Opinion
CRIMINAL NO. JKB-21-311
2023-01-31
UNITED STATES of America v. Garnell Eugene GRAVES, Defendant.
Paul E. Budlow, Assistant U.S. Attorney, Office of the United States Attorney, Baltimore, MD, for United States of America.
Paul E. Budlow, Assistant U.S. Attorney, Office of the United States Attorney, Baltimore, MD, for United States of America. MEMORANDUM AND ORDER James K. Bredar, Chief Judge
On June 14, 2022, Defendant Garnell Eugene Graves pled guilty to four counts of Sexual Exploitation of a Child in violation of 18 U.S.C. § 2251(a). (See ECF No. 37; Plea Agreement, ECF No. 38.) A sentencing hearing has been set in for February 10, 2023. (ECF No. 49.) The Court ordered briefing on "the mandatory minimum and maximum terms of incarceration authorized on the facts and law applicable to this case." (Scheduling Order, ECF No. 41, at 3.) Currently before the Court is the Government's Memorandum in Support of Enhanced Penalties. (ECF No. 45.) Graves responded opposing enhanced penalties. (ECF No. 47.) The matter is fully briefed and no hearing is necessary. See Local Rules 105.6, 207 (D. Md. 2021). For the reasons set forth below, the Court determines that Graves is subject to a mandatory minimum sentence of 25 years pursuant to 18 U.S.C. § 2251(e).
I. Legal Standards and Analysis
The statutory penalty for a violation of § 2251 is "not less than 15 years nor more than 30 years" of incarceration. 18 U.S.C. § 2251(e). However, the mandatory range increases to "not less than 25 years nor more than 50 years" of incarceration if a defendant has a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography[.]" Id. (emphasis added). The Government argues that this enhancement applies because Graves's 1998 conviction in the Circuit Court for Prince George's County, Maryland for a third-degree sexual offense in violation of Maryland Code, Article 27, § 464B relates to "abusive sexual contact involving a minor." Id.; (See Mem. Supp. Enhanced Penalties, ECF No. 45, at 8-9, 21; Exs. 3-5 to Mem. Supp. Enhanced Penalties, ECF Nos. 45-3-45-5; see also Presentence Investigation Report, ECF No. 43, at 7.)
The Government misquotes the sentencing enhancement as applying to a state conviction "relating to . . . abusive sexual conduct involving a minor" (Mem. Supp. Enhanced Penalties at 8 (emphasis added)) rather than "abusive sexual contact involving a minor[.]" 18 U.S.C. § 2251(e) (emphasis added). As will be discussed further below, the difference between "abusive sexual contact" and "abusive sexual conduct" does not alter the outcome in this case.
The Government alternatively argues that the sentencing enhancement applies based on Graves's 1991 conviction in the Superior Court of the District of Columbia for taking indecent liberties with a minor child in violation of D.C. Code § 22-3501(1). (Mem. Supp. Enhanced Penalties at 20-21.) Because the Court concludes that Graves is subject to a mandatory minimum sentence of 25 years based on the 1998 Maryland conviction, it need not consider whether the 1991 conviction in D.C. Superior Court violated a state law that "relate[s] to . . . abusive sexual contact involving a minor."
A. Categorical Framework
The Fourth Circuit has not interpreted the sentencing enhancement under § 2251(e) at issue here, but its opinions interpreting the parallel sentencing enhancement provisions of §§ 2252(b) and 2252A(b) guide the Court's analysis. To determine whether the sentencing enhancement applies, courts "look at [the state crime] through the lens of the categorical approach." See United States v. Hardin, 998 F.3d 582, 586 (4th Cir. 2021) (applying sentencing enhancement under § 2252A(b)(1), which is triggered by a state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor"), cert. denied, — U.S. —, 142 S. Ct. 779, 211 L.Ed.2d 486 (2022). This means that courts "look 'only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as an offense "relating to" the predicate offenses listed in 18 U.S.C. § [2251(e)].' " See id. (additional quotation marks omitted) (quoting United States v. Colson, 683 F.3d 507, 510 (4th Cir. 2012)). In making this determination, courts do not consider the specific conduct underlying the conviction. See Colson, 683 F.3d at 510.
18 U.S.C. §§ 2252(b)(1), 2252(b)(2), 2252A(b)(1), and 2252A(b)(2) all contain sentence enhancement provisions that apply if a defendant is convicted under those sections and 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 only difference between the relevant operative language of § 2251(e), the provision at issue in this case, and the parallel provisions under §§ 2252(b) and 2252A(b) is that to trigger enhancement under § 2251(e), the state conviction must relate to "abusive sexual contact involving a minor," whereas under §§ 2252(b) and 2252A(b) it must relate to "abusive sexual conduct involving a minor." (emphasis added).
When the state statute is divisible, meaning it "set[s] forth 'multiple, alternative versions of the crime' with distinct elements," the "modified categorical approach" applies. United States v. Jackson, 32 F.4th 278, 284 (4th Cir. 2022) (quoting Descamps v. United States, 570 U.S. 254, 262, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)). This approach allows courts to look at limited record documents, including the charging document and transcript of plea colloquy, Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to "determine which crime formed the basis of the defendant's conviction." Descamps, 570 U.S. at 263, 133 S.Ct. 2276. The modified categorical approach "retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime." Id.
Unlike in standard applications of the categorical and modified categorical approach, however, the state conviction need not be a "perfect" match with the generic predicate offenses to trigger the § 2251(e) sentencing enhancement. See Hardin, 998 F.3d at 588 (interpreting "relating to" language under § 2252A(b)(1)'s sentencing enhancement). This is because the term "relating to" in § 2251(e) is "expansive" and its inclusion "means [courts] apply the categorical approach 'and then some.' " See id. More specifically, "relating to" means that the state conviction only "needs 'to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with' abusive sexual [contact] involving a minor." See id. at 588-89 (quoting Colson, 683 F.3d at 511).
B. Abusive Sexual Contact Involving a Minor
The Court must first consider the meaning of "abusive sexual contact involving a minor" as used in § 2251(e), which will serve as the point of comparison to determine whether Maryland third-degree sexual offense triggers § 2251(e)'s sentencing enhancement. The federal statute defines "minor," as used in § 2251, as "any person under the age of eighteen years[.]" 18 U.S.C. § 2256(1); see also Hardin, 998 F.3d at 587. More difficult to discern is the meaning of "abusive sexual contact," which is not defined in the statute.
The Fourth Circuit has defined "sexual abuse of a minor" in the context of the U.S. Sentencing Guidelines ("U.S.S.G.") § 2L1.2 as a "perpetrator's physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification." United States v. Diaz-Ibarra, 522 F.3d 343, 347, 352 (4th Cir. 2008). The sentencing enhancement at issue in Diaz-Ibarra called for a strict application of the categorical approach, meaning the full range of conduct criminalized by the state statute had to fall within this definition. Id. at 352-53. The Fourth Circuit has subsequently applied Diaz-Ibarra's definition to "abusive sexual conduct" under the sentencing enhancement provisions in §§ 2252(b) and 2252A(b), which require only a state conviction "relating to" this definition. See Colson, 683 F.3d at 510-11 (interpreting § 2252A(b)(1)); Hardin, 998 F.3d at 587 (same); United States v. Landry, 733 F. App'x 693, 694 (4th Cir. 2018) (interpreting § 2252(b)(2)).
Both parties apply this definition to § 2251(e). Parsing apart the definition from the Fourth Circuit precedent cited above, the Court understands "abusive sexual contact involving a minor" as used in § 2251(e) to mean contact that is characterized by the "misuse or maltreatment" of a minor "for a purpose associated with sexual gratification." The parties' disagreement centers on the "for a purpose associated with sexual gratification" element, i.e. whether the Maryland statute relates to abusive sexual contact involving a minor.
The Government does not acknowledge the discrepancy between "conduct" in §§ 2252(b) and 2252A(b) and "contact" in § 2251(e). (See Mem. Supp. Enhanced Penalties at 12 n.3 (incorrectly stating that "[t]he language in 2252A(b)(2) is identical to the language in 2251(e) under which the defendant's offenses fall" (emphasis added)); Gov't Reply, ECF No, 48, at 2 n.1 (asserting that the "relevant language" of 18 U.S.C. § 2252A(b)(2) "tracks identically with 18 U.S.C. § 2251(e)").) Graves recognizes the difference but asserts that he is "unaware of any authority holding that the two terms should be treated differently" and therefore "treats cases interpreting the various provisions [of §§ 2251(e), 2252(b), and 2252A(b)] interchangeably." (Resp. Gov't Mem. Supp. Enhanced Penalties, ECF No. 47, at 2 n.1.) While "abusive sexual conduct" encompasses both "physical or nonphysical misuse or maltreatment of a minor[,]" Colson, 683 F.3d at 510 (emphasis added), "abusive sexual contact" presumably contemplates a physical touching. See United States v. Abreu, 578 F. Supp. 3d 202, 208 (D. Mass. 2022) (interpreting "abusive sexual contact" under § 2251(e) to refer to a "touching" (citing United States v. Johnson, 681 F. App'x 735, 740 (11th Cir. 2017))). However, the difference between "conduct" and "contact" is not implicated here because, as will be discussed further below, the Maryland statute at issue requires "contact." See Md. Code Ann., Art. 27, § 464B(a)(3).
C. Maryland Third-Degree Sexual Offense
At the time of his conviction in 1998, the Maryland statute to which Graves pled guilty included five subsections establishing sexual offense in the third degree. See Md. Code Ann., Art. 27, § 464B(a) (1996). The statute is divisible because it "lists alternate sets of elements that effectively create multiple versions of the crime of third-degree sexual offense[.]" United States v. Alfaro, 835 F.3d 470, 473 (4th Cir. 2016) (applying modified categorical approach to Md. Code Ann., Crim. Law, § 3-307 (2002), which replaced and is nearly identical to Art. 27, § 464B). The transcript from Graves's plea colloquy in the Maryland case confirms that he was convicted under § 464B(a)(3) for "engaging in "[s]exual contact with another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim[,]" (ECF No. 45-4 at 17-19), which the parties do not dispute. Thus, the Court must determine whether the conduct criminalized under § 464B(a)(3), including the most innocent conduct, "relate[s] to . . . abusive sexual contact involving a minor[,]" as required by § 2251(e).
There is no question that the age-based component of the Maryland statute—applying to contact "with another person who is under 14 years of age" by someone who is at least four years older, Md. Code Ann, Crim. Law, § 464B(a)(3)—casts a narrower net than the applicable federal definition of a minor as a person under eighteen years of age. See Hardin, 998 F.3d at 587.
At the time of Graves's conviction, "sexual contact" as used in § 464B was defined to mean:
the intentional touching of any part of the victim's or actor's anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of a person's body, other than the penis, mouth, or tongue, into the genital or anal opening of another person's body if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party.Md. Code Ann., Art. 27, § 461(f) (1996) (emphasis added). "[A] touching for the purpose of 'abuse' refers to a wrongful touching, a touching of another person's intimate area for a purpose that is harmful, injurious or offensive." LaPin v. State, 188 Md.App. 57, 981 A.2d 34, 43 (2009).
D. Relating to Abusive Sexual Contact
Under a strict application of the categorical approach, § 464B(a)(3) is not a perfect, element-for-element match for the generic federal definition of "abusive sexual contact involving a minor" because it does not require that the perpetrator "act for the purpose of sexual gratification in order to be convicted[.]" Larios-Reyes v. Lynch, 843 F.3d 146, 160 (4th Cir. 2016) (holding Md. Code, Crim. Law § 3-307(a)(3), today's equivalent of § 464B(a)(3), is not a categorical match for "sexual abuse of a minor" under the Immigration and Nationality Act (citing Diaz-Ibarra, 522 F.3d at 352)).
Critically, however, § 2251(e)'s inclusion of the "expansive" term "relating to" does not require such an exact match. Colson, 683 F.3d at 511 ("18 U.S.C. § 2252A(b)(1) does not require that the predicate conviction amount to 'sexual abuse' or 'abusive sexual conduct involving a minor.' Rather, a conviction qualifies as a predicate conviction merely if it relates to sexual abuse or abusive sexual conduct involving a minor." (emphasis in original)); see also United States v. Spence, 661 F.3d 194, 200 (4th Cir. 2011) ("In light of this broad, inclusive language chosen by Congress, the [state crime] does not need to satisfy a narrow definition of sexual abuse in order to qualify as a predicate offense.").
The Court concludes that Maryland's definition of sexual contact with a minor for the purpose of sexual arousal or gratification or for abuse "stands in some relation to, pertains to, concerns, or has a connection with" "abusive sexual contact involving a minor." Colson, 683 F.3d at 511 (quotations marks omitted). As Maryland courts have explained, the third-degree sexual offense statute "does not criminalize any touching; it requires a sexually oriented touching committed for the purpose of inflicting harm on another, physical or otherwise." LaPin, 981 A.2d at 43-44 (emphasis added). This definition of "sexual contact" "for abuse" bears a logical connection to contact that is characterized by the "misuse or maltreatment" of a minor "for a purpose associated with sexual gratification."
Graves does not contend that there is a meaningful difference between "for the purposes of sexual arousal" under § 461(f) and "for a purpose associated with sexual gratification" under federal law. At the very least, conduct for the purposes of sexual arousal undoubtedly relates to conduct for a purpose associated with sexual gratification.
The Honorable Paul W. Grimm came to the same conclusion in a recent case applying § 2252A(b)(2)'s sentencing enhancement, for which the Government has supplied a portion of the sentencing transcript. (Ex. 6 to Mem. Supp. Enhanced Penalties, Sentencing Tr. in Crim. No. PWG-19-089, ECF No. 45-6.) Judge Grimm persuasively reasoned that the most innocent conduct criminalized by the Maryland third-degree sexual offense statute "stand[s] in some relationship to the sexual gratification requirement for the generic federal offense" because the Maryland statute and the generic federal offense "both involve the misuse of another person, both involve a sexual element, whether it's touching a sexually intimate area for abuse or for gratification, but at their core they are both sexual offenses." (Id. at 19-20.)
Graves maintains that the Maryland statute does not "relat[e] to" "abusive sexual contact involving a minor" because "a defendant's sexual-gratification purpose is an essential, irreducible element—indeed, the most important element—of generic sexual abuse and, therefore, the other federal generic offenses in § 2251(e)." (Resp. Gov't Mem. Supp. Enhanced Penalties at 7). In other words, because the Maryland statute also criminalizes touching "for abuse of either party[,]" it does not sufficiently "relate to" "abusive sexual contact involving a minor." This assertion does not find support in the case law or statutory structure.
First, Graves points to two Maryland cases that he claims exemplify "sexual contact" "for abuse" that "has nothing whatsoever to do with sexual gratification" and thus show that the Maryland offense does not "relate to" "abusive sexual contact." (Id. at 8.) In the first case, the defendant was yelling at his former girlfriend, "began kicking and striking her," told her that "if [she] wanted to f—k around he would rip [her] vagina out[,]" and then "put his hand inside [her vagina] and started to pull and tear at [her.]" Dillsworth v. State, 66 Md. App. 263, 503 A.2d 734, 735 (1986) (brackets omitted), aff'd, 308 Md. 354, 519 A.2d 1269 (1987). The court affirmed that this evidence was sufficient to prove a third-degree sexual offense even where there was no evidence that the attack was "intended 'for the purpose of sexual arousal or gratification' " because it qualified as sexual contact "for abuse[,]" noting that it was a "physical attack intended to inflict sexual injury." Id. at 736 (emphasis in original) (quoting Md. Code Ann., Art. 27, § 461(f)).
Similarly, in the second case Graves cites, the defendant—angry at his former girlfriend over money he believed she had stolen—verbally and physically assaulted her and then followed her into the bathtub and "put [a] knife up inside [her] vagina"; telling her that he would "cut her insides out" if she did not give the money back. Burkett v. State, 98 Md.App. 459, 633 A.2d 902, 906-07 (1993). The court affirmed the defendant's second degree sexual offense conviction, which required a "sexual act[,]" defined to include "penetration, however slight, by any object into the genital or anal opening of another person's body if the penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party[.]" Id. at 907, 909 (emphasis added) (quoting Md. Code. Ann., Art. 27, § 461(e) (1992)).
Graves characterizes the conduct in Dillsworth and Burkett as "essentially . . . ordinary, non-sexual assault[s]." (Resp. Mem. Supp. Enhanced Penalties at 9, 10.) But the fact that these cases did not involve an intent associated with sexual gratification does not make them wholly non-sexual or unrelated to "abusive sexual contact." They still require—distinct from ordinary assault—contact with a sexually intimate area. The Fourth Circuit has clarified that it did not hold in Diaz-Ibarra "that the word 'sexual' must always and in all circumstances be defined to include an intent to gratify sexual urges[.]" Alfaro, 835 F.3d at 476. In Alfaro, the court defined "forcible sex offense" for purposes of a sentencing enhancement under U.S.S.G. § 2L1.2 to mean "an offense involving sexual conduct with another person" that is "not consensual." Id. at 478. It held that a different subsection of Maryland's third-degree sexual offense, which required at a minimum "nonconsensual sexual contact," categorically qualified as a "forcible sex offense." Id. at 478-79. In other words, it considered the "sexual contact" under Maryland law—including contact for the purpose of "abuse" rather than "sexual arousal or gratification"—to be "sexual conduct." See id. at 473, 478 (emphasis added). This analysis undercuts Graves's assertion that Maryland's third-degree sexual offense captures "non-sexual" conduct. When such "sexual contact" "for purposes . . . of abuse" is perpetrated against a person who is under fourteen years old, as required by § 464B(a)(3), it inherently bears some connection to "abusive sexual contact involving a minor."
In Alfaro, the court distinguished the phrase "sex offense" from "sexual abuse" when strictly applying the categorical approach under the sentencing guidelines and explained why "an intent to gratify sexual urges is central to and therefore is part of the ordinary meaning of the phrase 'sexual abuse.' " Alfaro, 835 F.3d at 476-77 (emphasis in original). First, it explained that " '[s]exual abuse of a minor,' the phrase at issue in Diaz-Ibarra, is a 'broad' phrase 'capturing physical or nonphysical conduct,' and it is the sexual-gratification element that polices the line between lawful and unlawful conduct." Id. at 476 (citation omitted) (quoting United States v. Perez-Perez, 737 F.3d 950, 953 (4th Cir. 2013)). Further, "[t]he clear focus of the phrase 'sexual abuse' is on the intent of the abuser—sexual gratification—not on the effect on the abused." Id. (emphasis in original) (brackets omitted) (quoting Diaz-Ibarra, 522 F.3d at 350). The Maryland statute does not implicate either of these concerns: it is limited to "sexual contact," and is defined by the perpetrator's purpose, whether that be for sexual gratification or arousal or for abuse, rather than the effect on the victim.
Second, the federal offenses of Title 18, Chapter 109A of the United States Code, which serve as predicates for the same sentencing enhancement at issue here, are also instructive. See 18 U.S.C. § 2251(e). 18 U.S.C. § 2244, under Chapter 109A, criminalizes "abusive sexual contact" and applies if an individual engages in "sexual contact" that would have violated several other sections within Chapter 109A "had the sexual contact been a sexual act[,]" as required under those sections. Specifically, this section proscribes sexual contact with a person who is under twelve years old, see § 2244(a)(5) (cross-referencing § 2241(c)), and with a person who is at least twelve, but younger than sixteen, years old and at least four years younger than the perpetrator. See § 2244(a)(3) (cross-referencing § 2243(a)). The term "sexual contact" as used in Chapter 109A "means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[.]" 18 U.S.C. § 2246(3) (emphasis added).
The Supreme Court has observed that the categories "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" under § 2252(b)(2) parallel the "federal template" of Chapter 109A. Lockhart v. United States, 577 U.S. 347, 353-54, 136 S.Ct. 958, 194 L.Ed.2d 48 (2016). In holding that "involving a minor or ward" only modifies the third phrase in this list (abusive sexual conduct involving a minor or ward), the Supreme Court explained that it saw "no reason to interpret § 2252(b)(2) so that 'sexual abuse' that occurs in the Second Circuit courthouse triggers the sentence enhancement, but 'sexual abuse' that occurs next door in the Manhattan municipal building does not." Id. at 354, 136 S.Ct. 958 (brackets omitted); see also Spence, 661 F.3d at 197 (reaching the same conclusion and reasoning that "because statutes must be read in their entirety, it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law"); United States v. Hudson, 986 F.3d 1206, 1211 (9th Cir. 2021) (noting that § 2252(b)(2)'s predicate sexual abuse offenses are not defined "exclusively in relation to [the] three similarly titled federal statutes" under Chapter 109A, but that "these federal statutes are relevant to our § 2252(b) analysis"). Along the same lines, "it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under" 18 U.S.C. § 2244, which does not require an intent to gratify sexual desires, "but not on defendants convicted for the same conduct under state law." Spence, 661 F.3d at 197.
Finally, the Court does not find persuasive a case Graves cites that concludes that the New Jersey offense of sexual contact in the fourth degree did not " 'relate to' sexual abuse or abusive sexual contact/conduct involving a minor" because it could be committed with the "non-sexual intent" of "degrading or humiliating the victim." United States v. Vado, Crim. No. 14-666-PAE, 2015 WL 1611337, at *13-*14 (S.D.N.Y. Apr. 10, 2015). Even accepting that court's analysis, the New Jersey statute is distinguishable from Maryland's in its breadth, which the court reasoned included "such utterly non-sexual conduct as . . . a high-school student ostentatiously grabbing his or her own buttocks or genitals to signal 'you are this' to a rival as a sign of ultimate disrespect [or] a fraternity brother mooning (or worse) a crowd that included youngsters during a public event[.]" Id. at *14. Similarly, the Maryland statute is distinguishable from Maine's Visual Sexual Aggression Against a Child statute, which a court held does not relate to "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor" because a defendant could be convicted for "exposing himself or herself simply to cause 'affront or alarm' " and therefore it did not "contain[ ] the requisite 'sexual' nature pursuant to § 2252A(b)(1)." United States v. Sullivan, Crim. No. 4:08-00280, 2010 WL 2431719, at *4 (M.D. Pa. June 14, 2010). Compared to these statutes, the Maryland statute criminalizing "a touching of another person's intimate area for a purpose that is harmful, injurious or offensive" bears a much closer relationship to abusive sexual contact involving a minor, defined as contact that is characterized by the "misuse or maltreatment" of a minor "for a purpose associated with sexual gratification."
Accordingly, the Court concludes that Graves's 1998 conviction under Maryland Code, Article 27, § 464B(a)(3) "relat[es] to . . . abusive sexual contact involving a minor" for the purposes of 18 U.S.C. § 2251(e)'s sentencing enhancement.
II. Conclusion
For the foregoing reasons, Graves is subject to a mandatory minimum sentence of 25 years, with a maximum sentence of 50 years, for each violation of § 2251(e) to which he pled guilty.