                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 14a0006p.06

                  UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                X
                          Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-4481
          v.
                                                 ,
                                                  >
                                                 -
                         Defendant-Appellee. -
 CHRISTOPHER J. MATEEN,
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Columbus.
          No. 2:12-cr-00041-1—Edmund A. Sargus, Jr., District Judge.
                                     Argued: October 11, 2013
                              Decided and Filed: January 7, 2014
   Before: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.*

                                        _________________

                                              COUNSEL
ARGUED: Benjamin C. Glassman, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellant. Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Benjamin C. Glassman, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant. Kevin M. Schad,
FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee.
    MOORE, J., delivered the opinion of the court, in which HELMICK, D.J., joined.
McKEAGUE, J. (pp. 12–13), delivered a separate dissenting opinion.




         *
           The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                     1
No. 12-4481        United States v. Mateen                                           Page 2


                                  _________________

                                       OPINION
                                  _________________

       KAREN NELSON MOORE, Circuit Judge. Individuals convicted of possessing
child pornography are subject to a sentencing enhancement if they have also been
convicted of certain predicate state or federal offenses. In this appeal, we consider
whether a state sexual offense that does not necessarily involve a minor or ward can
trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2).

       Mateen pleaded guilty to possession of child pornography in interstate commerce
and was sentenced to a ten-year statutory maximum term of imprisonment. When
calculating Mateen’s sentence, the district court concluded that the statutory
enhancement for recidivist sexual offenders did not apply to Mateen because his prior
conviction for Gross Sexual Imposition did not necessarily involve a minor or ward. The
government argues that the district court misconstrued the statute, and that state offenses
that do not involve a minor or ward may qualify as predicate offenses for purposes of
triggering the sentencing enhancement. We disagree.

       Therefore, we AFFIRM the district court’s judgment concluding that Mateen’s
prior conviction was insufficient to trigger the sentencing enhancement.

                                  I. BACKGROUND

       After police discovered over 600 images of child pornography on his computer,
Christopher Mateen pleaded guilty to possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). R. 18 (Guilty Plea at 1) (Page ID #31). This was not the first
time Mateen had been convicted of a sexual crime. In 2006, he pleaded guilty to Gross
Sexual Imposition in violation of Ohio Revised Code § 2907.05. Ohio law provides:

       (A) No person shall have sexual contact with another, not the spouse of
       the offender; cause another, not the spouse of the offender, to have sexual
       contact with the offender; or cause two or more other persons to have
       sexual contact when any of the following applies:
No. 12-4481        United States v. Mateen                                       Page 3


              (1) The offender purposely compels the other person, or
              one of the other persons, to submit by force or threat of
              force.
              (2) For the purpose of preventing resistance, the offender
              substantially impairs the judgment or control of the
              person or of one of the other persons by administering
              any drug, intoxicant, or controlled substance to the other
              person surreptitiously or by force, threat of force, or
              deception.
              (3) The offender knows that the judgment or control of
              the other person or of one of the other persons is
              substantially impaired as a result of the influence of any
              drug or intoxicant administered to the other person with
              the other person’s consent for the purpose of any kind of
              medical or dental examination, treatment, or surgery.
              (4) The other person, or one of the other persons, is less
              than thirteen years of age, whether or not the offender
              knows the age of that person.
              (5) The ability of the other person to resist or consent or
              the ability of one of the other persons to resist or consent
              is substantially impaired because of a mental or physical
              condition or because of advanced age, and the offender
              knows or has reasonable cause to believe that the ability
              to resist or consent of the other person or of one of the
              other persons is substantially impaired because of a
              mental or physical condition or because of advanced age.
       (B) No person shall knowingly touch the genitalia of another, when the
       touching is not through clothing, the other person is less than twelve
       years of age, whether or not the offender knows the age of that person,
       and the touching is done with an intent to abuse, humiliate, harass,
       degrade, or arouse or gratify the sexual desire of any person.

Ohio Rev. Code § 2907.05. The Gross Sexual Imposition statute includes both third -
and - fourth degree felonies. Id. at § 2907.05(C)(1). Although the judgment from
Mateen’s state conviction does not specify the subsection on which Mateen’s guilty plea
rested, it does clarify that Mateen pleaded guilty to a fourth-degree felony. R. 30-1
(Com. Pleas J. Entry at 1) (Page ID #77). The state-court plea colloquy indicates that
Mateen’s victim on this count was an eight-year-old girl. R. 33-1 (Com. Pleas Plea
Colloquy Tr. at 2–4) (Page ID #89–91).
No. 12-4481        United States v. Mateen                                         Page 4


       The government sought to apply a statutory sentencing enhancement on the basis
of Mateen’s prior state conviction for Gross Sexual Imposition. R. 12 (Plea Agreement
¶ 2) (Page ID #18–19). For first-time offenders, violation of § 2252(a)(4) carries a
maximum sentence of ten years. 18 U.S.C. § 2252(b)(2). However, the federal statute
includes a sentencing enhancement for recidivist offenders. Relevant here, an individual
with 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 . . . shall be fined
under this title and imprisoned for not less than 10 years nor more than 20 years.” Id.
Mateen reserved the right to contest whether his prior state conviction qualified him for
the enhancement. R. 12 (Plea Agreement ¶ 2) (Page ID #19).

       The district court determined that the enhancement did not apply and sentenced
Mateen to 120 months of imprisonment pursuant to the statutory maximum. R. 39 (Tr.
of Sentencing Hr’g at 21–22) (Page ID #154–55). When it construed the statute, the
district court concluded that the phrase “involving a minor or ward” modifies all three
types of listed conduct: aggravated sexual abuse, sexual abuse, and abusive sexual
conduct. R. 36 (D. Ct. Op. at 6) (Page ID #117). The district court acknowledged the
government’s argument that the disjunctive “or” indicates that a prior conviction need
not involve a minor if it relates to aggravated sexual abuse or sexual abuse. Id. at 5
(Page ID #116). However, the district court reasoned that the rule of the last antecedent
“‘is not an absolute and can assuredly be overcome by other indicia of meaning.’” Id.
(quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)). The court noted that the title and
chapter in which § 2252 is indexed are labeled “Certain activities relating to material
involving the sexual exploitation of minors” and “Sexual Exploitation and other Abuse
of Children,” respectively, and concluded that these labels are “significant indicia” that
“involving a minor or ward” modifies all of the listed conduct in § 2252(b)(2). Id. at 6
(Page ID #117).

       The district court then used the modified categorical approach articulated in
Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13
(2005), to determine that Mateen’s prior conviction did not necessarily involve a minor
No. 12-4481        United States v. Mateen                                          Page 5


or ward and therefore did not trigger the sentencing enhancement. Id. at 6–7, 10 (Page
ID #117–18, 121).      On appeal, the United States argues that the district court
misconstrued the sentencing enhancement statute.

                        II. STATUTORY CONSTRUCTION

       The government argues that the district court erroneously construed the
sentencing enhancement provision of § 2252(b)(2). “This court reviews de novo a
district court’s legal conclusion that a prior conviction triggers a mandatory minimum
sentence.” United States v. Gardner, 649 F.3d 437, 442 (6th Cir. 2011). The
government contends that the phrase “involving a minor or ward” modifies only
“abusive sexual conduct,” and that state offenses relating to aggravated sexual abuse or
sexual abuse need not involve a minor victim to qualify as predicate convictions. In
support of its proffered interpretation, the government makes three arguments: First,
according to the rule of the last antecedent, the grammatical structure of the listed
conduct indicates that “involving a minor or ward” modifies only the last of the three
listed crimes because “a limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas,
540 U.S. 20, 26 (2003). Second, § 2252(b) identifies many predicate federal offenses
that do not involve minor victims, and Congress could not reasonably have limited the
scope of only the state offenses that qualify as predicates. Third, the listed state crimes
parallel the titles of three federal crimes listed as valid predicates: 18 U.S.C. § 2241
(aggravated sexual abuse), § 2242 (sexual abuse), and § 2243 (sexual abuse of a minor
or ward). The government also noted that our sister circuits that have considered this
question have uniformly adopted the government’s construction of the statute. See
United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011); United States v. Hubbard,
480 F.3d 341, 350 (5th Cir. 2007); United States v. Rezin, 322 F.3d 443, 447–48 (7th
Cir. 2003).

       Although we find the statutory construction embraced by our sister circuits at
least plausible, this Circuit has already considered the proper construction of the
statutory language at issue, and we have held that the phrase “involving a minor or
No. 12-4481           United States v. Mateen                                                    Page 6


ward” modifies aggravated sexual abuse, sexual abuse, and abusive sexual conduct.
United States v. Gardner, 649 F.3d 437 (6th Cir. 2011). The prior panel’s statutory
interpretation is a binding holding because it was essential to its decision. See Town of
Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 649 (6th Cir. 2013).

         In Gardner, the panel considered whether a defendant’s prior conviction for
sexual battery under Virginia law triggered the application of a sentencing enhancement
under 18 U.S.C. §2252A(b)(1).1 Analyzing the recidivist sentencing enhancement
provision, the panel articulated the issue as “whether Gardner has a prior conviction in
Virginia for sexual abuse involving a minor that should trigger the mandatory
minimum.” Gardner, 649 F.3d at 442. The panel then turned to the Taylor-Shepard
two-step process for determining when a prior offense is a predicate for a federal
sentencing enhancement: First, it reasoned that the statutory language alone did not
support an enhancement because the state statute underlying Gardner’s prior conviction
“does not require, as an element of the offense, that the complaining witness be a
minor.” Id. at 443. Next, it concluded that the indictment did not “establish[] that
Gardner’s prior conviction necessarily related to conduct involving a minor or ward.”
Id. at 444.

         Although the panel did not discuss statutory construction at length, its
interpretation of the statute was essential to its decision. The panel clearly found that
Gardner’s prior conviction related to sexual abuse because “an element of sexual
battery—for which Gardner was convicted—is that the accused sexually abuses the
complaining witness.” Id. (internal quotation marks omitted). It would have had no
reason to reject the sentencing enhancement unless it had concluded that “involving a
minor or ward” modifies “sexual abuse.” Therefore, we cannot adopt the government’s
interpretation to the contrary.


         1
           The sentencing enhancement provisions in § 2252 and § 2252A contain identical language. Both
impose lengthened sentences on individuals who violate the statute and also have prior convictions “under
the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward.” Because the “normal rule of statutory construction [is] that identical words
used in different parts of the same act are intended to have the same meaning,” Taniguchi v. Kan Pacific
Saipan, Ltd., 132 S. Ct. 1997, 2004–05 (2012) (internal quotation marks omitted), we may apply the
Gardner panel’s statutory interpretation to § 2252.
No. 12-4481        United States v. Mateen                                            Page 7


        Even if we did find the arguments advanced by the government convincing, we
are nonetheless bound by the statutory construction adopted in Gardner. See Sykes v.
Anderson, 625 F.3d 294, 319 (6th Cir. 2010) (“This panel is without authority to
overrule binding precedent, because a published prior panel decision remains controlling
authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.”).
This panel cannot reject the Gardner panel’s decision merely because we believe the
issue was not well-considered:

                We are not free to pick and choose the portions of a prior
        published decision that we will follow and those that we will disregard.
        Nor do we enjoy greater latitude in situations where our precedents
        purportedly are tainted by analytical flaws . . . . Rather, we are bound by
        the published opinions of previous panels, and this rule encompasses all
        parts of a prior ruling that are properly construed as holdings rather than
        dicta.

Grundy Mining Co. v. Flynn, 353 F.3d 467, 479 (6th Cir. 2003). Indeed, “concerns
about maintaining settled law are strong when the question is one of statutory
interpretation.” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899
(2007) (concluding that the interests underlying stare decisis were not as strong when
interpreting the Sherman Act because the Supreme Court treats it as a “common-law
statute”).

        Nor is it relevant that the parties never briefed the proper construction of the
sentencing enhancement provision before this panel or the district court below.
“[Q]uestions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to constitute
precedents.” Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006) (internal quotation
marks omitted) (concluding that a prior court “definitively answered the question
presented” because it interpreted the Prison Litigation Reform Act as requiring total
exhaustion of administrative remedies, and the interpretation was necessary to its
decision to dismiss a prisoner’s complaint that alleged both exhausted and unexhausted
No. 12-4481        United States v. Mateen                                          Page 8


claims). However, a court’s disposition of an issue is not dicta merely because the
parties failed to raise it. United States v. Wynn, 579 F.3d 567, 577 (6th Cir. 2009).

       In Wynn, the government argued that a prior case, Bartee, addressed whether a
presentence report (“PSR”) could be used as a Shepard document only in dicta because
in the prior case the parties never argued that the PSR was an appropriate document to
consider. The Court reasoned:

       Any failure of the government to raise a Shepard argument in Bartee
       does not render Bartee’s PSR analysis dicta. . . . In Bartee, in order to
       convince the district court to treat the defendant’s prior conviction as a
       crime of violence, the government urged the district court to use common
       sense to infer that since the defendant had sexual contact with Angela
       while soliciting a minor, Angela must have been that minor and,
       therefore, the sexual contact must have been with a minor. As the panel
       noted, this inference could only have been drawn by considering the
       underlying facts of conviction contained in the PSR. If it were
       appropriate for the district court to look at the PSR and draw the
       necessary inference, then the Bartee panel would have had no reason to
       vacate the sentence. However, reliance on the PSR by the district court
       would be appropriate only if the PSR were a Shepard document. Thus,
       a necessary precursor to the panel’s decision to vacate the defendant’s
       sentence in Bartee was its determination that a PSR is not a Shepard
       document, regardless of whether the government specifically made a
       Shepard argument.

Id. (internal quotation marks and citations omitted). Likewise, as discussed above, the
Gardner panel’s statutory construction is essential to its decision and binding on this
panel. Thus, it is immaterial whether the parties before the Gardner court raised the
issue, or whether the panel itself explained its analysis, because the panel’s statutory
interpretation was a “necessary precursor” to its decision. See Wynn, 579 F.3d at 577.
We must construe the sentencing enhancement provision as requiring that all three listed
state crimes involve a minor or ward.

                 III. MODIFIED CATEGORICAL APPROACH

       Having settled the proper construction of the sentencing enhancement provision
at issue, we next determine whether Mateen’s Gross Sexual Imposition conviction
No. 12-4481          United States v. Mateen                                                Page 9


qualifies as a predicate offense. This court uses the modified categorical framework
articulated in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United
States, 544 U.S. 13 (2005), to assess whether a prior state conviction triggers a
sentencing enhancement provision2:

        First, a sentencing court may look only to the statutory definition of the
        prior offense, and not to the particular facts underlying that conviction,
        to determine whether a prior conviction qualifies for a federal sentencing
        enhancement. If the statutory definition embraces both qualifying and
        non-qualifying crimes or is otherwise ambiguous, the court, second, may
        look to the charging document, the terms of a plea agreement or
        transcript of colloquy between judge and defendant in which the factual
        basis for the plea was confirmed by the defendant, or to some comparable
        judicial record of this information to determine whether the qualifying or
        non-qualifying aspect of the statute was violated.

United States v. Ferguson, 681 F.3d 826, 832 (6th Cir. 2012) (internal quotation marks
and alterations omitted). Under this inquiry, the factual basis for the conviction is
relevant only insofar as it assists the court in identifying which alternative elements of
the statute were violated: “The modified approach thus acts not as an exception, but
instead as a tool. It retains the categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime. And it preserves the categorical approach’s
basic method: comparing those elements with the generic offense’s.” Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013).

        The district court correctly applied the Taylor-Shepard framework to conclude
that Mateen’s fourth-degree felony conviction for Gross Sexual Imposition did not
qualify as a state offense “relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward.” 18 U.S.C. § 2252(b)(2). First, the district
court correctly concluded that Ohio’s Gross Sexual Imposition statute is divisible
because it “embraces both qualifying and non-qualifying crimes” in that only some
subsections require a minor victim. R. 36 (D. Ct. Op. at 6) (Page ID #117). Second, the


        2
          We have previously applied the Taylor-Shepard framework to sentencing enhancement
provisions in § 2252A(b)(1), Gardner, 649 F.3d at 443, and § 2252A(b)(2), Ferguson, 681 F.3d at 832,
and we now extend its application to the identical provision in § 2252(b)(2).
No. 12-4481         United States v. Mateen                                        Page 10


district court examined the state-court Judgment Entry, R. 30-1 (Com. Pleas J. Entry)
(Page ID #77-81). While the Judgment Entry does not specify the subsection to which
Mateen pled guilty, it does indicate that Mateen entered a guilty plea to “Gross Sexual
Imposition, in violation of RC 2907.05, a felony of the fourth degree.” Id. (Page ID
#77).    Subsections (A)(1)-(3) and (5) are felonies of the fourth degree, see
§ 2907.05(C)(1), and none of these subsections includes the age of the victim as an
element of the offense.

        We may not consider factual material contained in the charging documents that
does not directly assist us in determining to which elements of a charge the defendant
pleaded guilty. Gardner, 649 F.3d at 444; United States v. Armstead, 467 F.3d 943, 949
(6th Cir. 2006) (“[We] limit our examination of the original indictments to the elements
of the charges that are essential to defendant’s plea of guilty.”); United States v. Arnold,
58 F.3d 1117, 1124 (6th Cir. 1995). The Supreme Court has repeatedly emphasized the
narrow purpose of the factual review permitted under the modified categorical approach:
“It [is] not to determine what the defendant and state judge must have understood as the
factual basis of the prior plea, but only to assess whether the plea [is] to the version of
the crime . . . corresponding to the generic offense.” Descamps, 133 S. Ct. at 2284
(internal quotation marks omitted); see also United States v. Soto-Sanchez, 623 F.3d 317,
320 (6th Cir. 2010) (reasoning that supplemental records may be used “only to determine
which crime within a statute the defendant committed, not how he committed the crime”)
(internal quotation marks omitted). Therefore, to the extent that the transcript of the
state-court plea colloquy contains factual material identifying the victim of Mateen’s
prior conviction as an eight-year-old girl, the district court correctly disregarded that
information because it was not essential to Mateen’s guilty plea to fourth-degree felony
Gross Sexual Imposition or an element of the offense. See Gardner, 649 F.3d at 444
(disregarding references to the victim’s age during its analysis of whether the charging
documents established that “Gardner’s prior conviction necessarily related to conduct
involving a minor or ward”).
No. 12-4481        United States v. Mateen                                       Page 11


       Thus, the district court correctly determined that Mateen’s prior state conviction
did not qualify as a predicate offense, and that the sentencing enhancement provision did
not apply to Mateen.

                                 IV. CONCLUSION

       For the foregoing reasons, we AFFIRM Mateen’s sentence.
No. 12-4481         United States v. Mateen                                        Page 12


                                  __________________

                                       DISSENT
                                  __________________

        McKEAGUE, Circuit Judge, dissenting. Whether “involving a minor” modifies
all three terms in 18 U.S.C. § 2252(b)(2) was not actually considered in United States
v. Gardner, 649 F.3d 437, 443 (6th Cir. 2011). For this basic reason, I disagree with the
majority that Gardner is controlling precedent. Considered on the merits as an issue of
first impression in this circuit, it is clear that “involving a minor” only modifies “sexual
conduct.” This court should therefore consider whether Mateen’s prior conviction
involved a crime of “sexual abuse,” not merely whether it was a crime of “sexual abuse
involving a minor.” In my opinion, Mateen’s gross sexual imposition conviction
qualifies as “sexual abuse,” and therefore, a sentence enhancement is appropriate. For
the following reasons, I respectfully dissent.

        To be clear, I am not disregarding the Gardner court’s decision because the issue
of whether “involving a minor” modifies the other statutory terms was not well-
considered, but rather because the issue was not considered or decided at all. If it had
been, surely the Gardner court would have made some reference, any reference,
however fleeting, to statutory construction or to its rationale for applying “involving a
minor” to all of the terms. The opinion is devoid of any discussion. If the court intended
to decide the issue, it surely would have explained, even passingly, why it reached an
interpretation at odds with every other circuit to have considered the issue. See, e.g.,
United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011) (reviewing the same terms
found in 18 U.S.C. § 2252A(b)(2)); United States v. Hubbard, 480 F.3d 341, 350 (5th
Cir. 2007) (reviewing the same terms found in 18 U.S.C. § 2252A(b)(1)); United States
v. Rezin, 322 F.3d 443, 447–48 (7th Cir. 2003) (reviewing the terms found in 18 U.S.C.
§ 2252(b)(2)). Again, there is no discussion. We are not normally in the habit of
haphazardly creating circuit splits. Considering the lack of discussion or analysis on this
point in Gardner, there is no compelling reason to depart from the persuasive authority
of our sister circuits and to needlessly create a circuit split.
No. 12-4481         United States v. Mateen                                        Page 13


        Everything points to one conclusion: as the issue was not contested, the Gardner
court simply did not consider the issue directly and it assumed that “involving a minor”
modified the term “sexual abuse.” As the majority correctly notes, “[Q]uestions which
merely lurk in the record, neither brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to constitute precedents.” Rinard v.
Luoma, 440 F.3d 361, 363 (6th Cir. 2006). This is precisely why both parties at oral
argument acknowledged that Gardner had not addressed whether “involving a minor”
modified the other terms and therefore was not controlling. Construing an unconsidered
assumption, neither briefed nor argued by the parties, as the essential and binding
holding of a case makes bad law. The plain language and structure of the statute, the
grammatical rule of the last antecedent, and the parallel structure between the state and
federal offenses strongly indicate that “involving a minor” only modifies “sexual
conduct.” When reviewed de novo, as this issue should have been, this conclusion is
apparent

        I am sensitive to the need to respect prior precedent and stare decisis, and I
acknowledge the present case tests the murky boundaries between dictum and holding
as well as the effect given to a judicial assumption. But it should be recalled that stare
decisis means “to stand by things decided.” Black’s Law Dictionary (9th ed. 2009)
(emphasis added). The unaddressed issues in the present case were not actually decided
or implicitly held. This is not an instance where a court extensively discussed two out
of three prongs of a test and then determined in a conclusory fashion that the test was
satisfied, leaving subsequent courts to conclude that the third prong was also satisfied.
As there is no indication, apart from the majority’s unsupported inferential leap, that the
Gardner court addressed and decided that “involving a minor” modified all three terms
in 18 U.S.C. § 2252(b)(2), Gardner’s unconsidered application of that understanding is
not binding precedent on this point. Moreover, because the uniform, careful, and
thorough reasoning adopted by our sister circuits is persuasive, I would adopt their
interpretation as the law of the Sixth Circuit, and accordingly, the sentence enhancement
in this case should have been applied. For these reasons, I respectfully dissent.
