                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2009

USA v. William Morehouse
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1136




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 08-1136
                                      __________

                           UNITED STATES OF AMERICA

                                                 Appellee,

                                           v.

                              WILLIAM MOREHOUSE,

                                                 Appellant.

                                      __________

                     On Appeal from United States District Court
                               for the District of New Jersey
                                 (D.C. No.: 2:07-cr-00604)
                     District Judge: Honorable Katharine S. Hayden

                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 5, 2009

   Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge.

                                (Filed: March 31, 2009)




       * The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
                                        __________

                                OPINION OF THE COURT
                                      __________

GARBIS, District Judge.

        Appellant, William Morehouse (“Morehouse”), convicted on a plea of guilty to

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),1 appeals

from the imposition of a 120-month sentence.

        For the reasons set forth herein, we affirm.


                                              I.

        Because we write exclusively for the parties, we will recount only those facts

essential to our decision.

        In 2006, Immigration and Customs Enforcement (“I.C.E.”) agents, as part of

“Operation Predator,” focused on an internet site that offered subscribers access to child

pornography. I.C.E. agents identified Morehouse as a subscriber, searched the hard drive

of his computer and found more than 250 images of child pornography.

        Morehouse was charged and agreed to plead guilty to a violation of

§ 2252A(a)(5)(B). The plea agreement referred to the possibility of an enhanced sentence

under subsection (b)(2) of § 2252A 2 that provides:

1
   Statutory references herein are to Title 18 of the United States Code except when there
is specific reference to Colorado Revised Statutes, Colo. Rev. Stat.
2
    Subsection references are to subsections of 18 U.S.C. § 2252A.


                                              2
              Whoever violates . . . subsection (a)(5) shall be . . . imprisoned
              not more than 10 years, . . . , but, if such person 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 . . . such person shall be . . . imprisoned for not
              less than 10 years nor more than 20 years.

       At sentencing, the Government submitted evidence that, in 1977, Morehouse had

been convicted of sexual assault on a child in violation of a Colorado statute that then   3



provided:

              Any actor who subjects another not his or her spouse to any
              sexual contact commits sexual assault on a child if the victim is
              less than 15 years of age and the actor is at least four years older
              than the victim.

Colo. Rev. Stat. § 18-3405(1) (1973 & 1976 Cum. Supp.).

       The sentencing judge held that the conviction rendered Morehouse subject to an

enhanced sentence under subsection (b)(2) and imposed the mandatory minimum 120-

month sentence.

       On appeal, Morehouse contends, that:

              1. The Colorado offense was not a predicate offense under subsection
                 (b)(2).

              2. The sentencing judge should have made an inquiry beyond an
                 examination of the text of the Colorado statute.

              3. Judicial fact finding of a prior conviction violated his Sixth Amendment
                  right to trial by jury.


3
     The statute was later amended to add the requirement that the offense was
committed knowingly.


                                               3
       In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court held that the

determination of whether a prior conviction qualifies as a predicate offense for purposes

of the Armed Career Criminal Act (“ACCA”), § 924(e), requires a “formal categorical

approach,” meaning that sentencing courts must look “only to the statutory definitions of

the prior offenses, and not to the particular facts underlying those convictions.” 495 U.S.

at 600. However, in a narrow range of cases, such as those in which there has been a

conviction under a statute that could criminalize conduct broader than that subject to

enhancement, courts may look beyond the statutory definition to the “indictment or

information and jury instructions.” Id. at 602.

       In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court addressed the

question of what a sentencing judge should consider when determining whether a prior

conviction for burglary qualified as a predicate offense under ACCA, a determination that

could not be made solely based upon the statutory text. The Supreme Court held that, in

such an inquiry, the sentencing court is limited to reviewing “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.” Id. at 26.

       Although Taylor and Shepard arose under the ACCA, we have applied the

Taylor/Shepard framework in other contexts. See United States v. Siegel, 477 F.3d 87,

90-93 (3d Cir. 2007) (determining whether a prior offense qualifies as a crime of violence


                                             4
under USSG § 4B1.2) and United States v. Galo, 239 F.3d 572, 578-79, 581-83 (3d Cir.

2001) (determining under § 2251(d) whether a prior conviction was one “relating to the

sexual exploitation of children”). Therefore, the Taylor/Shepard framework should be

applied in the instant case.

           Morehouse argues that, because subsection (b)(2) defines its predicate offenses

by using the words “aggravated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor or ward,” there is a requirement that the prior conviction be for a crime

that includes the elements of analogous federal offenses, i.e. § 2241 (aggravated sexual

abuse), § 2242 (sexual abuse), and § 2243 (sexual abuse of a minor or ward). Each of

these federal sex crimes could be committed only if the defendant acted “knowingly.”

The Colorado statute under which Morehouse had been convicted did not include an

element that the offense be committed knowingly. Thus, Morehouse argues, the

Colorado statute could have been violated by actions that would not constitute a predicate

offense under subsection (b)(2). Hence, the sentencing judge should have undertaken a

Shepard inquiry looked outside the text of the Colorado statute.

       This Court agrees with the other circuits that have rejected the notion that the

terms in subsection (b)(2) must be defined by reference to federal sex crimes. See United

States v. Sinerius, 504 F.3d 737, 742 (9th Cir. 2007) (considering § 2252A(b)(1), a

provision materially indistinguishable from § 2252A(b)(2)); United States v.

Hubbard, 480 F.3d 341, 348 (5th Cir. 2007) (considering the same provision).


                                             5
       This Court holds that the sentencing judge was not required to find that the

specific conduct for which Morehouse was convicted would constitute a violation of

specific federal statutes. Rather, to apply the enhancement under subsection (b)(2), the

sentencing judge need only have concluded that the Colorado statute relates to

“aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or

ward.” Galo, 239 F.3d at 581.

       The Supreme Court has defined the phrase “relating to” as meaning “to stand in

some relation; to have bearing or concern; to pertain; refer; to bring into association with

or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84 (1992)

(citing Black’s Law Dictionary 1158 (5th ed. 1979)). This Court has also given a broad

interpretation to the term “relating to.” See, e.g., Yong Wong Park v. Attorney General,

472 F.3d 66, 72 (3d Cir. 2006) (interpreting 8 U.S.C. § 1101(a)(43)(R)).

       In the instant case, it was appropriate for the sentencing judge to apply a “formal

categorical approach,” and look “only to the statutory definition[ ] of the prior offense[ ],

and not to the particular facts underlying th[at] conviction[ ].” Taylor, 495 U.S. at 600.

The Colorado statute under which Morehouse was convicted defined a crime that was

related to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a

minor or ward.”. Thus, the sentencing judge properly concluded that Morehouse was

subject to an enhanced sentence under § 2252A(b)(2).




                                              6
                                             II.


       Morehouse, hoping that there will be a change in the current state of the law,

contends that the sentencing judge violated his Sixth Amendment right to trial by jury by

finding the fact of his prior conviction. In light of the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224 (1998) and our decision in United

States v. Vargas, 477 F.3d 94 (3d Cir. 2007), we must reject this claim. Although the

Supreme Court has questioned its decision in Almendarez-Torres, it has yet to be

overruled. See, e.g., Shepard, 544 U.S. at 27 (Thomas, J., concurring) (arguing “a

majority of the Court now recognizes that Almendarez-Torres was wrongly decided”);

Apprendi v. New Jersey, 530 U.S. 466 (2000) (explaining “it is arguable that Almendarez-

Torres was incorrectly decided”). Thus, Almendarez-Torres continues to bind our

decisions.

       For the foregoing reasons, we affirm the judgment of the District Court.




                                             7
