Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
Matthew Eric Linngren pleaded guilty to one count of distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) and 2256. The district court*fn1 determined that Linngren's previous Minnesota conviction for criminal sexual conduct "relat[ed] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," and that § 2252(b)(1) thus mandated a sentence of no less than fifteen years. Linngren challenges his fifteen-year sentence, arguing that his Minnesota conviction does not trigger the enhanced mandatory sentence. We affirm.
The only issue on appeal is whether Linngren's state conviction qualified as a predicate offense to enhance his sentence under § 2252(b)(1). We review his claim of error de novo. United States v. Sonnenberg, 556 F.3d 667, 669 (8th Cir. 2009).
Section 2252(b)(1) provides the statutory sentencing range for persons convicted of the child pornography offenses set forth in § 2252(a)(1)-(3). If 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 a ward, . . . such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years." For a state conviction to relate to sexual abuse of a minor, it must relate to the "physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification." Sonnenberg, 556 F.3d at 671 (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001)).
"Unlike other sentencing enhancement provisions that specify a prior conviction must contain a certain element, § 2252(b)(1) contains no explicit reference to elements." United States v. Weis, 487 F.3d 1148, 1151 (8th Cir. 2007). Accordingly, the relevant inquiry "is whether an offense is one 'relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,' not whether any specific element is present." United States v. Stults, 575 F.3d 834, 845 (8th Cir. 2009) (quoting Weis, 487 F.3d at 1151).
In United States v. Sonnenberg, we applied a categorical approach to determine whether a prior state conviction served to enhance a sentence under § 2252(b)(1). 556 F.3d at 669-70. We held that if the full range of conduct encompassed by the state criminal statute related to sexual abuse, then the fact of conviction and the statutory definition establish by themselves that the enhancement applies. Id. at 670. As set forth more fully below, the state statute in this case is overinclusive.
Linngren was convicted of criminal sexual conduct in the fifth degree, in violation of Minnesota Statutes § 609.3451, subdivision 1.*fn2 The Minnesota statute criminalizes a variety of nonconsensual sexual contacts and is satisfied when those acts are committed with either sexual or aggressive intent.*fn3 Furthermore, the Minnesota statute does not require that the victim be a minor. Because a person may violate the statute in ways that would not constitute sexual abuse, that is, the "physical or nonphysical misuse of a minor for a purpose associated with sexual gratification," Sonnenberg, 556 F.3d at 671, the state statute does not establish whether Linngren's conviction categorically constitutes a predicate offense. As relevant to this case, the statute is overinclusive because it includes acts committed with aggressive intent and against non-minors.
Because the Minnesota statute criminalizes both conduct that qualifies as a predicate offense and conduct that does not, we "may refer to the charging document, the terms of a plea agreement, the transcript of the colloquy, jury instructions, and other comparable judicial records to determine the basis for the guilty plea or verdict. Id. at 670 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)); Weis, 487 F.3d at 1151-52 n.2; see also United States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005) (rejecting a narrow categorical approach to the application of § 2252(b)(2)).
We look to the charging document to determine whether Linngren's conviction "relat[ed] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct of a minor." See Weis, 487 F.3d at 1152 (concluding that the trial information to which the defendant pleaded guilty established that the victim was a minor). In this case, the charging document was the complaint, which provides, in relevant part:
The complainant states the following facts establish PROBABLE CAUSE:
Your complainant is Investigator Tom Johnson of the Anoka County Sherriffs Department. In that capacity he has reviewed police reports, conducted an investigation on his ...