United States v. Dieffenbacher

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRADLEY DIEFFENBACHER, Defendant-Appellant.

No. 22-11039

United States Court of Appeals, Eleventh Circuit

April 12, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cr-00504-MSS-CPT-1 Before JORDAN, BRANCH, and MARCUS, Circuit Judges.

PER CURIAM

Bradley Dieffenbacher appeals from his sentence of 444 months' imprisonment for two counts of enticing a minor to engage in sexual activity, two counts of enticing a minor for the purpose of producing child pornography, and one count of committing a felony involving a minor while being required to register as a sex offender. On appeal, he argues that the district court erred in holding that his prior state conviction for attempted use of a child in a sexual performance under New York Penal Law §§ 110.00 and 263.05 qualified as a conviction relating to the sexual abuse of a minor, which triggered 18 U.S.C. § 2251(e)'s 25-year mandatory-minimum statutory enhancement. After careful review, we affirm.

We ordinarily review de novo the district court's determination that a prior conviction triggers a statutory sentencing enhancement. United States v. Miller, 819 F.3d 1314, 1316 (11th Cir. 2016). However, we are not required to vacate a sentence and remand if the district court would have likely sentenced the defendant in the same way without the error. United States v. Kapordelis 569 F.3d 1291, 1314 (11th Cir. 2009). Additionally following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 226-27 (2005), the Sentencing Guidelines are no longer mandatory.

In deciding whether a defendant's prior conviction qualifies as a predicate offense for a sentencing enhancement, federal courts usually apply the "categorical approach," meaning we look only to the elements of the statute under which the defendant was convicted and not at the facts underlying the prior conviction. Mathis v. United States, 579 U.S 500, 504, 512 (2016). We then compare the statute's elements to the generic offenses listed in the federal sentencing-enhancement statute. Id. at 504-05. If a generic offense is non-traditional, i.e., a crime not developed in the common law, we define it using its "ordinary, contemporary, and common meaning." United States v. Ramirez-Garcia, 646 F.3d 778, 783 (11th Cir. 2011) (quotation omitted).

Under the categorical approach, a prior conviction is presumed to have "rested upon nothing more than the least of the acts criminalized" or the "least culpable conduct." Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1280, 1283 (11th Cir. 2013) (quotation omitted). If the elements of the prior offense are either "the same as, or narrower than, those of the generic offense," then any conviction under the statute qualifies. Descamps v. United States, 570 U.S. 254, 257 (2013). If, however, the elements of the state offense are broader than those of the generic offense, then courts determine the statute's divisibility. Mathis, 579 U.S. at 505. A statute is indivisible if it "sets out a single . . . set of elements to define a single crime," even if it provides for alternative means of committing the offense. Id at 504-05. A statute is divisible if it "list[s] elements in the alternative, . . . defin[ing] multiple crimes." Id. at 505. We apply the "modified" categorical approach for divisible statutes, which allows us to "look[ ] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. at 505-06.

Section 2251 of Title 18 of the U.S. Code criminalizes activity involving the sexual exploitation of minors. A conviction under § 2251 ordinarily carries a 15-year minimum term of imprisonment and a 30-year maximum. 18 U.S.C. § 2251(e). Where, however, a defendant has "one prior conviction . . . under the laws of any State relating to [i] aggravated sexual abuse, [ii] sexualabuse, [iii] abusive sexual contact involving a minor or ward, or [iv] sex trafficking of children, or [v] the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography," the mandatory minimum increases to 25 years, and the maximum penalty increases to 50 years. Id. (emphases added).

New York's use-of-a-child-in-a-sexual-performance statute provides that:

A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

N.Y. Penal Law § 263.05. Here, "sexual performance" is "any performance or part thereof which . . . includes sexual conduct by a child less than seventeen years of age." Id. § 263.00(1). "[P]erformance" is "any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience." Id. § 263.00(4). And, "[s]exual conduct" is "actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals." Id. § 263.00(3).

New York courts have interpreted the term "lewd" as "'characterized by lust, obscene or indecent' . . ., 'showing or intended to excite lust or sexual desire, esp. in an offensive way' . . . and 'offensive to accepted standards of decency.'" People v. Pinkoski, 752 N.Y.S.2d 421, 424 (App. Div. 2002) (citing dictionary and thesaurus definitions). To decide if a "lewd exhibition of the genitals" has occurred, New York courts consider "the combined effect of the setting, attire, pose and emphasis on the genitals and whether [the exhibition] is designed to elicit a sexual response in the viewer." People v. Horner, 752 N.Y.S.2d 147, 149-50 (App. Div. 2002). The actions and intent of the person who uses the child -- rather than those of the victim child -- are what matters, since "[t]he lewd character of the [exhibition] and its prurient appeal is not a characteristic of the child [victim], but of the exhibition which the [defendant] sets up for an audience that consists of himself or likeminded pedophiles." Id. at 150 (quotation omitted). The child's genitals need not be uncovered for the exhibition to qualify as lewd. See id.

Because sexual abuse crimes were not found at common law, we give the term "sexual abuse" a plain meaning that comports with common usage. Ramirez-Garcia, 646 F.3d at 783. Specifically, we've defined "sexual abuse of a minor" as "a perpetrator's physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification." United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001). We have reasoned that "'[m]isuse' or 'maltreatment' are expansive words that include many different acts" and "focus on the abuser's purpose, rather than any apparent harm to the [victim]." Ramirez-Garcia, 646 F.3d at 784 &n.10. Additionally, we've held that sentencing courts should broadly interpret the term "sexual abuse" in assessing whether a prior state conviction qualifies as a predicate offense under § 2551(e), based on the inclusiveness of the phrase "relating to" in the statute. United States v. McGarity, 669 F.3d 1218, 1261-63 (11th Cir. 2012), abrogated on other grounds by Paroline v. United States, 572 U.S. 434 (2014); see also United States v. Kush-maul, 984 F.3d 1359, 1365 (11th Cir. 2021).

So, in McGarity, we held that a defendant's state conviction for enticing a minor for indecent purposes warranted an increased sentence under § 2251(e), even though the state conviction did not require touching or attempted touching of a minor. 669 F.3d at 1261-63; see also United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (noting that a defendant's prior state convictions for "performing a lewd act in front of a minor" qualified as predicate offenses under §§ 2251(e) and 2252A, a related statute providing enhanced penalties for prior state convictions involving "abusive sexual conduct"); United States v. Maupin, 520 F.3d 1304, 1308 (11th Cir. 2008) (per curiam) (holding that a nolo contendere plea to state charges for possession of child pornography constituted a prior state conviction within the meaning of § 2252A(b)(1) and (2)).

It is a "central tenet of interpretation" that "a statute is to be considered in all its parts when construing any one of them." Lex-econ Inc. v. Milberg Weis Bershad Hynes &Lerach, 523 U.S. 26, 36 (1998). Further, when a legislature uses one word in part of a statute and a different word in another part, courts should presume that the legislature did so intentionally. See McCarthan v. Dir. of Goodwill Indus. Suncoast, Inc., 851 F.3d 1076, 1089 (11th Cir. 2017) (en banc) (noting that, "[w]hen Congress uses 'different language in similar sections,' we should give those words different meanings" (citation omitted)).

Here the district court did not err in finding that Dieffenbacher's conviction for attempted use of a child in a sexual performance under N.Y. Penal Law § 263.05 qualified as a state conviction relating to the sexual abuse of a minor for purposes of § 2551(e). Dieffenbacher argues that -- regardless of whether N.Y. Penal Law § 263.05 is divisible^[1] -- the least-culpable conduct criminalized under the statute would be a 16-year-old's "permitting" another 16-year-old to dance privately in a sexually suggestive way that emphasizes his or her covered genitals. In this "consensual" circumstance, says Dieffenbacher, neither teen misuses or...