UNITED STATES of America, Plaintiff-Appellant, v. Christopher J. MATEEN, Defendant-Appellee.
No. 12-4481.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Jan. 7, 2014.
739 F.3d 300
Argued: Oct. 11, 2013.
In this case, the jury could have, and likely did, premise its verdict of not guilty of felonious assault on the lack of testimony that Christian shot at pursuing officers. Thus, the jury likely found that Christian did not himself attempt to cause harm to the police officers by means of a deadly weapon. See
III. CONCLUSION
Under a Blockburger analysis, we hold that felonious assault and complicity to felonious assault are not the same offense under Ohio law. Furthermore, the jury‘s verdict of not guilty in Christian‘s first trial on felonious assault did not necessarily determine any ultimate issue necessary to proving that he is guilty of complicity to felonious assault. Consequently, Christian‘s upcoming prosecution on the charge of complicity to felonious assault, on which the first jury hung, does not subject him to double jeopardy. We AFFIRM the district court‘s denial of the
Before: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.*
OPINION
KAREN NELSON MOORE, Circuit Judge.
Individuals convicted of possessing child pornography are subject to a sentencing enhancement if they have also been convicted of certain predicate state or federal offenses. In this appeal, we consider whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under
Mateen pleaded guilty to possession of child pornography in interstate commerce and was sentenced to a ten-year statutory maximum term of imprisonment. When calculating Mateen‘s sentence, the district court concluded that the statutory enhancement for recidivist sexual offenders did not apply to Mateen because his prior conviction for Gross Sexual Imposition did not necessarily involve a minor or ward. The government argues that the district court misconstrued the statute, and that state offenses that do not involve a minor or ward may qualify as predicate offenses for purposes of triggering the sentencing enhancement. We disagree.
Therefore, we AFFIRM the district court‘s judgment concluding that Mateen‘s prior conviction was insufficient to trigger the sentencing enhancement.
I. BACKGROUND
After police discovered over 600 images of child pornography on his computer, Christopher Mateen pleaded guilty to possession of child pornography in violation of
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
- The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
- For the purpose of preventing resistance, the offender substantially impairs the judgment or control of the person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.
- The offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person‘s consent for the purpose of any kind of medical or dental examination, treatment, or surgery.
- The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
- The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or
because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age. (B) No person shall knowingly touch the genitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touching is done with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
The government sought to apply a statutory sentencing enhancement on the basis of Mateen‘s prior state conviction for Gross Sexual Imposition. R. 12 (Plea Agreement ¶ 2) (Page ID # 18-19). For first-time offenders, violation of
The district court determined that the enhancement did not apply and sentenced Mateen to 120 months of imprisonment pursuant to the statutory maximum. R. 39 (Tr. of Sentencing H‘rg at 21-22) (Page ID # 154-55). When it construed the statute, the district court concluded that the phrase “involving a minor or ward” modifies all three types of listed conduct: aggravated sexual abuse, sexual abuse, and abusive sexual conduct. R. 36 (D. Ct. Op. at 6) (Page ID # 117). The district court acknowledged the government‘s argument that the disjunctive “or” indicates that a prior conviction need not involve a minor if it relates to aggravated sexual abuse or sexual abuse. Id. at 5 (Page ID # 116). However, the district court reasoned that the rule of the last antecedent “is not an absolute and can assuredly be overcome by other indicia of meaning.” Id. (quoting Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)). The court noted that the title and chapter in which
The district court then used the modified categorical approach articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to determine that Mateen‘s prior conviction did
II. STATUTORY CONSTRUCTION
The government argues that the district court erroneously construed the sentencing enhancement provision of
Although we find the statutory construction embraced by our sister circuits at least plausible, this Circuit has already considered the proper construction of the statutory language at issue, and we have held that the phrase “involving a minor or ward” modifies aggravated sexual abuse, sexual abuse, and abusive sexual conduct. United States v. Gardner, 649 F.3d 437 (6th Cir.2011). The prior panel‘s statutory interpretation is a binding holding because it was essential to its decision. See Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 649 (6th Cir.2013).
In Gardner, the panel considered whether a defendant‘s prior conviction for sexual battery under Virginia law triggered the application of a sentencing enhancement under
Although the panel did not discuss statutory construction at length, its interpretation of the statute was essential to its decision. The panel clearly found that Gardner‘s prior conviction related to sexual abuse because “an element of sexual battery — for which Gardner was convicted — is that the accused sexually abuses the complaining witness.” Id. at 443 (internal quotation marks omitted). It would have had no reason to reject the sentencing enhancement unless it had concluded that “involving a minor or ward” modifies “sexual abuse.” Therefore, we cannot adopt the government‘s interpretation to the contrary.
Even if we did find the arguments advanced by the government convincing, we are nonetheless bound by the statutory construction adopted in Gardner. See Sykes v. Anderson, 625 F.3d 294, 319 (6th Cir.2010) (“This panel is without authority to overrule binding precedent, because a published prior panel decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.“). This panel cannot reject the Gardner panel‘s decision merely because we believe the issue was not well-considered:
We are not free to pick and choose the portions of a prior published decision that we will follow and those that we will disregard. Nor do we enjoy greater latitude in situations where our precedents purportedly are tainted by analytical flaws.... Rather, we are bound by the published opinions of previous panels, and this rule encompasses all parts of a prior ruling that are properly construed as holdings rather than dicta.
Grundy Mining Co. v. Flynn, 353 F.3d 467, 479 (6th Cir.2003). Indeed, “concerns about maintaining settled law are strong when the question is one of statutory interpretation.” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (concluding that the interests underlying stare decisis were not as strong when interpreting the Sherman Act because the Supreme Court treats it as a “common-law statute“).
Nor is it relevant that the parties never briefed the proper construction of the sentencing enhancement provision before this panel or the district court below. “[Q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir.2006) (internal quotation marks omitted) (concluding that a prior court “definitively answered the question presented” because it interpreted the Prison Litigation Reform Act as requiring total exhaustion of administrative remedies, and the interpretation was necessary to its decision to dismiss a prisoner‘s complaint that alleged both exhausted and unexhausted claims). However, a court‘s disposition of an issue is not dicta merely because the parties failed to raise
In Wynn, the government argued that a prior case, Bartee, addressed whether a presentence report (“PSR“) could be used as a Shepard document only in dicta because in the prior case the parties never argued that the PSR was an appropriate document to consider. The Court reasoned:
Any failure of the government to raise a Shepard argument in [United States v.] Bartee [529 F.3d 357 (6th Cir.2008)] does not render Bartee‘s PSR analysis dicta.... In Bartee, in order to convince the district court to treat the defendant‘s prior conviction as a crime of violence, the government urged the district court to use common sense to infer that since the defendant had sexual contact with Angela while soliciting a minor, Angela must have been that minor and, therefore, the sexual contact must have been with a minor. As the panel noted, this inference could only have been drawn by considering the underlying facts of conviction contained in the PSR. If it were appropriate for the district court to look at the PSR and draw the necessary inference, then the Bartee panel would have had no reason to vacate the sentence. However, reliance on the PSR by the district court would be appropriate only if the PSR were a Shepard document. Thus, a necessary precursor to the panel‘s decision to vacate the defendant‘s sentence in Bartee was its determination that a PSR is not a Shepard document, regardless of whether the government specifically made a Shepard argument.
Id. (internal quotation marks and citations omitted). Likewise, as discussed above, the Gardner panel‘s statutory construction is essential to its decision and binding on this panel. Thus, it is immaterial whether the parties before the Gardner court raised the issue, or whether the panel itself explained its analysis, because the panel‘s statutory interpretation was a “necessary precursor” to its decision. See Wynn, 579 F.3d at 577. We must construe the sentencing enhancement provision as requiring that all three listed state crimes involve a minor or ward.
III. MODIFIED CATEGORICAL APPROACH
Having settled the proper construction of the sentencing enhancement provision at issue, we next determine whether Mateen‘s Gross Sexual Imposition conviction qualifies as a predicate offense. This court uses the modified categorical framework articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to assess whether a prior state conviction triggers a sentencing enhancement provision2:
First, a sentencing court may look only to the statutory definition of the prior offense, and not to the particular facts underlying that conviction, to determine whether a prior conviction qualifies for a federal sentencing enhancement. If the statutory definition embraces both qualifying and non-qualifying crimes or is otherwise ambiguous, the court, second, may look to the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant
United States v. Ferguson, 681 F.3d 826, 832 (6th Cir.2012) (internal quotation marks and alterations omitted). Under this inquiry, the factual basis for the conviction is relevant only insofar as it assists the court in identifying which alternative elements of the statute were violated: “The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach‘s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach‘s basic method: comparing those elements with the generic offense‘s.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013).
The district court correctly applied the Taylor-Shepard framework to conclude that Mateen‘s fourth-degree felony conviction for Gross Sexual Imposition did not qualify as a state offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
We may not consider factual material contained in the charging documents that does not directly assist us in determining to which elements of a charge the defendant pleaded guilty. Gardner, 649 F.3d at 444; United States v. Armstead, 467 F.3d 943, 949 (6th Cir.2006) (“[We] limit our examination of the original indictments to the elements of the charges that are essential to defendant‘s plea of guilty.“); United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir.1995). The Supreme Court has repeatedly emphasized the narrow purpose of the factual review permitted under the modified categorical approach: “It [is] not to determine what the defendant and state judge must have understood as the factual basis of the prior plea, but only to assess whether the plea [is] to the version of the crime ... corresponding to the generic offense.” Descamps, 133 S.Ct. at 2284 (internal quotation marks omitted); see also United States v. Soto-Sanchez, 623 F.3d 317, 320 (6th Cir.2010) (reasoning that supplemental records may be used “only to determine which crime within a statute the defendant committed, not how he committed the crime“) (internal quotation marks omitted). Therefore, to the extent that the transcript of the state-court plea colloquy contains factual material identifying the victim of Mateen‘s prior conviction as an eight-year-old girl, the district court correctly disregarded that information because it was not essential to Mateen‘s guilty plea to fourth-degree felony Gross Sexual Imposition or an element of the offense. See Gardner, 649 F.3d at 444 (disregarding references to the victim‘s age during its analysis of whether the charging documents established that “Gardner‘s prior conviction necessarily re-
Thus, the district court correctly determined that Mateen‘s prior state conviction did not qualify as a predicate offense, and that the sentencing enhancement provision did not apply to Mateen.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Mateen‘s sentence.
McKEAGUE, Circuit Judge, dissenting.
Whether “involving a minor” modifies all three terms in
To be clear, I am not disregarding the Gardner court‘s decision because the issue of whether “involving a minor” modifies the other statutory terms was not well-considered, but rather because the issue was not considered or decided at all. If it had been, surely the Gardner court would have made some reference, any reference, however fleeting, to statutory construction or to its rationale for applying “involving a minor” to all of the terms. The opinion is devoid of any discussion. If the court intended to decide the issue, it surely would have explained, even passingly, why it reached an interpretation at odds with every other circuit to have considered the issue. See, e.g., United States v. Spence, 661 F.3d 194, 197 (4th Cir.2011) (reviewing the same terms found in
Everything points to one conclusion: as the issue was not contested, the Gardner court simply did not consider the issue directly and it assumed that “involving a minor” modified the term “sexual abuse.” As the majority correctly notes, “[Q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir.2006). This is precisely why both parties at oral argument acknowledged that Gardner had not addressed whether “involving a minor” modified the other terms and therefore was not controlling. Construing an unconsidered assumption, neither briefed nor argued by the parties, as the essential and binding holding of a case makes bad law. The plain language and structure of the statute, the grammatical rule of the last antecedent, and the parallel structure between the state and federal offenses strongly indicate that “involving a minor” only modifies “sexual conduct.” When re-
I am sensitive to the need to respect prior precedent and stare decisis, and I acknowledge the present case tests the murky boundaries between dictum and holding as well as the effect given to a judicial assumption. But it should be recalled that stare decisis means “to stand by things decided.” Black‘s Law Dictionary (9th ed.2009) (emphasis added). The unaddressed issues in the present case were not actually decided or implicitly held. This is not an instance where a court extensively discussed two out of three prongs of a test and then determined in a conclusory fashion that the test was satisfied, leaving subsequent courts to conclude that the third prong was also satisfied. As there is no indication, apart from the majority‘s unsupported inferential leap, that the Gardner court addressed and decided that “involving a minor” modified all three terms in