830 F.3d 800
8th Cir.
2016

MISSOURI ROUNDTABLE FOR LIFE, et al. v. CARNAHAN, et al.

United States Court of Appeals, Eighth Circuit

800 F.3d 800

Relatedly, MFA did not prove an actual, imminent injury that is not conjectural or hypothetical, Mo. Roundtable for Life v. Carnahan, 676 F.3d 665, 672 (8th Cir. 2012), so it lacks standing. To have standing to raise a First Amendment challenge to a state statute, “the plaintiff needs only to establish that he would like to engage in arguably protected speech, but” the statute in question significantly discourages him from doing so. 281 Care Comm., 638 F.3d at 627. The decision to refrain from speaking in light of the relevant statute must be objectively reasonable, which requires the plaintiff to demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [the] statute, and there exists a credible threat of prosecution.” Id.

The court concludes that MFA was harmed by its self-censorship. It seems to me that MFA‘s self-imposed silence, if any, was not objectively reasonable. We recognized in Connor, when construing a virtually identical formation requirement, that the requirement “does not, on its face, limit issue or express advocacy.” Connor, 323 F.3d at 693. In fact, MFA‘s proposed construction of the relevant statute borders on the fanciful. Life is risky, particularly political life, and President Truman‘s aphorism about the heat and the kitchen surely has a special resonance in Missouri campaigns. As Mr. Justice Cardozo remarked in a different but similar context, “the timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). And MFA‘s self-imposed blackout does nothing to avoid penalty; it could have been assessed a penalty whether it was actively speaking or keeping quiet: The challenged portion of the statute concerns only MFA‘s formation, so whatever MFA did (or did not do) after it formed does not help resolve the standing inquiry.

Finally, “[t]o have Article III standing to seek prospective relief, plaintiffs must show they are likely to suffer future injury that will be remedied by the relief sought.” Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006). “Past exposure to illegal conduct” will not suffice absent present adverse effects. Id. Past wrongs are merely evidence showing the existence of a real and immediate threat of repeated injury. As with the chokeholds in Lyons, MFA has not shown a real and immediate threat of future harm that justifies prospective relief. “Absent a sufficient likelihood that [it] will again be wronged in a similar way, [MFA] is no more entitled to an injunction than any other citizen of [Missouri].” Lyons, 461 U.S. at 111, 103 S.Ct. 1660. If MFA wants to vindicate what happened to it in 2014, a claim for damages would be more appropriate. See id. at 105, 111, 103 S.Ct. 1660.

The court gives short shrift to MFA‘s lack of plans for participating in future elections. Since MFA has not demonstrated the existence of an Article III case or controversy, I respectfully dissent from the court‘s opinion and would affirm the district court‘s judgment.

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Eugene KREBS, Defendant-Appellant.

No. 15-2348

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2016 Filed: July 29, 2016

Rehearing and Rehearing En Banc Denied September 9, 2016*

* Judge Kelly did not participate in the consideration or decision of this matter.

Counsel who represented the appellant was Timothy S. Ross-Boon, AFPD, of Des Moines, IA.

Counsel who represented the appellee was Craig Peyton Gaumer, AUSA, of Des Moines, IA.

Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,1 District Judge.

COLLOTON, Circuit Judge.

Thomas Eugene Krebs pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). His criminal history included a conviction under Iowa law for indecent contact with a child in 1982. See Iowa Code § 709.12 (1981).

Pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that Krebs would be subject to a sentence of 120 months’ imprisonment if the court determined that his prior conviction triggered the mandatory statutory penalty under § 2252(b)(2). If the conviction was not a qualifying predicate offense, however, the parties assented to a sentence of 60 months’ imprisonment and 240 months of supervised release. Over Krebs‘s objection, the district court2 concluded that Krebs‘s prior conviction was a qualifying predicate offense under § 2252(b)(2), and sentenced Krebs to 120 months’ imprisonment.

Section 2252(b)(2) requires a mandatory minimum term of ten years’ imprisonment for any person who violates § 2252(a)(4) and who has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” We review de novo the sentencing court‘s determination that Krebs‘s prior conviction constitutes a qualifying predicate offense under § 2252(b)(2). United States v. Cover, 703 F.3d 477, 480 (8th Cir. 2013).

Krebs asserts that his prior conviction for indecent contact with a child does not satisfy the definitions of aggravated sexual abuse, sexual abuse, or abusive sexual contact found in a separate statutory chapter (Chapter 109A), so his conviction should not trigger the sentencing enhancement in § 2252(b)(2). Krebs acknowledges, however, that circuit precedent forecloses his argument: In United States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009), this court held that the definitions in Chapter 109A do not apply to the penalty enhancement provisions found in § 2252(b). In a Rule 28(j) letter, Krebs contends that Lockhart v. United States, — U.S. —, 136 S.Ct. 958, 194 L.Ed.2d 48 (2016), suggests that the definitions in § 2252(b) closely follow the structure and language of the definitions contained in Chapter 109A. The Supreme Court in Lockhart, however, took “no position ... on the meaning of the terms ‘aggravated sexual abuse,’ ‘sexual abuse,’ and ‘abusive sexual conduct.‘” 136 S.Ct. at 965. We see no warrant in Lockhart to reconsider Sonnenberg.

Krebs argues in the alternative that his indecent contact conviction does not constitute a predicate offense even under the ordinary, contemporary meaning of “aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduct” applied in Sonnenberg. Sonnenberg concluded that the ordinary meaning of “sexual abuse of a minor” encompasses “a perpetrator‘s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” 556 F.3d at 671 (internal quotation marks omitted). Since then, the Supreme Court clarified that a qualifying conviction under a state law relating to “sexual abuse” need not involve a minor. Lockhart, 136 S.Ct. at 968.

Here, the district court determined that the Iowa statute concerning indecent contact with a child was divisible and considered the charging document to determine the offense of conviction. The trial information established that Krebs necessarily was convicted of knowingly fondling or touching the inner thigh, groin, buttock, anus, or breast of a child under the age of fourteen for the purpose of arousing or satisfying the sexual desires of either of them. See Iowa Code § 709.12(1) (1981). It follows, therefore, that Krebs physically misused or maltreated a child with the intent to seek libidinal gratification, and thus committed an offense related to “sexual abuse” within the meaning of § 2252(b)(2). See Sonnenberg, 556 F.3d at 669, 671; see also Cover, 703 F.3d at 479 n. 2, 481.

Krebs further contends that the terms “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual contact” in § 2252(b)(2) are ambiguous and that he should receive a favorable interpretation under the rule of lenity. Sonnenberg forecloses that argument as well. 556 F.3d at 671.

The judgment of the district court is affirmed.

UNITED STATES of America, Plaintiff-Appellee v. Doyle D. SMITH, Defendant-Appellant.

No. 15-2457

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2016 Filed: July 29, 2016

Notes

1
The Honorable James M. Moody, Jr., United States District Judge for the Eastern District of Arkansas, sitting by designation.
2
The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.
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