984 F.3d 1359
11th Cir.2021Background
- 2019 HSI/RCMP "Kik Leads" investigation identified a Kik user and a Gmail account tied to Jason Kushmaul, a prior Florida convict for promoting sexual performance of a child.
- Officers located Kushmaul at his RV, obtained his phone, discovered unregistered accounts, and questioned him; he later admitted viewing and distributing child pornography.
- At the sheriff’s office Kushmaul consented to a phone download that revealed 20 images of child sexual-abuse material.
- A federal grand jury indicted Kushmaul on distribution and possession of child pornography (18 U.S.C. § 2252A).
- At sentencing the Government sought—and the district court imposed—the 180-month mandatory minimum for distribution based on enhanced sentences in 18 U.S.C. §§ 2252A(b)(1) and (b)(2), because of Kushmaul’s Florida conviction under Fla. Stat. § 827.071(3).
- On appeal Kushmaul argued the Florida offense is broader than the federal predicate (e.g., criminalizing images of clothed touching) and thus cannot trigger the federal enhancement; he did not object below, so review is for plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review | Kushmaul contends enhancement was erroneous despite failing to object; urges relief. | Government: plain-error review applies because no timely objection. | Court applied plain-error review and found appellant did not meet the heavy burden. |
| Predicate-qualification under §§ 2252A(b)(1),(b)(2) | Fla. Stat. § 827.071(3) is broader than the federal predicates (covers clothed touching), so it cannot "relate to" abusive sexual conduct to trigger enhancement. | "Relating to" and "abusive sexual conduct" are broadly read in this Circuit; Fla. § 827.071(3) falls within that scope. | Court held the Florida conviction qualifies as a predicate; enhancement was proper. |
| Meaning of "abusive sexual conduct" and "sexual" | The federal predicates require images of unclothed minors; clothed touching is outside federal scope. | "Sexual" covers behavior associated with sexual gratification (clothed or unclothed); "conduct" is broader than "contact." | Court held the generic terms do not require unclothed or physical contact; Florida statute’s least conduct still relates to the generic offense. |
| Use of categorical approach | The least culpable conduct under Fla. § 827.071(3) (e.g., image of clothed touching) shows mismatch with federal predicates. | Under the categorical approach, the generic offenses are defined broadly by ordinary meaning and precedent supports qualification. | Applying the categorical approach and Circuit precedent, the court concluded the Florida offense can qualify and found no plain error. |
Key Cases Cited
- United States v. Miller, 819 F.3d 1314 (11th Cir. 2016) (interpreting “relating to” broadly in child-exploitation context)
- United States v. Vereen, 920 F.3d 1300 (11th Cir. 2019) (plain-error review for unpreserved sentencing issues)
- United States v. Hesser, 800 F.3d 1310 (11th Cir. 2015) (plain-error standard requires error be clear and obvious)
- United States v. Castro, 455 F.3d 1249 (11th Cir. 2006) (no plain error absent controlling precedent or clear statutory text)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach methodology)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational categorical-approach precedent)
- United States v. McGarity, 669 F.3d 1218 (11th Cir. 2012) (broad construction of “relating to” and “abusive sexual conduct”)
- United States v. Johnson, 451 F.3d 1239 (11th Cir. 2006) (conviction for lewd act in front of a minor qualifies as abusive sexual conduct)
- McNeill v. United States, 563 U.S. 816 (2011) (compare state-law version of statute actually violated when applying categorical approach)