from the United States District Court for the District of
Wyoming (D.C. No. 2:16-CR-00104-SWS-1)
Keith Goody, Battle Ground, Washington, for Defendant -
Conder (Timothy J. Forwood, Assistant United States Attorney,
and John R. Green, Acting United States Attorney, on the
brief), Cheyenne, Wyoming, for Plaintiff - Appellee.
MATHESON, KELLY, and BACHARACH, Circuit Judges.
jury trial, Defendant-Appellant Kyle Hebert was convicted of
four counts of possession of child pornography. 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2). He was sentenced to 120
months' imprisonment and 15 years' supervised
release. On appeal, Mr. Hebert challenges the district
court's finding that he had two prior convictions that
triggered a mandatory minimum sentence of ten years'
imprisonment. 18 U.S.C. § 2252A(b)(2). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a), and we affirm because Mr. Hebert's prior
convictions "relate to" sexual abuse under the
Hebert's presentence report recommended an enhanced
sentence pursuant to § 2252A(b)(2) based upon two prior
Georgia convictions. Section 2252A(b)(2) provides that if a
defendant "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,
" the defendant shall be "imprisoned for not less
than 10 years nor more than 20 years."
Hebert was indicted in Georgia on two counts of sexual
molestation under Ga. Code Ann. § 16-6-4 in 2001. Each
count described identical sexual conduct, including fondling
the vagina of each minor victim. 2 R. 172-73. Mr. Hebert
ultimately pled guilty to two counts of misdemeanor sexual
battery, in violation of Ga. Code Ann. 16-6-22.1(b).
federal district court, Mr. Hebert argued that his Georgia
sexual battery convictions do not "relate to"
sexual abuse or abusive sexual conduct involving a minor, and
therefore, the mandatory minimum required under §
2252A(b)(2) did not apply. The district court disagreed, and
using the modified categorical approach (including an
examination of underlying documents), it found that Mr.
Hebert's sexual battery convictions related to both
sexual abuse and abusive sexual conduct of a minor.
Alternatively, it found that under the categorical approach,
the mandatory minimum applied because sexual battery
"relates to" sexual abuse.
review the district court's imposition of the mandatory
minimum de novo. See United States v. Becker, 625
F.3d 1309, 1310 (10th Cir. 2010).
Categorical or Modified Categorical Approach for 18 U.S.C.
Georgia sexual battery convictions could trigger the ten-year
mandatory minimum if they involve a state law "relating
to . . . sexual abuse." 18 U.S.C. § 2252A(b)(2).
Typically, in determining whether a prior conviction can
serve as a predicate offense for a sentencing enhancement,
courts apply either the categorical or modified categorical
approach. Mathis v. United ...