United States v. Joshua Box ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1366
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Joshua Glen Box,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: February 10, 2020
Filed: June 2, 2020
[Published]
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Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
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PER CURIAM.
Joshua Box pleaded guilty to receipt of child pornography, see 18 U.S.C.
§ 2252A(a)(2)(A), (b)(1), and possession of child pornography, see id.
§ 2252A(a)(5)(B), (b)(2). At sentencing, the district court1 considered whether Box
was subject to a statutory minimum penalty under 18 U.S.C. § 2252A(b)(1). That
provision applies to an offender who violates the federal laws on child pornography and
has a prior conviction “under the laws of any State relating to . . . the . . .
possession . . . of child pornography.” The court concluded that Box’s five prior
Arkansas convictions for possession of child pornography, in violation of Ark. Code
Ann. § 5-27-602, qualified as prior convictions under § 2252A(b)(1). Accordingly, the
court imposed the statutory minimum term of fifteen years’ imprisonment.
Box argues on appeal that his Arkansas convictions do not qualify as prior
convictions for purposes of the federal penalty statute. The Arkansas statute of
conviction prohibits the knowing possession of material that depicts a “child engaging
in sexually explicit conduct,” where “sexually explicit conduct” includes “[l]ewd
exhibition of the: (i) Genitals or pubic area of any person; or (ii) Breast of a female.”
Ark. Code. Ann. §§ 5-27-602, 5-27-601(15)(F). Box asserts that the district court
erred in determining that his Arkansas convictions qualified as prior convictions,
because the state statute “punished more conduct than its federal counterpart.” Under
federal law, child pornography does not include lascivious exhibition of the female
breast. 18 U.S.C. §§ 2256(8)(A), (2)(A)(v).
Box concedes, however, that his contention is foreclosed by this court’s decision
in United States v. Mayokok, 854 F.3d 987 (8th Cir. 2017), and he seeks only to
preserve the argument for further review. Mayokok considered a minimum sentence
under an analogous penalty statute, 18 U.S.C. § 2252(b)(1). That provision states that
a person who violates § 2252(a)(2) is subject to a minimum penalty if he “has a prior
conviction . . . under the laws of any State relating to . . . the . . . possession . . . of
child pornography.”
1
The Honorable Timothy L. Brooks, United States District Judge for the Western
District of Arkansas.
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Although the Minnesota criminal statute at issue in Mayokok encompassed the
possession of material that depicted a minor engaged in conduct that involved physical
contact with the unclothed breast of a female, this court concluded that a prior state
conviction “relate[d] to the possession . . . of child pornography” under the federal
statute. Mayokok, 854 F.3d at 993 (internal quotation omitted). The court reasoned
that although “one can conjure scenarios that violate one statute but not the other,” the
question “is not whether the statutes criminalize exactly the same conduct, but whether
the full range of conduct proscribed under [the state statute] relates to the
‘possession . . . of child pornography’ as that term is defined under federal law.” Id.
at 992-93. Following United States v. Bennett, 823 F.3d 1316, 1325 (10th Cir. 2016),
Mayokok held that because “‘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 or connection with,” the Minnesota statute of conviction related to the
possession of child pornography under federal law. 854 F.3d at 993 (internal quotation
omitted).
There is no material distinction between the penalty statute at issue here,
§ 2252A(b)(1), and the statute at issue in Mayokok, § 2252(b)(1): both refer to a prior
conviction “under the laws of any State relating to . . . the . . . possession . . . of child
pornography.” In light of Mayokok, therefore, the district court properly determined
that Box’s convictions under the Arkansas child pornography statute qualified as prior
convictions that triggered the statutory minimum sentence under § 2252A(b)(1). See
also United States v. Colson, 683 F.3d 507, 511 & n.2 (4th Cir. 2012) (holding that
conviction under state statute that extended to lewd exhibitions of buttocks and female
breasts qualified as prior conviction under § 2252A(b)(1)); but see United States v.
Reinhart, 893 F.3d 606, 615 & n.4 (9th Cir. 2018) (applying 18 U.S.C. § 2252(b)(2)).
The judgment of the district court is affirmed.
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