                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0362n.06

                                            No. 07-4506                                  FILED
                                                                                     May 22, 2009
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellant.                               )        UNITED STATES DISTRICT
                                                          )        COURT     FOR     THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
CHARLES COLE, JR.,                                        )
                                                          )                  OPINION
       Defendant-Appellee.                                )



BEFORE: KENNEDY, NORRIS, and COLE, Circuit Judges.


       ALAN E. NORRIS, Circuit Judge. Defendant Charles Cole, Jr., pleaded guilty to three

counts: transportation of visual depictions of minors, 18 U.S.C. § 2252(a)(1); transportation of child

pornography, 18 U.S.C. § 2252A(a)(1); and possession of child pornography, 18 U.S.C. §

2252A(a)(5)(B). These statutes each include a provision calling for a sentencing enhancement if

the defendant has been previously convicted of a state crime “relating to” enumerated sex crimes

involving minors. 18 U.S.C. § 2252(b)(1); 18 U.S.C. § 2252A(b). In 1999, defendant was convicted

of “possession of matter portraying a sexual performance by a minor” in violation of Kentucky law.

Ky. Rev. Stat. § 531.335. While the government took the position below that this prior conviction

required enhancement of defendant’s sentence, the district court declined to do so. The government

now appeals.

                                                  I.
No. 07-4506
United States v. Cole

        On October 8, 2006, the local police responded to a phone call from a gas station in Mentor,

Ohio. One of the station attendants had reported that a suspicious vehicle was in the parking lot and

had been there for approximately two hours, its engine running the entire time. When the police

responded, the officers identified defendant as the driver of the vehicle and learned that he had an

outstanding Massachusetts warrant for distribution of obscene material. The officers arrested

defendant and searched his vehicle incident to the arrest, ultimately discovering a laptop computer

and hundreds of compact disks, among other things.

        While being interviewed later by officers of the local police department, defendant said some

of the digital media seized from his vehicle contained images of adult males engaging in sexual

activity with infants. He also said he had received the child pornography, both images and videos,

from a friend who lived in Massachusetts. At that point, the officers obtained a search warrant for

the digital media discovered in defendant’s vehicle. The search produced thousands of image files

and hundreds of video files, many of which contained depictions of minors engaged in various sexual

activities.

        On April 11, 2007, a federal grand jury returned a three-count indictment charging defendant

with the three counts mentioned earlier. Defendant entered into a plea agreement on all counts and

sentenced defendant to 120 months of incarceration on each count, to run concurrently and to be

followed by ten years of supervised release.



                                                 II.



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United States v. Cole

        The sole issue on appeal is whether the district court erred when it declined to enhance

defendant’s sentence based upon his prior Kentucky conviction. We review that determination de

novo. United States v. McGrattan, 504 F.3d 608, 610 (6th Cir. 2007).

        As the government conceded below and reiterated during oral argument to this court,

McGrattan controls the resolution of this appeal. Following McGrattan, the district court applied

the modified categorical approach outlined in Shepard v. United States, 544 U.S. 13 (2005), in an

effort to determine whether defendant’s Kentucky conviction was sufficiently similar to his federal

crimes to trigger a sentencing enhancement. Shepard permits sentencing courts to go beyond simply

looking to the “fact of conviction and the statutory definition of the prior offense,” Taylor v. United

States, 495 U.S. 575, 602 (1990), and also consider “the terms of 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.” Shepard, 544 U.S. at 26. When making a Shepard analysis sentencing courts may

not consider documents such as police reports, recommendations prepared by a probation officer,

or complaint applications, United States v. Calloway, 189 F. App’x 486, 490-91 (6th Cir. 2006).

As the parties and the district court all have recognized, at the time of defendant’s conviction in

1999, the Kentucky statute at issue, Ky. Rev. Stat. § 531.335,1 was overbroad because it “facially


        1
            The statute reads as follows:

        A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge
        of its content, character, and that the sexual performance is by a minor, he or she knowingly has in his or her
        possession or control any matter which visually depicts an actual sexual performance by a minor person.

Ky. Rev. Stat. § 531.335(1). “Sexual performance” is defined in these terms:

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United States v. Cole

criminalize[d] every instance in which a child is photographed while willfully and intentionally

exhibiting his or her genitals” without requiring proof that “the exhibition of the genitals by the

minor was volitional and in a lewd manner.” Purcell v. Commonwealth, 149 S.W.3d 382, 390-93

(Ky. 2004).2 By contrast, the federal statutes of conviction define “sexually explicit conduct” as

“lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v).

Thus, before Purcell was decided, an individual could have violated Ky. Rev. Stat. § 531.335 even

though the “performance” was not done in a “lewd manner.” In defendant’s case, we are precluded

from considering anything about the specifics of his conviction beyond those items permitted under

the modified categorical approach, none of which establishes that his conviction included the “lewd

manner” element. As such, it cannot be used to enhance his sentence because it is not categorically

equivalent to the federal statutes of conviction.

         In light of Purcell and McGrattan, the government does not press this argument with any

force. Instead, it asks us to adopt the more expansive reading of the “relating to” language taken by

other circuits. See, e.g., United States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (rather than

trying to match the elements of the state and federal statutes, the offenses listed in the “relating to”

provision should be given their ordinary and common meaning); United States v. Hubbard, 480 F.3d

341, 347 (5th Cir. 2007) (“We must assume that Congress chose the words ‘relating to’ [in §



         “Sexual performance” means any performance or part thereof which includes sexual conduct by a minor.

Ky. Rev. Stat. § 531.300(6).

         2
            W hile Purcell concerned a related Kentucky statute, Ky. Rev. Stat. § 531.320, it applies equally to Ky. Rev.
Stat. § 531.335.

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United States v. Cole

2252A(b)(1)] for a purpose.”); United States v. Weis, 487 F.3d 1148, 1152 (8th Cir. 2007)

(construing “relating to” broadly in § 2252); United States v. McCutchen, 419 F.3d 1122, 1127 (10th

Cir. 2005) (same)). According to the ninth circuit,

       [Section] 2252A does not simply mandate a sentencing enhancement for individuals
       convicted of state offenses equivalent to sexual abuse. Rather, it mandates the
       enhancement for any state offense that stands in some relation, bears upon, or is
       associated with that generic offense.


Id. at 743. While we readily concede that there is a surface appeal to the more expansive approaches

adopted by our sister circuits, McGrattan considered similar cases advanced by the government and

rejected them in favor of the Shepard analytical framework. 504 F.3d at 612. We are bound by prior

published opinions of this court. Sixth Cir. R. 206(c).

                                                III.

       The judgment is affirmed.




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