                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4039


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

GARY RANDALL GILBERT,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.     Irene C. Berger,
District Judge. (1:09-cr-00069-1)


Argued:   March 22, 2011                  Decided:   April 28, 2011


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.    Judge Agee wrote a
separate opinion concurring in part and        concurring in the
judgment.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.     Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.   ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Karen B. Schommer, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               2
PER CURIAM:

        Gary Randall Gilbert pled guilty to knowingly possessing

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b).

The   district       court    concluded        that   Gilbert’s       prior   conviction

under    North     Carolina       law    for    taking    indecent      liberties    with

children triggered the sentencing enhancement in § 2252A(b)(2)

and sentenced him to 121 months’ imprisonment and a lifetime

term of supervised release.                    Gilbert appeals, contending that

the district court erred in applying the enhancement and imposed

an unreasonable sentence.               We affirm.



                                               I.

       In   June     2008,    a   North       Carolina    probation      officer    found

child pornography on Gilbert’s computer during a surprise visit

to    his   home.      A     forensic     examination          of   Gilbert’s   computer

revealed 159 still images and 8 videos of child pornography.

Among those images were depictions of children under the age of

twelve      engaged    in    sadistic      conduct       and    other   violent     acts.

Gilbert admitted to using his computer and a peer-to-peer file

sharing program to download images and videos from the Internet.

At the time this child pornography was discovered, Gilbert was

on probation for his 2007 North Carolina felony convictions for

second      degree    kidnapping        and    taking    indecent       liberties    with



                                               3
children.     Under the terms of his probation, Gilbert was not

permitted to possess a computer or have access to the Internet.

      On March 18, 2009, a federal grand jury returned a one-

count   indictment      charging    Gilbert         with   knowingly       possessing

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

On August 4, 2009, Gilbert pled guilty to the indictment without

the benefit of a plea agreement.                    At the plea hearing, the

probation officer who found the child pornography testified that

Gilbert’s North Carolina offenses involved “sexual contact” with

“a six-year-old child.”         Gilbert did not contest this point.

      Gilbert’s presentence report (“PSR”) calculated his total

offense level as 30 with a criminal history category of III,

which carried an advisory Guidelines range of 121 to 151 months’

imprisonment.        Gilbert’s     conviction       also   carried     a    statutory

mandatory term of supervised release, ranging from five years to

life.   Gilbert did not object to the calculations.

      At sentencing, the district court adopted the Guidelines

calculation contained in the PSR.               The court further found that

based on Gilbert’s North Carolina conviction for taking indecent

liberties     with      children     he       was    subject      to   18      U.S.C.

§ 2252A(b)(2), which requires a mandatory minimum sentence of

ten years when the 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

                                          4
ward.”     Ultimately, the district court sentenced Gilbert to 121

months’    imprisonment,     to    be   followed    by    a   lifetime      term    of

supervised release.

       Gilbert timely noted this appeal challenging the district

court’s     imposition     of     the   statutory        enhancement        and    his

sentence, particularly the lifetime term of supervised release.



                                        II.

       Gilbert contends that the district court erred in finding

that his North Carolina conviction for indecent liberties with

children    triggered    the      sentencing     enhancement     in    18     U.S.C.

§ 2252A(b)(2).      We review his claim of error de novo.                          See

United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

       A defendant convicted of possessing child pornography faces

an     increased   statutory       sentencing      range      under    18     U.S.C.

§ 2252A(b)(2) if

       such person has a prior conviction under this chapter,
       chapter 71, chapter 109A, or chapter 117, or under
       section 920 of title 10 (article 120 of the Uniform
       Code of Military Justice), or under the laws of any
       State relating to aggravated sexual abuse, sexual
       abuse, or abusive sexual conduct involving a minor or
       ward, or the production, possession, receipt, mailing,
       sale, distribution, shipment, or transportation of
       child pornography . . . .

The district court applied a categorical approach in determining

that    North   Carolina’s      indecent      liberties    statute    constituted

such an offense.

                                         5
       Under    a     categorical       approach,       courts       analyze      offenses

“generically -- that is, by relying solely on [their] essential

elements,      rather    than     on    the       particular     underlying           facts.”

United States v. White, 571 F.3d 365, 368 (4th Cir. 2009); see

James v. United States, 550 U.S. 192, 208 (2007); Taylor v.

United States, 495 U.S. 575, 600 (1990) (explaining categorical

approach requires “looking only to the fact of conviction and

the statutory definition of the predicate offense, rather than

to    the   particular     underlying        facts”).         Under       this   approach,

Gilbert argues that the district court erred in concluding that

the North Carolina statute at issue triggered the enhancement in

§ 2252A(b)(2).

       The Government makes two arguments in this regard.                              First,

the    Government      contends       that    this    court    need       not    apply      the

categorical         approach    because       the     language       of    § 2252A(b)(2)

“clearly permits a broader inquiry . . . into whether a prior

offense ‘relates to’ sexual abuse of a minor.”                         Appellant’s Br.

at 13 (quoting United States v. Mills, 224 F. App’x 232, 234-35

(4th Cir. 2007); see also United States v. McCutchen, 419 F.3d

1122,   1126-27       (10th    Cir.    2005)      (noting     that    “Taylor         did   not

impose the categorical approach as a universal requirement of

all    sentencing      enhancements”         and     concluding      that       the    phrase

“relating      to”     “indicates       [Congress’s]          intent       to     allow       a

sentencing court to look beyond the mere elements of a prior

                                              6
state     conviction      in       determining            whether       such   conviction     is

sufficient to trigger application” of the identical sentencing

enhancement     in       18    U.S.C.      § 2252(b)(2)).                 According    to    the

Government,    then,          we   can    look          beyond    the    elements     of    North

Carolina’s    indecent         liberties            statute      to   Gilbert’s     underlying

conduct to assess whether the sentencing enhancement applies.

     The Government also argues that even under a categorical

approach -- looking only to the elements of the state statute --

North     Carolina’s          indecent         liberties         with     children     offense

triggers     the     enhancement               in       § 2252A(b)(2).            Because     we

ultimately agree with this argument, we will assume, without

deciding, that the categorical approach applies.

     The state law at issue here provides:

     A person is guilty of taking indecent liberties with
     children if, being 16 years of age or more and at
     least five years older than the child in question, he
     either:
     (1) Willfully takes or attempts to take any immoral,
     improper, or indecent liberties with any child of
     either sex under the age of 16 years for the purpose
     of arousing or gratifying sexual desire; or
     (2) Willfully commits or attempts to commit any lewd
     or lascivious act upon or with the body or any part or
     member of the body of any child of either sex under
     the age of 16 years.

N.C. Gen. Stat. § 14-202.1.

     The gravamen of Gilbert’s argument is that because one can

offend the indecent liberties statute without making physical

contact     with     a    minor,         the    statute          does    not   categorically


                                                    7
“relat[e] to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.”                      See, e.g., State v. Every,

578    S.E.2d    642,    648-49       (N.C.App.      2003)     (affirming     conviction

when       “defendant    repeatedly        engaged       the    victim   in    extremely

graphic and explicit [telephone] conversations that were sexual

in nature”); State v. McClees, 424 S.E.2d 687 (N.C.App. 1993)

(affirming      conviction       of    high       school    principal    who    secretly

videotaped a female student undressing).                       According to Gilbert,

the    enumerated       offenses      of   § 2252A(b)(2)         necessarily     involve

“some type of harmful physical contact.”                       Appellant’s Br. at 14.

We disagree. ∗

       Turning    first     to    the      text    of    the    statutory     provision,

§ 2252A(b)(2) does not expressly require that predicate state

laws criminalize only sexually-based physical contact.                         Nor does

chapter 110 generally define “sexual abuse” or “abusive sexual

conduct” to require physical contact.                      In fact, the chapter does

not define these terms at all.



       ∗
       Gilbert relies on Begay v. United States, 553 U.S. 137,
143-45 (2008), in which the Supreme Court concluded that to
trigger the sentencing enhancement in a different statute, the
Armed Career Criminal Act, a state offense must be “roughly
similar, in kind as well as in degree of risk posed,” to that
federal statute’s enumerated offenses.     Even assuming Begay
applies in this context, Gilbert’s argument rests on his
contention   that  the  enumerated  offenses  of  § 2252A(b)(2)
criminalize only “harmful physical contact,” a contention we
reject.


                                              8
     Chapter      109A     does     define     similar     federal        offenses     to

require    physical      contact.        See   18   U.S.C.    §    2241    (aggravated

sexual abuse); § 2242 (sexual abuse); § 2243 (sexual abuse of a

minor or ward); § 2244 (abusive sexual contact).                           Critically,

however,     § 2252A(b)(2)        does   not    instruct      us   to     apply   these

federal definitions.         Congress certainly could have done so and

has done so in other provisions.               See, e.g., 18 U.S.C. § 2241(c)

(providing       for   a   life      sentence       when     the    defendant        “has

previously been convicted of . . . a state offense that would

have been [a federal] offense”); id. § 3559(e)(2)(B) (defining

“State sex offense” as an offense that “consists of conduct that

would   be   a   Federal    sex     offense”).        Moreover,      §     2252A(b)(2)

enumerates “abusive sexual conduct involving a minor” (emphasis

added), which is not defined in chapter 109A.                        Compare § 2244

(criminalizing abusive sexual contact).                    Accordingly, we find

“no indication that Congress intended to import the definitions

of chapter 109A to chapter 110.”                United States v. Sonnenberg,

556 F.3d 667, 670 (8th Cir. 2009); see also United States v.

Sinerius, 504 F.3d 737, 742-44 (9th Cir. 2007); United States v.

Hubbard, 480 F.3d 341, 347-48 (5th Cir. 2007); but see United

States v. Osborne, 551 F.3d 718, 720-21 (7th Cir. 2009).

     Moreover, § 2252A(b)(2) encompasses prior convictions under

federal law that by definition do not require physical contact.

For example, the Uniform Code of Military Justice criminalizes

                                           9
indecent liberty with a child and defines “indecent liberty” as

“indecent       conduct,     but    physical        contact        is    not    required.”

10 U.S.C.      § 920(j),     (t)(11).         Like    the    Fifth       Circuit,      “[w]e

discern no intent on the part of Congress to impose such a

limitation with regard to prior convictions under state law.”

Hubbard, 480 F.3d at 347.                Indeed, Congress expressly included

within § 2252A(b)(2) prior convictions under state law relating

to the possession of child pornography, which does not involve

physical contact.

       Because Congress has not defined the terms at issue, “we

interpret [them] by employing the common meaning of the words.”

United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).

See also Sonnenberg, 556 F.3d at 671 (giving the identical terms

in § 2252(b)(1) their “ordinary, contemporary, common meaning”);

Sinerius, 504 F.3d at 743 (noting “Congress’s intent to define

‘sexual abuse’ as a generic offense, understood by its ordinary

and    common    meaning”).         In   Diaz-Ibarra,         we    defined      the    term

“sexual abuse of a minor” found in the Sentencing Guidelines to

mean    “the    ‘perpetrator’s       physical        or     nonphysical         misuse    or

maltreatment of a minor for a purpose associated with sexual

gratification.’”           522   F.3d    at   352    (quoting       United      States   v.

Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (emphasis

added)).        See   also       Sonnenberg,     556      F.3d      at    671   (adopting



                                           10
identical       definition).         We    find    that    definition         instructive

here.

     Accordingly, we assess whether North Carolina’s offense of

taking indecent liberties with children is an offense “relating

to” the “physical or nonphysical misuse or maltreatment of a

minor for a purpose associated with sexual gratification.”                              In

doing     so,    we   are     mindful      that    “Congress        chose     the   words

‘relating to’ for a purpose.”                United States v. Weis, 487 F.3d

1148, 1152 (8th Cir. 2007) (internal quotation omitted).                               “The

phrase ‘relating to’ carries a broad ordinary meaning, i.e., to

stand in some relation; to have bearing or concern; to pertain;

refer; to bring into association with or connection with.”                             Id.

(quoting Morales v. Trans World Airlines Inc., 504 U.S. 374, 383

(1992) (internal quotation marks omitted)).

     In    light      of    the   broad    scope    of    §   2252A(b)(2)        and   our

holding    in    Diaz-Ibarra        that   abuse    need      not    involve     physical

contact,    we    have     little    difficulty      concluding        that     Gilbert’s

prior conviction triggers the enhancement.                      Under the terms of

North Carolina’s statute, a perpetrator must be at least five

years older than the victim, who must be under 16 years of age.

Cf. Osborne, 551 F.3d at 719-20 (concluding state statute that

lacked     four-year       age    difference       did    not       trigger     identical

enhancement in § 2252(b)(1)).                The perpetrator must engage in

some “immoral, improper, or indecent liberties” with the minor

                                            11
“for the purpose of arousing or gratifying sexual desire.”                                       In

our view, such conduct “relat[es] to” the “nonphysical misuse or

maltreatment of a minor for a purpose associated with sexual

gratification.”              Diaz-Ibarra, 522 F.3d at 352.                     Accordingly, we

hold    that   North          Carolina’s         indecent         liberties      with       children

offense    triggers          the     sentencing         enhancement       in     § 2252A(b)(2).

See Sonnenberg, 556 F.3d at 671 (holding prior conviction under

Iowa’s    lascivious          acts       with    children         offense,      which       required

either physical or nonphysical misuse or maltreatment of a minor

with the intent to seek libidinal gratification, triggered the

enhancement);        Hubbard,         480       F.3d    at   350-51      (holding       that     the

defendant's         prior       state       conviction            for    lewd     or        indecent

proposals      to    a       child    under       16    years       of   age     triggered       the

identically-worded enhancement in § 2252A(b)(1)).



                                                 III.

       Gilbert next contends that his sentence is unreasonable.

We apply a deferential abuse-of-discretion standard to determine

the     reasonableness          of       Gilbert’s       sentence,        looking       first    to

whether the district court committed any procedural error in

fashioning the sentence.                  Layton, 564 F.3d at 335.                 “A district

court    commits         a    procedural         error       if    it    fails    to        properly

calculate the Guidelines, treats the Guidelines as mandatory,

fails     to   consider            the    statutory          factors      under        18     U.S.C.

                                                  12
§ 3553(a), bases a sentence on facts that are clearly erroneous,

or fails to adequately explain the sentence imposed.”                          Id. at

335-36 (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

In the absence of any significant procedural error, “we then

examine the sentence for substantive reasonableness in light of

all relevant facts.”          Id. at 336 (internal quotation omitted).

      Gilbert argues that the district court failed to adequately

explain     its   rationale      for    imposing        the    121-month      term    of

imprisonment, the very bottom of the Guidelines range, because

the court failed to address Gilbert’s lengthy argument for a

downward    variance.         Gilbert    acknowledges,         however,    that      this

argument rests on the conclusion that the district court erred

in   applying     the    enhancement        in   §   2252A(b)(2),     which     set    a

mandatory    minimum      sentence     of    120     months.     In   light    of    our

holding that the district court did not so err, and thus could

not have sentenced Gilbert to a term of imprisonment shorter

than 120 months, Gilbert’s argument must fail.

      Moreover,         the   district        court     provided      an      adequate

“individualized         assessment”         of     Gilbert’s     within-Guidelines

sentence to “permit meaningful appellate review.”                     United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).                         The district

court considered Gilbert’s prior criminal history of “deviant

conduct involving children,” the nature and circumstances of the

current offense, Gilbert’s need for treatment and monitoring,

                                            13
and the need to avoid sentencing disparities.                      See JA 257-58; 18

U.S.C. § 3553(a).

       Having     found        that    the     district       court     committed        no

significant procedural error, we address Gilbert’s claim that

the    lifetime        term    of     supervised       release     is     substantively

unreasonable in that “it is greater than necessary to comply

with the purposes of sentencing.”                  Appellant’s Br. at 20.                He

asserts that possessing child pornography is one of the “lesser

offenses for which a lifetime term of supervised release can be

imposed.”        Id.        Gilbert does not dispute, however, that his

crime made him eligible for the lifetime term.                          See 18 U.S.C.

§ 3583(k) (“[T]he authorized term of supervised release for any

offense under section . . . 2252A . . . is any term of years not

less    than     5,    or     life.”).       Nor   does      he    dispute     that     the

Guidelines recommend “the statutory maximum term of supervised

release,”      when    “the     instant      offense    of    conviction       is   a   sex

offense.”       U.S.S.G. § 5D1.2 (policy statement).

       In accordance with 18 U.S.C. § 3583(c), the district court

considered relevant sentencing factors in fashioning the term of

supervised release.             See JA 258-59.          The court considered the

nature of the offense and history and characteristics of the

defendant,      citing      Gilbert’s      prior   conviction       for    a   sexually-

based crime involving a minor and that Gilbert was on probation

for    that     offense       when    he     committed       the   present      offense.

                                             14
Further,   the   court   considered    that   Gilbert   downloaded   a

significant number of images in a short period of time using a

peer-to-peer file sharing program.      See 18 U.S.C. § 3553(a)(1).

The court also found that the lifetime term was necessary to

reduce the likelihood that Gilbert would reoffend and to protect

the public, particularly children, from further crimes.       See id.

§ 3553(a)(2)(B),(C).     Lastly, the district court determined that

the lifetime term would provide an opportunity for Gilbert to

receive long-term treatment and monitoring of that treatment.

See id. § 3553(a)(2)(D).

     In light of the deferential abuse-of-discretion standard of

review, we cannot conclude that the supervised release term was

“substantively unreasonable in light of all the relevant facts.”

Layton, 564 F.3d at 337.



                                 IV.

     For the foregoing reasons, the judgment of the district

court is

                                                            AFFIRMED.




                                  15
AGEE, Circuit Judge, concurring in part and concurring in the
judgment:

     I join in Parts I and III of the majority opinion, which

rejects Gilbert’s argument that his sentence was unreasonable,

and concur in the judgment.           I also agree with the majority’s

conclusion    in   Part   II   that   Gilbert’s       sentence     was       properly

enhanced under 18 U.S.C. § 2252A(b)(2) based on his prior North

Carolina     conviction   for    indecent     liberties      with        a    child.

However, I write separately because I would neither assume nor

decide that the categorical approach should be used to reach

that conclusion.     (Majority Op. at 7 (assuming without deciding

categorical    approach   applies).)       Instead,    for   the    reasons       set

forth herein, I would follow the Tenth Circuit’s decision in

United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), and

this Court’s unpublished decision in United States v. Mills, 224

F. App’x 232 (4th Cir. 2007), which concluded that an elements-

based categorical approach was unnecessary given the breadth of

provisions identical to 18 U.S.C. § 2252A(b)(2).

     The categorical approach, set forth in Taylor v. United

States, 495 U.S. 575 (1990), was applied to 18 U.S.C. § 924(e),

the Armed Career Criminal Act (“ACCA”).                See United States v.

Dean, 604 F.3d 169, 175 (4th Cir. 2010) (explaining that the

categorical approach was “[o]riginally developed in the context

of [the ACCA]” and “has been extended to the career offender


                                      16
provisions   under    the   [United   States   Sentencing]   Guidelines”).

As the McCutchen court explained, Taylor determined, based on

the specific language and background of § 924(e), that the word

“burglary” as used therein was meant by Congress in the “generic

sense in which the term is now used in the criminal codes of

most States.”       419 F.3d at 1126 (quoting Taylor, 495 U.S. at

598).   Thus,

     a person has been convicted of burglary for purposes
     of a § 924(e) enhancement if he is convicted of any
     crime, regardless of its exact definition or label,
     having the basic elements of unlawful or unprivileged
     entry into, or remaining in, a building or structure,
     with intent to commit a crime.

Taylor, 495 U.S. at 599.        And, as we noted in Mills, § 924(e)

requires by its plain terms an elements of the crime analysis:

     The [ACCA] provides for a sentencing enhancement only
     if the defendant is convicted of a felony that “has as
     an element the use . . . of physical force” or “is
     burglary, arson, or extortion, involves the use of
     explosives or otherwise involves conduct that presents
     a serious potential risk of physical injury to
     another.” 18 U.S.C. § 924(e)(2)(B).

Mills, 224 F. App’x at 234 (emphases in original).

     Accordingly, the language of § 924(e), as interpreted in

Taylor, dictates that courts examine the “essential elements” of

a defendant’s previous crime, in order to determine whether it

is a predicate offense for ACCA purposes.           See United States v.

White, 571 F.3d 365, 368 (4th Cir. 2009) (under a categorical

approach,    “the    offense   is   analyzed   generically—that   is,   by



                                      17
relying solely on its essential elements, rather than on the

particular underlying facts”); James v. United States, 550 U.S.

192, 208 (2007) (in addressing the residual clause of § 924(e),

“the proper inquiry is whether the conduct encompassed by the

elements     of    the    offense,       in   the    ordinary     case,   presents    a

serious potential risk of injury to another”).

       In contrast to § 924(e), the language in the enhancement

statute at issue here, 18 U.S.C. § 2252A(b)(2), is completely

different.        McCutchen examined an identically-worded provision

found in § 2252(b)(2).             As the McCutchen court explained, unlike

§ 924(e), which was triggered by a felony that “is burglary,”

       § 2252(b)(2) does not state that a prior state crime
       will trigger the sentence enhancement provisions if it
       “is” aggravated sexual abuse, sexual abuse, or abusive
       sexual   conduct   involving    a   minor.      Rather,
       § 2252(b)(2) states that “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” will trigger the sentence
       enhancement provisions.      18 U.S.C. § 2252(b)(2)
       (emphasis added). As the Supreme Court has indicated,
       the phrase “relating to” carries a “broad” “ordinary
       meaning,” i.e., “to stand in some relation to; to have
       bearing or concern; to pertain; refer; to bring into
       association with or connection with, . . . .’” Morales
       v. Trans World Airlines, 504 U.S. 374, 383 (1992)
       (quoting Black’s Law Dictionary 1158 (5th ed. 1979)).

419   F.3d   at    1126-27    (emphases         in   original);    see    also   United

States v. Rezin, 322 F.3d 443, 448 (7th Cir. 2003) (“[t]here is

no    mention     of    elements    in    section        2252(b)(2)”).      Thus,   the

McCutchen       court    concluded       that      the   categorical     approach   was


                                              18
inapplicable and that defendant’s prior conviction for sexual

battery fell within the scope of the enhancement provision.                                    419

F.3d at 1127.

     McCutchen was also cited with approval and followed by our

unpublished         decision      in      Mills.            While    Mills    is   not   binding

authority,      I    find       its    reasoning           persuasive.        In     Mills,    this

court    determined         that      a       Virginia       conviction      for     “aggravated

sexual     battery”             was       a     proper        predicate       offense         under

§ 2252A(b)(1).            224 F. App’x at 234.                       The Mills court noted

first    that       the     language           in     the    enhancement       provision       was

“notably     broader”           than          that    of     the     ACCA,     and     that     the

enhancement provision “clearly permits a broader inquiry” — not

“tied to federal law definitions—into whether a prior offense

‘relates to’ sexual abuse of a minor.”                               Id. at 235.         It thus

concluded    that         the    categorical              approach    was    inapplicable       and

that the district court was not limited to considering only “the

statutory elements of the state offenses.”                            Id. at 234-35.

     I would follow the same approach as McCutchen and Mills in

this case.          In short, Gilbert’s offense of indecent liberties

with a child 1 is one that clearly falls within the language of

the enhancement provision, for it is “a prior conviction . . .


     1
       See Majority Op. at 7-8 (describing statutory language);
see id. at 4 (noting Gilbert did not contest that his offense
involved “sexual contact” with “a six-year-old child”).


                                                     19
under the laws of any State relating to . . . abusive sexual

conduct involving a minor . . . .”                   18 U.S.C. § 2252A(b)(2)

(emphasis added).        I would apply this plain language to conclude

that       sentencing   courts   tasked    with   deciding   whether   a   North

Carolina conviction for indecent liberties with a child is a

proper predicate offense under § 2252A(b)(2) may examine the

facts of a defendant’s conviction, without requiring an analysis

limited to the elements of that offense. 2              See McCutchen, supra;

Mills, supra; see also United States v. Becker, 625 F.3d 1309,

1311 & n.1 (10th Cir. 2010) (following McCutchen based on the

broad       “relating   to”   language    in   the   enhancement   provision),

petition for cert. filed, (U.S. Mar. 1, 2011) (No. 10-9229);

United States v. Hubbard, 480 F.3d 341, 348-350 (5th Cir. 2007)

(rejecting an elements-based approach and relying on the broad

“relating to” language); United States v. Rezin, 322 F.3d 443,

448-49 (7th Cir. 2003) (same).             But see, e.g., United States v.


       2
       I also agree with the majority that Begay v. United
States, 553 U.S. 137 (2008) has no impact on the instant case
(Majority Op. at 8 n.*), although for different reasons. Begay,
like Taylor, was an ACCA case. 553 U.S. at 139.        Begay was
specifically concerned with the so-called residual clause of
§ 924(e)(2)(B),    and held that a prior conviction is a proper
predicate conviction only when it is “roughly similar, in kind
as well as in degree of risk posed” to the enumerated offenses.
Id. at    143.    The language of that statute, however, is a
differently-worded (and narrower) enhancement provision. See id.
at 143-45.      For the same reasons I find resort to the
categorical approach unnecessary here, I do not find Begay to be
applicable.


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Sonnenberg,   556   F.3d   667,   670   (8th   Cir.   2009)   (applying

categorical approach); United States v. McGrattan, 504 F.3d 608,

612 (6th Cir. 2007) (same); cf. United States v. Strickland, 601

F.3d 963, 967-68 (9th Cir.) (en banc) (applying the modified

categorical approach), cert. denied, 131 S. Ct. 505 (2010).

     For the foregoing reasons, I respectfully concur in the

decision to affirm the judgment of the district court.




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