                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 02-3233
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United States of America,                 *
                                          *
      Appellee,                           *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Western District of Missouri.
Gregory L. Trogdon,                       *
                                          *
      Appellant.                          *

                                ________________

                                Submitted: March 11, 2003
                                    Filed: July 3, 2003
                                ________________

Before HANSEN, Chief Judge,1 RILEY and MELLOY, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      Gregory L. Trogdon pleaded guilty to receiving child pornography, in violation
of 18 U.S.C. § 2252A(a)(2)(A) (2000), and was sentenced to sixty months in prison
and four years of supervised release. The only contested matter at sentencing, and the
only issue on appeal, is whether Trogdon is subject to a sixty-month statutory
minimum prison term due to his prior conviction for first-degree sexual misconduct.

      1
        The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
We conclude, as did the district court,2 that this conviction triggers the enhanced
statutory minimum. Accordingly, we affirm the judgment of the district court.

                                           I.

         The enhanced statutory minimum applies, as relevant, if Trogdon "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). It is undisputed that Trogdon has a prior Missouri conviction for
sexual misconduct in the first degree, in violation of Mo. Rev. Stat. § 566.090.1
(1995). A person commits this offense if "he purposely subjects another person to
sexual contact," id., defined as "any touching of the genitals or anus of another person
. . . for the purpose of arousing or gratifying sexual desire of any person," Mo. Rev.
Stat. § 566.010(3). The Missouri crime of first-degree sexual misconduct can be
committed against either an adult or a minor. It is undisputed, however, that
Trogdon's offense conduct included placing his hand inside the underwear of a girl
under the age of twelve and inserting his finger into her vagina. The fact that the
victim was under the age of twelve was specifically alleged in the amended state court
information to which Trogdon pleaded guilty.

       Thus, the question is whether the statute under which the defendant was
previously convicted must contain as an element the victim's status as a minor in
order to qualify as a conviction for "abusive sexual conduct involving a minor"
triggering § 2252A(b)(1)'s enhanced statutory minimum. Although one district court
has concluded that the victim's age must be included as an element, see United States
v. Roy, 114 F. Supp. 2d 1, 2-3 (D. Me. 2000), we reject this approach. Accord United
States v. Rezin, 322 F.3d 443, 446-49 (7th Cir. 2003) (construing 18 U.S.C.


      2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
                                           2
§ 2252(b)(2)'s enhanced statutory minimum for "a prior conviction . . . under the laws
of any State relating to . . . abusive sexual conduct involving a minor or ward" and
rejecting elements-only approach to determining victim's age in defendant's prior
offense).

       We think that the better approach is the one we use when determining whether
a prior offense is a crime of violence triggering an enhanced sentence. If violence is
included as an element in the statute under which the defendant was previously
convicted, our inquiry ends. However, if violence is not included as an element, such
that the defendant could have committed the prior offense violently or nonviolently,
we proceed to examine the prior offense's underlying facts to determine whether
violence was involved. See United States v. Wright, 957 F.2d 520, 522 (8th Cir.),
cert. denied, 506 U.S. 856 (1992).

      Applying this analysis to the instant case, to determine whether Trogdon's prior
conviction for first-degree sexual misconduct qualifies as abusive sexual conduct
involving a minor, our inquiry does not end with the Missouri statute because the
victim's age is not included as an element therein. We must proceed to examine the
underlying facts of the prior offense to determine whether the victim was a minor.
As noted above, it is undisputed that Trogdon's victim was a girl under the age of
twelve. Thus, he was properly subjected to the enhanced sixty-month statutory
minimum prison term of § 2252A(b)(1).

                                         II.

      Accordingly, we affirm the judgment of the district court.




                                          3
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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