noted that “[i]t is well established in this circuit, 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 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 581-82), but inexplicably does not extend this reasoning, to examine and report upon the underlying charging documents, as instructed in Taylor and in our precedent in Watkins.

*58718 Pa.C.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. § 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 582.)

18 Pa.C.S. § 4304, “Endangering welfare of children,” provides that “[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 welfare of the child by violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a). Such a duty of care is certainly violated by sexually exploiting the child.

Finally, 18 Pa.C.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. § 3126(a)(1) and (2). By its language (“indecent contact”), this statute manifestly concerns sexual exploitation, as the majority admits, stating that “it obviously relates to the sexual nature of an offender’s conduct,” (Maj. Op. at 583), and the sexual conduct obviously may involve a minor, as the statute has no age restriction.8

Because all of the Pennsylvania statutes under which Galo was convicted include “sexual exploitation of children” and are overbroad, the District Court properly went “beyond the mere fact of conviction,” Taylor, 495 U.S. at 602, 110 S.Ct. 2143, in deciding to apply the § 2251(d) sentencing enhancement. As I have demonstrated, the Ninth and Tenth 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 report 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 children 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. § 6301: 1) “that Jerry Galo was a child under eighteen years of age”; 2) “that at the time you were 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 prove those same elements in regard to Scott Galo.” As the state court judge explained corruption of minors to Galo, “indecent *588contact”9 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 children, 18 Pa.C.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 regard 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. § 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 charge 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 welfare 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 presentence report stated that Galo was charged in state court after his niece informed the New Kensing-ton 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.”

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 children. Thus we do not encounter the problem foreseen by the Supreme Court in Taylor when it expressed concern about adding another level of fact finding to the sentencing proceedings.

VI.

Because of the broad nature of the Pennsylvania statutes under which Galo was convicted, the District Court properly conducted further inquiry under Taylor and determined that, in Galo’s case, the offenses 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 precedent from this and other Circuits. Accordingly, I respectfully dissent from the majority’s failure to affirm the District Court’s enhanced sentence of Galo.

.Galo had claimed that Congress has not validly exercised its Commerce Clause authority in enacting 18 U.S.C. § 2251(a) and § 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, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000), puts Galo’s claims to rest.

. The District Court enhanced Galo's sentence under 18 U.S.C. § 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.

. 18 Pa.C.S. § 6301.

. 18 Pa.C.S. § 4304.

. 18 Pa.C.S. § 3126.

. 18 Pa.C.S. § 3123.

. 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 interpreted Taylor have held.

. The majority has characterized the Pennsylvania statute proscribing indecent assault as "a much closer call.” It recognizes 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 583.)

. 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 583 n. 6 (quoting 18 Pa.C.S. § 3101).)