USA v. Robert James Brown

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11530
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JAMES BROWN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:20-cr-10012-KMM-1
____________________
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2 Opinion of the Court 22-11530
Before N EWSOM, G RANT, and L AGOA, Circuit Judges
PER CURIAM:
Robert James Brown appeals his sentence of 180 months’ im-
prisonment for failing to register as a sex offender and receiving
child pornography. Brown argues that the district court erred in
imposing a statutory minimum sentence of 180 months because it
erroneously concluded that his 2018 Colorado conviction for un-
lawful sexual contact “relat[ed] to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward”
within the meaning of 18 U.S.C. § 2252(b)(1). After careful review,
we affirm Brown’s sentence.
I.
A grand jury returned a five-count indictment charging
Brown with (1) failing to register as a sex offender, in violation of
18 U.S.C. § 2250(a) (Count 1); (2) possessing child pornography, in
violation 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count 2); and (3) re-
ceiving child pornography, in violation of 18 U.S.C. § 2252(a)(2) and
(b)(1) (Counts 3, 4, and 5). Brown pled guilty to Counts 1 and 3.
Brown agreed that the government would have been able to
prove the following facts beyond a reasonable doubt at trial. On
August 11, 2020, law enforcement officers executed a search war-
rant on Brown’s boat in Key West, Florida. Forensic analysis of his
cell phone revealed that Brown had approximately 20,000 images
of child pornography and had downloaded at least 100 videos of
child pornography on his cell phone. Brown agreed that he knew
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22-11530 Opinion of the Court 3
at least one person in each image or video was a minor. Brown
also agreed that he was convicted in Colorado of “Unlawful Sexual
Contact, without consent,” in violation of Colorado Revised Stat-
ute § 18-3-404(4). Finally, Brown agreed that, in 2019, he completed
a sexual offender registration form, acknowledging his duty to reg-
ister as a sex offender, but failed to register as a sex offender. An
arrest warrant was issued for Brown in Colorado, but he moved to
Florida and again failed to register as a sex offender there.
Pursuant to the plea agreement, Brown acknowledged that
the district court may impose a statutory maximum term of im-
prisonment of up to ten years as to Count 1 and that the district
court must impose a minimum term of imprisonment of five years
and may impose a maximum term of imprisonment of up to
twenty years as to Count 3. Brown also acknowledged that, if the
district court found that Brown had a prior conviction “relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward . . . , then the Court must impose a min-
imum term of imprisonment of fifteen (15) years and may impose
a statutory maximum term of imprisonment of up to forty (40)
years, followed by a term of supervised release of up to 5 years.”
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”). Pursuant to U.S.S.G.
§ 2G2.2(a)(2), the PSI assigned Brown a base offense level of 22.
Because Brown did not intend to traffic in or distribute child por-
nography, the offense level was decreased by two. The age of the
minors depicted, the fact that the material portrayed the abuse of
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4 Opinion of the Court 22-11530
an infant or toddler, the use of a computer, and the fact that the
offense involved 600 or more images all increased the base offense
level, in total, by thirteen. The offense level was decreased by three
because of Brown’s acceptance of responsibility and his assistance
of authorities in his own investigation. The total offense level was
30. Because of Brown’s prior conviction in Colorado for unlawful
sexual conduct, the PSI also concluded that the mandatory mini-
mum sentence for Count 3 was 15 years’ imprisonment pursuant
to 18 U.S.C. § 2252(b)(1).
Brown objected to the PSI’s calculation of the mandatory
minimum 15-year sentence. Brown argued that because the least
culpable conduct criminalized by Colorado Revised Statute § 18-3-
404 does not qualify as a predicate offense under 18 U.S.C.
§ 2252(b)(1), the mandatory minimum 15-year sentence does not
apply. Brown contended that the categorical approach, pursuant to
which courts look only at the elements of the statute under which
the defendant was convicted and not at the facts underlying the
prior conviction, was appropriate. Brown, however, acknowledged
that this Court had held that when generic offenses are “non-tradi-
tional,” they are defined based on their “ordinary, contemporary,
and common meaning.” The government responded that the con-
duct prohibited by the Colorado statute falls well within the mean-
ing of “sexual abuse” under § 2252(b)(1).
At sentencing, Brown repeated his objections to the en-
hancement and argued that “the least conduct which violates the
Colorado statute is not conduct which is proscribed by the federal
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22-11530 Opinion of the Court 5
statutes.” The district court determined that, “even under the cat-
egorical approach,” the prior conviction qualified for the enhance-
ment. The district court also stated that it would take the convic-
tion into account “regardless of the guideline calculation, and
[would] consider it in imposing what the [c]ourt would consider a
reasonable sentence under the circumstances and would impose
the same sentence regardless.” The government sought an upward
variance, asking for a 25-year sentence because of the number of
images on Brown’s cell phone and the fact that he ignored his obli-
gation to register as a sex offender. The district court denied that
request, noting that the 15-year enhancement takes into considera-
tion all the sentencing factors “and then some.”
The district court then imposed a term of 180-months’ im-
prisonment, and Brown again objected to the applicability of the
enhanced mandatory minimum. In response, the district court
noted that “the [c]ourt sentence imposed today is both pursuant to
the guideline calculation, as well as a reasonable sentence post-
Booker; that the [c]ourt would have had to impose the same sen-
tence, in any event.”
Brown timely appealed his sentence.
II.
We review de novo whether a prior conviction triggers a
statutory sentencing enhancement. United States v. Miller, 819 F.3d
1314, 1316 (11th Cir. 2016).
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6 Opinion of the Court 22-11530
III.
On appeal, Brown argues that the district court erred in im-
posing a 15-year mandatory minimum sentence pursuant to 18
U.S.C. § 2252(b)(1). Brown contends that the Colorado statute pro-
hibiting unlawful sexual contact without consent does not qualify
as a predicate for the enhancement. Brown argues that the Colo-
rado statute is not a predicate offense because it neither requires
that the victim be a minor or a ward nor “relat[es] to” aggravated
sexual abuse or sexual abuse.” Because the federal crimes of “ag-
gravated sexual abuse” and “sexual abuse” require force, a threat,
or an incapacitated victim, and Brown’s Colorado conviction does
not, Brown argues that his conviction does not qualify as “sexual
abuse.”
Any person who knowingly receives or distributes child por-
nography is ordinarily subject to at least five years’ imprisonment
and a maximum possible sentence of 20 years’ imprisonment. 18
U.S.C. § 2252(a)(2), (b)(1). But the mandatory minimum increases
to fifteen years’ imprisonment and the maximum increases to 40
years’ imprisonment if the defendant “has a prior conviction. . . un-
der the laws of any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” 18
U.S.C. § 2252 (b)(1).
To determine whether a state conviction qualifies as a pred-
icate offense for a sentencing enhancement, federal courts use the
“categorical approach.” United States v. Kushmaul, 984 F.3d 1359,
1364 (11th Cir. 2021). Under this approach, a court compares the
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22-11530 Opinion of the Court 7
elements of the state conviction with the generic offenses men-
tioned in the sentence enhancing statute. Id. If the “least culpable
conduct” that could result in a conviction under the state law meets
the enhancement requirements, then the enhanced sentence is im-
posed. Id. “If the generic offenses are non-traditional—that is,
crimes not developed in the common law—they are defined based
on their ‘ordinary, contemporary, and common meaning.’” Id.
(quoting United States v. Ramirez-Garcia, 646 F.3d 778, 783 (11th Cir.
2011)). We have interpreted “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual conduct involving a minor or ward” as
non-traditional generic offenses and used their common meaning.
Id. at 1365. We have held that the common meanings need not be
identical to federal crimes. Miller, 819 F.3d at 1317 (reasoning that
the functionally identical language of 18 U.S.C. § 2251(e) requires
only that the state offenses “relat[e] to” sexual abuse).
As to the phrase “involving a minor or ward,” in Lockhart v.
United States, 577 U.S. 347 (2016), the Supreme Court decided
whether the modifier “involving a minor or ward” attached to each
term or only “abusive sexual conduct.” Id. at 350–51. The Court
held that the modifier attached only to “abusive sexual conduct”
because of the last antecedent canon. Id. at 351–52. This, the
Court reasoned, was “confirmed by the structure and internal
logic” of the statute because “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual contact involving a minor or ward”
mirror the titles of separate federal crimes, suggesting that Con-
gress intended each term to be a separate unit. Id. at 351–54. The
Court, however, “[took] no position . . . on the meaning of the
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8 Opinion of the Court 22-11530
terms ‘aggravated sexual abuse,’ ‘sexual abuse,’ and ‘abusive sexual
conduct’” within the statute. Id. at 356.
In United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001),
we held that the common meaning of “sexual abuse” is “a perpe-
trator’s physical or nonphysical misuse or maltreatment . . . for a
purpose associated with sexual gratification.” Id. at 1163. We have
also applied the same “plain meaning” of “sexual abuse” to 18
U.S.C. § 2251(e), which has a functionally identical sentencing en-
hancement as § 2252(b)(1). United States v. Mathis, 767 F.3d 1264,
1285 (11th Cir. 2014), abrogated on other grounds by Lockhart, 577 U.S.
347.
At the time of Brown’s conviction, in Colorado, “[a]ny actor
who knowingly subjects a victim to any sexual contact commits
unlawful sexual contact if: [t]he actor knows that the victim does
not consent.” Colo. Rev. Stat. § 18-3-404(4)(a) (2013). In turn, “sex-
ual contact” was defined, in relevant part, as:
the knowing touching of a victim’s intimate parts by
the actor, or of the actor’s intimate parts by the vic-
tim, or the knowing touching of the clothing covering
the immediate area of the victim’s or actor’s intimate
parts if that sexual contact is for the purposes of sex-
ual arousal, gratification, or abuse.
Colo. Rev. Stat. § 18-3-401(4)(a) (2013). The statute that Brown vi-
olated thus prohibits physical conduct done for sexual gratification
and without consent. See id. §§ 18-3-404(4); 18-3-401(4)(a). And in
Miller, we interpreted the phrase “relating to” “broadly in the con-
text of child exploitation offenses.” 819 F.3d at 1317. We thus
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22-11530 Opinion of the Court 9
conclude that Brown’s Colorado conviction for unlawful sexual
contact does “relat[e] to . . . sexual abuse” based on the “ordinary,
contemporary, and common meaning” of the statutory words. See
Kushmaul, 984 F.3d at 1364.
As to Brown’s argument that such a conclusion is foreclosed
by the Supreme Court’s decision in Lockhart, he is mistaken. The
Court in that case expressly took no position on the meaning of
“sexual abuse.” Lockhart, 577 U.S. at 356. And as to Brown’s argu-
ment that his conviction does not qualify as a predicate because the
Colorado statute does not require the victim to be a “minor or
ward,” the Lockhart decision forecloses that argument. Id. at 351–
52 (holding that the phrase “minor or ward” only attached to “abu-
sive sexual conduct,” and not to “aggravated sexual abuse” or “sex-
ual abuse”). Knowingly making sexual contact with a nonconsent-
ing victim is related to “sexual abuse,” and holding otherwise
would contort the language of both the Colorado statute and
§ 2252. Thus, we conclude that Brown’s Colorado conviction qual-
ified for the enhanced 15-year minimum sentence and that the dis-
trict court did not err.
But even if the district court did err in applying the statutory
enhancement, we conclude that such error would be harmless be-
cause the district court stated that it would find the same 180-
month sentence reasonable even without the enhancement and
would have “impose[d] the same sentence regardless.” Indeed, the
error complained of did not impact Brown’s sentence, as the en-
hancement did not affect Brown’s “substantial rights.” See United
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States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998) (“To find
harmless error, we must determine that the error did not affect the
substantial rights of the parties.” (citing Fed. R. Crim. P. 52)).
Therefore, because the sentence was reasonable in either event, we
would still affirm.
IV.
For these reasons, we affirm the district court’s sentence.
AFFIRMED.
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