USA v. David Wile

Filing

FILED OPINION (ANDREW J. KLEINFELD, A. WALLACE TASHIMA and BARRY G. SILVERMAN) AFFIRMED. Judge: AWT Authoring, FILED AND ENTERED JUDGMENT. [7788891]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID COLTER WILES,
Defendant-Appellant.

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


No. 10-30224
DC No.
9 09-cr-0019 DWM
OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
April 14, 2011—Seattle, Washington
Filed June 17, 2011
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Tashima

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UNITED STATES v. WILES

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COUNSEL
John Rhodes, Assistant Federal Defender, Missoula, Montana,
for the defendant-appellant.
Leif M. Johnson, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.

OPINION
TASHIMA, Circuit Judge:
We previously have held that a conviction for sexual
assault in violation of Montana law is a “prior conviction . . .
under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor,” such that a district court should apply the enhanced
sentencing range of fifteen to forty years to a person convicted of transporting or receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), (2). United States v.
Sinerius, 504 F.3d 737, 744 (9th Cir. 2007). This case presents the related question of whether a prior conviction for
attempted sexual assault under Montana law is a predicate

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UNITED STATES v. WILES

offense triggering the application of the enhanced sentencing
range. We conclude that the answer is yes.
I.

Background

In 2002, Defendant-Appellant David Wiles pleaded guilty
to attempted sexual assault in violation of Mont. Code Ann.
§ 45-5-103. In 2009, Wiles pleaded guilty in federal court to
one count of receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2).1 At sentencing, the district court concluded that Wiles’ prior Montana conviction for attempted
sexual assault was a predicate offense, such that the applicable sentencing range was fifteen to forty years, instead of the
five to twenty year range that applies in the absence of a predicate offense. See § 2252A(b)(1). The district court imposed
the maximum sentence of forty years.
II.

Standard of Review

This court “review[s] de novo a district court’s conclusion
that a prior conviction qualifies for a sentencing enhancement.” United States v. Strickland, 601 F.3d 963, 967 (9th
Cir. 2010) (en banc) (quoting United States v. AlmazanBecerra, 537 F.3d 1094, 1097 (9th Cir. 2008)).
III.

Discussion

[1] “A defendant convicted for violating § 2252A is subject to an enhanced sentence if he has a prior state conviction
‘relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor.’ ” Id. at 967 (quoting
§ 2252A(b)(1), (2)). “We have broadly interpreted 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
1

Except where indicated, statutory references in this opinion are to Title
18 of the United States Code.

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offense.’ ” Id. (quoting Sinerius, 504 F.3d at 743). To determine whether a prior conviction qualifies as a predicate
offense under § 2252A(b), “we rely on the familiar two-step
test set forth in Taylor v. United States, 495 U.S. 575 (1990).”
Sinerius, 504 F.3d at 740; Strickland, 601 F.3d at 967. First,
we examine the definition of the predicate offense in the federal statute. Sinerius, 504 F.3d at 740. Here, § 2252A’s
enhanced sentencing range applies to a person convicted
“under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward.” § 2252A(b)(1). Thus, “the relevant offenses
under § 2252A(b) are those ‘relating to . . . aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward.’ ” Sinerius, 504 F.3d at 740 (citation omitted).
Second, we compare the elements of the state criminal offense
with the predicate offense as defined in the federal statute.
Strickland, 601 F.3d at 967.
[2] We applied the Taylor categorical approach in Sinerius,
concluding that a conviction for sexual assault under Montana
law is a predicate offense under § 2252A(b)(1). Sinerius, 504
F.3d 744. Accordingly, the only question before us is whether
attempted sexual assault under Montana law is also a predicate offense. The parties’ arguments center on the correct
mode of analysis to employ to answer this question. Wiles
argues that we should engage in a second categorical analysis,
such that his “prior conviction for attempted sexual assault
qualifies as a predicate offense only if Montana’s definition
of both ‘sexual assault’ and ‘attempt’ are coextensive with the
respective common law definitions.” The government disagrees. It argues that because “attempt” is not part of the definition of the predicate offense in § 2252A(b)(1), the
categorical approach applies only to the definition of sexual
assault. At that point, “the correct test is whether Montana’s
attempted sexual assault statute stands in some relation to or
pertains to a generic offense in § 2252A(b), in this case, ‘sexual abuse.’ ” For the reasons stated herein, we adopt the
approach advocated by the government.

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Wiles’ argument is based on United States v. SaavedraVelazquez, which examined whether attempted robbery under
California Penal Code § 211 is a “crime of violence” justifying a 16-level upward adjustment of the base offense level
under U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 578 F.3d 1103, 1106
(9th Cir. 2009); see also United States v. Sarbia, 367 F.3d
1079 (9th Cir. 2004) (applying categorical approach to determine whether prior conviction for attempted discharge of a
firearm under Nevada law is a “crime of violence” under
U.S.S.G. § 4B1.2). In Saavedra-Valazquez, we noted that it
was already established that a completed robbery under California Penal Code § 211 is a crime of violence. 578 F.3d at
1106. We then applied the categorical approach to “attempt,”
explaining that “a prior state conviction for an attempt to
commit an offense that would qualify as a ‘crime of violence’
is itself categorically a ‘crime of violence’ only if the state
definition of attempt is no broader than the corresponding federal or common law definition.” Id. at 1107. We concluded
that the California and common law definitions of attempt
were “coextensive” such that attempted robbery was a “crime
of violence”; thus, a sentencing enhancement was appropriate.
Id. at 1110.
[3] In advocating that we apply the same approach to this
case, Wiles overlooks a key difference between the language
of § 2252A and the statutory language at issue in SaavedraValazquez. Saavedra-Valazquez addressed a prior conviction
for a “crime of violence,” which by definition includes “the
offenses of aiding and abetting, conspiring, and attempting, to
commit such offenses.” U.S.S.G. § 2L1.2 cmt. 5. Section
2252A(b), by contrast, makes no mention of “attempt.”
Because the categorical approach requires a court to compare
“the elements of the state criminal offense with the predicate
offense as defined in the federal statute,” there is no basis to
compare the Montana attempt statute to the federal law of
attempt — attempt is not part of the definition of the predicate
offense. See Strickland, 601 F.3d at 967 (citing Sinerius, 504
F.3d at 740) (emphasis added).

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This conclusion is supported by Rebilas v. Mukasey, 527
F.3d 783 (9th Cir. 2008). In Rebilas, an immigration case, the
court was required to decide whether a prior conviction for
attempted sexual public indecency to a minor under Arizona
law was categorically a conviction for attempted sexual abuse
of a minor under 8 U.S.C. § 1101(a)(43)(A) & (U) (defining
“aggravated felony”). The court explained:
To hold that Rebilas’s conviction was categorically a conviction for attempted sexual abuse of a
minor under 8 U.S.C. § 1101(a)(43)(A) and (U), we
would have to hold not only that Arizona’s definition
of public sexual indecency to a minor under ARS
§ 13-1403(B) was categorically sexual abuse of a
minor, but also that Arizona’s definition of attempt
under ARS § 13-1001 was a categorical match with
the federal definition of attempt. This would require
a second Taylor analysis, comparing the elements of
attempt under Arizona law and the elements of
attempt under 8 U.S.C. § 1101(a)(43)(U).
Id. at 787.
The statute at issue in Rebilas specifically provides that an
“aggravated felony” includes “an attempt or conspiracy to
commit” sexual abuse of a minor. 8 U.S.C. § 1101(a)(43)(A),
(U). Similarly, the Sentencing Guideline at issue in SaavedraValazquez specifically provides that a “crime of violence”
includes “the offenses of aiding and abetting, conspiring, and
attempting, to commit such offenses.” U.S.S.G. § 2L1.2 cmt.
5. Attempt is therefore part of the definition of the predicate
offense and properly analyzed in a second categorical analysis. The same cannot be said of the statute here. There simply
is no statutory language on which to base a second categorical
analysis.
[4] Instead, we adopt the approach advocated by the government and conclude that attempted sexual assault under

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Montana law “relates to” sexual assault under Montana law
and therefore is a predicate offense under § 2252A. In doing
so, we join two of our sister circuits. In United States v. Stults,
575 F.3d 834 (8th Cir. 2009), the Eighth Circuit reasoned that
the statutory language “relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or
ward,” must be read broadly to encompass convictions for
attempt, where the completed offense would qualify as a predicate offense. Id. at 845 (construing the sentencing enhancement language in § 2252(b)(1)) (citing Morales v. Trans
World Airlines, 504 U.S. 374, 383 (1992) (additional citations
omitted)). This is because the “ordinary meaning” of the
phrase “relating to” “is a broad one — ‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into
association with or connection with.’ ” Morales, 504 U.S. at
383 (quoting Black’s Law Dictionary 1158 (5th ed. 1979))
(discussing express preemption). An attempt conviction
“clearly ‘stands in some relation to’ or ‘pertains to’ the crimes
of aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor” and therefore qualifies as a predicate offense under § 2252(b)(1). Stults, 575 F.3d at 846.
The Fifth Circuit reached the same result in United States
v. Hubbard, 480 F.3d 341, 345 (5th Cir. 2007). Hubbard considered whether a prior state conviction for attempting to
make lewd or indecent proposals to a child under the age of
16 was a predicate offense under § 2252A(b)(1). Id. The court
concluded that it was, even if there was no sexual contact. Id.
at 347. “We must assume,” the court reasoned, “that Congress
chose the words ‘relating to’ for a purpose.” Id. The meaning
of the phrase “relating to” is broad enough to encompass
attempted sexual abuse. Id. An attempt to commit an offense
“stands in some relation to” the completed offense and so
qualifies for the enhanced sentencing range of § 2252A(b)(1).
See id.; but see United States v. McGrattan, 504 F.3d 608,
612 (6th Cir. 2007) (rejecting this approach).
[5] Our conclusion is grounded in the Montana law of
attempt. The Montana Supreme Court has explained:

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To be guilty of the underlying offense of sexual
assault, a person must knowingly subject another
person to “sexual contact” without consent. Section
45-5-502, MCA. Sexual contact requires a touching
of the sexual or other intimate parts of the victim for
the purpose of arousing or gratifying the sexual
desire of either party. Section 45-2-101(60), MCA.
An “attempt” requires proof that the defendant, with
the purpose of committing the underlying offense,
took any act toward commission of the offense. Section 45-4-103(1), MCA.
State v. Fuller, 880 P.2d 1340, 1342 (Mont. 1994) (reversing
conviction where there was no evidence that the defendant,
after volleying sexual comments at three girls from his truck,
slowed down, stopped, or opened the door). To be convicted
of attempted sexual assault, then, an actual touching is not
required but it must be shown “beyond a reasonable doubt
that the defendant intended to actually touch the victims.” Id.
Essentially, the sexual assault must “be in such progress that
it will be consummated unless interrupted by circumstances
independent of the will of the attempter.” State v. Gunderson,
237 P.3d 74,85 (Mont. 2010). The statute and the case law
make clear that an attempt under Montana law “relates to” the
completed offense. We therefore conclude that a conviction
for attempted sexual assault under Montana law “relates to”
sexual abuse within the meaning of § 2252A(b)(1). The district court did not err in applying the sentencing enhancement.
The judgment and sentence of the district court is
AFFIRMED.