# United States v. Jason Kushmaul

> Court of Appeals for the Eleventh Circuit · January 6, 2021 · 984 F.3d 1359

URL: https://www.frixlaw.com/law-library/cases/4649374

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 6, 2021
- **Citations:** 984 F.3d 1359
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4649374

## How later opinions describe it (automated extraction)

- stating with- out explicit, on-point language in the relevant statute, “there can be no plain error where there is no precedent from the Supreme Court or us directly resolving” the issue (quotation marks omit- ted)
- holding that “the defendant bears the burden” to establish plain error

## Opinion text

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-10924
Non-Argument Calendar
________________________

D.C. Docket No. 5:19-cr-00050-TKW-MJF-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON KUSHMAUL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(January 6, 2021)

Before JORDAN, LUCK, and TJOFLAT, Circuit Judges.

PER CURIAM:

I.
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In 2019, the United States Department of Justice coordinated the Nationwide

Child Exploitation Investigation with the Royal Canadian Mounted Police

(“RCMP”), the social media messaging application Kik, 1 and Homeland Security

Investigations (“HSI”). The investigation—nicknamed “Kik Leads”—aimed to

uncover child pornography sent through the Kik app. As part of the Kik Leads

investigation, HSI in Panama City, Florida, received a tip from RCMP that a Kik

user was observed distributing child pornography through the app. RCMP

provided HSI with an IP address for a Kik account holder, “khal076,” and Kik

provided HSI with a Gmail account, “thephantomoftheopera1431@gmail.com.”

The Gmail account was tied to Jason Kushmaul, who was previously convicted of

“Promoting the Sexual Performance of a Child” in Florida in 2016.2

On March 26, 2019, officers from HSI, the Bay County Sheriff’s Office, and

the Lynn Haven Police Department went to Kushmaul’s RV, which was listed as

his address in the Florida Sex Offender Registry. Kushmaul spoke to the officers

without exiting his RV. When asked about the Gmail account that Kik provided to

HSI, Kushmaul claimed that the Gmail account was the same as his sex offender

registered email address. The officers knew this was a lie and asked to see

1
According to Kik’s website, Kik is the “only chat platform built especially for teens.”
About, KIK, https://www.kik.com/about (last visited Jan. 5, 2021).
2
The three counts of “Promoting the Sexual Performance of a Child,” to which
Kushmaul pled nolo contendere, were based on his distribution of child pornography on the
social media site “Tumblr.”

2
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Kushmaul’s cell phone. Kushmaul handed one of the officers his cell phone—a

Samsung Galaxy S9—and the officers immediately discovered a Snapchat 3

account that was not listed on Kushmaul’s sex offender registry. The officers also

asked Kushmaul about his Kik account; Kushmaul admitted that the “khal076”

account was his, but he claimed that the account no longer worked.

Officers eventually asked Kushmaul to accompany them to the Bay County

Sheriff’s Office, and Kushmaul agreed to go. Kushmaul was then advised of his

Miranda rights, and he subsequently admitted to viewing child pornography.

Kushmaul confessed that he would sometimes view child pornography when he

“got bored,” but he made clear that the images he distributed through the Kik app

were commercial-type child pornography, not images that he produced.

Once the officers and Kushmaul arrived at the Bay County Sheriff’s Office,

Kushmaul signed a “consent to search form,” and one of the officers completed a

download of Kushmaul’s cell phone. The download revealed twenty images of

“child sexual abuse material.” Most of the images were of nude, prepubescent

girls in sexually provocative poses, but there were additional images of nude

children in non-provocative poses.

3
Snapchat is a camera application for smartphones that allows users to, among other
things, send disappearing images to other Snapchat users. See Create a Snap, SNAPCHAT,
https://support.snapchat.com/en-US/a/capture-a-snap (last visited Jan. 5, 2021).

3
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On August 6, 2019, a federal grand jury for the Northern District of Florida

returned a two-count indictment against Kushmaul. Count One stated that

Kushmaul “did knowingly distribute, and attempt to distribute, material containing

child pornography . . . using any means and facility of interstate and foreign

commerce” in violation of 18 U.S.C. §§ 2252A(a)(2), (b)(1). And Count Two

stated that Kushmaul “did knowingly possess material containing child

pornography . . . that involved a prepubescent minor and a minor who had not

attained 12 years of age, using any means and facility of interstate and foreign

commerce” in violation of 18 U.S.C. §§ 2252A(a)(5)(b), (b)(2).

A warrant for Kushmaul’s arrest was issued on August 7, 2019, and

Kushmaul was taken into federal custody pursuant to a writ of habeas corpus ad

prosequendum nine days later. Kushmaul appeared before a United States

Magistrate Judge on August 22, 2019, pled not guilty to the charges in the

indictment, and was appointed a Federal Public Defender that day. A jury trial was

ultimately set for November 4, 2019.

But on October 10, 2019, Kushmaul again appeared before the Magistrate

Judge and changed his tune. Kushmaul pled guilty to both counts in the indictment

and entered into a plea agreement. His sentencing hearing was scheduled for

January 28, 2020.

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At sentencing, the Government recommended a 15-year sentence followed

by five years of supervised release. This proposal, the Government argued, took

into account Kushmaul’s final offense level of 30, as well as the mandatory

minimum for Count 1, distribution of child pornography. Although the statutory

minimum sentence for violations of 18 U.S.C. § 2252A(a)(2) is only 5 years, that

minimum increases to 15 years if the offender “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.” 18 U.S.C. § 2252A(b)(1). Because

Kushmaul had a September 2016 conviction in Florida on three counts of

“Promoting the Sexual Performance of a Child,” the Government argued that the

15-year mandatory minimum applied. After hearing from Kushmaul, the District

Court sentenced him to the 180-month mandatory minimum for Count 1

(distribution of child pornography) and the 120-month mandatory minimum for

Count 2 (possession of child pornography), to be served concurrently, followed by

supervised release for life. Kushmaul did not object to the sentence.

But despite his failure to object at the sentencing hearing, Kushmaul now

appeals his sentence of 180 months’ imprisonment for distribution of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(2), (b)(1), and possession of

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b), (b)(2). He argues

that the District Court plainly erred when enhancing his sentence pursuant to 18

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U.S.C. §§ 2252A(b)(1) and (b)(2) because of his prior conviction for promoting the

sexual performance of a child under Fla. Stat. § 827.071(3). Specifically,

Kushmaul claims his Florida offense does not qualify for sentencing enhancement

under 18 U.S.C. §§ 2252A(b)(1), (b)(2) because the Florida offense is broader than

its federal counterpart—the Florida crime, for example, encompasses the

distribution of images depicting the touching of clothed buttocks or clothed female

breasts, not just unclothed buttocks or unclothed female breasts. See Appellant’s

Br. at 13.

We disagree that the District Court plainly erred. The plain meanings of Fla.

Stat. § 827.071(3) and 18 U.S.C. §§ 2252A(b)(1), (b)(2) strongly suggest that

§ 827.071(3) is a predicate offense under the federal sentencing enhancement

statutes, and Kushmaul has pointed us to no binding precedent holding otherwise.

As a result, we affirm Kushmaul’s sentence.

II.

Ordinarily, “[w]e review de novo [a] district court’s determination that a

prior conviction triggers a statutory sentencing enhancement.” United States v.

Miller, 819 F.3d 1314, 1316 (11th Cir. 2016). However, objections made for the

first time on appeal are reviewed only for plain error. United States v. Vereen, 920

F.3d 1300, 1312 (11th Cir. 2019), cert. denied, 140 S. Ct. 1273 (2020).

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Under a plain error standard, the defendant bears the burden to “show that

there is (1) error, (2) that is plain and (3) that affects substantial rights.” United

States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (quotation marks omitted).

“If all three conditions are met, [we] may then exercise [our] discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. Regarding the second prong of the

test, “[s]uch error must be so clearly established and obvious that it should not

have been permitted by the trial court even absent the defendant’s timely assistance

in detecting it.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015)

(quotation marks omitted). “When the explicit language of a statute or rule does

not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted).

III.

Kushmaul’s argument, at its core, turns on the language of 18 U.S.C.

§§ 2252A(b)(1) and (b)(2). The first of the two sections, § 2252A(b)(1), increases

the mandatory minimum for distribution of child pornography if the offender “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.” The

second, § 2252A(b)(2), is very similar and increases the mandatory minimum for

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possession of child pornography if the offender “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.” 4

So, to succeed on his claim, Kushmaul must demonstrate that the District

Court plainly erred in concluding that his prior conviction for promoting the sexual

performance of a child under Fla. Stat. § 827.071(3) “relat[es] to” “aggravated

sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

18 U.S.C. § 2252A(b)(1), (b)(2). He can do this by showing that either “the

explicit language of a statute or rule” or “precedent from the Supreme Court or this

Court directly resolv[es]” the issue. Hesser, 800 F.3d at 1325 (quoting United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam)). In

this case, neither does.

A.

Before we dive in to Kushmaul’s arguments, a brief word on our approach to

sentencing is warranted. To determine whether a defendant’s prior conviction

qualifies as a predicate offense for a sentencing enhancement, federal courts

generally apply the “categorical approach,” meaning we look only to the elements

of the statute under which the defendant was convicted and not at the facts

4
In both 18 U.S.C. §§ 2252A(b)(1) and (b)(2), the phrase “involving a minor or ward”
modifies only “abusive sexual conduct.” See Lockhart v. United States, 136 S. Ct. 958, 961
(2016).

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underlying the prior conviction. See Mathis v. United States, 136 S. Ct. 2243,

2251–53 (2016). Specifically, federal courts compare the elements of the statute to

the generic offenses mentioned in the federal sentencing enhancement statutes.

See Taylor v. United States, 495 U.S. 575, 600–02, 110 S. Ct. 2143, 2159–60

(1990). If the generic offenses are non-traditional—that is, crimes not developed

in the common law—they are defined based on their “ordinary, contemporary, and

common meaning.” United States v. Ramirez-Garcia, 646 F.3d 778, 783 (11th Cir.

2011) (quotation marks omitted).

When applying the categorical approach, we presume that the prior

conviction “rested upon nothing more than the least of the acts criminalized” or the

“least culpable conduct.” Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280, 1283

(11th Cir. 2013) (quotation marks omitted). And when we look at the prior

conviction itself, we analyze “the version of state law that the defendant was

actually convicted of violating.” McNeill v. United States, 563 U.S. 816, 821, 131

S. Ct. 2218, 2222 (2011).

For our purposes, the categorical approach means that, to prevail in this case,

Kushmaul must show that it is plainly established that the “least culpable conduct”

criminalized by Fla. Stat. § 827.071(3) is not a state crime that qualifies as a

predicate offense under 18 U.S.C. §§ 2252A(b)(1) and (b)(2). See Donawa, 735

F.3d at 1280, 1283.

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B.

Let’s start by looking at the statutes. The state statute under which

Kushmaul was convicted, Fla. Stat. § 827.071(3), states, in relevant part: “A

person is guilty of promoting a sexual performance by a child when, knowing the

character and content thereof, he or she produces, directs, or promotes any

performance which includes sexual conduct by a child less than 18 years of age.”

The statute defines “sexual conduct” as, among other things, “actual physical

contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if

such person is a female, breast, with the intent to arouse or gratify the sexual desire

of either party.” Id. § 827.071(1)(h). Performance is defined as, among other

things, a “photograph.” Id. § 827.071(1)(c). And promote means, among other

things, to “distribute.” Id. § 827.071(1)(d).

So, by our read of Fla. Stat. § 827.071(3), the least culpable conduct the

statute criminalizes is the distribution of a photograph of a child less than 18 years

of age that is making actual physical contact with a person’s clothed genitals,

pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse

or gratify the sexual desire of either party.

Under Kushmaul’s interpretation of the statute, Fla. Stat. § 827.071(3) is

“clearly” and “obviously” broader than the generic offenses listed in

§§ 2252A(b)(1) and (b)(2), and thus his prior conviction cannot serve as a

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predicate offense for sentencing enhancement. Appellant’s Br. at 21. For

example, Kushmaul argues that because the least culpable conduct under the

Florida statute would be “the distribution of an image of a hand on a clothed

buttocks or the clothed breast of a female under 18 years of age,” it must be

broader than the federal statute, which he believes extends only to images of

unclothed minors. Id. (emphasis added). But a close look at the sentencing

enhancement statutes and our precedent interpreting them reveals the flaws in

Kushmaul’s reasoning.

18 U.S.C. §§ 2252A(b)(1) and (b)(2) each state, in relevant part, that an

offender that “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” is subject to a heightened mandatory minimum for the crimes listed

in 18 U.S.C. §§ 2252A(a)(1)–(6). Sections 2252A(b)(1) and (b)(2) each list three

generic offenses: “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual

conduct involving a minor or ward.” These generic offenses are non-traditional,

and since we are applying the categorical approach, we define the non-traditional

generic offenses based on the “ordinary, contemporary, and common meaning” of

the statutory words. Cf. Ramirez-Garcia, 646 F.3d at 783 (11th Cir. 2011)

(analyzing 18 U.S.C. § 2251(e) and stating that “sexual abuse of a minor” is a non-

traditional offense) (quotation marks omitted).

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In the context of this case, two phrases from §§ 2252A(b)(1) and (b)(2) jump

off the page: “relating to” and “abusive sexual conduct involving a minor or

ward”—one of the three generic offenses. We have interpreted the first phrase,

“relating to,” “broadly in the context of child exploitation offenses.” Miller, 819

F.3d at 1317 (citation omitted). For example, when analyzing 18 U.S.C.

§ 2251A(b)(1) and 18 U.S.C. § 2251(e), we have said that “relating to” means

“stands in some relation, bears upon, or is associated with” sexual abuse. United

States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012), abrogated on other

grounds as recognized by United States v. Rothenberg, 923 F.3d 1309, 1336 (11th

Cir. 2019); see also Miller, 819 F.3d at 1317 (analyzing § 2251(e)).

We have also interpreted the ordinary, common meaning of the generic

“abusive sexual conduct of a minor or ward” offense “broadly.” McGarity, 669

F.3d at 1262. We have, for example, held that a prior conviction for performing a

“lewd act in front of a minor”—a crime that could be committed without actually

touching the minor—qualified as “abusive sexual conduct” under § 2252A(b)(1).

United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). We likewise held

in McGarity that a defendant’s conviction of enticing a minor for indecent

purposes, which was not predicated “on touching or attempting to touch a minor,”

qualified as “abusive sexual conduct” under § 2252A(b)(1). See McGarity, 669

F.3d at 1261–62. In neither of these cases did our interpretation of the breadth of

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the generic offense turn on whether an individual was clothed or unclothed.

Further, in the context of sentencing enhancement under U.S.S.G. § 2L.1.2 (1998),

we held that a similar phrase, “sexual abuse of a minor,” meant a “perpetrator’s

physical or nonphysical misuse or maltreatment of a minor for a purpose

associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d

1158, 1163–64 (11th Cir. 2001) (emphasis added).

And even without relying on our precedent, a plain reading of “abusive

sexual conduct” makes clear that the generic offense does not require (1) that an

individual be “unclothed,” as Kushmaul suggests, or (2) physical contact. On the

first point, Kushmaul focuses on the “sexual” portion of the term “sexual conduct.”

See Appellant’s Br. at 21. Webster’s Third New International Dictionary defines

“sexual” as “of or relating to the sphere of behavior associated with libidinal

gratification,” Sexual, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2082

(1993), and courts in this Circuit have adopted that definition, see Padilla-Reyes,

247 F.3d at 1163. The definition makes no distinction between clothed and

unclothed behavior, and no honest reading would cabin “behavior associated with

libidinal gratification” only to acts performed while one of the individuals is

unclothed.

Moving to the “physical contact” point, Webster’s includes among its

definitions of “conduct” “behavior in a particular situation or relation or on a

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specified occasion.” Conduct, WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 474 (1993). Now compare “conduct” with “contact,” which appears

in 18 U.S.C. § 2251(e)’s generic offense of “abusive sexual contact involving a

minor or ward.” 5 Webster defines “contact” as a “union or junction of body

surfaces: a touching or meeting.” Contact, WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 490 (1993) (emphasis added). The differences in

these two definitions tell the whole story: “Abusive sexual contact” requires

physical touching, but “abusive sexual conduct” does not.

So, when we compare the least culpable conduct under Fla. Stat.

§ 827.071(3) with our interpretation of the language of the generic “abusive sexual

conduct of a minor or ward” offense, Kushmaul’s argument that the Florida statute

is broader than the sentencing enhancement statutes crumbles. Under the Florida

statute, the least culpable conduct requires at least some physical touching of a

minor, and Kushmaul concedes as much. See Appellant’s Br. at 21 (“In other

words, the least culpable conduct punishable under Florida law includes the

distribution of an image of a hand on a clothed buttocks or the clothed breast of a

5
18 U.S.C. § 2251(e) is another sentencing enhancement statute that states, in relevant
part, that if an offender has “one prior conviction . . . under the laws of any State relating to
aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex
trafficking of children, or the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person shall be fined under this title and
imprisoned for not less than 25 years nor more than 50 years.”

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female under 18 years of age.” (emphasis in original)). But under this Circuit’s

reading of the language of §§ 2252A(b)(1) and (b)(2), prior convictions that

require no physical touching of a minor at all, such as enticing a minor for indecent

purposes, qualify as “abusive sexual conduct.” See McGarity, 669 F.3d at 1261–

62. We struggle to see how the least culpable conduct punishable under Fla. Stat.

§ 827.071(3)—which requires the actual touching of a minor—is somehow

“broader” than the acts proscribed by 18 U.S.C. §§ 2252A(b)(1) and (b)(2)—which

do not. Kushmaul’s attempt to instead emphasize the distinction between images

of clothed and unclothed minors simply misses the mark.

Nor does the phrase “relating to” salvage Kushmaul’s argument. That

phrase, as interpreted by this Circuit, is clearly broad enough to encompass a

conviction for the least culpable act under Fla. Stat. § 827.071(3). As noted above,

even convictions for nonphysical acts can constitute qualifying offenses for the

mandatory minimum enhancement, and only a truly opaque reading of “relating

to” would conclude that photographs of a hand on the clothed buttocks or the

clothed breast of a female child do not “stand in some relation” to the “abusive

sexual conduct of a minor.” Miller, 819 F.3d at 1317 (emphasis added). To hold

otherwise would be to read “relating to” too narrowly.

And even if Fla. Stat. § 827.071(3) is arguably broader than the sentencing

enhancement statutes, a close call is not enough for Kushmaul to prevail on plain

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error review. Hesser, 800 F.3d at 1325 (“[The] error must be so clearly established

and obvious that it should not have been permitted by the trial court even absent

the defendant’s timely assistance in detecting it.” (quotation marks omitted)).

Kushmaul needed to show that the plain language of the statutes “clearly” and

“obvious[ly]” resolved the issue, and he has not. Id. (emphasis added).

C.

Since the plain language of the statutes do not resolve the issue, we turn next

to precedent. From our review of the case law, we find no published precedent

determining whether a conviction for an offense under Fla. Stat. § 827.071(3)

relates to the generic offenses listed in 18 U.S.C. §§ 2252A(b)(1) and (b)(2). And

Kushmaul concedes that there is none. See Appellant’s Br. at 24 (“Appellant is

unaware of any decision of this Court holding that a conviction under Fla. Stat.

§ 827.071(3) does not qualify for the enhanced penalties of § 2252A(b)(1) and

(2).”). Of course, precedent is not always necessary to establish plain error, but in

the absence of a clear resolution through the language of the sentencing

enhancement statutes, it is all Kushmaul has left. See Castro, 455 F.3d at 1253.

So, in light of our conclusion that the plain language of the statutes do not clearly

resolve whether Fla. Stat. § 827.071(3) qualifies as a predicate offense under 18

U.S.C. §§ 2252A(b)(1) and (b)(2), and given that we have not seen any precedent

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that settles the issue, Kushmaul has failed to establish that the District Court

plainly erred.

IV.

Because the District Court did not plainly err in enhancing Kushmaul’s

sentence under 18 U.S.C. §§ 2252A(b)(1) and (b)(2), we affirm his sentence.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4649374. Public record. Not legal advice.