            Case: 15-13555   Date Filed: 04/27/2016   Page: 1 of 7


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13555
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:14-cr-00045-RH-CAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RALPH JASON MILLER,

                                                          Defendant-Appellant.

                       ________________________

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

                              (April 27, 2016)

Before ED CARNES, Chief Judge, TJOFLAT, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Ralph Jason Miller engaged in an ongoing sexual relationship with a minor.

He took explicit photographs of her on several occasions, and he asked her to send

him explicit photographs of herself. That led to his being charged with, and a jury

finding him guilty of, three counts of producing child pornography, in violation of

18 U.S.C. § 2251(a), and of one count of committing those crimes while under

obligation to register as a sex offender, in violation of 18 U.S.C. § 2260A. The

district court sentenced him to 420 months in prison. Miller appeals his conviction

and sentence on the three counts of producing child pornography.

                                          I.

      Miller contends that the district court erred by refusing to give one of his

proposed jury instructions and by giving an instruction that misstated the law

instead. He asked the district court to instruct the jury that the government had to

prove that producing child pornography was “one of [his] dominant motives” for

causing a minor to engage in sexually explicit conduct. And he objected to the

court’s instruction, which said that the government had to prove that making child

pornography was “a purpose” for doing so. Miller argues on appeal that the

district court should have given the pattern jury instruction, which provides that the

government must prove that creating a visual depiction was “the purpose” for the

defendant’s actions. See Eleventh Circuit Pattern Jury Instructions (Criminal

Cases) 82 (2010) (emphasis added). According to Miller, the court’s use of the


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indefinite article reduced the government’s burden of proof and limited his ability

to present an effective defense.

      A district court “enjoys broad discretion to formulate jury instructions

provided those instructions are correct statements of the law.” United States v.

Lebowitz, 676 F.3d 1000, 1014 (11th Cir. 2012). We will reverse the rejection of a

party’s proposed instruction “only if (1) the requested instruction was substantively

correct, (2) the court’s charge to the jury did not cover the gist of the instruction,

and (3) the failure to give the instruction substantially impaired the defendant’s

ability to present an effective defense.” Id. (quotation marks omitted). And we

defer to the district court “on questions of phrasing,” United States v. Prather, 205

F.3d 1265, 1270 (11th Cir. 2000) (quotation marks omitted), reversing “only if we

are left with a substantial and eradicable doubt as to whether the jury was properly

guided in its deliberations,” United States v. Browne, 505 F.3d 1229, 1276 (11th

Cir. 2007) (quotation marks omitted).

      We have no such doubts here. The district court’s instruction was a correct

statement of the law: “[W]e have held that dual purposes are sufficient for a

conviction” under § 2251(a), and that “we need not concern ourselves with

whether the illegal purpose was dominant over other purposes.” Lebowitz, 676

F.3d at 1014–15 (quotation marks omitted). And that instruction did not impair

Miller’s ability to present an effective defense. Miller says that the instruction


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prevented him from arguing that the photographs were a “mere incident” of his

consensual romantic relationship with the minor, but that is not a viable defense to

the charge against him. The government was not required to prove that making

explicit photographs was Miller’s sole or primary purpose for enticing the minor to

engage in sexually explicit conduct. It was enough to show that it was “a purpose”

for doing so.

                                               II.

       Miller next contends that the district court erred by enhancing his sentence

under 18 U.S.C. § 2251(e), which imposes a mandatory minimum sentence of 25

years on any defendant convicted of violating § 2251 who has one prior conviction

“under the laws of any State relating to aggravated sexual abuse, sexual abuse,

abusive sexual contact involving a minor or ward, or sex trafficking of children.”

18 U.S.C. § 2251(e). The district court sentenced Miller under that provision

because he was convicted of sexual battery in Florida. 1 We review de novo the

district court’s determination that a prior conviction triggers a statutory sentencing

enhancement. See United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).

       Miller argues that his prior conviction for sexual battery does not qualify

under § 2251(e) because it did not require proof that his victim was a minor. See

       1
         Miller’s presentence investigation report says that he was convicted of sexual battery in
1999. The parties stipulated at trial, however, that he was convicted of that offense in 2002.
Whether Miller was convicted in 1999 or in 2002 has no bearing on his conviction qualifying for
a sentencing enhancement under § 2251(e).
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Fla. Stat. § 794.011(5) (1999) (making it a second degree felony to “commit[ ]

sexual battery upon a person 12 years of age or older, without that person’s

consent” and without “us[ing] physical force and violence likely to cause serious

personal injury”). According to Miller, only crimes involving minors can trigger

an enhanced sentence because the phrase “involving a minor or ward” in § 2251(e)

modifies each of the crimes listed before it (i.e., “aggravated sexual abuse,”

“sexual abuse,” and “abusive sexual contact”), instead of only the one crime

immediately preceding it (“abusive sexual contact”). We disagree.

      In Lockhart v. United States, 577 U.S. ___, 136 S. Ct. 958 (2016), the

Supreme Court considered this precise question in the context of materially

indistinguishable statutory language in 18 U.S.C. § 2252(b)(2), which provides that

a defendant convicted of possessing child pornography under 18 U.S.C.

§ 2252(a)(4) is subject to a 10-year mandatory minimum sentence if he has a prior

conviction “under the law of any State relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward.” Lockhart, 136 S. Ct.

at 961 (quoting 18 U.S.C. § 2252(b)(2)). The only difference in the relevant

statutory texts is that § 2252(b)(2) refers to “abusive sexual conduct” and § 2251(e)

refers to “abusive sexual contact.” That distinction obviously is not material.

      The Lockhart Court held that the phrase “involving a minor or ward”

modified only the crime immediately preceding it in the statute and did not modify


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the other listed crimes. Id. There is no reasonable justification for treating the

same phrase differently where it appears in § 2251(e). We therefore conclude that

the 25-year statutory mandatory minimum in § 2251 applies to any defendant with

a prior conviction relating to “abusive sexual contact involving a minor or ward,”

as well as to any defendant with a prior conviction relating to “aggravated sexual

abuse” or “sexual abuse,” whether or not that conviction involved a minor. 2 See

id. at 968.

       Miller finally contends that, even under that interpretation of § 2251(e), his

sexual battery conviction does not trigger the sentencing enhancement because it is

not equivalent to a conviction for a crime that would constitute sexual abuse under

federal law. That argument ignores the plain text of the statute, which provides

that the enhancement applies to any defendant who has a prior state conviction

relating to sexual abuse. See 18 U.S.C. § 2251(e). “We have interpreted the

phrase ‘relating to’ broadly in the context of child exploitation offenses” like

§ 2251. United States v. Mathis, 767 F.3d 1264, 1284 (11th Cir. 2014); see also

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

an identical provision in 18 U.S.C. § 2252A “does not simply mandate a

sentencing enhancement for individuals convicted of state offenses equivalent to

sexual abuse,” but “for any state offense that stands in some relation, bears upon,
       2
         We reject Miller’s rule of lenity argument for the same reasons the Supreme Court
rejected Lockhart’s. See Lockhart, 136 S. Ct. at 968.

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or is associated with” sexual abuse) (citing United States v. Sinerius, 504 F.3d 737,

743 (9th Cir. 2007)). Miller’s conviction for sexual battery clearly relates to

“sexual abuse” as that term is generally understood. See Sinerius, 504 F.3d at

740–43. The district court did not err in enhancing Miller’s sentence under

§ 2251(e) based on that prior conviction.

      AFFIRMED.




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