UNITED STATES of America, Plaintiff-Appellee, v. Henry G. McGRATTAN, Defendant-Appellant.
No. 06-3043.
United States Court of Appeals, Sixth Circuit.
Argued: April 20, 2007. Decided and Filed: Oct. 10, 2007.
503 F.3d 608
Before: DAUGHTREY and GIBBONS, Circuit Judges; SCHWARZER,* District Judge.
SCHWARZER, D.J., delivered the opinion of the court, in which GIBBONS, J., joined. DAUGHTREY, J. (p. 616), delivered a separate opinion concurring in part and dissenting in part.
OPINION
WILLIAM W. SCHWARZER, District Judge.
Henry G. McGrattan appeals his twenty-year sentence for (1) using a computer connected to the internet to persuade a minor to engage in illegal sexual activity, and (2) knowingly receiving and distributing child pornography. The district court concluded that based on a prior Ohio state offense, a higher fifteen-year mandatory minimum sentence applied to the first count. Because the Ohio offense does not categorically qualify as a prior offense under federal law, and because the government has not provided sufficient documentation of McGrattan‘s actual conduct in that offense, we vacate his sentence and remand for resentencing consistent with this opinion.
BACKGROUND
On February 22, 2001, Henry G. McGrattan pled guilty to a misdemeanor attempted violation of
As detailed in an affidavit of complaint, from March through June of 2005, McGrattan sent pictures to and attempted to meet with an FBI agent posing as a twelve-year-old girl on the America Online internet service. On June 29, 2005, McGrattan was indicted on one count of violation of
The district court found that McGrattan‘s Ohio conviction qualified as a prior conviction under
On December 21, 2005, the district court sentenced McGrattan to 20 years’ imprisonment, 5 years’ supervised release, and a mandatory $200 assessment. McGrattan timely appealed.
DISCUSSION
I. APPLICATION OF THE CATEGORICAL APPROACH
McGrattan‘s primary contention is that the district court erred by finding that his conviction under
We review de novo the district court‘s legal conclusion that a prior conviction is a qualifying offense. See, e.g., United States v. Armstead, 467 F.3d 943, 946 (6th Cir.2006) (reviewing conclusion that prior conviction was a “crime of violence” under the Sentencing Guidelines).
The Ohio statute under which McGrattan was convicted makes it illegal to “[p]ossess or view any material or performance that shows a minor who is not the person‘s child or ward in a state of nudity.”
Thus, the question is whether McGrattan‘s Ohio conviction qualifies as “a conviction ... under the laws of a State relating to ... the ... possession, receipt, ... [or] distribution ... of any visual depiction ... [which] involves the use of a minor engaging in ... lascivious exhibition of the genitals or pubic area of any person” under
The government‘s principal argument is that the state conviction qualifies as a predicate offense because it relates to the same conduct-child pornography-prohibited by
In Taylor v. United States, 495 U.S. 575, 602 (1990), the Court held, in the context of the Armed Career Criminal Act (ACCA),
In Shepard v. United States, 544 U.S. 13, 16 (2005), the Supreme Court further clarified what types of documents a sentencing court may look to when the prior conviction was the subject of a plea rather than a jury trial. There, the Court held that police reports could not be used, and that a judge‘s investigations into the conduct underlying prior pleas are “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16. The Court limited the evidence the court may consider because of concerns that allowing a judge to resolve a “disputed finding of fact” based on a prior plea would present a “serious risk[] of unconstitutionality” by raising the sentencing ceiling without the constitutionally-mandated jury finding. Id. at 25-26.
The government cites cases from four circuits to support its argument that Taylor and Shepard do not apply to the enhancement provision in
In United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir.2005), the Tenth Circuit rejected “the narrow categorical approach to application of section 2253(b)(2).” Id. at 1127. It distinguished the application of the enhancement under section 924(e) from that under section 2252(b)(2) on the basis of the “relating to” language present in the latter. Id. But it then proceeded to analyze the issue in terms of Sixth Amendment rights concluding that “a district court does not violate a defendant‘s constitutional rights by looking beyond the statute of conviction, so long as the district court limits itself to the documents outlined in Shepard.” Id. at 1128. The government‘s fourth case, United States v. Harding, 172 Fed.Appx. 910, 912 (11th Cir.2006), followed McCutchen in holding that Shepard applies to cases under section 2252(b)(2). Id. at 912.
We do not believe that the cases the government offers make a persuasive argument for abandoning the Taylor-Shepard analytical framework in cases arising under
Because nothing in the Ohio statute requires actual sexual activity, the only way in which it will categorically fall within the federal “child pornography” definition is if crimes under that statute must involve “lascivious exhibition of the genitals or pubic area of any person.” The narrowed Ohio statute covers “nudity [which] constitutes a lewd exhibition or involves a graphic focus on the genitals.” Osborne, 495 U.S. at 113 (quoting Young, 37 Ohio St.3d 249,
Ohio law is not clear on exactly how section 2907.323(A)(3) should be interpreted. If the statute is read by ignoring the disjunctive “or,” it will only cover lewd exhibitions of the genitals, and therefore will fall entirely within the federal definition of child pornography. In fact, the United States Supreme Court in Osborne indicated that it believed that “[t]he context of the opinion [below] indicates that the Ohio Supreme Court believed that ‘the term “nudity” ... refers to a lewd exhibition of the genitals.‘” Osborne, 495 U.S. at 114 n. 11. This formulation, however, is neither textually persuasive nor legally binding. First, the Court recognized that the distinction is not “constitutionally significant,” and constitutionality was the only question before the Court. Id. Second, it is not the United States Supreme Court, but the Ohio Supreme Court whose interpretation of Ohio law is authoritative. Third, the dissent in Osborne made it clear why, as a linguistic matter, reading “lewd exhibition” to modify “of the genitals” is incorrect. Id. at 129 n. 4 (Brennan, J., dissenting). And finally, no Ohio state court decision has held this construction to be binding, while several cases appear to assume it is not.
In State v. Kerrigan, 168 Ohio App.3d 455, 860 N.E.2d 816 (2006), the Ohio Court of Appeals discussed this issue. However, while the dissent argued that the majority incorrectly adopted the “lewd exhibition of the genitals” interpretation, id. at 825-26 (Donovan, J., dissenting), it appears that the majority did not actually do so, and adopted the Osborne opinion‘s reasoning only to the extent that it held that “it is the character of the material or performance, not the purpose of the person possessing or viewing it, that determines whether it involves a lewd exhibition or a graphic focus on the genitals.” Id. at 823.
Several Ohio state cases have addressed a related, but distinct question: whether a depiction which constitutes a graphic focus on the genitals must be lewd in order to qualify under section 2907.323(A)(3). In State v. Walker, 134 Ohio App.3d 89, 730 N.E.2d 419 (1999), the court held that
Even if the Ohio statute is read so that “lewd exhibition” does not require depiction of the genitals, it does not end the inquiry. In James v. United States, the United States Supreme Court clarified the Taylor categorical approach in the context of violent felonies:
We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.
James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1597 (2007). In a case addressing whether a California statute fell within the ambit of “generic theft” under general law, the Court held that
to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822 (2007). Therefore, even if the Ohio statute is read to prohibit all lewd exhibitions of nudity involving minors, we must determine if there is a “realistic probability” that the statute would be applied to someone who possessed depictions of nudity which were lewd, but which did not involve the genitals. We find that such a realistic probability exists.
First, under Ohio law, “nudity” is defined as the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.
While we are not aware of any cases in which the Ohio Supreme Court has explicitly addressed a situation involving a “lewd exhibition” which did not involve the genitals or pubic area of any person or where Ohio has prosecuted someone entirely on the basis of such materials, the analysis of section 2907.323(A)(3) performed by several other Ohio courts makes it clear that such a possibility is contemplated by the law.
In State v. Powell, 2000 WL 1838716 (Ohio Ct.App.2000), the Ohio Court of Appeals upheld a conviction under section
In State v. Stoner, 2003-Ohio-5745, 2003 WL 22429530 (Ohio Ct.App.2003), the same court upheld a conviction based on a “lewd exhibition of nudity.” Id. at 143. Although the videotapes and photographs in question did contain images of the pubic areas of the victims, the court specifically separated the “lewd exhibition of nudity” from “graphic focus on the genitals,” and analyzed the materials in question under the “lewd exhibition of nudity” language, indicating that meeting that definition is sufficient to support a conviction. Id. at 1136, 43. Finally, in State v. Woods, 2005-Ohio-2681, 2005 WL 1283711 (Ohio Ct.App.2005), the court upheld a conviction based on photographs depicting a 16-year-old female‘s “naked breasts and bikini line with visible pubic hair,” holding that a rational trier of fact could have found the photographs lewd. Id. at 118.
It does not matter what precedential weight Ohio state courts give these decisions.3 In the absence of binding Ohio precedent indicating that section 2907.323(A)(3) does not apply in such situations, these cases show that there is a “realistic probability” that someone could be prosecuted and a conviction upheld for conduct which falls outside the definition under federal law.4 As a review of Ohio state cases indicates that convictions based on lewd exhibitions of nudity that do not involve an “exhibition of the genitals or pubic area of any person” are not mere “theoretical possibilities,” we conclude that
II. USE OF THE WARRANT AFFIDAVIT
Because McGrattan‘s prior conviction is not based on a statute whose elements fall within the federal definition of child pornography, we must next determine whether the conduct upon which that conviction was based, as shown by documents allowable under Shepard, falls within that definition. The government‘s argument is that the conduct underlying McGrattan‘s Ohio conviction is the exact same scenario underlying the conviction in the instant case: McGrattan conversed with a purported minor over the internet
[a]n affidavit of complaint is a type of record that a district court can properly rely on in determining the nature of predicate offenses, consistent with the standards of Shepard. Complaints are judicial documents, filed under oath and submitted in furtherance of formal prosecution. They bear, accordingly, substantially greater indicia of reliability than mere police reports, which are not filed in court, are not sworn to, and are developed for an investigatory purpose.
Id. at 780. Shepard explicitly allowed “the terms of the charging document” to be considered in making the determination under Taylor. A warrant affidavit does not fill the bill. It is more akin to the police report or complaint applications ruled inadmissable in Shepard because it is not “in furtherance of formal prosecution” and thus does not determine whether an earlier plea or conviction was for a generic offense. Id. at 780. Because it was intended only to establish probable cause for the search, it does not necessarily describe the conduct for which McGrattan was convicted. In this case, as in Shepard, the record is silent on the generic element, there being no plea agreement, plea colloquy or comparable judicial record. See Shepard, 544 U.S. at 26.
Accordingly, the warrant affidavit is not admissible to establish McGrattan‘s conduct for the purpose of determining whether his prior conviction falls within the scope of
III. CONCLUSION
In addition to the above arguments, McGrattan contends that the district court‘s decision to sentence him to consecutive rather than concurrent terms was unreasonable, that the mandatory minimums were constitutionally unreasonable, and that there were several errors in the United States Sentencing Guidelines calculations.5 As we are reversing on other grounds, we will not address these questions. For the reasons stated, McGrattan‘s sentence is VACATED and the case is REMANDED for resentencing consistent with this opinion.
MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in part.
Because, as the majority opinion makes clear, the Ohio Supreme Court‘s interpretation of
Was the United States Supreme Court, in its opinion in Osborne v. Ohio, correct in assuming that “[t]he context of the opinion [below] indicates that the Ohio Supreme Court believed that ‘the term “nudity” as used in R[evised] C[ode] 2907.323(A)(3) refers to a lewd exhibition of the genitals‘“? Osborne, 495 U.S. 103, 114 n. 11 (citing State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363, 1373 (Ohio 1988) (emphasis added)).
The Ohio Supreme Court has never clarified this ambiguity, and the Ohio Courts of Appeals have rendered inconsistent opinions on the question. Compare, e.g., State v. Walker, 134 Ohio App.3d 89, 422 (1999) (quoting Osborne and citing Young for the proposition that the Ohio statute refers to a “lewd exhibition of the genitals“) with State v. Kerrigan, 168 Ohio App.3d 455, 825-26 (2006) (appeal from a conviction under section 2907.323(A)(3) in which “lewd exhibition” is interpreted as a separate offense from a “graphic focus of the genitals“). Clarity on this issue would then permit us to determine with some assurance whether or not the appellant‘s conviction under