USA v. HINKLEY

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	CR-07-43-B-W
)
BRIAN A. HINKLEY 	)
ORDER ON MOTION TO STRIKE PRIOR CONVICTION
Charged with multiple counts of possession of child pornography, Brian A. Hinkley moves to
strike a prior conviction from the application of 18 U.S.C. § 2252A(b) in order “to permit
Defendant a full and fair opportunity to know what he is facing by either entering a plea or
choosing a trial.” 	Mot. to Strike Prior Conviction From the Application of 18 U.S.C. Section
2252A(b) (Docket # 48) (Def.’s Mot.). 	The Court dismisses the motion, because it asks for an
advisory opinion.
I. 	STATEMENT OF FACTS
On July 19, 2007, a federal grand jury indicted Brian Hinkley for four counts of
possession of child pornography under both 18 U.S.C. § 2252A(a)(1) and (a)(5). 	Indictment
(Docket # 14). On December 14, 2007, Mr. Hinkley moved to strike a prior conviction, based on
a set of stipulated facts. Def.’s Mot. at 1; Joint Stipulation of Facts (Docket # 49) (Stip.). 	The
stipulation provides that on February 26, 2003 a criminal complaint was filed in Maine District
Court (Farmington Docket No. FARDC-CR-2003-00202), charging Mr. Hinkley with two counts
of possessing sexually explicit material in violation of 17 M.R.S.A. § 2924(2)(A) and that on the
same day, Mr. Hinkley entered a guilty plea to both counts. Stip. at 1. He received a sentence of
364 days in jail, all suspended, and one year probation on each count to run consecutively. 	Id.
In February 2003, a violation of section 2924(2)(A) was a misdemeanor under Maine law. Id.
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Mr. Hinkley seeks a judicial answer to the following questions: 	first, whether a prior
misdemeanor under 17-A M.R.S.A. § 2924(2) can be used to trigger application of 18 U.S.C. §
2252A(b)(1) and (2); and, second, whether Mr. Hinkley’s conviction is the same conduct
proscribed in 18 U.S.C. § 2252A(b)(1).
II. 	DISCUSSION
Section 	2252A(b) 	provides 	an 	enhanced 	penalty 	for 	someone 	who 	violates 	its
prohibitions against the possession of child pornography and who has a prior conviction “under
the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography, or trafficking of children . . . .” 18
U.S.C. § 2252A(b)(1). 	For violations of § 2252A(a)(1)-(4) and (6), the mandatory minimum
prison term rises from five to fifteen years and the maximum prison term increases from twenty
to forty years. 	Id. 	For violations of § 2252(a)(5), there is no mandatory minimum prison term
and the maximum is not more than ten years unless the person has a prior conviction, and then
the statute imposes a ten year mandatory minimum and a twenty year maximum. 1 18 U.S.C. §
2252A(b)(2).
On February 26, 2003, Mr. Hinkley was convicted in state of Maine District Court of two
counts of the state misdemeanor crime of possession of materials that depicted a person not yet
14 years old engaged in sexually explicit conduct. 	Stip. Attach. 1; Stip. Attach. 2. 	First, Mr.
Hinkley contends that to count the state conviction as a predicate would violate the Due Process
Clause of the Fourteenth Amendment of the United States Constitution, since the conviction was
“based on a plea and not actual litigation.” 	Def.’s Mot. at 2. 	Second, he says that the conduct
1 The lower penalty provisions of § 2252A(b)(2) apply only to § 2252A(a)(5), the knowing possession of child
pornography. The higher penalty provisions of § 2252A(b)(1) generally address distribution of child pornography,
not mere possession.
2
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underlying his misdemeanor convictions is not the same conduct proscribed by § 2252A(b)(1).
Id. at 3-4. 	The Government contends that the prior misdemeanor convictions are predicate
convictions under § 2252A(b)(1) and (2). Government’s Mem. in Opp’n to Def.’s Mot. to Strike
Prior Conviction (Docket # 55).
Although it is understandable that Mr. Hinkley would wish to know which penalty
provision is likely to apply if he is convicted, he has not yet been convicted and may never be.
To the contrary, under the law, he remains presumed innocent. Mr. Hinkley’s motion anticipates
sentencing consequences of a decision he has not yet made and the Court is constrained by
concepts of constitutional and prudential justiciability not to issue advisory opinions. 	Mr.
Hinckley’s lawyer is not so constrained. 	If Mr. Hinkley desires guidance about the potential
legal consequences of his alternative courses of future action, he should seek legal, not judicial
advice.
III. 	CONCLUSION
The Court DISMISSES the Defendant’s Motion to Strike Prior Conviction (Docket # 48).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 16th day of January, 2008
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