United States of America v. William H. Randolph

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 03-1620, 03-1810
____________
UNITED STATES OF AMERICA,
Appellant in 03-1810
v.
WILLIAM H. RANDOLPH,
Appellant in 03-1620
____________
Appeal from the United States District
Court for the
Western District of Pennsylvania
(D.C. Cr. No. 01-235)
District Judge: Honorable William L.
Standish
____________
Argued January 9, 2004 in 03-1810
Submitted January 9, 2004 in 03-1620
Before: BARRY and SMITH, Circuit
Judges, and POLLAK, District Judge*
(Filed: April 7, 2004)
____________
Karen S. Gerlach (argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorney for Appellant in 03-1620
Bonnie R. Schlueter
Paul M. Thompson (argued)
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Attorneys for Appellant 03-1810
____________
OPINION OF THE COURT
____________
POLLAK, District Judge.
William H. Randolph appeals
from a judgment of conviction for sexual
exploitation of children under 18 U.S.C.
§ 2251(a). Randolph contends that the
sexual exploitation statute, 18 U.S.C. §
2251(a), is unconstitutional on its face
and as applied to him.1 We disagree, and
* The Honorable Louis H. Pollak,
Senior District Judge for the Eastern
District of Pennsylvania, sitting by
designation.
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
to two counts under § 2251(a), reserving
his right to challenge the denial of the
motion to dismiss, and the government
dismissed the count under

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2
we therefore affirm the judgment of
conviction.
Randolph also appeals from the
imposition of an enhanced prison
sentence – a fifteen-year minimum
sentence plus eight months for a total of
188 months – imposed pursuant to 18
U.S.C. § 2251(d). Section 2251(d)
mandates a ten-year minimum sentence
for individuals convicted of sexual
exploitation under section 2251(a), with
enhancement to a fifteen-year minimum
for any violator of section 2251(a)
previously convicted under a state law
“relating to the sexual exploitation of
children,” and enhancement to a thirty-
year minimum for one with two or more
such prior convictions. Randolph had
previously pled guilty in a Georgia court
to three counts of child molestation, and
the District Court treated that guilty plea
to three consolidated counts as one prior
child molestation conviction, thus
requiring a sentence of at least fifteen
years. Randolph contends that child
molestation is not “sexual exploitation of
children” within the meaning of section
2251(a). We reject that contention.
Further, we agree with the government,
which has likewise appealed from the
sentence, that the three Georgia child
molestation counts, although aggregated
in one indictment, constitute three prior
sexual exploitation convictions, thereby
mandating a thirty-year minimum
sentence. Accordingly, on remand, it
will be necessary for the District Court to
re-sentence Randolph.
I.
On September 28, 2000, state and
federal officials executed a search
warrant at Randolph’s residence. The
search produced sexually explicit
photographs of an eleven-year-old girl
and a homemade videotape of Randolph
engaging in sexually explicit conduct
with a seven-year-old girl. Both girls
were identified as granddaughters of
Randolph’s next-door neighbor.
Randolph was arrested, and on October
5, 2001, a federal grand jury returned an
indictment against him on two counts of
sexual exploitation of children, 18 U.S.C.
§ 2251(a), and one count of possession
of child pornography, 18 U.S.C.
§ 2252(a)(4)(B). Randolph moved to
dismiss the indictment for lack of
jurisdiction, contending that sections
2251(a) and 2252(a)(4)(B) represent
unconstitutional exercises of Congress’s
authority under the Commerce Clause.
§ 2252(a)(4)(B). In his brief on appeal,
Randolph not only maintains his
challenge to the constitutionality of
§ 2251(a) but renews his challenge to the
constitutionality of § 2252(a)(4)(B). But
since he did not plead guilty to a count
under § 2252(a)(4)(B), Randolph is not
in a position to challenge the
constitutionality of that statute. In any
event, it is a matter of no consequence in
the present case, for, as will be
demonstrated infra, we have previously
held that both § 2251(a) and
§ 2252(a)(4)(B) are constitutional.

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3
On September 10, 2002, the District
Court denied Randolph’s motion to
dismiss. Subsequently, on September 26,
2002, Randolph entered a conditional
guilty plea to the sexual exploitation
charges, reserving his right to appeal the
denial of his motion to dismiss.
Randolph had a history of
criminal sexual acts involving children.
Of particular relevance to this appeal,
Randolph pled guilty in 1978 to three
counts of child molestation in violation
of Georgia law. Each count involved a
different victim under fourteen years of
age. According to Randolph’s
presentence report, between January 1
and August 9, 1977, Randolph exposed
his male sex organ in the presence of one
victim and placed his hand and finger
upon and near her female sex organ;
caused the second victim to expose her
breast and upper torso; and caused the
third victim to expose her female sex
organ and lower body. Randolph was
sentenced to five years’ probation.2
Section 2251(d) imposes
progressively harsher penalties for
violations of section 2251 depending on
the defendant’s criminal record. For
first-time offenders, section 2251(d)
prescribes a minimum sentence of ten
years. For those with “one prior
conviction under this chapter . . . or
under the laws of any State relating to the
sexual exploitation of children,” the
minimum sentence is fifteen years. For
offenders with “2 or more prior
convictions” of this nature, the minimum
is thirty years.3
Relying on Randolph’s 1978
Georgia guilty plea, the presentence
report stated that Randolph had one prior
conviction relating to the sexual
exploitation of children, subjecting him
to a minimum sentence of fifteen years in
prison. Both parties objected. Randolph
claimed he had no such prior conviction,
arguing that the crime of child
molestation for which he was convicted
in 1978 did not “relat[e] to the sexual
exploitation of children” as envisioned
2 Randolph also entered a guilty plea
in 1989 to two counts of indecent assault
and two counts of corruption of minors
in violation of Pennsylvania law. In
1995 he pled guilty to harassment after
being charged with indecent assault on a
female whose age is not apparent from
the record. It appears from the record
that these prior convictions did not factor
into the District Court’s determination of
the appropriate sentence enhancement
under 18 U.S.C. § 2251(d).
3 The PROTECT Act, signed into law
on April 30, 2003, amended the penalty
provisions of section 2251(d) by creating
a new section 2251(e). As section
2251(e) applies only to crimes committed
after April 30, 2003, and the offenses
that are the subject of this appeal took
place no later than 2000, it is not section
2251(e) but the pre-PROTECT Act
version of section 2251(d) that governs
Randolph’s sentence.

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4
by section 2251(d). The government
argued that Randolph had “2 or more”
such prior convictions, contending (1)
that the three counts of child molestation
to which Randolph pled guilty in 1978
constituted three prior “sexual
exploitation” convictions, and (2) that
one of the two counts of sexual
exploitation to which Randolph pled
guilty in the present case represented a
“prior conviction.”
The District Court rejected both
parties’ objections and adopted the
presentence report’s conclusion that
Randolph had one prior conviction for
purposes of section 2251(d), meriting a
mandatory minimum of fifteen years.
Based on Randolph’s total offense level
and criminal history category, the
presentence report had calculated
Randolph’s applicable guideline
sentencing range to be 151 to 188
months in prison. Taking into account
what the District Court, in agreement
with the presentence report, deemed to
be the statutory minimum sentence of
fifteen years (180 months), Randolph’s
sentencing range was 180 to 188 months.
The District Court sentenced Randolph
to 188 months (fifteen years and eight
months) in prison, to be followed by five
years of supervised release. Randolph
timely appealed his judgment of
conviction, and both parties appealed the
District Court’s imposition of the fifteen-
year minimum.
We apply a plenary standard of
review to issues of statutory
interpretation, United States v. Sanders,
165 F.3d 248, 250 (3d Cir. 1999), and to
questions regarding a statute’s
constitutionality. United States v. Rodia,
194 F.3d 465, 469 (3d Cir. 1999).
II.
Randolph contends first that 18
U.S.C § 2251(a) is unconstitutional on its
face and as applied to him in this case.
Section 2251(a) provides in relevant part:
Any person who employs,
uses, persuades, induces,
entices, or coerces any
minor to engage in, . . . any
sexually explicit conduct
for the purpose of
producing any visual
depiction of such conduct,
shall be punished as
provided under subsection
(d), if such person knows
or has reason to know that
such visual depiction will
be transported in interstate
or foreign commerce or
mailed, if that visual
depiction was produced
using materials that have
been mailed, shipped, or
transported in interstate or
foreign commerce by any
means, including by
computer, or if such visual
depiction has actually been
transported in interstate or
foreign commerce or
mailed.

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5
18 U.S.C. § 2251(a). Citing the Supreme
Court’s opinion in United States v.
Lopez, 514 U.S. 549 (1995), Randolph
argues that Congress exceeded its
authority under the Commerce Clause
when it enacted section 2251(a). Ruling
on this precise issue in United States v.
Galo, 239 F.3d 572 (3d Cir. 2001), this
court held three years ago that section
2251(a), along with section
2252(a)(4)(B), represents a constitutional
exercise of Congress’s authority under
the Commerce Clause. We found that
Congress rationally could have believed
that intrastate possession of pornography
has substantial effects on interstate
commerce. Id. at 575-76. This panel has
no authority to depart from binding Third
Circuit precedent, and we therefore
affirm Randolph’s conviction.
III.
A.
Randolph also contests the
District Court’s imposition of a 188-
month sentence, the sentence having
taken as its predicate that section 2251(d)
required the District Court to impose a
sentence of at least fifteen years. Section
2251(d) requires a ten-year minimum
sentence for individuals convicted of
sexual exploitation of children under
section 2251(a), and prescribes
enhancements for those offenders who
have previously been convicted under a
state law “relating to the sexual
exploitation of children.” The District
Court concluded that the Georgia child
molestation statute under which
Randolph was convicted in 1978 met this
requirement. At the time of Randolph’s
guilty plea in 1978, Georgia’s child
molestation statute prohibited “any
immoral or indecent act to or in the
presence of or with any child under the
age of 14 years with the intent to arouse
or satisfy the sexual desires of either the
child or the person.” Ga. Code Ann.
§ 26-2019 (1978).4
Randolph maintains that “sexual
exploitation of children” is a term of art
relating exclusively to crimes involving
the production of visual depictions of
minors engaged in sexually explicit
conduct. Because the production of
visual depictions is not a necessary
element of the crime of child molestation
under Georgia law, Randolph argues, his
1978 guilty plea cannot serve as grounds
for a sentence enhancement under
section 2251(d).
Once again, our decision in Galo
serves as a guidepost for our analysis. In
that case, we discussed at length what
constituted a state conviction “relating to
the sexual exploitation of children,”
explaining that the determining factor
was the statutory definition of the
underlying crime. Galo, 239 F.3d at
581-82. We observed that a state law
prohibiting statutory rape would qualify
4 The statute has since been amended
and recodified as Ga. Code Ann. § 16-6-
4.

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6
as “relating to the sexual exploitation of
children,” as would a state law
prohibiting involuntary deviate sexual
intercourse with a child under the age of
thirteen. Id. at 583. Neither statutory
rape nor involuntary deviate sexual
intercourse with a child necessarily
involves the production of visual
depictions. Accordingly, Randolph’s
argument is unavailing. The District
Court properly considered Randolph’s
guilty plea to charges of child
molestation as grounds for a sentence
enhancement under section 2251(d).
B.
The lone remaining question,
then, is how severe a sentence
enhancement is merited. If Randolph’s
guilty plea in 1978 to three counts of
child molestation under Georgia law is
considered as a single conviction, as the
District Court concluded, then section
2251(d) prescribes a fifteen-year
minimum sentence. If, however,
Randolph’s 1978 guilty plea counts as
three convictions, as the government
contends, then section 2251(d) compels a
thirty-year minimum.
The term “conviction” is not
defined anywhere in chapter 110 of the
U.S. Code, and there is no indication in
the legislative history of the statute
containing the sentence enhancement
provisions at issue, the Child
Pornography Prevention Act of 1996,
Pub. L. No. 104-208, § 121, 110 Stat.
3009, 3009-30, that Congress considered
the question whether findings of guilt
under separate counts contained in a
single indictment should be treated as
multiple convictions or as one
conviction. Moreover, we are aware of
no prior judicial construction of the word
“conviction” in the context of section
2251(d).
The meaning of “conviction” has
been closely examined, however, in cases
involving similar sentence enhancement
provisions. In Deal v. United States, 508
U.S. 129 (1993), the Supreme Court
faced this question with respect to 18
U.S.C. § 924(c)(1), which provides for
an enhanced penalty when the defendant
has a “second or subsequent conviction”
for carrying a firearm during a crime of
violence. Thomas Lee Deal was charged
in one multicount indictment with
multiple offenses arising from six armed
robberies he committed over a four-
month period. A jury convicted Deal of,
inter alia, six counts of carrying and
using a firearm during the robberies in
violation of section 924(c)(1). The
district court sentenced Deal to five years
in prison on the first count and to the
enhanced penalty of twenty years on each
of the other five counts. On appeal, Deal
argued that the word “conviction” in
section 924(c)(1) could refer not only to
a “verdict of guilt,” of which there had
been six, but also to an “entry of final
judgment” of conviction. Because there
had been only one entry of final
judgment in his case, Deal reasoned that
there was no “second or subsequent”
conviction to trigger the enhanced

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7
sentence.
The Court rejected Deal’s
argument, holding that the word
“conviction” in section 924(c)(1) refers
to the finding of guilt by a judge or jury.
Deal, 508 U.S. at 132. Because the jury
had found Deal guilty of six counts under
section 924(c)(1), each count after the
first constituted a “second or subsequent
conviction” meriting an enhanced
penalty. See id. at 533 n.1. The fact that
the counts had been contained in a single
indictment did not alter the Court’s
analysis.
Although Deal involved findings
of guilt by a jury, we have applied the
rationale of Deal to a defendant’s guilty
plea in United States v. Couch, 291 F.3d
251 (3d Cir. 2002). Bryan Couch pled
guilty to, inter alia, three counts of
discharging a firearm during a crime of
violence in violation of section
924(c)(1). The district court imposed an
enhanced sentence of twenty-five years5
each for two of the three counts, and
Couch appealed, arguing that because he
entered one guilty plea to all three counts
of a single indictment, no one count
represented a “second or subsequent
conviction” subject to the enhanced
sentencing provision of section
924(c)(1). Applying the rationale of
Deal, we rejected Couch’s argument.
Explaining that “a plea of guilt . . . is
equivalent to the same declaration made
by a judge or jury,” id. at 254, we
concluded that the three firearms counts
to which Couch pled guilty constituted
three convictions, and that the district
court thus properly applied the enhanced
sentencing provision. Id. at 254-56.
The courts have also addressed
this issue in the context of 18 U.S.C.
§ 924(e)(1), the Armed Career Criminal
Act. Pursuant to section 924(e)(1), a
defendant convicted of unlawful
possession of a firearm under 18 U.S.C.
§ 922(g) receives an enhanced sentence
if he “has three previous convictions . . .
for a violent felony or serious drug
offense, or both, committed on occasions
different from one another.” The courts
of appeals have uniformly held that a
defendant’s conviction in a single
judicial proceeding for multiple counts
arising from separate criminal episodes is
treated as multiple convictions under
section 924(e)(1). See, e.g., United
States v. Maxey, 989 F.2d 303, 306 (9th
Cir. 1993); United States v. Samuels, 970
F.2d 1312, 1315 (4th Cir. 1992); United
States v. Roach, 958 F.2d 679, 684 (6th
Cir. 1992); United States v. Herbert, 860
F.2d 620, 622 (5th Cir. 1988); United
States v. Rush, 840 F.2d 580, 581 (8th
Cir. 1988); United States v. Greene, 810
F.2d 999, 1000 (11th Cir. 1986).
Finally, courts have interpreted
5 Between Deal and Couch, Congress
amended section 924(c)(1), increasing
the sentence enhancement for a “second
or subsequent conviction” from 20 years
to 25. Act of Nov. 13, 1998, Pub. L. No.
105-386, § 1(a)(1), 112 Stat. 3469, 3469.

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

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9
Accordingly, we hold that under
18 U.S.C. § 2251(d), the three counts of
child molestation to which Randolph
pled guilty in 1978 constituted three prior
convictions, sufficient to trigger the
thirty-year minimum sentence for a
defendant who has “2 or more prior
convictions . . . under the laws of any
State relating to the sexual exploitation
of children.”7
Conclusion
For the foregoing reasons, we
reject Randolph’s constitutional
challenge to 18 U.S.C. § 2251(a), and
affirm the judgment of conviction.
However, we conclude that Randolph
should have received the sentence
enhancement mandated by 18 U.S.C.
§ 2251(d) for a defendant with “2 or
more prior convictions . . . under the
laws of any State relating to the sexual
exploitation of children.”8 Therefore, weterm contained in a federal statute is a
question of federal, not state, law. See
Dickerson v. New Banner Inst., Inc., 460
U.S. 103, 111-12 (1983) (interpreting
“convicted” in context of gun control
statutes).
7 We do not express an opinion on
whether the “separate criminal episode”
test should apply to cases like the present
one involving 18 U.S.C. § 2251(d).
Under the separate criminal episode test,
individual counts of a single indictment
are considered separate convictions only
if they arise from separate and distinct
criminal episodes. This test appears
explicitly in 18 U.S.C. § 924(e)(1),
which refers to convictions for offenses
“committed on occasions different from
one another,” and has been read into 21
U.S.C. § 841(b)(1)(A) by the courts.
See, e.g., United States v. Millard, 139
F.3d 1200, 1209 (8th Cir. 1998) (“If two
convictions result from acts forming a
single criminal episode, they should be
treated as a single conviction for
sentencing enhancement under section
841(b)(1)(A).”). We have held,
however, that this test does not apply in
the context of 18 U.S.C. § 924(c)(1). See
United States v. Casiano, 113 F.3d 420,
425-26 (3d Cir. 1997).
We need not determine the
applicability of the separate criminal
episode test to section 2251(d) in
reaching our decision. Even if we were
to apply the test, it would clearly be
satisfied here. The three counts of child
molestation to which Randolph pled
guilty in 1978 involved three different
victims, and conduct that occurred at
different times over a seven-month
period.
8 In its cross-appeal, the government
makes a second argument to support the
imposition of a thirty-year minimum
sentence. Under section 2251(d), a
minimum sentence of thirty years is
prescribed for a violator of section 2251
“if such person has 2 or more prior
convictions under this chapter [18 U.S.C.
§§ 2251-2260], . . . or under the laws of
any State relating to the sexual
exploitation of children.” The

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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.

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