United States of America v.  Troy Spence

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4184 
TROY SPENCE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Margaret B. Seymour, District Judge.
(1:09-cr-00387-MBS-1)
Argued: September 20, 2011
Decided: November 21, 2011
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge King and Judge Davis joined.
COUNSEL
ARGUED: Allen Bethea Burnside, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Columbia, South Carolina, for
Appellant. Dean A. Eichelberger, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appel-

-- 1 of 10 --

lee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, for Appellee.
OPINION
KEENAN, Circuit Judge:
In this appeal, we consider whether Troy Spence’s sentence
for possession of child pornography, a violation of 18 U.S.C.
§ 2252A(a)(5)(B), was properly enhanced as provided in 18
U.S.C. § 2252A(b)(2) based on his prior conviction under
South Carolina common law for assault and battery of a high
and aggravated nature (ABHAN). The sentencing enhance-
ment at issue applies when a defendant has a prior conviction
under certain federal statutes or a prior conviction under a
state law "relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor" (the sexual
abuse enhancement). 18 U.S.C. § 2252A(b)(2).
The district court, employing the modified categorical
approach set forth in Taylor v. United States, 495 U.S. 575,
602 (1990) and Shepard v. United States, 544 U.S. 13, 20
(2005), relied on the indictment charging the ABHAN offense
to conclude that the ABHAN conviction qualified as a predi-
cate offense under the sexual abuse enhancement. Spence
argues on appeal that the district court erred in applying the
modified categorical approach, and that the court should have
limited its consideration of the prior conviction to a categori-
cal analysis only. We disagree with Spence’s argument, and
affirm the district court’s judgment.
I.
In 2009, a federal grand jury returned an indictment charg-
ing Spence with one count of possession of child pornogra-
phy, in violation of 18 U.S.C. § 2252A(a)(5)(B). After
2 UNITED STATES v. SPENCE

-- 2 of 10 --

initially pleading not guilty to the charge, Spence later entered
a plea of guilty pursuant to a plea agreement.
Before Spence’s sentencing hearing, the government filed
a memorandum in the district court contending that Spence
should receive a 10-year statutory minimum sentence under
the sexual abuse enhancement. In support of its argument, the
government relied on Spence’s ABHAN conviction, which
occurred in 2003. Spence objected to application of the sexual
abuse enhancement, and argued that the ABHAN conviction
did not qualify as a predicate offense because the elements of
ABHAN do not require that a defendant commit a sexual act.
At the sentencing hearing, the district court agreed that
Spence’s prior ABHAN conviction did not necessarily relate
to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct with a minor. As a result, the district court employed
the modified categorical approach to consider the nature of
Spence’s ABHAN conviction.
Applying that approach, the district court reviewed the
indictment charging Spence with a violation of ABHAN. The
indictment stated, in relevant part:
[Spence] . . . commit[ted] an assault and battery
upon the victim . . . constituting an unlawful act of
violent injury to the person of the said victim,
accompanied by circumstances of aggravation, to
wit: [Spence] used his hand to touch [the victim]
between her legs, such being indecent liberties with
a female and there being a difference in the sexes of
the parties and a great disparity in the ages and phys-
ical conditions of the parties.
The district court concluded that the indictment "specifically
state[d]" that the "offense involved the sexual assault of a
female," and that, therefore, the ABHAN conviction qualified
as a predicate offense under the sexual abuse enhancement.
3 UNITED STATES v. SPENCE

-- 3 of 10 --

The district court sentenced Spence to the mandatory mini-
mum sentence of 10 years’ imprisonment, as provided under
18 U.S.C. § 2252A(b)(2). Spence appeals.
II.
The question presented in this appeal is whether Spence’s
ABHAN conviction qualified as a predicate offense under the
sexual abuse enhancement. We consider this issue of law de
novo. See United States v. Harcum, 587 F.3d 219, 222 (4th
Cir. 2009).
Under 18 U.S.C. § 2252A(b)(2), a defendant convicted of
possession of child pornography is subject to a maximum sen-
tence of 10 years’ imprisonment. However, when a defendant
has a prior conviction based on a violation of certain federal
statutes, or when a defendant previously has been convicted
"under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor," the defendant is subject to a minimum sentence of 10
years’ imprisonment and a maximum sentence of 20 years’
imprisonment. 18 U.S.C. § 2252A(b)(2).
As an initial matter, we observe that the Fifth Circuit, in
reviewing the same terms found in a related statute, 18 U.S.C.
§ 2252A(b)(1), has considered whether the phrase "involving
a minor" modifies all three terms, namely, those of "aggra-
vated sexual abuse," "sexual abuse," and "abusive sexual con-
duct." United States v. Hubbard, 480 F.3d 341, 350 (5th Cir.
2007). The court determined that the phrase "involving a
minor" modified only the last category of offenses, that relat-
ing to "abusive sexual conduct." Id. In reaching this conclu-
sion, the court relied not only on the placement of the
modifying phrase at the end of the three categories of
offenses, but also on the earlier enumeration in the same sen-
tence of prior convictions under federal statutes qualifying as
predicate offenses for the enhancement. Id. We find this anal-
ysis persuasive.
4 UNITED STATES v. SPENCE

-- 4 of 10 --

Like the federal statutes enumerated in 18 U.S.C.
§ 2252A(b)(1), the federal statutes included in 18 U.S.C.
§ 2252A(b)(2) expressly prohibit unlawful sexual offenses
involving both adult and minor victims. Therefore, we agree
with the Fifth Circuit that because statutes must be read in
their entirety, it would be unreasonable to conclude that Con-
gress intended to impose the enhancement on defendants con-
victed under federal law, but not on defendants convicted for
the same conduct under state law. See Hubbard, 480 F.3d at
350. Accordingly, we conclude that "aggravated sexual
abuse," "sexual abuse," and "abusive sexual conduct involv-
ing a minor" are three distinct categories of predicate state
law offenses set forth in 18 U.S.C. § 2252A(b)(2). We there-
fore turn to consider these three separate statutory terms in
determining whether Spence’s ABHAN conviction qualified
as a predicate offense under the sexual abuse enhancement.
In deciding this issue, the district court applied the familiar
analyses known as the categorical and modified categorical
approaches, which were articulated by the Supreme Court in
Taylor and Shepard. We have employed these analyses in
other contexts to determine whether prior convictions qualify
as predicate offenses in the "career offender provisions" in the
United States Sentencing Guidelines (the guidelines), and
under the sentencing enhancements in the Armed Career
Criminal Act (the ACCA), 18 U.S.C. § 924(e). See United
States v. Dean, 604 F.3d 169, 175 (4th Cir. 2010); Harcum,
587 F.3d at 222.
The categorical approach requires that courts conduct a
limited review of a prior conviction restricted to consideration
of the elements of the offense and the fact of conviction. See
Chambers v. United States, 555 U.S. 122, 125 (2009); Har-
cum, 587 F.3d at 222. This limited review must be expanded,
however, when different types of behaviors satisfy an element
of the offense and the proscribed behaviors constitute at least
two separate crimes for sentencing purposes. See Johnson v.
United States, 130 S. Ct. 1265, 1273 (2010). In that circum-
5 UNITED STATES v. SPENCE

-- 5 of 10 --

stance, courts employ the modified categorical approach,
which allows a court to determine "the basis for the convic-
tion by consulting the trial record." Id.; see Shepard, 544 U.S.
at 20.
Under the modified categorical approach, in cases such as
the one before us in which the prior conviction was based on
a guilty plea, courts may only review charging documents,
plea agreements, the plea colloquy, and explicit factual find-
ings made by the trial judge. Shepard, 544 U.S. at 20. These
documents serve as reliable sources revealing the basis for the
prior conviction, including those facts necessarily admitted by
the defendant. Id. at 21; United States v. Alston, 611 F.3d 219,
226 (4th Cir. 2010).
By applying the categorical and modified categorical
approaches, sentencing courts avoid conducting "mini-trials"
for each prior offense, which would constitute an inconsistent
and unreliable method on which to base enhanced sentences.
See Harcum, 587 F.3d at 222-23 (quoting United States v.
Pierce, 278 F.3d 282, 286 (4th Cir. 2002)). Moreover, use of
such mini-trials to determine the nature of an underlying
crime potentially would violate a defendant’s Sixth Amend-
ment rights. Shepard, 544 U.S. at 25; Taylor, 495 U.S. at 601;
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
2008).
Although this Court has not considered whether the cate-
gorical and modified categorical approaches should be
applied in the context of the sexual abuse enhancement at
issue in this case, other circuits have applied these well-
known approaches in cases involving the sentencing enhance-
ments found in 18 U.S.C. § 2252A(b). See United States v.
McGrattan, 504 F.3d 608 (6th Cir. 2007); United States v.
Sonnenberg, 556 F.3d 667 (8th Cir. 2009); United States v.
Sinerius, 504 F.3d 737 (9th Cir. 2007). In a context analogous
to the present case, however, the Tenth Circuit rejected use of
the categorical approach in applying 18 U.S.C. § 2252(b)(2),
6 UNITED STATES v. SPENCE

-- 6 of 10 --

which includes the same phrase, "relating to," that we con-
sider here in the sexual abuse enhancement. United States v.
McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005).
In reaching its conclusion, the Tenth Circuit contrasted the
phrase "relating to" with the more specific language of the
ACCA, which defines a predicate offense based on its ele-
ments, or the fact that the offense "is" burglary, arson, or
extortion, or the fact that the offense "involves" other speci-
fied acts. Id. at 1126. Comparing this language in the ACCA
with Congress’ use of the more expansive phrase "relating to"
in 18 U.S.C. § 2252(b)(2), the Tenth Circuit concluded that
the phrase "relating to" mandated a broader inquiry than that
permitted by the categorical approach. Id. at 1127. Nonethe-
less, the Tenth Circuit effectively applied the modified cate-
gorical approach, limiting a sentencing court’s review under
18 U.S.C. § 2252(b)(2) to documents approved in Shepard.
McCutchen, 419 F.3d at 1126, 1128.
In our view, it is unnecessary to reject outright use of the
categorical approach when considering application of the sex-
ual abuse enhancement, because a defendant may have been
convicted of prior offenses whose elements categorically sat-
isfy the enhancement’s "relating to" provision. In such cases,
a sentencing court could apply the sexual abuse enhancement
without having to examine the entire record of conviction in
an effort to determine the nature of the prior offense. More-
over, we do not view Congress’ use of the phrase "relating to"
in the sexual abuse enhancement as a mandate to broaden the
field of defendants subject to the enhancement by eliminating
use of the categorical approach.
We conclude that the categorical approach and the modi-
fied categorical approach each have distinct utility in assisting
a sentencing court in determining whether a prior conviction
qualifies as a predicate offense under the sexual abuse
enhancement. Accordingly, we adopt use of these approaches
in the present case, because their application provides defen-
7 UNITED STATES v. SPENCE

-- 7 of 10 --

dants facing the sexual abuse enhancement with the same
constitutional protections received by other defendants con-
fronting sentencing enhancements contained in the ACCA
and in the "career offender provisions" of the guidelines.
In first applying the categorical approach, we observe that
the common law crime of ABHAN is defined by South Caro-
lina as "an unlawful act of violent injury accompanied by cir-
cumstances of aggravation." South Carolina v. White, 605
S.E.2d 540, 543 (S.C. 2004). Qualifying aggravating circum-
stances include an accompanying intent to commit a felony,
use of a deadly weapon, inflicting serious bodily injury on the
victim, purposefully inflicting shame and disgrace on the vic-
tim, taking indecent liberties with a female, and resisting law-
ful authority. Id. Aggravating circumstances also are present
when there is a great disparity in the ages or physical condi-
tions of the perpetrator and the victim, or when there is a dif-
ference in gender of those persons. Id.
These varied categories of aggravating circumstances
encompass behaviors that may, but do not necessarily, consti-
tute crimes "relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor." Therefore, the
question whether Spence’s ABHAN conviction qualifies as a
predicate offense for purposes of the sexual abuse enhance-
ment cannot be determined categorically from an examination
of the elements of the offense and the mere fact of his convic-
tion. As a result, we apply the modified categorical approach
in an effort to determine the nature of the underlying crime,
so that we may ascertain whether Spence’s ABHAN convic-
tion relates to one of the three types of conduct described in
18 U.S.C. § 2252A(b)(2). See Shepard, 544 U.S. at 20.
Under the modified categorical approach, the indictment
charging Spence with ABHAN is an appropriate and reliable
document to consider in determining the nature of his convic-
tion. See Shepard, 544 U.S. at 20. The plain language of that
indictment described the act of touching the victim between
8 UNITED STATES v. SPENCE

-- 8 of 10 --

her legs, which constitutes indecent liberties with a female.
The indictment also implicated two additional categories of
aggravating circumstances under South Carolina law, a differ-
ence in the sexes and a great disparity in the ages and physical
conditions between Spence and the victim.
We conclude that the nature of the offense described in the
indictment establishes that Spence’s ABHAN conviction "re-
lates to" sexual abuse and, therefore, that the ABHAN convic-
tion qualifies as a predicate offense under the sexual abuse
enhancement. In reaching this conclusion, we emphasize Con-
gress’ choice of the phrase "relating to" in the statute, which
carries a broad ordinary meaning, namely, "to stand in some
relation; to have bearing or concern; to pertain; refer; to bring
into association with or connection with." Morales v. Trans
World Airlines Inc., 504 U.S. 374, 383 (1992) (internal quota-
tion marks omitted). In light of this broad, inclusive language
chosen by Congress, the nature of the crime as reflected in the
indictment does not need to satisfy a narrow definition of sex-
ual abuse in order to qualify as a predicate offense.
The nature of the offense described in the present indict-
ment, touching a female between the legs constituting an
indecent liberty, refers to a sexual act. Furthermore, the fact
that the indictment reflects an offense involving a "great dis-
parity" in the ages and physical conditions of the defendant
and his victim is sufficient to demonstrate the commission of
a crime in an abusive manner. Therefore, we conclude that
Spence’s ABHAN conviction "relat[ed] to" sexual abuse, and
that the district court did not err in applying the sexual abuse
enhancement in this case.
III.
In conclusion, we hold that Spence’s ABHAN conviction
qualifies as a predicate offense under 18 U.S.C.
§ 2252A(b)(2). Accordingly, the district court properly deter-
mined that Spence was subject to the minimum statutory sen-
9 UNITED STATES v. SPENCE

-- 9 of 10 --

tence of 10 years’ imprisonment under the sexual abuse
enhancement, and we affirm the district court’s judgment.*
AFFIRMED
*In Spence’s opening brief, he questioned the "validity" of his guilty
plea to the charge of possession of child pornography, but raised no spe-
cific issues for our consideration. We have reviewed the record and con-
clude that the district court complied with the mandates of Fed. R. Crim.
P. 11 in accepting Spence’s guilty plea.
10 UNITED STATES v. SPENCE

-- 10 of 10 --