United States v. Thomas Kreb

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Bobby E. Shepherd and James M. Moody, Jr. AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4431856] [15-2348]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2348
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Thomas Eugene Krebs,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 15, 2016
Filed: July 29, 2016
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Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,1 District Judge.
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COLLOTON, Circuit Judge.
Thomas Eugene Krebs pleaded guilty to possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). His criminal history included a conviction

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The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, sitting by designation.

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under Iowa law for indecent contact with a child in 1982. See Iowa Code § 709.12
(1981).
Pursuant to a plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C), the parties agreed that Krebs would be subject to a sentence of 120
months’ imprisonment if the court determined that his prior conviction triggered the
mandatory statutory penalty under § 2252(b)(2). If the conviction was not a
qualifying predicate offense, however, the parties assented to a sentence of 60
months’ imprisonment and 240 months of supervised release. Over Krebs’s
objection, the district court2 concluded that Krebs’s prior conviction was a qualifying
predicate offense under § 2252(b)(2), and sentenced Krebs to 120 months’
imprisonment.
Section 2252(b)(2) requires a mandatory minimum term of ten years’
imprisonment for any person who violates § 2252(a)(4) and who 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.” We review de novo the
sentencing court’s determination that Krebs’s prior conviction constitutes a qualifying
predicate offense under § 2252(b)(2). United States v. Cover, 703 F.3d 477, 480 (8th
Cir. 2013).
Krebs asserts that his prior conviction for indecent contact with a child does
not satisfy the definitions of aggravated sexual abuse, sexual abuse, or abusive sexual
contact found in a separate statutory chapter (Chapter 109A), so his conviction should
not trigger the sentencing enhancement in § 2252(b)(2). Krebs acknowledges,
however, that circuit precedent forecloses his argument. In United States v.
Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009), this court held that the definitions in

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The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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Chapter 109A do not apply to the penalty enhancement provisions found in
§ 2252(b). In a Rule 28(j) letter, Krebs contends that Lockhart v. United States, 136
S. Ct. 958 (2016), suggests that the definitions in § 2252(b) closely follow the
structure and language of the definitions contained in Chapter 109A. The Supreme
Court in Lockhart, however, took “no position . . . on the meaning of the terms
‘aggravated sexual abuse,’ ‘sexual abuse,’ and ‘abusive sexual conduct.’” 136 S. Ct.
at 965. We see no warrant in Lockhart to reconsider Sonnenberg.
Krebs argues in the alternative that his indecent contact conviction does not
constitute a predicate offense even under the ordinary, contemporary meaning of
“aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduct” applied in
Sonnenberg. Sonnenberg concluded that the ordinary meaning of “sexual abuse of
a minor” encompasses “a perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual gratification.” 556 F.3d
at 671 (internal quotation marks omitted). Since then, the Supreme Court clarified
that a qualifying conviction under a state law relating to “sexual abuse” need not
involve a minor. Lockhart, 136 S. Ct. at 968.
Here, the district court determined that the Iowa statute concerning indecent
contact with a child was divisible and considered the charging document to determine
the offense of conviction. The trial information established that Krebs necessarily
was convicted of knowingly fondling or touching the inner thigh, groin, buttock,
anus, or breast of a child under the age of fourteen for the purpose of arousing or
satisfying the sexual desires of either of them. See Iowa Code § 709.12(1) (1981).
It follows, therefore, that Krebs physically misused or maltreated a child with the
intent to seek libidinal gratification, and thus committed an offense related to “sexual
abuse” within the meaning of § 2252(b)(2). See Sonnenberg, 556 F.3d at 669, 671;
see also Cover, 703 F.3d at 479 n.2, 481.

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Krebs further contends that the terms “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual contact” in § 2252(b)(2) are ambiguous and that he
should receive a favorable interpretation under the rule of lenity. Sonnenberg
forecloses that argument as well. 556 F.3d at 671.
The judgment of the district court is affirmed.
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