Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence
As a south Florida child porn criminal defense lawyer, I was interested to see a recent decision that seems to create a small split among federal circuit courts on an issue related to child pornography. In United States v. Spence, the Fourth U.S. Circuit Court of Appeals ruled that a prior conviction for aggravated assault and battery was enough to justify a sentence enhancement in a child pornography possession case. The court upheld a 10-year mandatory minimum sentence with the enhancement for Troy Spence of South Carolina, who pleaded guilty to one count of possession of child pornography. Spence had a previous conviction for assault and battery of a high and aggravated nature, and argued at sentencing that this did not qualify for a sentence enhancement for a prior sexual abuse of a minor conviction. The district court disagreed and the Fourth Circuit confirmed.
Spence was indicted in 2009 for one count of child pornography possession; the opinion did not make the circumstances known. He struck a plea bargain on that charge, but challenged the sentence enhancement for having a prior conviction for sexual abuse of a minor. His prior conviction is from 2003. In that case, he was convicted of an unlawful violent act resulting in injury to a female much younger than him. During the course of the injury, court documents said, he touched the victim’s genitals. Spence argued that the sentence enhancement could not apply because the elements of the aggravated assault and battery did not require a sexual act. The district court agreed, but applied a modified categorical approach to determine that the enhancement should still apply because there was a sexual assault on the record. He was sentenced to 10 years in prison and now appeals.
He had no better luck with the Fourth Circuit, which upheld the use of the sentence enhancement. It started by adopting a Fifth Circuit decision determining that the phrase “of a minor” in the sentence enhancement applies only to the enhancement for an “abusive sexual conduct conviction, not to sexual abuse or aggravated sexual abuse. It next turned to the standard used by the district court. A modified categorical approach looks not only at the elements of the offense being used for the sentence enhancement, but the facts on record for that offense. This avoids a “mini-trial” for each prior, the court said, and the Sixth, Eighth and Ninth Circuits have all adopted the two approaches. The Fourth joined them, rejecting an opposing view from the Tenth Circuit. The categorical approach doesn’t definitely say whether the sentence enhancement applies to Spence, the court said, but the modified categorical approach does. Thus, it upheld the district court.
This conviction is bad news for Spence, who is serving a mandatory minimum equal to the maximum sentence for the un-enhanced base offense. Given that he got the mandatory minimum, I would be interested as a Miami child porn criminal defense attorney to know what kind of sentence he would have received without the sentence enhancement. As the opinion notes, the majority of circuits seem to agree that the categorical and modified categorical approaches are appropriate. However, this case struck me as similar to a case with a different outcome, the Sixth Circuit’s U.S. v. Gardner. The prior conviction in that case was for sexual battery, a crime that does not require a minor victim but in this case had one. Because Gardner did not plead guilty to any facts involving abuse of a minor, the sentence enhancement was ultimately reversed. As a Fort Lauderdale cyber crime defense lawyer, I expect to see more cases addressing this unfortunately common issue.
If you’re charged with child pornography offenses or other Internet crimes anywhere in the United States, don’t wait before you call the experienced cyber crime attorneys at Seltzer Law, P.A. For a free consultation, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).
Similar blog posts: