Prior state court sex offense qualified as an enhancement for federal child pornography conviction

Jason Kushmaul was indicted by a federal grand jury on two counts of distributing child pornography and with possessing material containing child pornography involving a minor under the age of 12 in violation of 18 U.S.C. section 2252A. He was arrested in Florida by Bay County Sheriff Officer who went to his address based on a tip obtained by Homeland Security that he was distributing child pornography through an App known as Kik.  Kushmaul was already registered on the Florida Sex Offender Registry having been previously convicted in Florida of promoting the sexual performance of a child. He pled guilty to the federal offense. The federal statute, Section 2252A, enhances the mandatory minimum from 5 years to 15 years if the offender has a prior conviction under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor. The sentencing court found that his 2016 Florida conviction “promoting the sexual performance of a child” qualified as a prior conviction that triggered the sentencing enhancement and imposed a 15-year sentence.

He appealed his federal sentence arguing that the district court erred in enhancing his sentence under 18 U.S.C. 2252A because the Florida offense for which he was convicted is broader than the federal counterpart. To succeed in this argument Kushmaul would have to show that that his argument is supported by either the explicit language of a statute or that there is precedent from the Supreme Court or the Eleventh Circuit which directly resolves this issue. He could not do this, and the appeals court disagreed with his argument. It found the state offense is a predicate offense for the federal sentencing enhancement. Sections of 2252A increases the federal mandatory minimum for distribution of child pornography if the offender 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 a ward.

The appeals court applied the categorical approach, meaning that the court looks only to the elements of the statute under which the defendant was convicted and not the facts underlying the conviction. In applying this approach, the court presumed that the prior conviction rested upon nothing more than the least of the acts criminalized or the least culpable conduct. Kushmaul’s burden then required him to show that it is plainly established that the least culpable conduct criminalized by the Florida statute is not a crime that qualifies as a predicate offense under 18 U.S.C. 2252A.   The court reviewed the elements of the Florida statute and found that the least culpable conduct the statute criminalizes is the distribution of a photograph of a child less than 18 years of age that is making actual physical contact with a person’s clothe genitals, pubic area, buttocks with the intent to arouse or gratify the sexual desire of either party. The court concluded that Kushmaul’s argument failed because under the Florida statute the least culpable conduct requires at least some physical touching of a minor and this is not broader than the acts proscribed under 18 U.S.C. 2252A.