Eighth Circuit Upholds Use of 10-Year-Old Child Assault Conviction in CP Sentencing – U.S. v. Cover

January 22, 2013 by David S. Seltzer

One problem for people accused of very serious child pornography offenses is the many ways their sentences can be enhanced. Federal laws include many conditions that can trigger sentence enhancements and mandatory minimum sentences, which include enhancement for the way the crime was carried out as well as for prior convictions, the age of any child involved and more. In United States v. Cover, Robert Cover pleaded guilty to possession of child pornography, but reserved the right to appeal the use of a 10-year-old prior conviction to require a 10-year mandatory minimum prison sentence. The prior conviction was under a Nebraska statute prohibiting “sexual assault of a child,” and the Eighth U.S. Circuit Court of Appeals upheld its use in sentencing.

Cover was convicted in 1998 for “subject[ing] another person fourteen years of age or younger to sexual contact.” “Sexual contact” includes both clothed and unclothed touching of either party’s private areas. In 2011, law enforcement authorities learned that Cover had been accessing a child pornography website that had recently been shut down by the government. They executed a search warrant and found child pornography on his computer. Cover agreed to plead guilty, but argued that his 1998 conviction should not serve to trigger the mandatory minimum. The mandatory minimum is required under federal law if the defendant has a prior state conviction “relating to aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor.” The district court found that the Nebraska crime meets that definition and sentenced Cover to a decade in prison.

Cover’s appeal included challenges to the application of the mandatory minimum, the calculations of his Guidelines range, and the reasonableness of his sentence. The Eighth Circuit rejected all of his arguments, starting with the mandatory minimum argument. Cover argued that the Nebraska statute criminalizes conduct that doesn’t meet the definition of “sexual abuse,” as the mandatory minimum requires, requiring federal courts to look at the facts of the conviction—and that the record doesn’t contain enough facts, in part because his plea was not an admission of guilt. A prior case from this circuit held that conviction for an attempted sexual assault was adequate to trigger the sentence enhancement; the enhancement doesn’t require actual harm or physical touching. Similarly, the Eighth held that any conviction under the same Nebraska statute is sufficient. It then rejected Cover’s remaining arguments, noting that he expressly waived appeal of other matters.

Appeal waivers are a common problem in child sex crime appeals, which is why I strongly recommend that defendants get the advice of an experienced attorney, before they enter a plea they might regret later. The underlying charges are very serious, which is another reason why defendants should protect themselves by hiring an experienced attorney to fight them. The 10-year mandatory minimum was no doubt a useful way for politicians to look “tough on crime,” but as this opinion shows, it doesn’t distinguish well between underlying convictions that are proven in court and convictions in which the defendant didn’t even stipulate to his own guilt. Judges can often exercise their discretion when these kinds of distinctions arise, but because child pornography crimes are so emotional, that discretion can work to the defendant’s disadvantage.

Based in Florida, Seltzer Law, P.A., represents clients across the United States who are facing serious criminal charges related to computers, technology and the Internet. If you’d like to talk to us about your rights and your case, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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