                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 24, 2018

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-8028

KYLE STEVEN HEBERT,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                         (D.C. No. 2:16-CR-00104-SWS-1)
                       _________________________________

W. Keith Goody, Battle Ground, Washington, for Defendant – Appellant.

Jason Conder (Timothy J. Forwood, Assistant United States Attorney, and John R. Green,
Acting United States Attorney, on the brief), Cheyenne, Wyoming, for Plaintiff –
Appellee.
                        _________________________________

Before MATHESON, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                         _________________________________

      After a jury trial, Defendant-Appellant Kyle Hebert was convicted of four

counts of possession of child pornography. 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He

was sentenced to 120 months’ imprisonment and 15 years’ supervised release. On

appeal, Mr. Hebert challenges the district court’s finding that he had two prior
convictions that triggered a mandatory minimum sentence of ten years’

imprisonment. 18 U.S.C. § 2252A(b)(2). We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we affirm because Mr. Hebert’s prior

convictions “relate to” sexual abuse under the categorical approach.



                                         Background

      Mr. Hebert’s presentence report recommended an enhanced sentence pursuant

to § 2252A(b)(2) based upon two prior Georgia convictions. Section 2252A(b)(2)

provides that 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,” the defendant shall be “imprisoned for not less than 10

years nor more than 20 years.”

      Mr. Hebert was indicted in Georgia on two counts of sexual molestation under

Ga. Code Ann. § 16-6-4 in 2001. Each count described identical sexual conduct,

including fondling the vagina of each minor victim. 2 R. 172–73. Mr. Hebert

ultimately pled guilty to two counts of misdemeanor sexual battery, in violation of

Ga. Code Ann. 16-6-22.1(b).

      In the federal district court, Mr. Hebert argued that his Georgia sexual battery

convictions do not “relate to” sexual abuse or abusive sexual conduct involving a

minor, and therefore, the mandatory minimum required under § 2252A(b)(2) did not

apply. The district court disagreed, and using the modified categorical approach

(including an examination of underlying documents), it found that Mr. Hebert’s

                                            2
sexual battery convictions related to both sexual abuse and abusive sexual conduct of

a minor. Alternatively, it found that under the categorical approach, the mandatory

minimum applied because sexual battery “relates to” sexual abuse.



                                          Discussion

      We review the district court’s imposition of the mandatory minimum de novo.

See United States v. Becker, 625 F.3d 1309, 1310 (10th Cir. 2010).

   A. Categorical or Modified Categorical Approach for 18 U.S.C. § 2252A

      Both Georgia sexual battery convictions could trigger the ten-year mandatory

minimum if they involve a state law “relating to . . . sexual abuse.” 18 U.S.C.

§ 2252A(b)(2). Typically, in determining whether a prior conviction can serve as a

predicate offense for a sentencing enhancement, courts apply either the categorical or

modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2248–49

(2016); Taylor v. United States, 495 U.S. 575, 600–02 (1990).

      In applying the categorical approach, courts “focus solely on whether the

elements of the crime of conviction sufficiently match the elements of [the] generic

[crime], while ignoring the particular facts of the case.” Mathis, 136 S. Ct. at 2248.

“The comparison of elements that the categorical approach requires is

straightforward when a statute sets out a single (or ‘indivisible’) set of elements to

define a single crime. The court then lines up that crime’s elements alongside those

of the generic offense and sees if they match.” Id. Given the language of



                                            3
§ 2252A(b)(2), the state statute need only categorically “relate to” the generic

offense, not precisely match.

      However, if the statute of the prior conviction is divisible (containing

alternative elements), courts apply the modified categorical approach. Id. at 2249.

Under the modified categorical approach, a court may look to additional documents

to determine the crime and elements of which a defendant was convicted. Id. at

2256–57. But courts do not apply the “modified categorical approach when the crime

of which the defendant was convicted has a single, indivisible set of elements.”

Descamps v. United States, 570 U.S. 254, 258 (2013).

      Here, the district court applied the modified categorical approach to the

Georgia sexual battery statute, even though it does not contain alternative elements

and therefore is indivisible. The district court relied on this court’s decision in

United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), where we stated that

the categorical approach is not “a universal requirement of all sentencing

enhancements.” 419 F.3d at 1126 (quoting United States v. Martinez-Candejas, 347

F.3d 853, 858 (10th Cir. 2003)). McCutchen held that the applicable statute,

§ 2252(b)(2),1 was distinguishable from the statute involved in Taylor v. United

States, 495 U.S. 575 (1990), which set forth the categorical approach.

      Mr. Hebert contends that the district court’s application of the modified

categorical approach was incorrect based on our later decision in United States v.


      1
      Section 2252(b)(2) contains the same enhancement language as
§2252A(b)(2).
                                            4
Bennett, 823 F.3d 1316 (10th Cir. 2016). In that case, we discussed the two

prerequisites that must be met to employ the modified categorical approach:

      Thus, in applying § 2252A(b)(2) we start with the categorical approach,
      even if we do not end there. Consequently, we first ask whether the
      language of the prior conviction categorically triggers the enhancement.
      If not, we may proceed beyond the categorical approach if two pre-
      requisites are met. First, we must have access to court documents such
      as those approved of in Shepard v. United States, 544 U.S. 13 (2005),
      that demonstrate the elements of the crime the defendant committed.
      Second, the statute of prior conviction must be divisible, Descamps v.
      United States, 133 S. Ct. 2276, 2282 (2013), meaning the statute lists
      alternative ways it may be violated.

823 F.3d at 1321 (emphasis added). Clearly, there is tension between our decisions

in McCutchen and Bennett. McCutchen held that courts could employ the modified

categorical approach even when a state statute is indivisible, but Bennett stated that

the statute must be divisible before proceeding to the modified categorical approach,

citing to the recent Supreme Court decision in Descamps. The district court

recognized this tension between McCutchen and Bennett when it stated:

      So then I turn to Bennett. And if I follow Bennett, I would not be
      allowed to look at anything else other than the statute. But I don’t think
      Bennett is correct. And to the extent it takes the position contrary to
      McCutchen, I think that McCutchen has and applies what I consider to
      be a more rational and logical approach.

3 R. 920.

      While the district court correctly recognized this tension, we must respectfully

disagree with its conclusion — although not because we find the logic of Bennett

more reasonable than McCutchen. Instead, we find that the holding and reasoning of

McCutchen has been superseded by a “contrary decision by the Supreme Court.”


                                           5
Lucio-Rayos v. Sessions, 875 F.3d 573, 582 (10th Cir. 2017) (quoting Leatherwood

v. Allbaugh, 861 F.3d 1034, 1042 n.6 (10th Cir. 2017)). In Descamps, the Supreme

Court stated that the modified categorical approach does not apply to “to statutes . . .

that contain a single, ‘indivisible’ set of elements.” 570 U.S. at 260. In a footnote to

this quote citing examples illustrating the circuit split it would resolve, the Supreme

Court cited to United States v. Beardsley, 691 F.3d 252, 268–74 (2d Cir. 2012), as an

example of a case that (correctly) did not apply the modified categorical approach.

Beardsley held that the modified categorical approach applies only to divisible

statutes and concerned an enhancement under 18 U.S.C. § 2252A(b). Because the

state statute in Beardsley was indivisible, the Beardsley court applied the categorical

approach, 691 F.3d at 268, and the Supreme Court cited the case as illustrative of the

correct approach. Descamps, 570 U.S. at 260 n.1.

      Here, we have the same operative circumstances: an indivisible statute and an

enhancement under § 2252A(b). The Georgia statute states that “[a] person commits

the offense of sexual battery when he intentionally makes physical contact with the

intimate parts of the body of another person without the consent of that person.” Ga.

Code Ann. § 16-6-22.1(b) (2001). Because this statute does not contain alternative

elements, it is indivisible and therefore we apply the categorical approach. In so

doing, we must part from the reasoning in McCutchen that runs contrary to




                                           6
Descamps,2 namely that the modified categorical approach can be applied to

indivisible statutes.3

   B. Categorical Approach

       We therefore examine the statutory definition of Mr. Hebert’s Georgia sexual

battery convictions to determine if they categorically “relate to” sexual abuse

pursuant to § 2252A(b)(2).

       The relevant Georgia statute provides: “A person commits the offense of

sexual battery when he intentionally makes physical contact with the intimate parts4

of the body of another person without the consent of that person.” Ga. Code Ann. §

16-6-22.1(b). Next, we must determine what constitutes generic sexual abuse under

§ 2252A(b)(2). The Supreme Court has stated that “relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” in


       2
         This view also aligns us with our sister circuits. See, e.g., United States v.
Sullivan, 797 F.3d 623, 637–38 (9th Cir. 2015); United States v. Allen, 750 F.3d 209,
213 (2d Cir. 2014).
       3
         In McCutchen, the district court enhanced the defendant’s sentence under
§ 2252(b)(2) because he previously had been convicted of sexual battery under an
indivisible Kansas statute. The court relied on the charging documents, which
showed the victim was a minor, to conclude the prior conviction “relat[ed] to” sexual
abuse of a minor. This court affirmed. 419 F.3d at 1126–27. The district court in
this case followed a similar approach.
       Under our decision here, when the prior conviction is based on a statute that is
indivisible, a court may not examine the charging documents to enhance a sentence
under § 2252A(b)(2). When the statute is divisible, a court may examine the
documents underlying the prior conviction only “to identify the elements of the crime
of conviction” and then “appl[y] the categorical approach.” United States v. Titties,
852 F.3d 1257, 1266 (10th Cir. 2017) (first quoting Mathis, 136 S. Ct. at 2253).
       4
         “[T]he term ‘intimate parts’ means the primary genital area, anus, groin,
inner thighs, or buttocks of a male or female and the breasts of a female.” Ga. Code
Ann. § 16-6-22.1(a).
                                           7
§ 2252(b)(2) seemingly mirrors the offenses listed in 18 U.S.C. ch. 109A. Lockhart

v. United States, 136 S. Ct. 958, 964 (2016). Therefore, we look to Chapter 109A for

the definition of generic sexual abuse.5 Section 2242 defines sexual abuse as when a

person

         (1) causes another person to engage in a sexual act by threatening or
         placing that other person in fear (other than by threatening or placing
         that other person in fear that any person will be subjected to death,
         serious bodily injury, or kidnapping); or
         (2) engages in a sexual act with another person if that other person is —
                (A) incapable of appraising the nature of the conduct; or
                (B) physically incapable of declining participation in, or
                communicating unwillingness to engage in, that sexual act.[6]

         We can now determine whether Georgia sexual battery “relates to” the generic

offense of sexual abuse. Importantly, although the Georgia sexual battery statute

includes some conduct that might not fall under the federal definition, this court need

ask only whether the Georgia sexual battery statute “relates to” sexual abuse — not

whether it constitutes sexual abuse. Moreover, this court and the Supreme Court

have consistently construed broadly the phrase “relating to.” See Morales v. Trans

         5
          We also note here that even if we were to use a more general definition of
sexual abuse, as the Fifth Circuit does, see United States v. Wikkerink, 841 F.3d 327,
332 (5th Cir. 2016) (defining sexual abuse from Black’s Law Dictionary as “[a]n
illegal or wrongful sex act, esp. one performed against a minor by an adult” (quoting
United States v. Vigil, 774 F.3d 331, 334 (5th Cir. 2014))), we would still come to
the same conclusion: Georgia sexual battery categorically “relates to” sexual abuse.
        6
          The term “sexual act” in this statute includes “the penetration, however
slight, of the anal or genital opening of another by a hand or finger or by any object,
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person” or “the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16 years with intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.” 18 U.S.C. § 2246(2)(C)–(D).

                                            8
World Airlines, Inc., 504 U.S. 374, 383 (1992); Bennett, 823 F.3d at 1325. We have

stated that “§ 2252(b) does not require a conviction that constitutes [the generic

offense] but only one that relates to [that offense]; for § 2252(b) the conviction thus

‘need only stand in some relation to, pertain to, or have a connection with’” the

generic offense. United States. v. Martinez-Zamaripa, 680 F.3d 1221, 1225 (10th

Cir. 2012) (quoting United States v. Becker, 625 F.3d 1309, 1312 (10th Cir. 2010)).

      In this light, and given the two definitions above, the Georgia sexual battery

statute readily qualifies as an offense “relating to” sexual abuse. Both definitions (1)

involve a touching that is nonconsensual, (2) involve the intimate body parts of

another, and (3) are sexual in nature. Mr. Hebert argues that because Georgia sexual

battery does not require “sexual contact,” see Watson v. State, 777 S.E.2d 677, 678–

679 (Ga. 2015), but only unconsented physical contact with intimate parts, it is not

sexual in nature — and thus does not “relate to” sexual abuse. This argument fails

for two reasons. First, simply because sexual battery does not require sexual contact

does not mean it is not sexual in nature. In fact, this would run contrary to the

inherent nature of the statute itself: sexual battery. Second, and most importantly, the

state statute need only categorically “relate to” sexual abuse, not match exactly. See

§ 2252A(b)(2). And the Georgia sexual battery statute easily “stand[s] in some

relation” to sexual abuse. See Martinez-Zamaripa, 680 F.3d at 1225. Therefore, Mr.

Hebert’s Georgia convictions trigger § 2252A(b)(2)’s mandatory minimum term of

ten years’ imprisonment.



                                           9
      Because Georgia sexual battery “relates to” sexual abuse, we need not consider

whether Georgia sexual battery also “relates to” abusive sexual conduct involving a

minor.7 See People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife

Serv., 852 F.3d 990, 1008 (10th Cir. 2017) (“If it is not necessary to decide more, it

is necessary not to decide more.” (alteration omitted) (quoting PDK Labs, Inc. v.

DEA, 362 F.3d 786, 799 (D.C. Cir. 2004))).

   C. Sixth Amendment

      Lastly, Mr. Hebert argues that using his prior convictions to impose a

mandatory minimum violated his Sixth Amendment rights under Apprendi v. New

Jersey, 530 U.S. 466 (2000), because the prior convictions were not found by a jury.

However, a sentencing court is permitted to consider whether the Georgia convictions

constitute sexual abuse without violating Mr. Hebert’s Sixth Amendment rights. See

United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005).

      AFFIRMED.




      7
        Because a statute that “relates to” sexual abuse or abusive sexual conduct
involving a minor triggers the mandatory minimum, we need not address both today.
See § 2252A(b)(2).
                                          10
