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United States v. Hebert

United States Court of Appeals, Tenth Circuit

April 24, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KYLE STEVEN HEBERT, Defendant-Appellant.

          Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:16-CR-00104-SWS-1)

          W. Keith Goody, Battle Ground, Washington, for Defendant - Appellant.

          Jason Conder (Timothy J. Forwood, Assistant United States Attorney, and John R. Green, Acting United States Attorney, on the brief), Cheyenne, Wyoming, for Plaintiff - Appellee.

          Before MATHESON, KELLY, and BACHARACH, Circuit Judges.

          KELLY, Circuit Judge.

         After a 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 categorical approach.

         Background

         Mr. 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."

         Mr. 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).

         In the 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.

         Discussion

         We 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).

         A. Categorical or Modified Categorical Approach for 18 U.S.C. § 2252A

         Both 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 ...


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