United States v. Bradley Nelson ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0015p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 20-3154
v. │
│
│
BRADLEY NELSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:19-cr-00409-1—John R. Adams, District Judge.
Decided and Filed: January 21, 2021
Before: SUHRHEINRICH, GILMAN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for
Appellant. Carol M. Skutnik, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee.
_________________
ORDER
_________________
Bradley Nelson, a federal prisoner proceeding through counsel, appeals his sentence for
distributing child pornography. The parties have waived oral argument, and this panel
unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a)(2)(C).
No. 20-3154 United States v. Nelson Page 2
In February 2020, Nelson pleaded guilty to distributing visual depictions of real minors
engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). At sentencing, the
parties disputed whether Nelson’s prior Ohio conviction for attempted rape of a minor qualified
as a predicate offense for a sentencing enhancement under 18 U.S.C. § 2252(b)(1). Ultimately,
the district court concluded that the enhancement applied, and it sentenced Nelson to the
enhanced statutory minimum term of 180 months of imprisonment.
On appeal, Nelson argues that his prior offense for attempted rape does not trigger the
§ 2252(b)(1) enhancement because an attempt offense does not require a defendant to have
physical contact with a victim.
“[We] review[] de novo a district court’s legal conclusion that a prior conviction triggers
a mandatory minimum sentence.” United States v. Gardner, 649 F.3d 437, 442 (6th Cir. 2011).
Section 2252, a federal statute prohibiting the sale, distribution, and possession of child
pornography, includes a sentencing enhancement that applies to offenders with 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.” 18 U.S.C. § 2252(b)(1). An offender sentenced under the
§ 2252(b)(1) enhancement is subject to a mandatory 15-year minimum sentence. Id.
Sexual abuse, we have held, covers actions that “injure, hurt, or damage for the purpose
of sexual or libidinal gratification.” United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015).
And “relat[e] to” is a “broad” phrase, Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992) (internal quotation marks omitted), one that requires “only that the state statute be
associated with sexual abuse,” Mateen, 806 F.3d at 861. We apply the categorical approach to
determine whether a prior offense “relate[s] to . . . sexual abuse” for purposes of the § 2252(b)
enhancement. Id. at 859–60. Under that approach, we examine the elements of the state
statute—not the specific facts underlying the defendant’s conviction—and determine whether
“the full range of conduct the statute proscribes, even the least egregious,” qualifies as an offense
that relates to sexual abuse. Id. at 859, 862.
Nelson was previously convicted under Ohio Revised Code §§ 2923.02 and
2907.02(A)(1)(b) of attempted rape. Section 2907.02(A)(1)(b) criminalizes, in relevant part,
No. 20-3154 United States v. Nelson Page 3
“engag[ing] in sexual conduct with another who is not the spouse of the offender” when “[t]he
other person is less than thirteen years of age.” Section 2923.02 makes it a crime to “purposely
or knowingly . . . engage in conduct that, if successful, would constitute or result in the offense.”
Ohio Rev. Code § 2923.02(A). Nelson contends that his prior conviction under these statutes
does not qualify as a predicate offense solely because it is an attempt offense. If § 2252(b)(1)
applied only to prior State convictions for “sexual abuse, or abusive sexual conduct involving a
minor,” Nelson’s argument would be more persuasive, but this would ignore the phrase “relating
to.” See 18 U.S.C. § 2252(b)(1).
We have not addressed whether § 2252(b)(1) encompasses attempt offenses, but all other
circuit courts that have addressed the issue when interpreting materially indistinguishable
statutes have answered affirmatively. We have also held, in an unpublished decision addressing
§ 2252A(b)(2), which is materially indistinguishable from § 2252(b)(1), that attempt crimes may
“relat[e] to . . . sexual abuse.” United States v. O’Neal, __ F. App’x __, No. 20-5006, 2020 WL
6706840, at *1–2 (6th Cir. Nov. 16, 2020) (“It would distort common sense to say that
attempting an act that would constitute sexual abuse does not relate to sexual abuse. If attempts
did not relate to their intended outcome, how else could their relationship be explained?”). As
the Ninth Circuit explained when addressing § 2252A(b)(1), “the ‘ordinary meaning’ of the
phrase ‘relating to’ ‘is a broad one—to stand in some relation; to have bearing or concern; to
pertain; refer; to bring into association with or connection with.’” United States v. Wiles,
642 F.3d 1198, 1201 (9th Cir. 2011) (quoting Morales, 504 U.S. at 383). Ultimately, the Ninth
Circuit concluded that “[a]n attempt conviction ‘clearly stands in some relation to or pertains to
the crimes of aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor’ and therefore qualifies as a predicate offense under § 2252[A](b)(1).” Id. (quoting United
States v. Stults, 575 F.3d 834, 846 (8th Cir. 2009) (addressing § 2252(b)(2))). The Fifth and
Eighth Circuits have reached the same conclusion. See Stults, 575 F.3d at 846; United States v.
Hubbard, 480 F.3d 341, 347 (5th Cir. 2007) (addressing § 2252A(b)(1)). And we have
recognized that the phrase “relating to” as used in § 2252(b)(2) requires only that the state statute
“be associated with sexual abuse.” Mateen, 806 F.3d at 861. In light of this persuasive
precedent, which is premised upon the Supreme Court’s definition of the phrase “relating to,”
No. 20-3154 United States v. Nelson Page 4
Morales, 504 U.S. at 383, we conclude that the district court properly applied the enhancement
based upon Nelson’s prior Ohio offense for attempted rape of a minor.
Accordingly, we AFFIRM the district court’s judgment.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk