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United States v. Hansen

United States Court of Appeals, Eighth Circuit

December 6, 2019

United States of America Plaintiff- Appellee
Christian Hansen Defendant-Appellant

          Submitted: September 27, 2019

          Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

          LOKEN, Circuit Judge.

         After a jury convicted Christian Hansen of eight child pornography offenses and one count of sexually exploiting a child while required to register as a sex offender, the district court[1] sentenced Hansen to 600 months imprisonment followed by a life term of supervised release. Hansen appeals, arguing the district court erred in enhancing his sentence on one count for a prior state conviction, and in upholding his conviction on a child pornography possession count that violates the Double Jeopardy Clause. Reviewing these issues de novo, we affirm. See United States v. Zigler, 708 F.3d 994, 996 (8th Cir. 2013) (sentence enhancement issue); Padavich v. Thalacker, 162 F.3d 521, 522 (8th Cir. 1998) (double jeopardy issue).

         A Homeland Security investigation revealed that Hansen possessed, received, and distributed child pornography, which he did not deny at trial. The investigation uncovered twelve photos Hansen took of his infant daughter, I.H., three of which exposed her genitalia. Count 1 accused Hansen of sexual exploitation of I.H. for the production and distribution of child pornography in violation of 18 U.S.C. § 2251(a). The trial centered on these photos, which Hansen contended he took for non-pornographic reasons. There was evidence Hansen distributed the images in order to receive child pornography. The jury convicted him of Count 1, finding that two of the three images were child pornography. He was also convicted of Count 2, sexually exploiting the child while being required to register as a sex offender in violation of 18 U.S.C. § 2260A, and seven additional uncontested counts: one count of distributing and one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts 3 and 4), and five counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts 5 to 9). Hansen moved for judgment of acquittal of Count 5, possession of the two child pornography images of I.H., arguing that conviction violates the Double Jeopardy Clause because Count 5 is a lesser-included offense of the Count 1 sexual exploitation offense.

         The district court denied Hansen's acquittal motion and sentenced him to concurrent terms of 480 months for the exploitation, distribution, and receipt offenses, a mandatory consecutive term of 120 months for the exploitation-while-required-to-register offense, and concurrent terms of 240 months for each of the five possession offenses.

         I. The Sentence Enhancement Issue.

         For a child exploitation violation of 18 U.S.C. § 2251(a), such as Hansen's conviction of Count 1, § 2251(e) increases the authorized sentence range from 15 to 30 years, to 25 to 50 years, if the defendant has a prior conviction under an enumerated federal offense "or under the laws of any State relating to . . . the production, possession, receipt, mailing, sale, distribution, shipment or transportation of child pornography." Overruling Hansen's objection, the district court imposed this enhancement based on its determination that Hansen's 2011 conviction for violating section 28-813.01(1) of the Nebraska Revised Statutes "relat[ed] to the possession of child pornography." Hansen renews this objection on appeal.

         To determine whether this Nebraska conviction qualifies as a predicate § 2251(e) offense, a federal court applies the familiar categorical approach, looking to "the statutory definition of the prior offense" to determine "whether the full range of conduct encompassed by the state statute qualifies to enhance the sentence." United States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009). Because § 2251(e) "incorporates state offenses by language other than a reference to generic crimes . . . the inquiry is focused on applying the ordinary meaning of the words used in the federal law to the statutory definition of the prior state offense." United States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019).

         The Nebraska statutes define "sexually explicit conduct" more broadly than the terms "child pornography" and "sexually explicit conduct" are defined in Chapter 110 of the United States Code. Compare Neb. Rev. Stat. § 28-1463.02(5) (2009), with 18 U.S.C. § 2256(2)(B) and (8). The district court nonetheless determined that Hansen's Nebraska conviction for three counts of "knowingly possess[ing] any visual depiction of sexually explicit conduct . . . which has a child . . . as one of its participants or portrayed observers" was a conviction "relating to the possession of child pornography" within the meaning of § 2251(e) "under the reasoning in" United States v. Mayokok, 854 F.3d 987 (8th Cir. 2017).

         In Mayokok, the defendant argued that his prior conviction under Minnesota law for possessing a "pornographic work" did not trigger the similarly worded enhancement in 18 U.S.C. § 2252(b)(1) because the Minnesota statute defined child pornography more broadly than federal law. 854 F.3d at 992-93. Applying the categorical approach, we held that the enhancement applied because "the full range of conduct proscribed under [the Minnesota statute] relates to the 'possession . . . of child pornography' as that term is defined under federal law," even though "one can conjure scenarios that violate one statute but not the other." Id. at 992-993; cf. Boleyn, 929 F.3d at 937-38 (it is irrelevant in applying the expansive term "relating to" in 21 U.S.C. § 802(44) whether state law defined aiding and abetting liability more broadly than federal law).

         On appeal, Hansen argues that Mayokok is both distinguishable -- because it dealt with a different statutory enhancement -- and wrongly decided -- because it failed to give proper heed to the Supreme Court's warning that while the phrase "relating to" is broad and indeterminate, courts cannot extend the term "to the furthest stretch of [] indeterminacy." Mellouli v. Lynch, 135 S.Ct. 1980, 1990 (2015). This argument exposes an apparent conflict among our sister circuits. Compare United States v. Bennett, 823 F.3d 1316, 1322-25 (10th Cir. 2016), which reached the same decision as Mayokok and distinguished the use of "relating to" in 18 U.S.C. § 2252A(b)(2) from the entirely different statute at issue in Mellouli, with United States v. Reinhart, 893 F.3d 606, 615 & n.4 (9th Cir. 2018), which relied on Mellouli in reaching a conclusion contrary to our decision in Mayokok.

         We conclude we need not enter this fray, or even decide whether Mayokok is a controlling precedent for our panel, because our careful review of the sentencing record establishes that any error by the district court in imposing the § 2251(e) enhancement was harmless. Hansen's Presentence Investigation Report determined, without objection, that his advisory guidelines range for Counts 1 and 3 through 9 is life, based on a total offense level of 43 and Criminal History Category II. Because the statutory maximum for each count was less than life, this determination triggered the multiple-count consecutive sentencing provisions of USSG § 5G1.2(d): "[I]f the highest statutory maximum is less than the total punishment . . . then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total ...

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