United States v. Richard Kraemer , 933 F.3d 675 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2454
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RICHARD KRAEMER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17‐cr‐00035‐PP‐1 — Pamela Pepper, Judge.
____________________
ARGUED MARCH 28, 2019 — DECIDED JULY 31, 2019
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Richard Kraemer pleaded guilty to
one count of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B). At sentencing, the district court de‐
termined that Mr. Kraemer’s prior Wisconsin convictions for
first‐degree and second‐degree sexual assault of a child con‐
stituted convictions “relating to … abusive sexual conduct
involving a minor” and therefore triggered a ten‐year, man‐
datory minimum sentence. 18 U.S.C. § 2252(b)(2). The dis‐
2 No. 18‐2454
trict court then imposed a sentence of 133 months’ impris‐
onment, followed by eight years of supervised release.1
Mr. Kraemer now challenges the district court’s determi‐
nation that he was subject to the mandatory minimum. As
we explain more fully in the following paragraphs, because
the applicable federal enhancement statute, 18 U.S.C.
§ 2252(b)(2), requires only that a prior state statute of convic‐
tion “relat[e] to,” rather than be fully equivalent to, “aggra‐
vated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward,” the district court did not err in
finding Mr. Kraemer was subject to the mandatory mini‐
mum.2
I
BACKGROUND
In 2017, law enforcement officers discovered a series of
downloads of child pornography from an IP (internet proto‐
col) address associated with Mr. Kraemer’s residence. FBI
agents then executed a search warrant for that residence and
found an external hard drive containing images of child
pornography. Mr. Kraemer later admitted that he possessed
child pornography on his desktop computer and on his ex‐
ternal hard drive, that he searched for child pornography
using specific search terms, and that his current collection of
child pornography totaled about 100,000 files.
A federal grand jury returned an indictment. It charged
Mr. Kraemer with five counts of distribution of child por‐
1 The district court had jurisdiction under 18 U.S.C. § 3231.
2 We have jurisdiction under 28 U.S.C. § 1291.
No. 18‐2454 3
nography, in violation of 18 U.S.C. § 2252(a)(2), and one
count of possession of child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B). He entered a conditional guilty plea to
one count of possession of child pornography, and the Gov‐
ernment agreed to dismiss the five remaining counts.
Mr. Kraemer reserved his right to appeal the sentencing
judge’s determination that his prior convictions for sexual
assault of a child under Wisconsin law subjected him to a
mandatory minimum sentence under the penal‐
ty‐enhancement provision of the federal statute, 18 U.S.C.
§ 2252(b)(2). That provision provides that if a person con‐
victed of possession of child pornography “has a prior con‐
viction … under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct in‐
volving a minor or ward, … such person shall
be … imprisoned for not less than 10 years nor more than 20
years.” 18 U.S.C. § 2252(b)(2).
This enhancement provision came into play because, in
1995, a Wisconsin court had convicted Mr. Kraemer of one
count of first‐degree sexual assault of a child and one count
of second‐degree sexual assault of a child. Wisconsin defined
first‐degree sexual assault of a child as “sexual contact or
sexual intercourse with a person who has not attained the
age of 13 years.” Wis. Stat. § 948.02(1) (1995). Wisconsin de‐
fined second‐degree sexual assault of a child as “sexual con‐
tact or sexual intercourse with a person who has not attained
the age of 16 years.” Wis. Stat. § 948.02(2) (1995). These con‐
victions stemmed from an incident that occurred during
Mr. Kraemer’s incarceration for an unrelated conviction. His
then twelve‐year‐old sister had visited him at the Oshkosh
Correctional Institution. During her visit, on two occasions,
4 No. 18‐2454
Mr. Kraemer intentionally had touched her breasts, over her
clothes.
The presentence report prepared by the probation office
advised the court that Mr. Kraemer’s Wisconsin convictions
qualified as predicates for the mandatory minimum under
18 U.S.C. § 2252(b)(2). Mr. Kraemer objected to that recom‐
mendation. At sentencing, the district court nevertheless
agreed with the presentence report that Mr. Kraemer was
subject to the mandatory minimum. Relying on our decision
in United States v. Osborne, 551 F.3d 718 (7th Cir. 2009), the
district court concluded that “sexual behavior is abu‐
sive … only if it is similar to one of the crimes denominated
as a form of abuse elsewhere in Title 18,” specifically, the of‐
fenses listed in Chapter 109A.3 The court further understood
our precedent to require that a district court must employ a
categorical approach to evaluate whether a prior conviction
is a predicate for the mandatory minimum. Accordingly, the
district court proceeded to compare Mr. Kraemer’s Wiscon‐
sin conviction for first‐degree sexual assault of a child to the
four offenses enumerated in Chapter 109A: 18 U.S.C.
§§ 2241, 2242, 2243, and 2244.
First, the court determined that there was no match be‐
tween Wisconsin Statutes § 948.02(1) and 18 U.S.C. § 2241(c);
the state statute “prohibit[ed] sexual contact or intercourse
with a person who is not yet 13 while the federal statute
prohibit[ed] a sex act with a person who has not yet reached
3 R.48 at 14.
No. 18‐2454 5
the age of 12.”4 The state statute therefore was broader than
the federal offense.
Second, the court determined that there was no match
between Wisconsin Statutes § 948.02(1) and 18 U.S.C.
§ 2243(a). The federal statute required that the perpetrator be
at least four years older than a victim who has attained the
age of twelve but not the age of sixteen. Because the state
statute required no difference in age between the perpetrator
and his victim, the federal prohibition was narrower than
the state offense.
Third, the court determined that there was no match be‐
tween Wisconsin Statutes § 948.02(1) and 18 U.S.C. § 2244(c),
which prohibits sexual contact with a person under the age
of twelve, because the state statute reached more victims
than the federal offense.5
Finally, the district court turned to 18 U.S.C. § 2242(2),
which prohibits knowingly “engag[ing] in a sexual act with
another person if that other person is … incapable of ap‐
praising the nature of the conduct.” The court observed that
this provision “is a very broad statute,” which “covers any‐
body regardless of age who is incapable of appraising the
4 Id. at 16.
5 At sentencing, the district court referenced 18 U.S.C. § 2244(c). See id. at
17. However, context makes clear that the court meant to reference 18
U.S.C. § 2244(a). Section 2244(a) prohibits knowingly engaging in or
causing sexual contact with or by another person. By contrast, § 2244(c)
sets forth a penalty enhancement for certain violations of § 2244(a) that
involve victims who have not attained the age of 12 years.
6 No. 18‐2454
nature of the sexual conduct or the sexual act.”6 According
to the court, its coverage “includes, presumably, one who is
too young to comprehend the nature of the act in which
they’re engaged.”7 Therefore, the court concluded, there was
a categorical match between this provision and the Wiscon‐
sin conviction for first‐degree sexual assault of a child. The
court also found a categorical match between the same pro‐
vision and Mr. Kraemer’s conviction for second‐degree sex‐
ual assault of a child under Wisconsin Statutes § 948.02(2). It
reasoned that the federal offense “is far broader than that
statute of conviction because [§] 2242(2) covers full catego‐
ries of people [], including underage people[,] who are not
capable [of] ever comprehending or can’t comprehend the
nature of their behavior.”8
The district court then calculated a guidelines range of 97
to 121 months’ imprisonment, noting that the ten‐year man‐
datory minimum subjected Mr. Kraemer to a sentence of at
least 120 months. The Government and counsel for Mr. Kra‐
emer jointly recommended a sentence of 120 months. The
court imposed, however, an above‐guidelines sentence of
133 months’ imprisonment, followed by an eight‐year term
of supervised release. After the court entered judgment,
Mr. Kraemer timely appealed his sentence.
6 R.48 at 17.
7 Id.
8 Id. at 18.
No. 18‐2454 7
II
DISCUSSION
Mr. Kraemer contends that the district court erred in de‐
termining that his Wisconsin convictions for sexual assault
of a child triggered the ten‐year mandatory minimum pre‐
scribed by 18 U.S.C. § 2252(b)(2). While agreeing that the
court correctly found his state convictions did not match cat‐
egorically 18 U.S.C. §§ 2241(c), 2243(a), or 2244(a), he main‐
tains that the court erred in finding a categorical match be‐
tween his Wisconsin convictions and 18 U.S.C. § 2242(2). In
his view, the state statutes sweep more broadly than the fed‐
eral offense. Specifically, he notes, Wisconsin does not re‐
quire the State to prove the victim was incapable of under‐
standing the nature of the sexual conduct or that the defend‐
ant was aware of his victim’s incapacity.
A.
We review de novo the question of law whether a state
conviction qualifies as a predicate for the mandatory mini‐
mum under § 2252(b)(2).9 We begin our analysis with the
text of the applicable sentencing enhancement scheme. A
possession of child pornography conviction makes a de‐
fendant subject to a mandatory minimum sentence of ten
years’ imprisonment if he “has a prior conviction under this
chapter, chapter 71, chapter 109A, or chapter 117, or under
section 920 of title 10,” “or under the laws of any State relat‐
9 See, e.g., United States v. Lockett, 782 F.3d 349, 352 (7th Cir. 2015)
(“Whether a prior conviction is a qualifying predicate under the ACCA
[Armed Career Criminal Act] is a question of law, subject to de novo re‐
view.”).
8 No. 18‐2454
ing to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward.” 18 U.S.C.
§ 2252(b)(2) (emphasis added).
In determining whether a defendant’s previous state
conviction triggers a federal enhancement statute, we usual‐
ly employ the “categorical” approach of Taylor v. United
States, 495 U.S. 575 (1990).10 Under this approach, we com‐
pare the elements of the defendant’s prior conviction with
the elements of the applicable federal offense. Taylor, 495
U.S. at 599. If the state statute of conviction has the same el‐
ements as the applicable federal offense, the prior conviction
can serve as a predicate. Id. Similarly, if the state statute de‐
fines the offense more narrowly than the comparable federal
statute, the prior conviction qualifies as a predicate “because
the conviction necessarily implies that the defendant has
been found guilty of all the elements” of the federal offense.
Id. By contrast, if the state statute sweeps more broadly than
the federal offense, then the prior conviction cannot serve as
a predicate for the mandatory minimum. Descamps v. United
States, 570 U.S. 254, 261 (2013).
Here, however, we face a different situation. As we rec‐
ognized in United States v. Osborne, 551 F.3d 718, 721 (7th Cir.
2009), Congress has provided us in 18 U.S.C. § 2252(b)(2) a
specific statutory direction on how to determine whether a
state conviction qualifies as a predicate offense for this par‐
ticular federal enhancement statute: The state statute of con‐
viction must relate to “aggravated sexual abuse, sexual
10See, e.g., United States v. Geasland, 694 F. App’x 422, 434 (7th Cir. 2017)
(unpublished).
No. 18‐2454 9
abuse, or abusive sexual conduct involving a minor or
ward.”
Our next task is to interpret this statutory command. The
Supreme Court has long instructed that we should read the
words “relating to” “expansively.” Lamar, Archer & Cofrin,
LLP v. Appling, 138 S. Ct. 1752, 1760 (2018). The Justices have
explained that “[t]he ordinary meaning of these words 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.’” Morales v. Trans World Airlines, Inc., 504
U.S. 374, 383 (1992) (quoting Black’s Law Dictionary 1158
(5th ed. 1979)). Thus, “Congress characteristically employs
the phrase to reach any subject that has ‘a connection with,
or reference to,’ the topics the statute enumerates.” Coventry
Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190, 1197 (2017)
(quoting Morales, 504 U.S. at 384). Our sister circuits likewise
have understood the words “relating to” to have a broaden‐
ing effect on the scope of the penalty enhancement. See, e.g.,
United States v. Bennett, 823 F.3d 1316, 1322 (10th Cir. 2016);
United States v. Sullivan, 797 F.3d 623, 638 (9th Cir. 2015);
United States v. Barker, 723 F.3d 315, 322–23 (2d Cir. 2013)
(per curiam); United States v. Colson, 683 F.3d 507, 511–12 (4th
Cir. 2012); United States v. Hubbard, 480 F.3d 341, 347 (5th Cir.
2007).
Understanding the congressional command of “relating
to” does not, however, solve all our difficulties in interpret‐
ing § 2252(b)(2). Chapter 110 contains no definition of the
terms “aggravated sexual abuse,” “sexual abuse,” or “abu‐
sive sexual conduct.” Nor has the Supreme Court provided
definitive direction as to their meaning. See Lockhart v. United
States, 136 S. Ct. 958, 965 (2016) (declining to take a position
10 No. 18‐2454
on the meaning of these terms). In addressing this defini‐
tional problem, our earlier case, Osborne, 551 F.3d at 720–21,
like the Supreme Court in Lockhart, found helpful guidance
in the similarity between the text of 18 U.S.C. § 2252(b)(2)
and the titles and structure of the federal criminal abuse
statutes set out in Chapter 109A of the federal criminal code.
See Lockhart, 136 S. Ct. at 964 & nn.1–2.11 Nevertheless, alt‐
11 Mr. Kraemer submits that in Lockhart v. United States, 136 S. Ct. 958(2016), the Supreme Court indicated that Congress intended the terms
“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct
involving a minor or ward” in 18 U.S.C. § 2252(b)(2) to correspond to the
federal offenses defined in Chapter 109A. In Lockhart, the Court deter‐
mined only that “the phrase ‘involving a minor or ward’ modifies only
the phrase that it immediately follows: ‘abusive sexual conduct,’” id. at
963, so that the penalty enhancement “applies to prior state convictions
for ‘sexual abuse’ and ‘aggravated sexual abuse,’ whether or not the
convictions involved a minor or ward,” id. at 968. The Court observed
that Chapter 109A locates the federal sexual abuse offenses “under head‐
ings that use language nearly identical to the language § 2252(b)(2) uses
to enumerate the three categories of state sexual‐abuse predicates.” Id. at
964. Though it could not “state with certainty that Congress used Chap‐
ter 109A as a template for the list of state predicates set out in
§ 2252(b)(2),” the Court could not “ignore the parallel.” Id. Thus, the
Court reasoned, “[i]f Congress had intended to limit each of the state
predicates to conduct ‘involving a minor or ward,’” it is doubtful Con‐
gress “would have followed … so closely the structure and language of
Chapter 109A.” Id. The Court expressly took “no position,” however, “on
the meaning of the terms ‘aggravated sexual abuse,’ ‘sexual abuse,’ and
‘abusive sexual conduct.’” Id. at 965. Further, the Court clarified that its
“construction of § 2252(b)(2)’s sexual‐abuse predicates [did] not rely on a
general assumption that Congress sought full parity between all of the
federal and state predicates in § 2252(b)(2).” Id. at 966. Rather, based on
“contextual cues,” the Court determined that because “Congress used
language similar to that in Chapter 109A” to list the state sexual‐abuse
predicates in § 2252(b)(2), the language in both instances “describes con‐
(continued … )
No. 18‐2454 11
hough the descriptions of sexual abuse set out in Chapter
109A provide a good definitional starting point in giving
substance to state provisions, the explicit command of Con‐
gress in the “relating to” language makes clear that absolute
congruence of state and federal offenses is not required.
The consistent drafting methodology of Congress is also
helpful. When Congress wants to reference only state law
congruent with federal law, it has said so clearly and specifi‐
cally.12 Therefore, if Congress had intended for § 2252(b)(2)
to apply only when a state conviction relates to “aggravated
sexual abuse, sexual abuse, or abusive sexual conduct in‐
volving a minor or ward” as defined in Chapter 109A of the
( … continued)
duct involving both adults and children.” Id. at 966–67. Consistent with
other courts of appeals to have considered this question, see, e.g., United
States v. Bennett, 823 F.3d 1316, 1324 n.11 (10th Cir. 2016); United States v.
Krebs, 830 F.3d 800, 802 (8th Cir. 2016); cf. United States v. Miller, 819 F.3d
1314, 1317 (11th Cir. 2016) (per curiam) (interpreting parallel provision in
18 U.S.C. § 2251(e)), we conclude Lockhart does not require full congru‐
ence between a prior state conviction and a Chapter 109A offense to im‐
plicate § 2252(b)(2).
12 See, e.g., 18 U.S.C. § 3559(e)(2)(B) (defining a “State sex offense” as an
“offense under State law” “consist[ing] of conduct that would be a Fed‐
eral sex offense”); 18 U.S.C. § 2426(b)(1) (defining a “prior sex offense
conviction” under state law as “an offense consisting of conduct that
would have been an offense” under chapter 117, chapter 109A, chapter
110, or 18 U.S.C. § 1591); 18 U.S.C. § 2241(c) (imposing a mandatory sen‐
tence of life imprisonment on a defendant previously convicted of “a
State offense that would have been an offense under either” 18 U.S.C.
§§ 2241(a) or (b) “had the offense occurred in a Federal prison”).
12 No. 18‐2454
federal code, it could have, and would have, said so.13 We
therefore cannot accept Mr. Kraemer’s argument that Con‐
gress must have intended to import into § 2252(b)(2) the spe‐
cific provisions of Chapter 109A. If it had wanted to require
that only state offenses that were congruent with the offens‐
es in Chapter 109A would trigger the mandatory minimum
requirement, it would have said so explicitly.14 Here, Con‐
gress did not say so; indeed, by employing the term “relat‐
ing to,” it gave a contrary direction.
Notably, our sister circuits have not interpreted
§ 2252(b)(2) to require complete congruence between a de‐
fendant’s state conviction and one of the Chapter 109A of‐
fenses for the mandatory minimum to apply. See, e.g., United
States v. Krebs, 830 F.3d 800, 802 (8th Cir. 2016); United States
v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015); Sullivan, 797 F.3d
at 640; Barker, 723 F.3d at 322–23; Hubbard, 480 F.3d at 348.
As we already have said, we are in full agreement with that
approach. True, our colleagues in the other circuits have not
looked to the specific provisions of Chapter 109A for assis‐
tance in fashioning a generic definition of a state offense. But
there is no disagreement between us on the fundamental
13 See, e.g., United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015)
(“[W]hen a sentence enhancement based on a state conviction requires
the state statute to mirror the federal one, the enhancement statute is ex‐
plicit.”).
14 See, e.g., United States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (ob‐
serving that Ҥ 2252A(b) treats federal offenses located in chapter
109A … as a separate category of predicate offenses, independent from
its treatment of state law convictions”); United States v. Hubbard, 480 F.3d
341, 348 (5th Cir. 2007) (reaching a similar conclusion).
No. 18‐2454 13
point that the “relating to” language of § 2252(b)(2) does not
require exact congruence with the provisions of Chapter
109A.
Mr. Kraemer nevertheless submits that the Supreme
Court’s decision in Mellouli v. Lynch, 135 S. Ct. 1980 (2015),
has limited, as a general matter, the reach of the words “re‐
lating to” in § 2252(b)(2). We cannot accept this argument.
As the Tenth Circuit has observed, Mellouli turned “not on
the definition of ‘relating to,’ but on the particular removal
statute’s surrounding text and history.” Bennett, 823 F.3d at
1322. Mellouli addressed whether a resident alien’s prior
conviction for a state drug paraphernalia misdemeanor was
within the scope of a federal removal provision. 135 S. Ct. at
1984. The Immigration and Nationality Act authorizes the
removal of an alien “convicted of a violation of … any law or
regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 802 of
title 21).” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). State
authorities had charged Mellouli with concealing pills in a
sock but did not identify the substance or allege it was one
defined on the federal schedules. Mellouli, 135 S. Ct. at 1985.
The Supreme Court held that the removal provision was sat‐
isfied only “when the elements that make up the state crime
of conviction relate to a federally controlled substance.” Id.
at 1990. The Court rejected the Government’s position that
would have authorized deportation “any time the state stat‐
ute of conviction bears some general relation to federally
controlled drugs.” Id. Recognizing that the words “relating
to” are “broad” and “indeterminate,” the Court nevertheless
cautioned that “those words, ‘extend[ed] to the furthest
stretch of [their] indeterminacy, … stop nowhere.’” Id. (al‐
terations in original) (quoting New York State Conference of
14 No. 18‐2454
Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.
645, 655 (1995)). It pointedly noted that, in certain situations,
context may “tug in favor of a narrower reading.” Id. (altera‐
tions omitted) (quoting Yates v. United States, 135 S. Ct. 1074,
1083 (2015)). Given the text and history of the removal pro‐
vision, the Court held that, to trigger removal under
§ 1227(a)(2)(B)(i), the Government had to “connect an ele‐
ment” of the prior conviction to a controlled substance as
defined in 21 U.S.C. § 802. Id. at 1991. Because, under the
categorical approach, Mellouli’s state conviction for posses‐
sion of drug paraphernalia did not relate to a controlled sub‐
stance (as defined in section 802 of title 21), his conviction
did not render him deportable. Id. at 1988.
Here, by contrast, neither the text nor the history of the
penalty enhancement in § 2252(b)(2) cabins our reading of
the words “relating to.” Unlike the removal provision in
Mellouli, § 2252(b)(2) contains no limiting parenthetical.
Compare 8 U.S.C. § 1227(a)(2)(B)(i) (triggering removal based
on prior conviction “relating to a controlled substance (as
defined in section 802 of title 21)”), with 18 U.S.C.
§ 2252(b)(2) (applying mandatory minimum based on prior
conviction “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or
ward”). Indeed, the terms “sexual abuse” and “abusive sex‐
ual conduct” are not qualified by reference to any federal
definition. The Court in Mellouli specifically noted that, ab‐
sent the limiting phrase “as defined in section 802,” the re‐
moval provision would apply to offenses beyond those in‐
volving drugs listed in § 802. 135 S. Ct. at 1988 n.9. Because
§ 2252(b)(2) lacks similar limiting language, “relating to” re‐
tains its usual broad meaning here.
No. 18‐2454 15
In addition, “the structure of the removal statute empha‐
sizes the need for complete overlap between state and feder‐
al predicate offenses in a way” that § 2252(b)(2) does not.
Bennett, 823 F.3d at 1323. The removal provision groups state
and federal convictions under one umbrella. See 8 U.S.C.
§ 1227(a)(2)(B)(i) (authorizing removal of an alien who has a
qualifying prior conviction under “any law or regulation of
a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of title 21)”).
Because federal law only covers federally defined controlled
substances, the meaning of “relating to” is necessarily lim‐
ited. By contrast, the mandatory minimum for child pornog‐
raphy before us today lists state and federal predicate of‐
fenses separately. See 18 U.S.C. § 2252(b)(2) (applying man‐
datory minimum to a person who “has a prior conviction
under this chapter, chapter 71, chapter 109A, or chapter 117,
or under section 920 of title 10,” “or under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward” (empha‐
sis added)). Thus, the structure of § 2252(b)(2) does not
compel a narrow reading of “relating to,” and we must ap‐
ply the general rule that this term ought to be given a broad
reading.
Finally, the very different historical backgrounds of the
statutes confirm that “relating to” retains its broad meaning
in § 2252(b)(2). In Mellouli, the Court explained that, when
Congress enacted the removal statute, it “specifically listed
covered offenses and covered substances.” 135 S. Ct. at 1987.
Congress amended the statute several times to include addi‐
tional covered substances, then ultimately replaced the list
with the cross‐reference to 21 U.S.C. § 802. Id. Under these
successive versions of the removal provision, the Board of
16 No. 18‐2454
Immigration Appeals (“BIA”) consistently inquired whether
the alien’s state conviction covered federally controlled sub‐
stances. Id. Thus, the Court observed, “Congress and the BIA
ha[d] long required a direct link between an alien’s crime of
conviction and a particular federally controlled drug.” Id. at
1990.
Here, by contrast, there is nothing comparable in the his‐
torical background of § 2252(b)(2) to suggest Congress in‐
tended to limit applicability of the mandatory minimum to a
state conviction with an absolute, “direct link” to a particu‐
lar federal abuse offense. See Mellouli, 135 S. Ct. at 1990. In‐
deed, the opposite is true. Congress added state convictions
relating to “aggravated sexual abuse, sexual abuse, or abu‐
sive sexual conduct involving a minor or ward” as qualify‐
ing predicates for a two‐year, mandatory minimum sentence
in the Protection of Children from Sexual Predators Act of
1998.15 At that time, Congress specifically took into consid‐
eration the high rate of recidivism among child sex offend‐
ers. See H.R. Rep. No. 105‐557, at 12 (1998) (noting law en‐
forcement testimony “about the nature of child sex offend‐
ers, how they seek out relationships with children and how
the recidivism rates for such offenders are 10 times higher
than other types of criminal offenders”).
Congress later raised the mandatory minimum sentence
from two years to ten years in the Prosecutorial Remedies
and Other Tools to End the Exploitation of Children Today
Act of 2003.16 The Senate Committee on the Judiciary ex‐
15 Pub. L. No. 105‐314, § 202(a)(2), 112 Stat. 2974, 2977 (1998).
16 Pub. L. No. 108‐21, § 103(b)(1)(D), 117 Stat. 650, 653 (2003).
No. 18‐2454 17
plained that the amendment “enhance[d] penalties for re‐
peat offenders of child sex offenses by expanding the predi‐
cate crimes that trigger tough, mandatory minimum sen‐
tences.” S. Rep. No. 108‐2, at 19 (2003). Further, the House
Conference Committee stressed that “[t]he increased manda‐
tory minimum sentences [were] responsive to real problems
of excessive leniency in sentencing under existing law.” H.R.
Rep. No. 108‐66, at 51 (2003) (Conf. Rep.). The House Con‐
ference Committee was particularly concerned that “courts
have been disposed to grant downward departures from the
guidelines for child pornography possession offenses under
chapter 110, based on the misconception that these crimes
are not serious.” Id. Thus, nowhere in the legislative history
did Congress indicate that it intended to limit the reach of
§ 2252(b)(2). Indeed, this history is consonant with broad
applicability of a mandatory minimum to address high re‐
cidivism rates among child sex offenders and to underline
the serious nature of crimes against children.
B.
Having explored the principles set forth in the earlier
discussion, we now turn to the particulars of Mr. Kraemer’s
sentence. Mr. Kraemer’s conviction for first‐degree sexual
assault of a child violated a Wisconsin statute that prohibit‐
ed “sexual contact or sexual intercourse with a person who
has not attained the age of 13 years.” Wis. Stat. § 948.02(1)
(1995). The conduct prohibited by the Wisconsin provision
certainly falls well within the heartland of “abusive sexual
conduct involving a minor.” 18 U.S.C. § 2252(b)(2). Moreo‐
18 No. 18‐2454
ver, the conduct punished by the Wisconsin statute is clearly
within the prohibitions set forth in Chapter 109A.17
Mr. Kraemer submits that there is no match because Wis‐
consin criminalizes conduct involving victims under age
thirteen, while 18 U.S.C. § 2244(a)(5), by reference to 18
U.S.C. § 2241(c), reaches victims only under age twelve. We
cannot accept this view. Mr. Kraemer’s Wisconsin conviction
for first‐degree sexual assault is one “relating to” abusive
sexual conduct involving a minor despite a slight difference
in the maximum age of the victim under state and federal
law. Our conclusion is supported by other decisions finding
inconsequential a state’s failure to exactly match the vic‐
tim‐age requirements of the federal statutes. See, e.g., United
States v. Grimes, 888 F.3d 1012, 1016–17 (8th Cir. 2018) (con‐
cluding New York statute criminalizing deviate sexual inter‐
course by a person age eighteen or over with a person under
age fourteen related to “abusive sexual conduct involving a
minor,” despite lack of specific‐intent requirement concern‐
ing victim’s age); Barker, 723 F.3d at 324 (holding defendant’s
conviction under Vermont’s statutory rape provision related
to “abusive sexual conduct involving a minor,” despite lack
17 Notably, the conduct is clearly within the scope of the provisions con‐
tained in Chapter 109A. Section 2244(a) of Title 18 punishes one who
“knowingly engages in or causes sexual contact with or by another per‐
son” if the action would violate “subsection (c) of section 2241 of this title
had the sexual contact been a sexual act.” 18 U.S.C. § 2244(a)(5). Section
2241(c), in turn, prohibits, among other conduct, “knowingly engag[ing]
in a sexual act with another person who has not attained the age of 12
years.” 18 U.S.C. § 2241(c). Thus, the state and federal statutes reach the
same category of offense conduct.
No. 18‐2454 19
of age differential or other “aggravating factor” identified in
federal statutes).18
When Congress strengthened the penalties for child sex
offenders, it was particularly concerned with the young age
of their victims. See, e.g., H.R. Rep. No. 105‐557, at 12 (de‐
scribing law enforcement testimony to the effect that
“[n]early two‐thirds of prisoners serving time for rape and
sexual assault victimized children” and “[a]lmost one‐third
of these victims were less than 11‐years‐old”). At the same
time, Congress recognized there would be diversity among
the several states in defining their sexual misconduct laws.
See, e.g., Barker, 723 F.3d at 324 (concluding “it ma[de] no dif‐
ference that federal law would not consider as
non‐consensual the same sexual acts covered by [state] law”
because “Congress recognized variation in the diverse state
sexual misconduct laws” and “it left for states to define the
relevant boundary between consensual and non‐consensual
sexual activity” (emphases in original)).19 States, in turn,
vary in their estimation of the proper age of consent. Thus,
requiring an exact match between a state’s definition of sex‐
ual abuse of a child and one of the federal offenses would
thwart needlessly Congress’s purpose of protecting young
children from sexual predators by imposing heightened sen‐
tences for repeat offenders. See, e.g., H.R. Rep. No. 105‐557, at
18 See also Geasland, 694 F. App’x at 440 (holding sentencing court did not
plainly err in finding defendant’s Wisconsin conviction for first‐degree
sexual assault of a child triggered mandatory minimum under
§ 2252(b)(2), even though state offense extended to twelve‐year‐old vic‐
tims but federal offense did not).
19 See also id. at 438 (similar).
20 No. 18‐2454
12 (describing the Child Protection and Sexual Predator Pun‐
ishment Act of 1998 as “a response to requests of victim par‐
ents and law enforcement to address public safety issues in‐
volving the most vulnerable members of our society, our
children”).20
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
20 Because we hold that Mr. Kraemer’s Wisconsin conviction for
first‐degree sexual assault of a child, standing alone, triggered the man‐
datory minimum under § 2252(b)(2), we do not reach the question
whether his Wisconsin conviction for second‐degree sexual assault of a
child is also one “relating to … abusive sexual conduct involving a mi‐
nor.”