             Case: 15-14422    Date Filed: 07/05/2016   Page: 1 of 11


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-14422
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 3:15-cr-00028-MCR-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

SHAWN P. CALDWELL,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                  (July 5, 2016)

Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Shawn Caldwell was sentenced to 20 years in prison for possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(2). His sentence was based on a

clause in § 2252A that authorizes 15 to 40 years in prison when a defendant “has a
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prior conviction . . . under the laws of any State relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18

U.S.C. § 2252A(b)(1). Without a prior conviction like this, § 2252A(b)(1)

authorizes 5 to 20 years in prison for § 2252A(a)(2) violations. Id.

      Caldwell argues his sentence is unlawful for four reasons. First, he argues

that the term “relating to” in § 2252A(b)(1) is unconstitutionally vague. Second,

he argues that an Iowa conviction for indecent contact with a child is not an

offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward.” Third, he argues that a jury needed to decide

if the Iowa offense was “relat[ed] to aggravated sexual abuse, sexual abuse, or

abusive sexual conduct involving a minor or ward.” Fourth, he argues that his

prior conviction can’t be used to increase his sentence because he pleaded guilty to

the prior offense without admitting guilt. We reject each of these arguments and

affirm Caldwell’s sentence.

                                            I.

      Caldwell first claims that § 2252A(b)(1)’s “relating to” language makes the

statute unconstitutionally vague. In the alternative, he argues that the rule of lenity

requires us to construe this ambiguous language in his favor. Both are questions of

first impression for this Court.




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      The Supreme Court has explained that the government violates the Fifth

Amendment “by taking away someone’s life, liberty, or property under a criminal

law so vague that it fails to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary enforcement.” Johnson v.

United States, __ U.S. __, __, 135 S. Ct. 2551, 2556 (2015). “These principles

apply not only to statutes defining elements of crimes, but also to statutes fixing

sentences.” Id. at 2257; see also United States v. Batchelder, 442 U.S. 114, 123,

99 S. Ct. 2198, 2204 (1979) (“[V]ague sentencing provisions may pose

constitutional questions if they do not state with sufficient clarity the consequences

of violating a given criminal statute.”). Also, these principles apply even if a

vague sentencing statute can be read to cover some conduct. See Johnson, 135 S.

Ct. at 2560–61 (“[A]lthough statements in some of our opinions could be read to

suggest otherwise, our holdings squarely contradict the theory that a vague

provision is constitutional merely because there is some conduct that clearly falls

within the provision’s grasp.”). Instead, the test for whether the vagueness

doctrine voids a law is whether the law is so incoherent that it either “denies fair

notice to defendants” or “invites arbitrary enforcement by judges.” Id. at 2557.

      The rule of lenity creates a related but distinct limitation. This “canon of

strict interpretation of criminal statutes” is a “junior version of the vagueness

doctrine” and “ensures fair warning by so resolving ambiguity in a criminal statute


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as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S.

259, 266, 117 S. Ct. 1219, 1225 (1997) (quotation omitted). The canon “applies

not only to interpretations of the substantive ambit of criminal prohibitions, but

also to the penalties they impose.” Bifulco v. United States, 447 U.S. 381, 387,

100 S. Ct. 2247, 2252 (1980).

      The statute at issue here requires a minimum 15-year prison sentence if a

defendant 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.” 18 U.S.C. § 2252A(b)(1). This language is identical to language

in 18 U.S.C. § 2252(b)(1) that also requires a minimum 15-year prison sentence.

The Supreme Court recently interpreted the identical § 2252(b)(1) language in

Lockhart v. United States, __ U.S. __, 136 S. Ct. 958 (2016), and held that the

term “involving a minor or ward” in “aggravated sexual abuse, sexual abuse, or

abusive sexual conduct involving a minor or ward” modifies only “abusive sexual

conduct” rather than all of “aggravated sexual abuse, sexual abuse, or abusive

sexual conduct.” Id. at 961.

      Lockhart didn’t address the vagueness doctrine, but the opinion shows why

neither § 2252(b)(1) nor § 2252A(b)(1) are unconstitutionally vague. Lockhart

rejected the argument that § 2252(b)(1) should be construed using the rule of

lenity. Id. at 968. This shows that the Supreme Court saw no reason to doubt that


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§ 2252(b)(1) “ensures fair warning.” Lanier, 520 U.S. at 266, 117 S. Ct. at 1225

(quotation omitted). The Court interpreted the language in § 2252(b)(1) based on

what it called “a sensible grammatical principle buttressed by the statute’s text and

structure.” Id. Although Lockhart interpreted the phrase “involving a minor or

ward” rather than “relating to,” the opinion shows that the language of

§ 2252(b)(1) and § 2252A(b)(1) can be read and applied in a coherent way. 1 This

means § 2252A(b)(1) isn’t “so vague that it fails to give ordinary people fair notice

of the conduct it punishes.” Johnson, 135 S. Ct. at 2556.

       Even without Lockhart, it’s clear that the phrase “relating to” doesn’t make

§ 2252(b)(1) and § 2252A(b)(1) unconstitutionally vague. Caldwell points to

nothing that suggests that those two words in any way compare to the

“indeterminacy of the wide-ranging inquiry required by the” language discussed in

Johnson. Id. at 2557. Nor does he argue that courts have struggled in any way to

make sense of either this phrase or any similar phrase in another context. And he

does not show that either executive or judicial interpretations of this term have

been at all inconsistent, unpredictable, or arbitrary. All he says is that “relating to”

can be read broadly, to cover many state offenses “relating to aggravated sexual




       1
        Even the two dissenting Justices in Lockhart agreed that § 2252(b)(1) had a coherent
meaning, although they thought a different one. See 136 S. Ct. at 977 (Kagan, J., dissenting).
They added that any ambiguities should be construed using the rule of lenity. See id.
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abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” This

breadth alone does not make the statute unconstitutionally vague.

                                       II.

      Caldwell next argues that his Iowa conviction for indecent contact with a

minor is not an offense “relating to aggravated sexual abuse, sexual abuse, or

abusive sexual conduct involving a minor or ward.” When determining whether a

prior conviction qualifies as a predicate offense for sentencing purposes, courts

apply what is called a “categorical approach.” This means we look only to the

elements of the earlier conviction and compare those elements to the elements of

the offense mentioned in the federal statute. See generally Taylor v. United States,

495 U.S. 575, 110 S. Ct. 2143 (1990). For traditional offenses like burglary, this

comparison is based on the historical, generic definition of the offense. Id. at 598–

602, 110 S. Ct. at 2158-60. For non-traditional offenses like sexual abuse, we

simply interpret the plain language of the statute. See United States v. Ramirez-

Garcia, 646 F.3d 778, 784 (11th Cir. 2011).

      We have interpreted the phrase “sexual abuse of minor” to “mean[] a

physical or nonphysical misuse or maltreatment of a minor for a purpose

associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d

1158, 1163 (11th Cir. 2001). This

      includes acts that involve physical contact between the perpetrator and
      the victim as well as acts that do not. . . . Furthermore, the modifier
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      ‘sexual’ does not limit the phrase’s scope to abuse of the physical
      variety. Rather than describing the form of the abuse as a ‘sexual’
      physical contact, we think the word ‘sexual’ in the phrase ‘sexual
      abuse of a minor’ indicates that the perpetrator's intent in committing
      the abuse is to seek libidinal gratification.

Id. We have thus held that “sexual abuse of a minor” is not limited “to instances

where the perpetrator is present in front of the minor, where the minor is aware of

the abuse, or where the perpetrator makes contact with the minor.” Ramirez-

Garcia, 646 F.3d at 784.

      Also, we have “interpreted the phrase ‘relating to’ broadly in the context of

child exploitation offenses.” United States v. Mathis, 767 F.3d 1264, 1284 (11th

Cir. 2014) (per curiam). The Supreme Court

      has also interpreted the phrase “relating to” in an inclusive fashion. In
      Morales v. Trans World Airlines, Inc., the Court considered the phrase
      in the context of 49 U.S.C. § 1305(a)(1) and determined that it means
      “to stand in some relation; to have bearing or concern; to pertain;
      refer; to bring into association with or connection with . . . .”
      Likewise, although not binding on us, the Ninth Circuit has similarly
      interpreted the statute in question, stating that “§ 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.”

United States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012) (citations

omitted). McGarity held that § 2252A(b)(1) covered a Georgia state conviction for

“enticing a minor for indecent purposes,” even though the “conviction was not

predicated on touching or attempting to touch a minor” and was instead “founded


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upon [the defendant’s] discussions of illicit sexual acts with a minor.” Id. at 1261–

62. We held that these “actions necessarily related to ‘aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor.’” Id. at 1262.

      Here, Caldwell was convicted of violating a statute that made it a crime to

      commit[] any of the following acts with a child, not the person’s
      spouse, with or without the child’s consent, for the purpose of
      arousing or satisfying the sexual desires of either of them:
            1. Fondle or touch the inner thigh, groin, buttock, anus, or
            breast of the child;
            2. Touch the clothing covering the immediate area of the inner
            thigh, groin, buttock, anus, or breast of the child;
            3. Solicit or permit a child to fondle or touch the inner thigh,
            groin, buttock, anus, or breast of the person;
            4. Solicit a child to engage in any act prohibited under section
            709.8, subsection 1, 2, or 4.[2]

Iowa Code § 709.12 (1999). The district court ruled that “Caldwell’s conviction

under the Iowa Statute 709.12 is a qualifying predicate offense under

2252A(b)(1).” Caldwell says this was wrong because § 709.12 does not divide

into alternative crimes in the way required by Taylor v. United States, 495 U.S.

575, 110 S. Ct. 2143 (1990), and Descamps v. United States, 570 U.S. ___, 133 S.

      2
        This section made it a crime
              to perform any of the following acts with a child with or without the
      child’s consent unless married to each other, for the purpose of arousing or
      satisfying the sexual desires of either of them:
              1. Fondle or touch the pubes or genitals of a child.
              2. Permit or cause a child to fondle or touch the person’s genitals or
      pubes.
              ...
              4. Inflict pain or discomfort upon a child or permit a child to inflict pain
      or discomfort on the person.
      Iowa Code § 709.8 (1999).
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Ct. 2276 (2013). But even if Caldwell is correct about the Iowa statute’s

divisibility, it doesn’t make a difference here. The entirety of § 709.12 defines an

offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor.” 18 U.S.C. § 2252A(b)(1). The first two subsections

criminalize direct sexual abuse, and the second two subsections criminalize the

solicitation of such abuse. Each of these subsections thus describes an offense

“relating to . . . sexual abuse or abusive sexual conduct involving a minor,” so §

2252A(b)(1) covers Caldwell’s conviction no matter which subsection of § 709.12

he violated.

      Caldwell claims all of § 709.12 is not covered by § 2252A(b)(1) based on

United States v. Pierson, 544 F.3d 933 (8th Cir. 2008), which held that “conviction

under subsections 1 or 2 of § 709.12 would qualify as a prior conviction for

abusive sexual contact” but “conviction under subsections 3 or 4 would not.” Id. at

942. The Eighth Circuit did not explain this distinction. To the extent that court

relied upon the fact that subsections 1 and 2 criminalize direct physical contact and

subsections 3 and 4 criminalize “solicit[ing] or “permit[ting]” the same contact,

our precedent does not allow this distinction. We have held that “sexual abuse of

a minor” is not limited “to instances where the perpetrator is present in front of the

minor, where the minor is aware of the abuse, or where the perpetrator makes

contact with the minor.” Ramirez-Garcia, 646 F.3d at 784. We have also held that


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a conviction for “enticing a minor for indecent purposes” is “necessarily related to

‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a

minor.’” McGarity, 669 F.3d at 1261–62; see also United States v. Johnson, 451

F.3d 1239, 1243 (11th Cir. 2006) (holding the same for the offense of “performing

a lewd act in front of a minor”). We must apply our precedent here.

                                         III.

      Caldwell makes two more arguments about his Iowa conviction, both of

which are squarely foreclosed by precedent. First, Caldwell argues that a jury

needed to decide if his Iowa offense “relat[es] to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward.” The Supreme Court

has long held that a judge can increase a sentence based on “the fact of a prior

conviction” even if a jury never found that fact. See, e.g., Alleyne v. United

States, 570 U.S. ___, __, 133 S. Ct. 2151, 2160 n.1 (2013). And this Court has

held that judges can decide which state offenses fall under a federal statute’s

reference to prior offenses because this is a question of law. See United States v.

Gibson, 434 F.3d 1234, 1247–48 (11th Cir. 2006). Indeed, Caldwell’s appeal brief

argues that § 2252A(a)(2) covers the Iowa offense “as a matter of law.” Caldwell

cites no precedent requiring a jury to decide this matter of law, and Gibson held

otherwise.




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       Caldwell next argues that his prior conviction can’t be used to increase his

sentence because his guilty plea in Iowa court was based on North Carolina v.

Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), which held that criminal defendants may

plead guilty to crime while denying guilt. Id. at 38, 91 S. Ct. at 168. We treat

Alford pleas the same as any other guilty pleas for purposes of future sentencing.

See United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014) (per

curiam). So does Iowa law. See State v. Knight, 701 N.W.2d 83, 89 (Iowa 2005).

Ramirez-Gonzalez bars Caldwell’s claim that a conviction based on a Alford plea

can’t serve as the factual basis for increasing his sentence in federal court.3

       AFFIRMED.




       3
          To be clear, Caldwell makes two separate claims about his Alford plea. First, he says
Alford pleas can’t ever serve as the factual basis for a higher sentence. Ramirez-Gonzales says
otherwise. Second, he says courts can’t use Alford pleas to identify the crime of conviction
when the statute of conviction is divisible into multiple crimes. Neither Ramirez-Gonzales nor
any other binding precedent seems to have addressed this second issue. Other courts have held
that the Sixth Amendment forbids this use of Alford pleas. See, e.g., United States v. Alston,
611 F.3d 219, 221 (4th Cir. 2010); United States v. Savage, 542 F.3d 959, 966 (2d Cir. 2008).
Because we conclude that it would make no difference in this case which part of the Iowa statute
Caldwell was convicted under, we do not decide this issue.
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