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United States v. Grimes

United States Court of Appeals, Eighth Circuit

May 1, 2018

United States of America Plaintiff- Appellee
v.
Edward Grimes Defendant-Appellant

          Submitted: November 17, 2017

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON and GRUENDER, Circuit Judges, and READE, [1] District Judge.

          GRUENDER, Circuit Judge.

         Edward Grimes was sentenced to 228 months' imprisonment after pleading guilty to attempted distribution of child pornography, attempted receipt of child pornography, and possession of child pornography. See 18 U.S.C. § 2252(a)(2) & (4). In arriving at this sentence, the district court[2] concluded that Grimes's prior sex-crimes convictions triggered an enhanced statutory sentencing range for each offense, see id. § 2252(b)(1) & (2), and that he qualified for a pattern-of-activity enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2G2.2(b)(5). Grimes now challenges his sentence, arguing that the Government failed to prove that he qualified for either enhancement. We affirm.

         I.

         Law enforcement developed an interest in Grimes during an investigation into a digital album containing child pornography that was posted on the image-hosting site "IMGSRC.RU." By examining the user account of the album's creator, agents with the Department of Homeland Security's Cyber Crimes Center were able to trace email and IP addresses to Grimes. They then verified his identity by matching a picture of a nude man holding a cat from a related album with Grimes's Missouri driver's license photograph. Based on this information, officers secured a search warrant for Grimes's residence. Though he initially denied possessing or distributing child pornography, a forensic investigation of the hard drives and electronic-storage devices found at his home yielded numerous images and videos of nude children, including prepubescent children engaged in sex acts. Officers also discovered that a message sent from Grimes's email account contained images of nude children.

         Grimes was subsequently charged in a three-count indictment for attempted distribution of child pornography, attempted receipt of child pornography, and possession of child pornography. See 18 U.S.C. § 2252(a)(2) & (4). The distribution and receipt counts each carried a statutory minimum sentence of 5 years and a maximum of 20 years, see id. § 2252(b)(1), while the possession count had no statutory minimum and a maximum of 10 years, see id. § 2252(b)(2). Before Grimes pleaded guilty, however, the Government gave notice that it would seek enhanced mandatory sentencing ranges for all three counts under 18 U.S.C. § 2252(b)(1) and (2), based on his prior New York convictions for first-degree sexual abuse and second-degree sodomy. See N.Y. Penal Law § 130.65 (McKinney 1965); id. § 130.45. The presentence investigation report ("PSR") likewise recommended enhancing the sentencing ranges based on these convictions. Thus, the resulting sentencing ranges were 15 to 40 years for the distribution and receipt counts and 10 to 20 years for the possession count. The PSR also concluded that Grimes qualified for a five-level guidelines enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. See U.S.S.G. § 2G2.2(b)(5).

         At Grimes's sentencing hearing, the Government offered five exhibits to establish his prior convictions. This evidence included New York certificates of disposition, charging documents, and supporting affidavits. In response, Grimes argued that the district court could not consider these records for purposes of the enhancements because they fell outside the limited set of documents authorized by Shepard v. United States. See 544 U.S. 13, 20-21 (2005). He also suggested that this evidence failed to prove the specific subsections under which he was convicted and that this deficiency precluded the enhancement of his sentence because the New York offenses criminalized conduct that exceeded the scope of both enhancements.

         The district court overruled Grimes's objections and found that he qualified for both enhancements. After determining that the resulting guidelines range was 180 to 210 months' imprisonment, the court varied upward and sentenced him to concurrent 228-month sentences. The court clarified that, based on its consideration of the factors contained in 18 U.S.C. § 3553(a), it would have arrived at this sentence even if it had sustained all of his objections. Grimes timely appealed, arguing that the Government failed to prove that he qualified for either enhancement.

          II.

         A.

         Grimes first challenges the enhancement of his statutory sentencing ranges under § 2252(b)(1) and (2). These twin provisions provide for an increase in the mandatory minimum and maximum sentences applicable to the offenses set out in § 2252(a) where a defendant has a prior state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252(b)(1) & (2). In considering challenges involving this enhancement, "we review the district court's factual findings for clear error and its interpretation and application of statutory sentencing provisions de novo." United States v. Sumner, 816 F.3d 1040, 1043 (8th Cir. 2016). Because even one qualifying conviction is sufficient for an enhanced sentencing range and because New York second-degree sodomy qualifies under these provisions, we limit our analysis to this conviction.

         Grimes claims that the Government failed to establish the statutory subsection under which he was convicted because the certificates of disposition and other exhibits do not qualify as Shepard documents and, as a result, the district court was prohibited from considering them. See 544 U.S. at 20-21. Yet, as Grimes has acknowledged, the version of N.Y. Penal Law § 130.45 in effect at the time of his conviction criminalized only sodomy with a minor less than fourteen years old, unlike the current multi-offense statute. See N.Y. Penal Law § 130.45 (McKinney 2003). Thus, at least with respect to this conviction, there is no lack of clarity as to the specific statutory offense of conviction. In any event, "[t]he facts of this case do not implicate . . . Shepard [because t]he district court did not look to the Certificate of Disposition for underlying facts of [Grimes's] offense . . . [but rather] as proof of the existence of the prior conviction." See United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007) ...


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