United States v. Liestman

97 F.4th 1054

UNITED STATES of America, Plaintiff-Appellee, v. Jay A. LIESTMAN, Defendant-Appellant.

No. 21-3225

United States Court of Appeals, Seventh Circuit

Argued October 27, 2023

Decided April 8, 2024

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cr-00006-jdp-1 — James D. Peterson, Chief Judge.

Elizabeth Altman, Attorney, Office of the United States Attorney, Madison, WI, Jonathan H. Koenig, Rebecca Taibleson, Attorneys, Office of the United States Attorney, Milwaukee, WI, McKaye Lea Neumeister, Attorney, Department of Justice, Civil Division, Appellate Staff, Washington, DC, Jenny C. Ellickson, Attorney, Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee.

Joseph Aragorn Bugni, Shelley M. Fite, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendant-Appellant.

Before Sykes, Chief Judge, and Easterbrook, Rovner, Wood, Brennan, Scudder, St. Eve, Kirsch, Jackson-Akiwumi, Lee, and Pryor, Circuit Judges.¹

Scudder, Circuit Judge.

Before us is Jay Liestman's challenge to the federal sentence he received for transporting child pornography in violation of 18 U.S.C. § 2252(a)(1). The district court imposed an enhanced mandatory minimum sentence of 15 years' imprisonment under § 2252(b)(1) because Liestman had been convicted seven years earlier of possessing child pornography in violation of Wisconsin law. The question presented is whether that state conviction qualifies as a predicate conviction under § 2252(b)(1), which prescribes enhanced penalties for certain recidivist child sex offenders. Aligning with the approach of a majority of the circuits, we hold that the answer is yes and affirm Liestman's sentence.

I

In October 2019 Jay Liestman took to the Kik messenger app and divulged his sexual interest in underage boys to an undercover FBI agent. In ensuing discussions, Liestman sent the agent a link to 561 videos depicting sexual assaults of children. A federal prosecution followed, and Liestman pleaded guilty to a single count of transporting child pornography. See 18 U.S.C. § 2252(a)(1). This was not his first child sex offense. Several years earlier, Liestman's efforts to meet a fourteen-year-old boy for sex culminated in two felony convictions under Wisconsin law, one for attempted child enticement, see Wis. Stat. § 948.07, and a second for the possession of child pornography, see id. at § 948.12(1m).

At the federal sentencing, the government contended that Liestman's prior conviction for possessing child pornography triggered 18 U.S.C. § 2252(b)(1)'s enhancement for repeat sex offenders, which increases the mandatory minimum term of imprisonment from 5 to 15 years if the defendant has a prior conviction "under the laws of any State relating to . . . the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography." Liestman insisted that the enhancement did not apply because Wis. Stat. § 948.12(1m) reached offense conduct that Congress did not expressly enumerate in the text of § 2252(b)(1). Relying on our decision in United States v. Kaufmann, 940 F.3d 377 (7th Cir. 2019), the district court disagreed and sentenced Liestman to the enhanced mandatory minimum of 15 years.

The parties renew their positions on appeal, and we chose to convene the full court to decide whether Liestman's prior offense of conviction for possessing child pornography under Wis. Stat. § 948.12(1m) can serve as a predicate offense under § 2252(b)(1). Doing so requires application of the categorical approach.

II

A

For all the consternation it tends to elicit, the categorical approach serves an essential need. Throughout the United States Code, Congress has attached adverse consequences to the fact that a person has been convicted of a certain kind of prior offense. See, e.g., 18 U.S.C. § 924(e)(1) (providing enhanced sentence for felon-in-possession defendants convicted of three prior violent felonies or serious drug offenses); 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for the removal of non-citizens convicted of aggravated felonies); 5 U.S.C. § 8902a(b)(1) (providing for the debarment of health care service providers convicted of offenses "relating to fraud, corruption, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care service or supply").

When Congress does so, it ordinarily describes the range of qualifying offenses in general terms to account for the sheer variety of state and federal laws on the books. See Taylor v. United States, 495 U.S. 575, 590-91, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (surveying a range of state burglary offenses); Diaz-Rodriguez v. Garland, 55 F.4th 697, 720-22 (9th Cir. 2022) (canvassing the "wide variety of approaches" states have taken "to labeling, categorizing, and defining crimes against children"). Because of this, determining whether a particular prior offense triggers an adverse consequence can be challenging.

The categorical approach emerged to address that challenge. Its cornerstone—rooted in both practical and Sixth Amendment concerns—is its insistence that we look only to the formal definition of the prior offense, cutting real-world facts out of the equation. Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); see also Kawashima v. Holder, 565 U.S. 478, 483, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012) (emphasizing that the categorical approach looks to "the statute defining the crime of conviction, rather than the specific facts underlying the crime"). Under the categorical approach, a prior offense can trigger a statutory consequence only if its statutory elements are defined in such a way that all possible violations of the statute, however committed, would fall within Congress's chosen federal benchmark. If so, then an offense is one that categorically—meaning in all cases—triggers the federal statutory consequence.

The Supreme Court first interpreted a statute to require categorical analysis in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). There the Court addressed whether Arthur Taylor's prior convictions for second-degree burglary under Missouri law qualified as "violent felon[ies]" that could trigger an enhanced sentence under § 924(e) of the Armed Career Criminal Act. Id. at 578-79, 110 S.Ct. 2143. That Act defines the term "violent felony" to include, among other offenses, any crime that "is burglary." 18 U.S.C. § 924(e)(2)(B) & (B)(ii).

Focusing on the text, structure, and history of the enhancement, the Court concluded that the word "burglary" in § 924(e) referred to "the generic sense in which the term [was then] used in the criminal codes of most States." 495 U.S. at 598, 110 S.Ct. 2143. It then devised a generic definition of "burglary" covering any offense that has "the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S.Ct. 2143. To determine whether Taylor's convictions met that generic understanding of "burglary," the Court looked to the elements of Taylor's state convictions alone, without regard to how he actually committed those crimes. Section 924(e), the Court explained, "mandates a formal categorical approach" that "look[s] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. at 600, 110 S.Ct. 2143.

Today Taylor stands as the prime example of the so-called generic strand of categorical analysis. Its rationale is straightforward. When Congress hinges the applicability of a statutory consequence on whether a defendant's prior convictions qualify as a certain kind of offense—like burglary—we assume that Congress intended to give that term a uniform, federal "definition independent of the labels used by the various States' criminal codes." Id. at 575, 110 S.Ct. 2143. And courts can give effect to Congress's "unadorned reference" to an offense only by "com[ing] up with a 'generic' version of the crime" against which the elements of state offenses can be compared. Shular v. United States, 589 U.S. 154, 140 S.Ct. 779, 783, 206 L.Ed.2d 81 (2020).

In the years since Taylor, the generic approach has played an important role in our categorical approach case law. See, e.g., United States v. Hatley, 61 F.4th 536, 539 (7th Cir. 2023) (generic extortion); United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013) (generic arson). But sometimes the categorical approach must proceed in a different way. As the Supreme Court recently explained in Shular, Congress has drafted many federal sentencing enhancements in ways that make the generic approach a poor fit. Instead of prompting courts to ask whether prior offenses qualify as discrete crimes like "burglary," "arson," or "extortion," many enhancements turn instead on whether a defendant's prior offense has some other attribute. See 140 S.Ct. at 783 (explaining that many statutes "ask the court to determine not whether the prior conviction was for a certain offense, but whether the conviction meets some other criterion"). The question these statutes ask is not whether a prior conviction is a particular kind of offense, but rather whether something else is true of its statutory elements.

Consider, for example, the Armed Career Criminal Act's definition of "serious drug offense": any "offense under State law[ ] involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 18 U.S.C. § 924(e)(2)(A)(ii). In Shular, the Court did not view the various categories of conduct listed by this provision as offenses in need of generic definition. See 140 S.Ct. at 784-85. Looking to "statutory text and context," and in particular to Congress's use of the word "involving" rather than "is," the Court concluded that Congress intended to reach any state offense...