United States v. Joel Zigler

Filing

OPINION FILED - THE COURT: James B. Loken, Myron H. Bright and Steven M. Colloton AUTHORING JUDGE:Myron H. Bright (PUBLISHED) [4003959] [12-2299]

United States Court of Appeals
For the Eighth Circuit
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No. 12-2299
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Joel Grogan Zigler
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 14, 2012
Filed: February 12, 2013
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Before LOKEN, BRIGHT, and COLLOTON, Circuit Judges.
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BRIGHT, Circuit Judge.
Joel Grogan Zigler pled guilty to production of child pornography in violation
of 18 U.S.C. § 2251(a) and (e). At sentencing, the district court1 determined that
Zigler’s 1988 Minnesota conviction for attempted use of a minor in a sexual
1

The Honorable Susan R. Nelson, United States District Court Judge for the
District of Minnesota.

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performance qualifies as a predicate offense for purposes of a mandatory minimum
sentencing enhancement under section 2251(e). Zigler argues that his prior
conviction does not qualify as a predicate offense under section 2251(e) and
challenges his sentence other grounds.2 We affirm the sentence as a mandatory
minimum.
I.
On September 21, 2011, a federal grand jury indicted Zigler with two counts
of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e).
Zigler pled guilty to count one of the two-count indictment for using A.W., a minor,
to engage in “sexually explicit conduct for the purpose of producing [a] visual
depiction of such conduct.” 18 U.S.C. § 2251(a). The district court concluded that
Zigler’s 1988 conviction for attempted use of a minor in a sexual performance, in
violation of Minnesota Statutes section 617.246, subd. 2, qualifies as a predicate
offense for purposes of a mandatory minimum sentencing enhancement under section
2251(e). Applying the mandatory minimum set forth in section 2251(e), the district
court sentenced Zigler to 300 months (25 years) in prison.
Zigler appeals the district court’s judgment.

2

Because we conclude that Zigler’s 1988 Minnesota conviction constitutes a
predicate offense for purposes of a mandatory minimum sentencing enhancement
under section 2251(e), we need not discuss Zigler’s contention that his 1988
Minnesota conviction is not a sex offense conviction that warrants an increased
guidelines range pursuant to Sentencing Guidelines § 4B1.5(a) or (b) or his argument
that the district court may disregard the guidelines range in arriving at a reasonable
sentence.
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II.
“We review de novo the district court’s use of prior convictions for sentencing
enhancement purposes.” United States v. Lockwood, 446 F.3d 825, 827 (8th Cir.
2006).
A defendant convicted of violating section 2251(a) faces a mandatory
minimum sentence of fifteen years in prison. 18 U.S.C. § 2251 (e). But if the
defendant has a prior conviction “under the laws of any State relating to . . . the
production . . . of child pornography,” the mandatory minimum sentence increases
to twenty-five years. Id. “The phrase ‘relating to’ carries a broad ordinary meaning,
i.e., to stand in some relation to; to have bearing or concern; to pertain; refer; to bring
into association or connection with.” United States v. Sonnenberg, 556 F.3d 667, 671
(8th Cir. 2009) (internal quotations and citations omitted). We give other terms their
ordinary 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.”)
To determine whether [a] prior offense qualifies as a predicate offense
for the purpose of a sentence enhancement, federal courts apply a
categorical approach. Under this approach, the sentencing court looks
to the fact of conviction and the statutory definition of the prior offense
and determines whether the full range of conduct encompassed by the
state statute qualifies to enhance the sentence.
Sonnenberg, 556 F.3d at 669-70 (internal citations omitted). By using the categorical
approach, we do not consider the particular offender’s specific conduct. See United
States v. Williams, 627 F.3d 324, 327 (8th Cir. 2010).

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At the time of Zigler’s 1988 conviction, section 617.246, subd. 2, stated, in
relevant part:
It is unlawful for a person to promote, employ, use or permit a minor to
engage in or assist others to engage in posing or modeling alone or with
others in any sexual performance if the person knows or has reason to
know that the conduct intended is a sexual performance.3
Minn. Stat. § 617.246, subd. 2 (1988). Looking to Zigler’s 1988 conviction and the
statutory definition of his offense, the question therefore is whether the full range of
conduct encompassed by section 617.246, subd. 2 “relat[es] to . . . the production . . .
of child pornography.” 18 U.S.C. § 2251(e).
Zigler contends section 617.246, subd. 2, proscribes conduct that does not
relate to the production of child pornography and therefore the full range of conduct
prohibited does not qualify to enhance the sentence. However, Zigler incorrectly
directs his contention to the current version of section 617.246, subd. 2, rather than
the 1988 version in effect at the time of his conviction. See Lockwood, 446 F.3d at
827-28 (looking to the statutory language in effect at the time of the prior conviction
to determine whether defendant’s prior conviction qualified as a predicate offense
warranting a sentence enhancement). Zigler’s contention focuses on the definition
of “pornographic work,” a term found in the current version of section 617.246, subd.
2, but not in the 1988 version. Minn. Stat. § 617.246, subd. 2 (1988). The 1988
version of the statute relevant to our analysis here does not contain the term
“pornographic work,” and as such, Zigler’s overbreadth argument fails.
3

Section 617.246, subd. 1, defines “sexual performance” as “any play, dance
or other exhibition presented before an audience or for purposes of visual or
mechanical reproduction which depicts sexual conduct as defined by clause (e).”
Minn. Stat. § 617.246, subd. 1 (1988). Clause (e) sets forth a list of what is
considered prohibited sexual conduct, including “masturbation or lewd exhibitions
of the genitals.” Id.
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As we read section 617.246, subd. 2, the full range of conduct proscribed
would constitute conduct that qualifies as a predicate offense because it stands in
some relation to the production of child pornography. On its face, the Minnesota
statute requires the use of a minor, posing or modeling in any sexual performance,
and knowledge that the conduct intended was a sexual performance. Where all
elements are present, the criminalized conduct necessarily “relat[es] to” the
production of child pornography. Therefore, Zigler’s 1988 state conviction effectively
triggered the increased mandatory minimum of twenty-five years pursuant to section
2251(e).
III.
We affirm the district court’s judgment.
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