United States v. Strickland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30091

Plaintiff-Appellee,

v.  D.C. No.

CR-07-21-H-CCL

DENNIS STRICKLAND,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Submitted January 20, 2009*

Seattle, Washington

Filed March 2, 2009

Before: Thomas M. Reavley,** Senior Circuit Judge,

Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reavley

*The panel unanimously finds this case suitable for decision without

oral argument. See FED. R. APP. P. 34(a)(2).

**The Honorable Thomas M. Reavley, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation.

2381

2384 UNITED STATES v. STRICKLAND

COUNSEL

Michael Donahoe, Federal Defenders of Montana, Helena,

Montana, for the defendant-appellant.

Marcia Hurd and Eric B. Wolff, Assistant United States

Attorneys, Billings, Montana, for the plaintiff-appellee.

OPINION

REAVLEY, Senior Circuit Judge:

Dennis Strickland appeals following his guilty-plea convic-

tion for receipt and possession of child pornography. He chal-

lenges the Government’s proof at sentencing that a prior

Maryland conviction for child abuse was a predicate offense

relating to sexual abuse under 18 U.S.C. § 2252A(b)(1) and

(2) resulting in an increased statutory minimum and maxi-

mum sentence. We conclude that the district court properly

applied the modified categorical approach of Taylor v. United

States1 and correctly found that Strickland’s admissions in

state sex offender registration documents constituted suffi-

cient proof that his prior conviction was a qualifying predicate

offense. We therefore AFFIRM the district court’s judgment.

1

495 U.S. 575, 599-602, 110 S. Ct. 2143 (1990).

UNITED STATES v. STRICKLAND 2385

I.

Strickland was charged in a two-count indictment with

Receipt of Child Pornography (Count I), in violation of 18

U.S.C. § 2252A(a)(2), and Possession of Child Pornography

(Count II), in violation of 18 U.S.C. § 2252A(a)(5)(B). He

pleaded guilty to both counts without a plea agreement.

Strickland’s presentence report (PSR) assigned a base

offense level of 22 but deducted two points because his con-

duct was limited to receipt or solicitation of material involv-

ing the sexual exploitation of a minor, and he did not intend

to traffic in, or distribute, the material. See U.S.S.G.

§ 2G2.2(b)(1). The PSR applied multiple sentencing enhance-

ments because of the nature of the pornographic material, the

number of images involved, the use of a computer, and Strick-

land’s having engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor. See U.S.S.G.

§§ 2G2.2(b)(2), (4)-(7). The PSR noted that Strickland had

been convicted in Maryland in 2002 for child abuse. Strick-

land was charged under former MD. CODE art. 27, § 35C (cur-

rently codified at MD. CODE ANN., CRIM. LAW § 3-601).

According to the PSR, in June 2002, the Baltimore County

Police received a referral from a therapist advising that Strick-

land and his wife revealed that Strickland had been abusing

his step-son for approximately one year. The PSR described

the incidents of abuse in graphic detail and related Strick-

land’s subsequent admission to police that he had performed

oral sex on his step-son. Strickland subsequently pleaded

guilty to child abuse, and the PSR treated the conviction as a

sexual offense, thereby triggering heightened statutory mini-

mum and maximum sentences.2 The PSR determined that Str-

2

Strickland’s statutory minimum and maximum sentence for Count I

was increased from five to 20 years to 15 to 40 years. See 18 U.S.C.

§ 2252A(b)(1). His sentencing exposure for Count II was increased from

“not more than 10 years” to “not less than 10 years nor more than 20

years.” See 18 U.S.C. § 2252A(b)(2).

2386 UNITED STATES v. STRICKLAND

ickland’s total offense level was 35, his criminal history

category was III, and his advisory sentencing guideline range

was 210 to 262 months.

Strickland objected that his Maryland conviction was not

categorically a predicate offense under 18 U.S.C. § 2252A(b)

and could not be used to enhance his statutory penalties. If

that were correct, his sentence for the Count II violation

would be excessive under the terms of 18 U.S.C.

§ 2252A(b)(2). Strickland reasoned that because the Maryland

statute punished physical, as well as sexual, abuse of children,

it was overinclusive insofar as a prior conviction solely for

physical abuse would not be a qualifying offense. He argued

that the Government failed to introduce acceptable documen-

tation to prove that his prior offense was related to sexual abuse.3

At the sentencing hearing, the Government introduced sev-

eral documents in support of the enhancement. It offered an

uncertified docket sheet from the Circuit Court for Baltimore

County, Maryland, showing that in July 2002 Strickland had

been charged with one count of child abuse; two counts of

sexual offense—fourth degree; two counts of attempted sex-

ual offense—fourth degree; and one count of perverted prac-

tice. In November 2002 Strickland pleaded guilty to the

offense of child abuse, and all other charges were dismissed.

Under the heading “Docket Information,” the docket sheet

stated that Strickland was to “register DNA” and that “Defen-

dant is a child sex offender.”

The Government also offered sex offender registration doc-

uments signed by Strickland from the states of Washington

and Montana, both of which required Strickland to register

after he moved to those states following the Maryland convic-

tion. The Montana documentation showed that Strickland reg-

3

Strickland also objected to several other sentencing enhancements in

the PSR, but he abandoned those objections at the sentencing hearing and

they are not part of the instant appeal.

UNITED STATES v. STRICKLAND 2387

istered with the Montana Department of Justice as a sex

offender on February 8, 2006, due to his Maryland conviction.

The form indicated that the sentencing had occurred in

November 2002, and that the victim had been his 16-year-old

step-son. Strickland signed a “Sexual and Violent Offender

Registration Form” before a witness, who also signed the doc-

ument. In August 2006, Strickland submitted a change of

address form to the Great Falls, Montana, Police Department.

The Washington documentation showed that Strickland regis-

tered with the King County Sheriff on June 20, 2007, by sign-

ing a “Sex and Kidnapping Offender Registration

Notification.” A witness also signed that document.

The district court held that the Baltimore County docket

sheet was part of the state court record and therefore could be

properly considered. The court concluded that it was accurate

beyond a reasonable doubt given the other information and

evidence before the court, including the two state sexual

offender registration forms. The court overruled Strickland’s

objection and concluded that the PSR calculations were cor-

rect. The court sentenced Strickland to concurrent terms of

240 months for each count of the indictment.

II.

Strickland argues on appeal that the Government failed to

produce judicially noticeable documents sufficient to prove

that his Maryland conviction for child abuse was a predicate

offense under 18 U.S.C. § 2252A(b). He contends that the

court misapplied the modified categorical approach and

improperly relied on the PSR, the Maryland docket sheet, and

the two sex offender registration forms when determining that

his prior conviction was a predicate offense. The district

court’s conclusion that a prior conviction qualifies for a sen-

tencing enhancement is reviewed de novo. United States v.

Almazan-Becerra.4

4

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

2388 UNITED STATES v. STRICKLAND

[1] A defendant convicted for violating § 2252A is subject

to an enhanced sentence if he has a prior state conviction “re-

lating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.”5 We have broadly inter-

preted 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 offense.” United States v. Sinerius.6

[2] The determination whether a prior conviction qualifies

as a predicate sex offense under § 2252A(b) is governed by

the categorical approach announced in Taylor v. United States.7

The categorical approach “generally requires the trial court to

look only to the fact of conviction and the statutory definition

of the prior offense.”8 This approach requires a comparison of

the elements of the state criminal offense with the predicate

offense as defined in the federal statute.9 Here, the terms “ag-

gravated sexual abuse,” “sexual abuse,” and “abusive sexual

conduct involving a minor” found in § 2252A(b) must be

compared with the elements of the Maryland child abuse stat-

ute under which Strickland was convicted.10 Under this

approach, a conviction under the Maryland statute will cate-

gorically qualify as a predicate offense “only if the full range

of conduct covered by the [Maryland] statute falls within the

meaning of those terms.”11

5

18 U.S.C. § 2252A(b)(1) & (b)(2).

6

504 F.3d 737, 743 (9th Cir. 2007), cert. denied, 128 S. Ct. 1293 (2008).

7

Id. at 740.

8

Taylor, 495 U.S. at 602, 110 S. Ct. at 2160.

9

Sinerius, 504 F.3d at 740.

10

See id.

11

Id.; see also United States v. Baza-Martinez, 464 F.3d 1010, 1014 (9th

Cir. 2006) (“[I]n order for a violation of the state statute to qualify as a

predicate offense, the full range of conduct covered by the state statute

must fall within the scope of the federal statutory provision.” (internal

quotation and citation omitted)).

UNITED STATES v. STRICKLAND 2389

[3] The Government here concedes that Strickland’s con-

viction for the Maryland offense of child abuse is not categor-

ically an offense “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor” because

at the time of Strickland’s offense the Maryland statute

defined child abuse to include both “physical injury” and

“sexual abuse.”12 The Maryland statute thus covered conduct

that is broader than the conduct contemplated by § 2252A(b),

which requires that the prior offense be related to sexual

abuse to qualify for an enhanced federal sentence. Because

the full range of conduct covered by the Maryland statute

does not fall within the meaning of the federal statute, Strick-

land’s prior conviction is not categorically a predicate offense

under § 2252A(b). This does not end our inquiry, however.

[4] Where, as here, a state statute is overbroad as compared

to the federal definition of a predicate offense, we apply a

modified categorical approach and make a limited inquiry into

the facts of the underlying conviction to determine whether it

qualifies for an enhancement. See United States v. Gomez-

Leon.13 Under this limited inquiry, we generally consider “the

statutory definition, charging document, written plea agree-

ment, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.”

Shepard v. United States.14 The list of approved documents

enumerated in Shepard is illustrative, as other documents of

12

See MD. CODE art. 27, § 35C(a)(2) (2002) (repealed eff. Oct. 1, 2002).

Physical injury and sexual abuse of children are now covered in separate

statutory provisions. See MD. CODE ANN., CRIM. LAW §§ 3-601, 3-602.

13

545 F.3d 777, 783-84 (9th Cir. 2008); see United States v. Snellenber-

ger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc) (per curiam) (where cate-

gorical approach is inapplicable because state statute is overbroad “we

must use the so called modified categorical approach, which requires us

to determine—if we can—whether the conduct for which the defendant

was convicted fits within the federal definition of the offense”).

14

544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005); see also Gomez-Leon,

545 F.3d at 784.

2390 UNITED STATES v. STRICKLAND

equal reliability may also be considered.15 Our aim is to deter-

mine whether documentation or judicially noticeable facts

clearly establish that the defendant pleaded guilty to facts

covered by the predicate offense. United States v. Crawford.16

[5] A certainty that the defendant had pleaded guilty to a

predicate offense may come from the “ ‘defendant’s own admis-

sions.’ ”17 Typically, these admissions are apparent when we

review a defendant’s plea colloquy in conjunction with a

charging document or judgment, but admissions may also

allow consideration of other documents containing the neces-

sary facts for a predicate offense. See Parrilla v. Gonzales.18

We have previously upheld the district court’s consideration

of many types of documents, even those that normally fall

outside the scope of Shepard, where the defendant had stipu-

lated to or adopted the accuracy of the information in the doc-

uments forming the basis of the plea.19

15

Snellenberger, 548 F.3d at 701.

16

520 F.3d 1072, 1078 (9th Cir.), cert. denied, 129 S. Ct. 433 (2008);

Gomez-Leon, 545 F.3d at 784.

17

See United States v. Espinoza-Cano, 456 F.3d 1126, 1132 (9th Cir.

2006) (quoting Shepard, 544 U.S. at 25, 125 S. Ct. at 1262).

18

414 F.3d 1038, 1044 (9th Cir. 2005) (“Although police reports and

complaint applications, standing alone, may not be used to enhance a sen-

tence following a criminal conviction, . . . the contents of these documents

may be considered if specifically incorporated into the guilty plea or

admitted by a defendant.”).

19

See, e.g., Almazan-Becerra, 537 F.3d at 1098-1100 (holding that dis-

trict court properly considered a police report that the defendant had stipu-

lated contained a factual basis for his plea); Espinoza-Cano, 456 F.3d at

1132 (district court correctly considered a police report that was incorpo-

rated by reference into the charging document and was assented to by the

defendant); Parrilla, 414 F.3d at 1044 (factual statements in a certificate

of determination of probable cause were properly considered where defen-

dant explicitly incorporated the certificate into his guilty plea); United

States v. Hernandez-Hernandez, 431 F.3d 1212, 1215, 1218-20 (9th Cir.

2005) (district court considered a defense motion to set aside charges that

defense counsel stipulated contained a factual basis for a plea).

UNITED STATES v. STRICKLAND 2391

[6] Although in the instant case we do not have before us

a charging document or plea colloquy from Strickland’s

Maryland conviction, we do have Strickland’s signed sex

offender registration forms, which resulted directly and indis-

putably from that conviction. We think these forms, especially

the Montana registration, are significant and establish under

the circumstances of this case an admission that the Maryland

conviction for child abuse was an offense “relating to aggra-

vated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor.” § 2252A(b).

The Montana registration form, which was executed in

2006, showed that Strickland submitted a new registration in

Montana because of an out-of-state “sexual” offense commit-

ted in Maryland. The form reported that the sentencing for

that offense had occurred in November 2002 for a crime com-

mitted in White Marsh, Maryland. It also reported that the

victim was Strickland’s 16-year-old step-son. All of these

facts are consistent with the narrative of the prior offense

found in the PSR and the facts in the state court docket sheet.

Furthermore, the registration form showed that Strickland had

completed sex offender treatment in April 2005.

The Washington sex offender registration form, which was

executed in 2007, contained no information concerning the

specific offense Strickland committed but in conjunction with

the Montana registration shows a consistency in Strickland’s

conduct. Under both Montana and Washington state law, Str-

ickland had a duty to register with state authorities upon resid-

ing in those states if he had a prior conviction for a sex offense.20

Strickland complied with his duty by executing the Montana

form, with its specific admission of the prior sexual offense,

and then by continuing his registration upon executing the

Washington form.21

20

See MONT. CODE ANN. § 46-23-504(1)(c); WASH. REV. Code § 9A.44.130.

21

Cf. United States v. Moran, 759 F.2d 777, 786 (9th Cir. 1985) (con-

cluding that letters and other documents signed by defendant were admis-

sions of a party opponent and admissible as such).

2392 UNITED STATES v. STRICKLAND

[7] Strickland signed both forms before witnesses, who also

executed the documents, thereby assenting to their contents.

Strickland has never contested the authenticity of the docu-

ments or his signature, and we cannot help but conclude, in

light of Strickland’s registration duty under the state laws, that

his admissions found in the documents are sufficient to show

that the prior Maryland offense related to abusive sexual con-

duct involving a minor. Our conclusion is further supported

by the fact that when Strickland pleaded guilty in this case, he

agreed with the Government’s factual basis at the re-

arraignment that he was a registered and prior convicted sex

offender.

Strickland argues that we should not consider the Montana

sex offender registration form for several reasons. He asserts,

correctly, that the prior offense reported in that form was for

second degree assault, which does not match the information

in the PSR or in the Maryland docket sheet concerning the

child abuse conviction. It is clear, however, that the form can

be referring only to the Maryland child abuse offense involv-

ing Strickland’s step-son because it reports the same victim,

location, and date of that offense, as well as Strickland’s

admission that the offense was “sexual” in nature. In short, by

signing the document Strickland admitted committing a sex-

ual offense and undergoing sex offender treatment as a result.

This admission alone is powerful evidence that the prior

offense was enough for an enhanced sentence under

§ 2252A(b).

Strickland also argues that the Montana registration form

does not reference the same offense location as his prior con-

viction because it states that the offense occurred in White

Marsh, Maryland, whereas his sentencing for child abuse

occurred in the Circuit Court for Baltimore County. We take

judicial notice, however, that White Marsh is located in Balti-

more County, Maryland.22

22

See http://maryland.hometownlocator.com/md/baltimore/white-marsh

.cfm; see also Greeson v. Imperial Irrigation Dist., 59 F.2d 529, 531 (9th

Cir. 1932) (“[T]he court is bound to take notice of public facts and geo-

graphical positions, and also populations of cities and counties . . . .”).

UNITED STATES v. STRICKLAND 2393

[8] In sum, Strickland’s acknowledgment and admissions

found in the state sex offender registration forms constituted

judicially noticeable facts and confirmed the other informa-

tion before the district court at sentencing. The district court

properly considered the forms under the modified categorical

approach and correctly determined that Strickland’s convic-

tion for child abuse qualified as a predicate offense under

§ 2252A(b) and subjected him to enhanced penalties. The dis-

trict court’s judgment is therefore AFFIRMED.