UNITED STATES оf America, Plaintiff-Appellee, v. Bailey Joe MILLS, Defendant-Appellant.
No. 15-4325
United States Court of Appeals, Fourth Circuit.
Argued: January 26, 2017. Decided: March 15, 2017.
850 F.3d 693
Accordingly, we conclude that Lara was not compelled to provide incriminating information, and that the circumstances surrounding his statements made in the intake interview did not create a penalty situation in which the Fifth Amendment privilege was self-executing.4 Therefore, we hold that the district court did not еrr in considering at the sentencing hearing the incriminating statements Lara made while participating in the treatment program.
IV.
For these reasons, we affirm the district court‘s judgment.
AFFIRMED.
Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
Bailey Joe Mills (“Appellant“) pled guilty to a one-count criminal information charging him with manufacturing child pornography in violation of
On appeal, Appellant argues for the first time that the district court erred in concluding that taking indecent liberties with children constitutes a state crime “relating to the sexual exploitation of children” pursuant to
I.
On January 5, 2014, police executed a search warrаnt on Appellant‘s home after an investigation revealed that he had been sexually abusing children. The search uncovered 125 videos and 924 still images produced by Appellant portraying the sexual exploitation of children. Appellant used at least ten different children to make the images. Appellant paid several of the children to have sex with him and other males. Appellant also possessed over 10,000 additional images of child pornography and over 100,000 images of child erotica and adult pornography. On August 12, 2014, Appellant pled guilty to a one-count criminal information charging him with manufacturing child pornography in violation of
Appellant‘s relevant criminal history inсluded two previous convictions for violating a North Carolina taking indecent liberties with children statute. In 1997, Appellant pled guilty to taking indecent liberties with a three-year old child to arouse himself sexually. And in 2000, Appellant pled guilty to taking indecent liberties with an 11 year old child to arouse himself. At sentencing, the district court determined that these convictiоns related to the “sexual exploitation of children” pursuant to
Appellant timely appealed. Because he failed to object to his sentencing enhancement, we review Appellant‘s argument for plain error. See United States v. Garcia-Lagunas, 835 F.3d 479, 492 (4th Cir. 2016). To show plain error, he must demonstrate that “there was an error, the error was plain, and the error affected [his] substantial rights.” United States v. Boykin, 669 F.3d 467, 470 (4th Cir. 2012). Appellant fails on all three counts.
II.
A.
Neither party disputes the application of the categorical approach to determine whether the prior conviction enhancement was proper, so we will assume that it applies. When employing the categorical approach, we “look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying
B.
Appellant pled guilty to violating
Appellant‘s sole point of contention on appeal is that the district court erred in interpreting “sexual exploitation.” According to Appellant, “sexual exploitation” of children should be narrowly interpreted to include only “offense[s] involving the manufacturing and marketing/advertising of child pornography.” Appellant‘s Br. 12. The government responds that the district court did not err, and “sexual exploitation” should be broadly interpreted to include any criminal sexual conduct with children.
Section 2251(e) does not provide a definition for “sexual exploitation.” When, as here, Congress has not provided a definition for a statutory term, we give the tеrm its ordinary, everyday meaning. See Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.“). Black‘s Law Dictionary defines “sexual exploitation” as “[t]he use of a person, esp. a child, in prostitution, pornography, or other sexually manipulаtive activity.” Black‘s Law Dictionary (10th ed. 2014). Similarly, Merriam-Webster defines “sexual” as “of, relating to, or involving sex,” and “exploitation” as “to use unfairly for one‘s own advantage.” Merriam-Webster‘s Dictionary (11th ed. 2005). Likewise, the New Oxford American Dictionary defines “sexual” as “relating to the instincts, physiological processes, and activities connected with рhysical attraction or intimate physical contact between individuals,” and “exploit” as “to use (a situation or person) in an unfair or selfish way.” The New Oxford American Dictionary (2d ed. 2005).
Against this backdrop, then, for the purposes of
Under North Carolina law, to convict someone of taking indecent liberties with children, the state must prove:
(1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 yeаrs of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.
State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578, 580 (1987). An “indecent liberty” is any “sexual conduct with a minor child.” State v. Elam, 302 N.C. 157, 273 S.E.2d 661, 665 (1981). Indecent liberty includes production of sexual images, touching, penetration, and “masturbation within a child‘s sight.” State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 682 (1987).
We concludе that any conviction for the North Carolina crime of taking indecent liberties with children at the very least “relat[es] to the sexual exploitation of children.”
C.
In an attеmpt to avoid this interpretation, Appellant engages in a series of interpretative missteps in an effort to support his preferred reading that “sexual exploitation” requires the production and sale of child pornography.
First, Appellant first divines a legislative intent to narrowly define “sexual exploitation,” even though no such intent is аpparent. There is no reason to assume Congress meant for “sexual exploitation of children” to be more narrow than the enumerated offenses identified for a person with a single prior conviction enhancement. Congress may have been more concerned with the potential recidivism for people with two prior convictions, and, therefore, created a broader category of convictions that trigger the enhancement. Perhaps Congress simply forgot to alter this part of the statute when it enacted the 2006 amendments, which replaced “sexual exploitation” as the predicate act for a single prior conviction enhancеment with the current list of possible convictions. Compare
Second, Appellant attempts to incorporate into
In a last ditch attempt to avoid the plain meaning of the statute, Appellant cites the canon of constitutional avoidance to argue that the court should limit the term “sexual exploitation” to “offenses that require direct physical contact between the defendant and victim.” Appellant‘s Br. 36. Besides requiring this court to adopt a different definition of “sexual exploitation” than one Appellant claimed Congress‘s intent and the structure of the criminal code required, this argument misuses the сanon of constitutional avoidance. “The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v. Martinez, 543 U.S. 371, 385, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (emphasis in original). Therefore, as a threshold requirement for the canon to apply, a party must show, using ordinary interpretive methods, that the term is ambiguous and capable of multiple definitions. See id. In contrast, textual analysis reveals only one meaning for “sexual exploitation” encompassing a wide range of conduct.1
For all of the foregoing rеasons, we hold the district court correctly concluded that Appellant‘s conviction for taking indecent liberties with children under North Carolina law related to the “sexual exploitation of children” for the purposes of the
D.
Even assuming the district court committed an error, however, it would not have been a “clear or obvious” error because the district court‘s decision was supported by the literal meaning of the term “sexual exploitation of children” and uncontradicted persuasive authority from other circuits. United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013).
In United States v. Smith, a defendant argued that sexual exploitation of children is limited to pornography. See 367 F.3d 748, 751 (8th Cir. 2004). The Eighth Circuit rejected this argument and held, “Although the term ‘sexual exploitation of children’ is not defined in the statute, the term unambiguously refers to any criminal
Similarly, the Third Circuit has concluded that sеxual exploitation includes production of visual depictions of minors, statutory rape, involuntary deviate sexual intercourse, and unlawful sexual contact with a child victim. See United States v. Pavulak, 700 F.3d 651, 674 (3d Cir. 2012). In that case, the defendant argued “sexual exploitation of children” was limited “to crimes involving visual depictions.” Id. The Third Circuit dismissed this argument finding the argument unfathomable under normal rules of statutory construction. See id.
E.
Finally, for this court to reverse on plain error review, the lower court must not only commit an error and the error be plain, but the error must have “affected Appellant‘s substantial rights.” United States v. Ramirez-Castillo, 748 F.3d 205, 215 (2014). An error affects substantial rights when it is prejudicial, meaning the error “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Per
In making its sentencing determination, the district court looked to Appellant‘s actions, the harm his actions caused, and the likelihood of recidivism and imposed a sentence commiserate with the purposes of punishment. Here, the case for a severe sentence was overwhelming. Appellant “engaged in the hands-on sexual assault and production of child pornography” with at least ten different children. J.A. 21.2 He “paid several of the children to engage in sexual acts with him and other adult male ‘customers.‘” Id. at 22. He abused the trust of “unsuspecting parents” who placed their childrеn in his care. Id. He produced a trove of child pornography and had received even more images “depict[ing] prepubescent children as young as infants engaged in sadistic and masochistic conduct with adult males, as well as bestiality.” Id. at 23. And he was twice previously convicted for sexually abusing children.
Given the egregious nature of his past аnd continuing offenses against children, even if Appellant had been sentenced based on a one prior offense enhancement, the district court would have likely imposed the same sentence. We therefore hold Appellant‘s sentence did not affect his substantial rights.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.