Argued January 14, 2014
Defendant-Appellant Avondale Lockhart appeals from a judgment of conviction and sentence entered by the United States District Court for the Eastern District of New York (Johnson, J.), in which the district court applied the sentencing enhancement set forth in 18 U.S.C. § 2252(b)(2), which requires a minimum term of imprisonment of ten years. That enhancement applies when a defendant is found guilty of possessing child pornography and was previously convicted under state law of a crime " relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Because we find that § 2252(b)(2) does not require that a prior state-law aggravated sexual abuse or sexual abuse conviction involve a minor, the judgment of the district court is AFFIRMED.
PATRICK S. SINCLAIR (Maria Cruz Melendez and David C. James, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
DAVID A. LEWIS, Assistant Federal Public Defender, Federal Defenders of New York, New York, NY, for Defendant-Appellant.
Before: KATZMANN, Chief Judge, STRAUB and LOHIER, Circuit Judges.
Katzmann, Chief Judge
In this case, we must decide whether a sentencing provision that provides for a ten-year mandatory minimum term of imprisonment if a defendant was previously convicted " under 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)(2), requires that an " aggravated sexual abuse" or " sexual abuse" conviction involve a minor or ward, or whether only " abusive sexual conduct" is modified by the phrase " involving a minor or ward," such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court's imposition of a ten-year sentence on Defendant-Appellant Avondale Lockhart.
In June 2010, after receiving information indicating that Lockhart had transferred money to a distributor of child pornography, federal agents initiated an undercover operation, in which they solicited Lockhart to purchase videos portraying child pornography from an agent-run service. Lockhart requested a number of videos from the agents, and on July 13, 2010, after obtaining a search warrant, the agents conducted a controlled delivery of the package ostensibly containing the videos Lockhart had ordered. Once Lockhart accepted the package, the agents executed the search warrant and seized Lockhart's laptop and external hard drive, which together contained over 15,000 images and at least nine videos depicting child pornography.
As a result of this investigation, Lockhart was indicted on March 24, 2011, on two counts: (1) attempted receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), based on his attempted purchase of videos containing child pornography from the undercover agents; and (2) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), based on the images and videos already on his computer and hard drive. On March 6, 2012, pursuant to a plea agreement, Lockhart pleaded guilty to count two of the indictment in the United States District Court for the Eastern District of New York. Count one of the indictment was thereafter dismissed.
Lockhart had previously been convicted in state court in April 2000 of first degree sexual abuse, in violation of New York Penal Law § 130.65(1). The arrest report from this earlier conviction alleges that Lockhart pinned down his fifty-three-year old girlfriend, ripped off her underpants, and attempted to penetrate her vagina with his penis. Lockhart received a sentence of five years' probation and was classified as a level-one sex offender as a result of this conviction.
The Presentence Report (" PSR" ) prepared for Lockhart's sentencing calculated a recommended sentencing range of 78-97 months under the U.S. Sentencing Guidelines. However, the PSR adopted the government's position that Lockhart was subject to a mandatory minimum sentence of ten years under 18 U.S.C. § 2252(b)(2), which requires such a term of imprisonment if a person violates § 2252(a)(4) and ...