US v. Bailey Mill

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00113-FL-1. [1000042530]. [15-4325]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4325

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BAILEY JOE MILLS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:14-cr-00113-FL-1)

Argued: January 26, 2017

Decided: March 15, 2017

Before TRAXLER, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion.
Traxler and Judge Diaz joined.

Judge Thacker wrote the opinion, in which Judge

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

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THACKER, Circuit Judge:
Bailey Joe Mills (“Appellant”) pled guilty to a one-count criminal information
charging him with manufacturing child pornography in violation of 18 U.S.C. § 2251(a),
(d). He also had two previous convictions for taking indecent liberties with children in
violation of North Carolina law. See N.C. Gen. Stat. § 14-202.1. At sentencing, the
district court determined the North Carolina taking indecent liberties with children statute
constituted a state law “relating to the sexual exploitation of children.” As a result,
Appellant faced a sentence between 35 years and life.

See 18 U.S.C. § 2251(e).

Appellant did not object. The district court imposed a 45 year sentence.
On appeal, Appellant argues for the first time that the district court erred in
concluding that taking indecent liberties with children constitutes a state crime “relating
to the sexual exploitation of children” pursuant to 18 U.S.C. § 2251(e). For the reasons
that follow, we disagree with Appellant and affirm the district court.
I.
On January 5, 2014, police executed a search warrant on Appellant’s home after
an investigation revealed that he had been sexually abusing children.

The search

uncovered 125 videos and 924 still images produced by Appellant portraying the sexual
exploitation of children. Appellant used at least ten different children to make the
images. Appellant paid several of the children to have sex with him and other males.
Appellant also possessed over 10,000 additional images of child pornography and over
100,000 images of child erotica and adult pornography. On August 12, 2014, Appellant

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pled guilty to a one-count criminal information charging him with manufacturing child
pornography in violation of 18 U.S.C. § 2251(a), (d).
Appellant’s relevant criminal history included two previous convictions for
violating a North Carolina taking indecent liberties with children statute.

In 1997,

Appellant pled guilty to taking indecent liberties with a three-year old child to arouse
himself sexually. And in 2000, Appellant pled guilty to taking indecent liberties with an
11 year old child to arouse himself. At sentencing, the district court determined that
these convictions related to the “sexual exploitation of children” pursuant to 18 U.S.C.
§ 2251(e), rendering Appellant eligible for a sentencing enhancement. Appellant did not
object. Because of the enhancement, Appellant faced a sentence between 35 years and
life. Based on the amount and severity of harm caused by Appellant and the likelihood of
recidivism, the district court sentenced Appellant to 540 months (45 years) in prison.
Appellant timely appealed.

Because he failed to object to his sentencing

enhancement, we review Appellant’s argument for plain error. See United States v.
Garcia-Lagunas, 835 F.3d 479, 492 (4th Cir. 2016).

To show plain error, he must

demonstrate that “there was an error, the error was plain, and the error affected [his]
substantial rights.”

United States v. Boykin, 669 F.3d 467, 470 (4th Cir. 2012).

Appellant fails on all three counts.

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II.
A.
Neither party disputes the application of the categorical approach to determine
whether the prior conviction enhancement was proper, so we will assume that it applies.
When employing the categorical approach, we “look[] only to the statutory definitions of
the prior offenses, and not to the particular facts underlying those convictions.” Taylor v.
United States, 495 U.S. 575, 600 (1990). We begin by defining and “considering the
required elements of the generic federal crime.” Amos v. Lynch, 790 F.3d 512, 518 (4th
Cir. 2015). Then, “we only look to the statutory definition of the state crime and the fact
of conviction.” United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008). We will
only conclude that “a state offense is a categorical match with a federal offense . . . if a
conviction of the state offense necessarily involved facts equating to the generic federal
offense.” Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015) (quoting Moncrieffe v.
Holder, 122 S.Ct. 1678, 1680 (2013)) (citation and brackets omitted).
B.
Appellant pled guilty to violating 18 U.S.C. § 2251(a), (d). Section 2251(e)
provides the punishment. It states that any person who has one prior conviction “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 . . . shall be fined under this
title and imprisoned for not less than 25 years nor more than 50 years,” and any person
with two prior convictions for violations of state law “relating to sexual exploitation of
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children . . . shall be fined under this title and imprisoned not less than 35 years nor more
than life.” 18 U.S.C. § 2251(e) (emphasis supplied).
Appellant’s sole point of contention on appeal is that the district court erred in
interpreting “sexual exploitation.”

According to Appellant, “sexual exploitation” of

children should be narrowly interpreted to include only “offense[s] involving the
manufacturing and marketing/advertising of child pornography.” Appellant’s Br. 12.
The government responds that the district court did not err, and “sexual exploitation”
should be broadly interpreted to include any criminal sexual conduct with children.
Section 2251(e) does not provide a definition for “sexual exploitation.” When, as
here, Congress has not provided a definition for a statutory term, we give the term its
ordinary, everyday meaning. See Perrin v. United States, 444 U.S. 37, 42 (1979) (“A
fundamental canon of statutory construction is that, unless otherwise defined, words will
be interpreted as taking their ordinary, contemporary, common meaning.”). Black’s Law
Dictionary defines “sexual exploitation” as “[t]he use of a person, esp. a child, in
prostitution, pornography, or other sexually manipulative activity.”

Black’s Law

Dictionary (10th ed. 2014). Similarly, Merriam-Webster defines “sexual” as “of, relating
to, or involving sex,” and “exploitation” as “to use unfairly for one’s own advantage.”
Merriam-Webster’s Dictionary (11th ed. 2005). Likewise, the New Oxford American
Dictionary defines “sexual” as “relating to the instincts, physiological processes, and
activities connected with physical attraction or intimate physical contact between
individuals,” and “exploit” as “to use (a situation or person) in an unfair or selfish way.”
The New Oxford American Dictionary (2d ed. 2005).
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Against this backdrop, then, for the purposes of 18 U.S.C. § 2251, “sexual
exploitation of children” means to take advantage of children for selfish and sexual
purposes. Therefore, “sexual exploitation” encompasses all the behaviors identified in
§ 2251(e)’s provision regarding a single prior conviction enhancement

-- that is,

“aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or
ward, or sex trafficking of children, [and] the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child pornography” -- and then some.
Although the statute sweeps broadly, it is readily understandable.
Under North Carolina law, to convict someone of taking indecent liberties with
children, the state must prove:
(1) the defendant was at least 16 years of age, (2) he was five
years older than his victim, (3) he willfully took or attempted
to take an indecent liberty with the victim, (4) the victim was
under 16 years of age at the time the alleged act or attempted
act occurred, and (5) the action by the defendant was for the
purpose of arousing or gratifying sexual desire.
State v. Rhodes, 361 S.E.2d 578, 580 (N.C. 1987). An “indecent liberty” is any “sexual
conduct with a minor child.” State v. Elam, 273 S.E.2d 661, 665 (N.C. 1981). Indecent
liberty includes production of sexual images, touching, penetration, and “masturbation
within a child’s sight.” State v. Etheridge, 352 S.E.2d 673, 682 (N.C. 1987).
We conclude that any conviction for the North Carolina crime of taking indecent
liberties with children at the very least “relat[es] to the sexual exploitation of children.”
18 U.S.C. § 2251(e); see Etienne v. Lynch, 813 F.3d 135, 145 (4th Cir. 2015) (finding
any state law conspiracy to violate the controlled substance act categorically an
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aggravated felony for the purposes of the Immigration and Nationality Act). Under North
Carolina law, the victim must be a child. See Rhodes, 361 S.E.2d at 580. And the
defendant must use the child to gratify his own sexual desires, which satisfies any
definition of “sexual exploitation.” See id. As a result, because Appellant’s two previous
convictions “relat[ed] to sexual exploitation of children,” he faced a sentence between 35
years and life. 18 U.S.C. § 2251(e).
C.
In an attempt to avoid this interpretation, Appellant engages in a series of
interpretative missteps in an effort to support his preferred reading that “sexual
exploitation” requires the production and sale of child pornography.
First, Appellant first divines a legislative intent to narrowly define “sexual
exploitation,” even though no such intent is apparent. There is no reason to assume
Congress meant for “sexual exploitation of children” to be more narrow than the
enumerated offenses identified for a person with a single prior conviction enhancement.
Congress may have been more concerned with the potential recidivism for people with
two prior convictions, and, therefore, created a broader category of convictions that
trigger the enhancement. Perhaps Congress simply forgot to alter this part of the statute
when it enacted the 2006 amendments, which replaced “sexual exploitation” as the
predicate act for a single prior conviction enhancement with the current list of possible
convictions. Compare 18 U.S.C. § 2251(e) (2003) with 18 U.S.C. § 2251(e) (2006). But
any arguments along this line are sheer speculation and cannot be used to shed light on

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the meaning of the statute. See United States v. Hilton, 701 F.3d 959, 969 (4th Cir.
2012).
Second, Appellant attempts to incorporate into § 2251(e) a definition from an
unrelated statutory provision. In doing so, he relies on the doctrine of in pari materia,
which means “adjacent statutory subsections that refer to the same subject matter should
be read harmoniously.” Doe v. Cooper, 842 F.3d 833, 844 (4th Cir. 2016) (internal
quotation marks omitted). Although a definition from another part of the code can be
incorporated to define terms in pari materia, “the principle of in pari materia has no force
where two statutes ‘superficially relat[e] to similar subjects,’ but ‘a finer examination
reveal[s] that the purposes underlying the laws var[y].” United States v. Broncheau, 645
F.3d 676, 685 (4th Cir. 2011) (alterations in original) (quoting Firstar Bank, N.A. v. Faul,
253 F.3d 982, 990 (7th Cir. 2001)). In support of his position, Appellant employs a
definition from 18 U.S.C. § 3509(a), but that statute does not define criminal
wrongdoing. Instead, it provides rights to child victims. The doctrine of in pari materia
is inapplicable when statutes have different purposes. Although both statutes are within
Title 18 of the United States Code, they have different purposes. See Wachovia Bank v.
Schmidt, 546 U.S. 303, 316 (2006) (finding the doctrine of in pari materia inapplicable
because subject matter jurisdiction and venue were “not concepts of the same order”).
In a last ditch attempt to avoid the plain meaning of the statute, Appellant cites the
canon of constitutional avoidance to argue that the court should limit the term “sexual
exploitation” to “offenses that require direct physical contact between the defendant and
victim.” Appellant’s Br. 36. Besides requiring this court to adopt a different definition
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of “sexual exploitation” than one Appellant claimed Congress’s intent and the structure
of the criminal code required, this argument misuses the canon of constitutional
avoidance. “The canon of constitutional avoidance comes into play only when, after the
application of ordinary textual analysis, the statute is found to be susceptible of more than
one construction; and the canon functions as a means of choosing between them.” Clark
v. Martinez, 543 U.S. 371, 385 (2005) (emphasis in original). Therefore, as a threshold
requirement for the canon to apply, a party must show, using ordinary interpretive
methods, that the term is ambiguous and capable of multiple definitions. See id. In
contrast, textual analysis reveals only one meaning for “sexual exploitation”
encompassing a wide range of conduct. 1
For all of the foregoing reasons, we hold the district court correctly concluded that
Appellant’s conviction for taking indecent liberties with children under North Carolina
law related to the “sexual exploitation of children” for the purposes of the 18 U.S.C.
§ 2251(e) enhancement. Therefore, Appellant cannot satisfy the first prong of the plain
error analysis.
D.
Even assuming the district court committed an error, however, it would not have
been a “clear or obvious” error because the district court’s decision was supported by the

1

We do not interpret Appellant’s brief as raising a vagueness challenge but rather
as using the canon of constitutional avoidance to argue for a limited definition of “sexual
exploitation.” Regardless, he cannot bring a vagueness challenge because “[o]ne to
whose conduct a statute clearly applies may not successfully challenge it for vagueness.”
Parker v. Levy, 417 U.S. 733, 756 (1974).
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literal meaning of the term “sexual exploitation of children” and uncontradicted
persuasive authority from other circuits. United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013).
In United States v. Smith, a defendant argued that sexual exploitation of children
is limited to pornography. See 367 F.3d 748, 751 (8th Cir. 2004). The Eighth Circuit
rejected this argument and held, “Although the term ‘sexual exploitation of children’ is
not defined in the statute, the term unambiguously refers to any criminal sexual conduct
with a child. By its very nature any criminal sexual conduct with a child takes advantage
of, or exploits, a child sexually.” Id. (quoting 18 U.S.C. § 2251(e)).
Similarly, the Third Circuit has concluded that sexual exploitation includes
production of visual depictions of minors, statutory rape, involuntary deviate sexual
intercourse, and unlawful sexual contact with a child victim.

See United States v.

Pavulak, 700 F.3d 651, 674 (3d Cir. 2012). In that case, the defendant argued “sexual
exploitation of children” was limited “to crimes involving visual depictions.” Id. The
Third Circuit dismissed this argument finding the argument unfathomable under normal
rules of statutory construction. See id.
E.
Finally, for this court to reverse on plain error review, the lower court must not
only commit an error and the error be plain, but the error must have “affected Appellant’s
substantial rights.” United States v. Ramirez-Castillo, 748 F.3d 205, 215 (2014). An
error affects substantial rights when it is prejudicial, meaning the error “affected the

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outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734
(1993).
Per 18 U.S.C. § 2251(e), a person who has one prior conviction for, among other
offenses, a state law relating to “sexual abuse” of children receives a sentence between 25
and 50 years. Sexual abuse of children “involves the misuse or mistreatment of a minor
and . . . it does not require the use of physical force.” United States v. Diaz-Ibarra, 522
F.3d 343, 350 (4th Cir. 2008). Appellant’s previous convictions, which involved using
children to “gratify his own sexual desires,” unmistakably meet this court’s definition for
“sexual abuse.” Id. at 353.
In making its sentencing determination, the district court looked to Appellant’s
actions, the harm his actions caused, and the likelihood of recidivism and imposed a
sentence commiserate with the purposes of punishment. Here, the case for a severe
sentence was overwhelming. Appellant “engaged in the hands-on sexual assault and
production of child pornography” with at least ten different children. J.A. 21. 2 He “paid
several of the children to engage in sexual acts with him and other adult male
‘customers.’” Id. at 22. He abused the trust of “unsuspecting parents” who placed their
children in his care. Id. He produced a trove of child pornography and had received even
more images “depict[ing] prepubescent children as young as infants engaged in sadistic
and masochistic conduct with adult males, as well as bestiality.” Id. at 23. And he was
twice previously convicted for sexually abusing children.
2

Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this

appeal.
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Given the egregious nature of his past and continuing offenses against children,
even if Appellant had been sentenced based on a one prior offense enhancement, the
district court would have likely imposed the same sentence.

We therefore hold

Appellant’s sentence did not affect his substantial rights.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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