United States v. Gilbert , 425 F. App'x 212 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY RANDALL GILBERT,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:09-cr-00069-1)
Argued: March 22, 2011 Decided: April 28, 2011
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Agee wrote a
separate opinion concurring in part and concurring in the
judgment.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Karen B. Schommer, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Gary Randall Gilbert pled guilty to knowingly possessing
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b).
The district court concluded that Gilbert’s prior conviction
under North Carolina law for taking indecent liberties with
children triggered the sentencing enhancement in § 2252A(b)(2)
and sentenced him to 121 months’ imprisonment and a lifetime
term of supervised release. Gilbert appeals, contending that
the district court erred in applying the enhancement and imposed
an unreasonable sentence. We affirm.
I.
In June 2008, a North Carolina probation officer found
child pornography on Gilbert’s computer during a surprise visit
to his home. A forensic examination of Gilbert’s computer
revealed 159 still images and 8 videos of child pornography.
Among those images were depictions of children under the age of
twelve engaged in sadistic conduct and other violent acts.
Gilbert admitted to using his computer and a peer-to-peer file
sharing program to download images and videos from the Internet.
At the time this child pornography was discovered, Gilbert was
on probation for his 2007 North Carolina felony convictions for
second degree kidnapping and taking indecent liberties with
3
children. Under the terms of his probation, Gilbert was not
permitted to possess a computer or have access to the Internet.
On March 18, 2009, a federal grand jury returned a one-
count indictment charging Gilbert with knowingly possessing
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
On August 4, 2009, Gilbert pled guilty to the indictment without
the benefit of a plea agreement. At the plea hearing, the
probation officer who found the child pornography testified that
Gilbert’s North Carolina offenses involved “sexual contact” with
“a six-year-old child.” Gilbert did not contest this point.
Gilbert’s presentence report (“PSR”) calculated his total
offense level as 30 with a criminal history category of III,
which carried an advisory Guidelines range of 121 to 151 months’
imprisonment. Gilbert’s conviction also carried a statutory
mandatory term of supervised release, ranging from five years to
life. Gilbert did not object to the calculations.
At sentencing, the district court adopted the Guidelines
calculation contained in the PSR. The court further found that
based on Gilbert’s North Carolina conviction for taking indecent
liberties with children he was subject to 18 U.S.C.
§ 2252A(b)(2), which requires a mandatory minimum sentence of
ten years when the 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
4
ward.” Ultimately, the district court sentenced Gilbert to 121
months’ imprisonment, to be followed by a lifetime term of
supervised release.
Gilbert timely noted this appeal challenging the district
court’s imposition of the statutory enhancement and his
sentence, particularly the lifetime term of supervised release.
II.
Gilbert contends that the district court erred in finding
that his North Carolina conviction for indecent liberties with
children triggered the sentencing enhancement in 18 U.S.C.
§ 2252A(b)(2). We review his claim of error de novo. See
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
A defendant convicted of possessing child pornography faces
an increased statutory sentencing range under 18 U.S.C.
§ 2252A(b)(2) if
such person has a prior conviction under this chapter,
chapter 71, chapter 109A, or chapter 117, or under
section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any
State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or
ward, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of
child pornography . . . .
The district court applied a categorical approach in determining
that North Carolina’s indecent liberties statute constituted
such an offense.
5
Under a categorical approach, courts analyze offenses
“generically -- that is, by relying solely on [their] essential
elements, rather than on the particular underlying facts.”
United States v. White, 571 F.3d 365, 368 (4th Cir. 2009); see
James v. United States, 550 U.S. 192, 208 (2007); Taylor v.
United States, 495 U.S. 575, 600 (1990) (explaining categorical
approach requires “looking only to the fact of conviction and
the statutory definition of the predicate offense, rather than
to the particular underlying facts”). Under this approach,
Gilbert argues that the district court erred in concluding that
the North Carolina statute at issue triggered the enhancement in
§ 2252A(b)(2).
The Government makes two arguments in this regard. First,
the Government contends that this court need not apply the
categorical approach because the language of § 2252A(b)(2)
“clearly permits a broader inquiry . . . into whether a prior
offense ‘relates to’ sexual abuse of a minor.” Appellant’s Br.
at 13 (quoting United States v. Mills, 224 F. App’x 232, 234-35
(4th Cir. 2007); see also United States v. McCutchen, 419 F.3d
1122, 1126-27 (10th Cir. 2005) (noting that “Taylor did not
impose the categorical approach as a universal requirement of
all sentencing enhancements” and concluding that the phrase
“relating to” “indicates [Congress’s] intent to allow a
sentencing court to look beyond the mere elements of a prior
6
state conviction in determining whether such conviction is
sufficient to trigger application” of the identical sentencing
enhancement in 18 U.S.C. § 2252(b)(2)). According to the
Government, then, we can look beyond the elements of North
Carolina’s indecent liberties statute to Gilbert’s underlying
conduct to assess whether the sentencing enhancement applies.
The Government also argues that even under a categorical
approach -- looking only to the elements of the state statute --
North Carolina’s indecent liberties with children offense
triggers the enhancement in § 2252A(b)(2). Because we
ultimately agree with this argument, we will assume, without
deciding, that the categorical approach applies.
The state law at issue here provides:
A person is guilty of taking indecent liberties with
children if, being 16 years of age or more and at
least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd
or lascivious act upon or with the body or any part or
member of the body of any child of either sex under
the age of 16 years.
N.C. Gen. Stat. § 14-202.1.
The gravamen of Gilbert’s argument is that because one can
offend the indecent liberties statute without making physical
contact with a minor, the statute does not categorically
7
“relat[e] to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor.” See, e.g., State v. Every,
578 S.E.2d 642, 648-49 (N.C.App. 2003) (affirming conviction
when “defendant repeatedly engaged the victim in extremely
graphic and explicit [telephone] conversations that were sexual
in nature”); State v. McClees, 424 S.E.2d 687 (N.C.App. 1993)
(affirming conviction of high school principal who secretly
videotaped a female student undressing). According to Gilbert,
the enumerated offenses of § 2252A(b)(2) necessarily involve
“some type of harmful physical contact.” Appellant’s Br. at 14.
We disagree. ∗
Turning first to the text of the statutory provision,
§ 2252A(b)(2) does not expressly require that predicate state
laws criminalize only sexually-based physical contact. Nor does
chapter 110 generally define “sexual abuse” or “abusive sexual
conduct” to require physical contact. In fact, the chapter does
not define these terms at all.
∗
Gilbert relies on Begay v. United States, 553 U.S. 137,
143-45 (2008), in which the Supreme Court concluded that to
trigger the sentencing enhancement in a different statute, the
Armed Career Criminal Act, a state offense must be “roughly
similar, in kind as well as in degree of risk posed,” to that
federal statute’s enumerated offenses. Even assuming Begay
applies in this context, Gilbert’s argument rests on his
contention that the enumerated offenses of § 2252A(b)(2)
criminalize only “harmful physical contact,” a contention we
reject.
8
Chapter 109A does define similar federal offenses to
require physical contact. See 18 U.S.C. § 2241 (aggravated
sexual abuse); § 2242 (sexual abuse); § 2243 (sexual abuse of a
minor or ward); § 2244 (abusive sexual contact). Critically,
however, § 2252A(b)(2) does not instruct us to apply these
federal definitions. Congress certainly could have done so and
has done so in other provisions. See, e.g., 18 U.S.C. § 2241(c)
(providing for a life sentence when the defendant “has
previously been convicted of . . . a state offense that would
have been [a federal] offense”); id. § 3559(e)(2)(B) (defining
“State sex offense” as an offense that “consists of conduct that
would be a Federal sex offense”). Moreover, § 2252A(b)(2)
enumerates “abusive sexual conduct involving a minor” (emphasis
added), which is not defined in chapter 109A. Compare § 2244
(criminalizing abusive sexual contact). Accordingly, we find
“no indication that Congress intended to import the definitions
of chapter 109A to chapter 110.” United States v. Sonnenberg,
556 F.3d 667, 670 (8th Cir. 2009); see also United States v.
Sinerius, 504 F.3d 737, 742-44 (9th Cir. 2007); United States v.
Hubbard, 480 F.3d 341, 347-48 (5th Cir. 2007); but see United
States v. Osborne, 551 F.3d 718, 720-21 (7th Cir. 2009).
Moreover, § 2252A(b)(2) encompasses prior convictions under
federal law that by definition do not require physical contact.
For example, the Uniform Code of Military Justice criminalizes
9
indecent liberty with a child and defines “indecent liberty” as
“indecent conduct, but physical contact is not required.”
10 U.S.C. § 920(j), (t)(11). Like the Fifth Circuit, “[w]e
discern no intent on the part of Congress to impose such a
limitation with regard to prior convictions under state law.”
Hubbard, 480 F.3d at 347. Indeed, Congress expressly included
within § 2252A(b)(2) prior convictions under state law relating
to the possession of child pornography, which does not involve
physical contact.
Because Congress has not defined the terms at issue, “we
interpret [them] by employing the common meaning of the words.”
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).
See also Sonnenberg, 556 F.3d at 671 (giving the identical terms
in § 2252(b)(1) their “ordinary, contemporary, common meaning”);
Sinerius, 504 F.3d at 743 (noting “Congress’s intent to define
‘sexual abuse’ as a generic offense, understood by its ordinary
and common meaning”). In Diaz-Ibarra, we defined the term
“sexual abuse of a minor” found in the Sentencing Guidelines to
mean “the ‘perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual
gratification.’” 522 F.3d at 352 (quoting United States v.
Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (emphasis
added)). See also Sonnenberg, 556 F.3d at 671 (adopting
10
identical definition). We find that definition instructive
here.
Accordingly, we assess whether North Carolina’s offense of
taking indecent liberties with children is an offense “relating
to” the “physical or nonphysical misuse or maltreatment of a
minor for a purpose associated with sexual gratification.” In
doing so, we are mindful that “Congress chose the words
‘relating to’ for a purpose.” United States v. Weis, 487 F.3d
1148, 1152 (8th Cir. 2007) (internal quotation omitted). “The
phrase ‘relating to’ carries a broad ordinary meaning, i.e., to
stand in some relation; to have bearing or concern; to pertain;
refer; to bring into association with or connection with.” Id.(quoting Morales v. Trans World Airlines Inc., 504 U.S. 374, 383
(1992) (internal quotation marks omitted)).
In light of the broad scope of § 2252A(b)(2) and our
holding in Diaz-Ibarra that abuse need not involve physical
contact, we have little difficulty concluding that Gilbert’s
prior conviction triggers the enhancement. Under the terms of
North Carolina’s statute, a perpetrator must be at least five
years older than the victim, who must be under 16 years of age.
Cf. Osborne, 551 F.3d at 719-20 (concluding state statute that
lacked four-year age difference did not trigger identical
enhancement in § 2252(b)(1)). The perpetrator must engage in
some “immoral, improper, or indecent liberties” with the minor
11
“for the purpose of arousing or gratifying sexual desire.” In
our view, such conduct “relat[es] to” the “nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual
gratification.” Diaz-Ibarra, 522 F.3d at 352. Accordingly, we
hold that North Carolina’s indecent liberties with children
offense triggers the sentencing enhancement in § 2252A(b)(2).
See Sonnenberg, 556 F.3d at 671 (holding prior conviction under
Iowa’s lascivious acts with children offense, which required
either physical or nonphysical misuse or maltreatment of a minor
with the intent to seek libidinal gratification, triggered the
enhancement); Hubbard, 480 F.3d at 350-51 (holding that the
defendant's prior state conviction for lewd or indecent
proposals to a child under 16 years of age triggered the
identically-worded enhancement in § 2252A(b)(1)).
III.
Gilbert next contends that his sentence is unreasonable.
We apply a deferential abuse-of-discretion standard to determine
the reasonableness of Gilbert’s sentence, looking first to
whether the district court committed any procedural error in
fashioning the sentence. Layton, 564 F.3d at 335. “A district
court commits a procedural error if it fails to properly
calculate the Guidelines, treats the Guidelines as mandatory,
fails to consider the statutory factors under 18 U.S.C.
12
§ 3553(a), bases a sentence on facts that are clearly erroneous,
or fails to adequately explain the sentence imposed.” Id. at
335-36 (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
In the absence of any significant procedural error, “we then
examine the sentence for substantive reasonableness in light of
all relevant facts.” Id. at 336 (internal quotation omitted).
Gilbert argues that the district court failed to adequately
explain its rationale for imposing the 121-month term of
imprisonment, the very bottom of the Guidelines range, because
the court failed to address Gilbert’s lengthy argument for a
downward variance. Gilbert acknowledges, however, that this
argument rests on the conclusion that the district court erred
in applying the enhancement in § 2252A(b)(2), which set a
mandatory minimum sentence of 120 months. In light of our
holding that the district court did not so err, and thus could
not have sentenced Gilbert to a term of imprisonment shorter
than 120 months, Gilbert’s argument must fail.
Moreover, the district court provided an adequate
“individualized assessment” of Gilbert’s within-Guidelines
sentence to “permit meaningful appellate review.” United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). The district
court considered Gilbert’s prior criminal history of “deviant
conduct involving children,” the nature and circumstances of the
current offense, Gilbert’s need for treatment and monitoring,
13
and the need to avoid sentencing disparities. See JA 257-58; 18
U.S.C. § 3553(a).
Having found that the district court committed no
significant procedural error, we address Gilbert’s claim that
the lifetime term of supervised release is substantively
unreasonable in that “it is greater than necessary to comply
with the purposes of sentencing.” Appellant’s Br. at 20. He
asserts that possessing child pornography is one of the “lesser
offenses for which a lifetime term of supervised release can be
imposed.” Id. Gilbert does not dispute, however, that his
crime made him eligible for the lifetime term. See 18 U.S.C.
§ 3583(k) (“[T]he authorized term of supervised release for any
offense under section . . . 2252A . . . is any term of years not
less than 5, or life.”). Nor does he dispute that the
Guidelines recommend “the statutory maximum term of supervised
release,” when “the instant offense of conviction is a sex
offense.” U.S.S.G. § 5D1.2 (policy statement).
In accordance with 18 U.S.C. § 3583(c), the district court
considered relevant sentencing factors in fashioning the term of
supervised release. See JA 258-59. The court considered the
nature of the offense and history and characteristics of the
defendant, citing Gilbert’s prior conviction for a sexually-
based crime involving a minor and that Gilbert was on probation
for that offense when he committed the present offense.
14
Further, the court considered that Gilbert downloaded a
significant number of images in a short period of time using a
peer-to-peer file sharing program. See 18 U.S.C. § 3553(a)(1).
The court also found that the lifetime term was necessary to
reduce the likelihood that Gilbert would reoffend and to protect
the public, particularly children, from further crimes. See id.§ 3553(a)(2)(B),(C). Lastly, the district court determined that
the lifetime term would provide an opportunity for Gilbert to
receive long-term treatment and monitoring of that treatment.
See id. § 3553(a)(2)(D).
In light of the deferential abuse-of-discretion standard of
review, we cannot conclude that the supervised release term was
“substantively unreasonable in light of all the relevant facts.”
Layton, 564 F.3d at 337.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
15
AGEE, Circuit Judge, concurring in part and concurring in the
judgment:
I join in Parts I and III of the majority opinion, which
rejects Gilbert’s argument that his sentence was unreasonable,
and concur in the judgment. I also agree with the majority’s
conclusion in Part II that Gilbert’s sentence was properly
enhanced under 18 U.S.C. § 2252A(b)(2) based on his prior North
Carolina conviction for indecent liberties with a child.
However, I write separately because I would neither assume nor
decide that the categorical approach should be used to reach
that conclusion. (Majority Op. at 7 (assuming without deciding
categorical approach applies).) Instead, for the reasons set
forth herein, I would follow the Tenth Circuit’s decision in
United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), and
this Court’s unpublished decision in United States v. Mills, 224
F. App’x 232 (4th Cir. 2007), which concluded that an elements-
based categorical approach was unnecessary given the breadth of
provisions identical to 18 U.S.C. § 2252A(b)(2).
The categorical approach, set forth in Taylor v. United
States, 495 U.S. 575 (1990), was applied to 18 U.S.C. § 924(e),
the Armed Career Criminal Act (“ACCA”). See United States v.
Dean, 604 F.3d 169, 175 (4th Cir. 2010) (explaining that the
categorical approach was “[o]riginally developed in the context
of [the ACCA]” and “has been extended to the career offender
16
provisions under the [United States Sentencing] Guidelines”).
As the McCutchen court explained, Taylor determined, based on
the specific language and background of § 924(e), that the word
“burglary” as used therein was meant by Congress in the “generic
sense in which the term is now used in the criminal codes of
most States.” 419 F.3d at 1126 (quoting Taylor, 495 U.S. at
598). Thus,
a person has been convicted of burglary for purposes
of a § 924(e) enhancement if he is convicted of any
crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure,
with intent to commit a crime.
Taylor, 495 U.S. at 599. And, as we noted in Mills, § 924(e)
requires by its plain terms an elements of the crime analysis:
The [ACCA] provides for a sentencing enhancement only
if the defendant is convicted of a felony that “has as
an element the use . . . of physical force” or “is
burglary, arson, or extortion, involves the use of
explosives or otherwise involves conduct that presents
a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).
Mills, 224 F. App’x at 234 (emphases in original).
Accordingly, the language of § 924(e), as interpreted in
Taylor, dictates that courts examine the “essential elements” of
a defendant’s previous crime, in order to determine whether it
is a predicate offense for ACCA purposes. See United States v.
White, 571 F.3d 365, 368 (4th Cir. 2009) (under a categorical
approach, “the offense is analyzed generically—that is, by
17
relying solely on its essential elements, rather than on the
particular underlying facts”); James v. United States, 550 U.S.
192, 208 (2007) (in addressing the residual clause of § 924(e),
“the proper inquiry is whether the conduct encompassed by the
elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another”).
In contrast to § 924(e), the language in the enhancement
statute at issue here, 18 U.S.C. § 2252A(b)(2), is completely
different. McCutchen examined an identically-worded provision
found in § 2252(b)(2). As the McCutchen court explained, unlike
§ 924(e), which was triggered by a felony that “is burglary,”
§ 2252(b)(2) does not state that a prior state crime
will trigger the sentence enhancement provisions if it
“is” aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor. Rather,
§ 2252(b)(2) states that “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” will trigger the sentence
enhancement provisions. 18 U.S.C. § 2252(b)(2)
(emphasis added). As the Supreme Court has indicated,
the phrase “relating to” carries a “broad” “ordinary
meaning,” i.e., “to stand in some relation to; to have
bearing or concern; to pertain; refer; to bring into
association with or connection with, . . . .’” Morales
v. Trans World Airlines, 504 U.S. 374, 383 (1992)
(quoting Black’s Law Dictionary 1158 (5th ed. 1979)).
419 F.3d at 1126-27 (emphases in original); see also United
States v. Rezin, 322 F.3d 443, 448 (7th Cir. 2003) (“[t]here is
no mention of elements in section 2252(b)(2)”). Thus, the
McCutchen court concluded that the categorical approach was
18
inapplicable and that defendant’s prior conviction for sexual
battery fell within the scope of the enhancement provision. 419
F.3d at 1127.
McCutchen was also cited with approval and followed by our
unpublished decision in Mills. While Mills is not binding
authority, I find its reasoning persuasive. In Mills, this
court determined that a Virginia conviction for “aggravated
sexual battery” was a proper predicate offense under
§ 2252A(b)(1). 224 F. App’x at 234. The Mills court noted
first that the language in the enhancement provision was
“notably broader” than that of the ACCA, and that the
enhancement provision “clearly permits a broader inquiry” — not
“tied to federal law definitions—into whether a prior offense
‘relates to’ sexual abuse of a minor.” Id. at 235. It thus
concluded that the categorical approach was inapplicable and
that the district court was not limited to considering only “the
statutory elements of the state offenses.” Id. at 234-35.
I would follow the same approach as McCutchen and Mills in
this case. In short, Gilbert’s offense of indecent liberties
with a child 1 is one that clearly falls within the language of
the enhancement provision, for it is “a prior conviction . . .
1
See Majority Op. at 7-8 (describing statutory language);
see id. at 4 (noting Gilbert did not contest that his offense
involved “sexual contact” with “a six-year-old child”).
19
under the laws of any State relating to . . . abusive sexual
conduct involving a minor . . . .” 18 U.S.C. § 2252A(b)(2)
(emphasis added). I would apply this plain language to conclude
that sentencing courts tasked with deciding whether a North
Carolina conviction for indecent liberties with a child is a
proper predicate offense under § 2252A(b)(2) may examine the
facts of a defendant’s conviction, without requiring an analysis
limited to the elements of that offense. 2 See McCutchen, supra;Mills, supra; see also United States v. Becker, 625 F.3d 1309,
1311 & n.1 (10th Cir. 2010) (following McCutchen based on the
broad “relating to” language in the enhancement provision),
petition for cert. filed, (U.S. Mar. 1, 2011) (No. 10-9229);
United States v. Hubbard, 480 F.3d 341, 348-350 (5th Cir. 2007)
(rejecting an elements-based approach and relying on the broad
“relating to” language); United States v. Rezin, 322 F.3d 443,
448-49 (7th Cir. 2003) (same). But see, e.g., United States v.
2
I also agree with the majority that Begay v. United
States, 553 U.S. 137 (2008) has no impact on the instant case
(Majority Op. at 8 n.*), although for different reasons. Begay,
like Taylor, was an ACCA case. 553 U.S. at 139. Begay was
specifically concerned with the so-called residual clause of
§ 924(e)(2)(B), and held that a prior conviction is a proper
predicate conviction only when it is “roughly similar, in kind
as well as in degree of risk posed” to the enumerated offenses.
Id. at 143. The language of that statute, however, is a
differently-worded (and narrower) enhancement provision. See id.
at 143-45. For the same reasons I find resort to the
categorical approach unnecessary here, I do not find Begay to be
applicable.
20
Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009) (applying
categorical approach); United States v. McGrattan, 504 F.3d 608,
612 (6th Cir. 2007) (same); cf. United States v. Strickland, 601
F.3d 963, 967-68 (9th Cir.) (en banc) (applying the modified
categorical approach), cert. denied, 131 S. Ct. 505 (2010).
For the foregoing reasons, I respectfully concur in the
decision to affirm the judgment of the district court.
21