Whether the mandatory minimum sentence prescribed in 18 U.S.C. § 2252(b)(2)—which requires a prison term of at least ten years if a defendant convicted of possessing child pornography “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”—is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.”
Lower court decision: United States v. Lockhart, 749 F.3d 148 (2nd Cir. 2014)
There’s a split among the federal circuits on the meaning of § 2252(b)(2), but it’s not very deep. At least five circuits (including the Second Circuit in this case) hold that the phrase “involving a minor or ward” applies only to “abusive sexual conduct” but not to “aggravated sexual abuse” or “sexual abuse.” Our own circuit takes this approach. United States v. Rezin, 322 F.3d 443, 448 (7th Cir. 2003). Only the Eighth Circuit has said that “involving a minor or ward” modifies “aggravated sexual abuse” and “sexual abuse” in addition to “abusive sexual conduct” so that a state conviction triggers the minimum mandatory only if there was a minor victim, though it hasn’t engaged in much analysis of the language because the state convictions apparently did involve a minor. United States v. Linngren, 652 F.3d 868, 870 (8th Cir. 2011).
But if the circuit split isn’t deep, there’s another reason the Court may have wanted to take this case: As Lockhart’s petition notes (at 7 n.1), “[m]aterially identical language” appears in other federal child pornography statutes, namely, 18 U.S.C. §§ 2251(e) (penalties for production of child pornography), 2252(b)(1) (receipt and distribution of child pornography), 2252A(b)(1) (receipt and distribution of child pornography), and 2252A(b)(2) (possession of child pornography). The prospect of the issue arising in other cases, then, might have been as important as the weak circuit split.
The decision in this case will have no direct effect on Wisconsin law, though it might be of interest to aficionados of the more obscure canons of statutory construction. The parties’ basic arguments hinge on whether the statute must be read using the “last antecedent rule” (a limiting clause or phrase is ordinarily read to modify only the noun or phrase that it immediately follows) or the “series qualifier canon” (a modifier at the beginning or end of a series of terms modifies all the terms). You never know when an opinion expounding on the applicability of those two rules might come in handy.
