United States v. Bennett
2016 U.S. App. LEXIS 9643
| 10th Cir. | 2016Background
- Clifton Bennett pleaded guilty to knowingly possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B); federal agents found thousands of images involving boys of various ages.
- Bennett had a 1997 Colorado misdemeanor conviction for sexual exploitation of a child (possession or control of "sexually exploitative material").
- At sentencing the district court did not treat the Colorado conviction as a predicate triggering the § 2252A(b)(2) ten-year mandatory minimum and sentenced Bennett to 57 months imprisonment plus supervised release.
- The district court imposed a supervised-release condition allowing sex-offender evaluation and, if necessary, penile plethysmograph testing; Bennett objected to that condition.
- The government appealed the failure to apply the ten-year mandatory minimum; Bennett cross-appealed the plethysmograph testing condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bennett's 1997 Colorado conviction "relates to" child pornography so as to trigger the 10-year mandatory minimum under 18 U.S.C. § 2252A(b)(2) | Gov't: Colorado sexual-exploitation statute relates to possession/production/etc. of child pornography and thus qualifies as a predicate for the mandatory minimum | Bennett: Categorical approach (and McCutchen) precludes using factual record of the prior plea; Mellouli undermines a broad "relating to" reading so state statutes must match federal child-pornography definition | Court: Starts with categorical approach and finds Colorado statute categorically "relates to" federal child-pornography offenses; remands to impose the 10-year mandatory minimum |
| Whether the plea-court’s approval of plethysmograph testing as a supervised-release condition is reviewable now and constitutional | Bennett: Testing is invasive; district court made insufficient particularized findings to authorize testing for him | Gov't: Condition is part of final sentence and appealable now (Mike) | Court: Challenge is prudentially unripe because testing is speculative (treatment provider evaluation, availability, timing); cross-appeal dismissed without prejudice |
Key Cases Cited
- McCutchen v. United States, 419 F.3d 1122 (10th Cir.) (describing limits of the categorical approach but rejecting requirement to focus exclusively on statutory elements)
- Shepard v. United States, 544 U.S. 13 (2005) (permitting certain court records to inform inquiry into prior convictions)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (discussing divisible statutes and the modified categorical approach)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (interpreting "relating to" in an immigration removal statute and limiting overbroad applications)
- Lockhart v. United States, 136 S. Ct. 958 (2016) (addressing § 2252 enhancements and state/federal parity issues)
- Becker v. United States, 625 F.3d 1309 (10th Cir.) (discussing the ordinary meaning of "relating to" in § 2252A contexts)
- Colson v. United States, 683 F.3d 507 (4th Cir.) (applying categorical approach to § 2252A predicate inquiries)
- Mike v. United States, 632 F.3d 686 (10th Cir.) (holding supervised-release terms are part of a final sentence and generally appealable)
- Lee v. United States, 502 F.3d 447 (6th Cir.) (dismissing immediate challenge to plethysmograph testing as unripe)