United States v. Wiles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-30224

Plaintiff-Appellee,

v.  DC No.

9 09-cr-0019 DWM

DAVID COLTER WILES,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

April 14, 2011—Seattle, Washington

Filed June 17, 2011

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Tashima

8251

UNITED STATES v. WILES 8253

COUNSEL

John Rhodes, Assistant Federal Defender, Missoula, Montana,

for the defendant-appellant.

Leif M. Johnson, Assistant United States Attorney, Billings,

Montana, for the plaintiff-appellee.

OPINION

TASHIMA, Circuit Judge:

We previously have held that a conviction for sexual

assault in violation of Montana law is a “prior conviction . . .

under the laws of any State relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a

minor,” such that a district court should apply the enhanced

sentencing range of fifteen to forty years to a person con-

victed of transporting or receiving child pornography in viola-

tion of 18 U.S.C. §§ 2252A(a)(1), (2). United States v.

Sinerius, 504 F.3d 737, 744 (9th Cir. 2007). This case pre-

sents the related question of whether a prior conviction for

attempted sexual assault under Montana law is a predicate

8254 UNITED STATES v. WILES

offense triggering the application of the enhanced sentencing

range. We conclude that the answer is yes.

I. Background

In 2002, Defendant-Appellant David Wiles pleaded guilty

to attempted sexual assault in violation of Mont. Code Ann.

§ 45-5-103. In 2009, Wiles pleaded guilty in federal court to

one count of receipt of child pornography in violation of 18

U.S.C. § 2252A(a)(2).1 At sentencing, the district court con-

cluded that Wiles’ prior Montana conviction for attempted

sexual assault was a predicate offense, such that the applica-

ble sentencing range was fifteen to forty years, instead of the

five to twenty year range that applies in the absence of a pred-

icate offense. See § 2252A(b)(1). The district court imposed

the maximum sentence of forty years.

II. Standard of Review

This court “review[s] de novo a district court’s conclusion

that a prior conviction qualifies for a sentencing enhance-

ment.” United States v. Strickland, 601 F.3d 963, 967 (9th

Cir. 2010) (en banc) (quoting United States v. Almazan-

Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008)).

III. Discussion

[1] “A defendant convicted for violating § 2252A is sub-

ject to an enhanced sentence if he has a prior state conviction

‘relating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.’ ” Id. at 967 (quoting

§ 2252A(b)(1), (2)). “We have broadly interpreted this statute

to apply not simply to state offenses that are equivalent to

sexual abuse, but rather to ‘any state offense that stands in

some relation, bears upon, or is associated with that generic

1

Except where indicated, statutory references in this opinion are to Title

18 of the United States Code.

UNITED STATES v. WILES 8255

offense.’ ” Id. (quoting Sinerius, 504 F.3d at 743). To deter-

mine whether a prior conviction qualifies as a predicate

offense under § 2252A(b), “we rely on the familiar two-step

test set forth in Taylor v. United States, 495 U.S. 575 (1990).”

Sinerius, 504 F.3d at 740; Strickland, 601 F.3d at 967. First,

we examine the definition of the predicate offense in the fed-

eral statute. Sinerius, 504 F.3d at 740. Here, § 2252A’s

enhanced sentencing range applies to a person convicted

“under the laws of any State relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a

minor or ward.” § 2252A(b)(1). Thus, “the relevant offenses

under § 2252A(b) are those ‘relating to . . . aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a

minor or ward.’ ” Sinerius, 504 F.3d at 740 (citation omitted).

Second, we compare the elements of the state criminal offense

with the predicate offense as defined in the federal statute.

Strickland, 601 F.3d at 967.

[2] We applied the Taylor categorical approach in Sinerius,

concluding that a conviction for sexual assault under Montana

law is a predicate offense under § 2252A(b)(1). Sinerius, 504

F.3d 744. Accordingly, the only question before us is whether

attempted sexual assault under Montana law is also a predi-

cate offense. The parties’ arguments center on the correct

mode of analysis to employ to answer this question. Wiles

argues that we should engage in a second categorical analysis,

such that his “prior conviction for attempted sexual assault

qualifies as a predicate offense only if Montana’s definition

of both ‘sexual assault’ and ‘attempt’ are coextensive with the

respective common law definitions.” The government dis-

agrees. It argues that because “attempt” is not part of the defi-

nition of the predicate offense in § 2252A(b)(1), the

categorical approach applies only to the definition of sexual

assault. At that point, “the correct test is whether Montana’s

attempted sexual assault statute stands in some relation to or

pertains to a generic offense in § 2252A(b), in this case, ‘sex-

ual abuse.’ ” For the reasons stated herein, we adopt the

approach advocated by the government.

8256 UNITED STATES v. WILES

Wiles’ argument is based on United States v. Saavedra-

Velazquez, which examined whether attempted robbery under

California Penal Code § 211 is a “crime of violence” justify-

ing a 16-level upward adjustment of the base offense level

under U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 578 F.3d 1103, 1106

(9th Cir. 2009); see also United States v. Sarbia, 367 F.3d

1079 (9th Cir. 2004) (applying categorical approach to deter-

mine whether prior conviction for attempted discharge of a

firearm under Nevada law is a “crime of violence” under

U.S.S.G. § 4B1.2). In Saavedra-Valazquez, we noted that it

was already established that a completed robbery under Cali-

fornia Penal Code § 211 is a crime of violence. 578 F.3d at

1106. We then applied the categorical approach to “attempt,”

explaining that “a prior state conviction for an attempt to

commit an offense that would qualify as a ‘crime of violence’

is itself categorically a ‘crime of violence’ only if the state

definition of attempt is no broader than the corresponding fed-

eral or common law definition.” Id. at 1107. We concluded

that the California and common law definitions of attempt

were “coextensive” such that attempted robbery was a “crime

of violence”; thus, a sentencing enhancement was appropriate.

Id. at 1110.

[3] In advocating that we apply the same approach to this

case, Wiles overlooks a key difference between the language

of § 2252A and the statutory language at issue in Saavedra-

Valazquez. Saavedra-Valazquez addressed a prior conviction

for a “crime of violence,” which by definition includes “the

offenses of aiding and abetting, conspiring, and attempting, to

commit such offenses.” U.S.S.G. § 2L1.2 cmt. 5. Section

2252A(b), by contrast, makes no mention of “attempt.”

Because the categorical approach requires a court to compare

“the elements of the state criminal offense with the predicate

offense as defined in the federal statute,” there is no basis to

compare the Montana attempt statute to the federal law of

attempt — attempt is not part of the definition of the predicate

offense. See Strickland, 601 F.3d at 967 (citing Sinerius, 504

F.3d at 740) (emphasis added).

UNITED STATES v. WILES 8257

This conclusion is supported by Rebilas v. Mukasey, 527

F.3d 783 (9th Cir. 2008). In Rebilas, an immigration case, the

court was required to decide whether a prior conviction for

attempted sexual public indecency to a minor under Arizona

law was categorically a conviction for attempted sexual abuse

of a minor under 8 U.S.C. § 1101(a)(43)(A) & (U) (defining

“aggravated felony”). The court explained:

To hold that Rebilas’s conviction was categori-

cally a conviction for attempted sexual abuse of a

minor under 8 U.S.C. § 1101(a)(43)(A) and (U), we

would have to hold not only that Arizona’s definition

of public sexual indecency to a minor under ARS

§ 13-1403(B) was categorically sexual abuse of a

minor, but also that Arizona’s definition of attempt

under ARS § 13-1001 was a categorical match with

the federal definition of attempt. This would require

a second Taylor analysis, comparing the elements of

attempt under Arizona law and the elements of

attempt under 8 U.S.C. § 1101(a)(43)(U).

Id. at 787.

The statute at issue in Rebilas specifically provides that an

“aggravated felony” includes “an attempt or conspiracy to

commit” sexual abuse of a minor. 8 U.S.C. § 1101(a)(43)(A),

(U). Similarly, the Sentencing Guideline at issue in Saavedra-

Valazquez specifically provides that a “crime of violence”

includes “the offenses of aiding and abetting, conspiring, and

attempting, to commit such offenses.” U.S.S.G. § 2L1.2 cmt.

5. Attempt is therefore part of the definition of the predicate

offense and properly analyzed in a second categorical analy-

sis. The same cannot be said of the statute here. There simply

is no statutory language on which to base a second categorical

analysis.

[4] Instead, we adopt the approach advocated by the gov-

ernment and conclude that attempted sexual assault under

8258 UNITED STATES v. WILES

Montana law “relates to” sexual assault under Montana law

and therefore is a predicate offense under § 2252A. In doing

so, we join two of our sister circuits. In United States v. Stults,

575 F.3d 834 (8th Cir. 2009), the Eighth Circuit reasoned that

the statutory language “relating to aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor or

ward,” must be read broadly to encompass convictions for

attempt, where the completed offense would qualify as a pred-

icate offense. Id. at 845 (construing the sentencing enhance-

ment language in § 2252(b)(1)) (citing Morales v. Trans

World Airlines, 504 U.S. 374, 383 (1992) (additional citations

omitted)). This is because the “ordinary meaning” of the

phrase “relating to” “is a broad one — ‘to stand in some rela-

tion; to have bearing or concern; to pertain; refer; to bring into

association with or connection with.’ ” Morales, 504 U.S. at

383 (quoting Black’s Law Dictionary 1158 (5th ed. 1979))

(discussing express preemption). An attempt conviction

“clearly ‘stands in some relation to’ or ‘pertains to’ the crimes

of aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor” and therefore qualifies as a predi-

cate offense under § 2252(b)(1). Stults, 575 F.3d at 846.

The Fifth Circuit reached the same result in United States

v. Hubbard, 480 F.3d 341, 345 (5th Cir. 2007). Hubbard con-

sidered whether a prior state conviction for attempting to

make lewd or indecent proposals to a child under the age of

16 was a predicate offense under § 2252A(b)(1). Id. The court

concluded that it was, even if there was no sexual contact. Id.

at 347. “We must assume,” the court reasoned, “that Congress

chose the words ‘relating to’ for a purpose.” Id. The meaning

of the phrase “relating to” is broad enough to encompass

attempted sexual abuse. Id. An attempt to commit an offense

“stands in some relation to” the completed offense and so

qualifies for the enhanced sentencing range of § 2252A(b)(1).

See id.; but see United States v. McGrattan, 504 F.3d 608,

612 (6th Cir. 2007) (rejecting this approach).

[5] Our conclusion is grounded in the Montana law of

attempt. The Montana Supreme Court has explained:

UNITED STATES v. WILES 8259

To be guilty of the underlying offense of sexual

assault, a person must knowingly subject another

person to “sexual contact” without consent. Section

45-5-502, MCA. Sexual contact requires a touching

of the sexual or other intimate parts of the victim for

the purpose of arousing or gratifying the sexual

desire of either party. Section 45-2-101(60), MCA.

An “attempt” requires proof that the defendant, with

the purpose of committing the underlying offense,

took any act toward commission of the offense. Sec-

tion 45-4-103(1), MCA.

State v. Fuller, 880 P.2d 1340, 1342 (Mont. 1994) (reversing

conviction where there was no evidence that the defendant,

after volleying sexual comments at three girls from his truck,

slowed down, stopped, or opened the door). To be convicted

of attempted sexual assault, then, an actual touching is not

required but it must be shown “beyond a reasonable doubt

that the defendant intended to actually touch the victims.” Id.

Essentially, the sexual assault must “be in such progress that

it will be consummated unless interrupted by circumstances

independent of the will of the attempter.” State v. Gunderson,

237 P.3d 74,85 (Mont. 2010). The statute and the case law

make clear that an attempt under Montana law “relates to” the

completed offense. We therefore conclude that a conviction

for attempted sexual assault under Montana law “relates to”

sexual abuse within the meaning of § 2252A(b)(1). The dis-

trict court did not err in applying the sentencing enhancement.

The judgment and sentence of the district court is

AFFIRMED.