Submitted: September 26, 2019
from United States District Court for the Northern District
of Iowa - Sioux City
LOKEN, COLLOTON, and KOBES, Circuit Judges.
7, 2018, Christopher Scott Jepsen pleaded guilty to
possessing child pornography on August 5, 2014, in violation
of 18 U.S.C. § 2252(a)(4)(B). In the conditional plea
agreement, Jepsen reserved the right to appeal the mandatory
minimum ten-year sentence that would result if his 2011 Iowa
conviction for third degree sexual abuse was a "prior
conviction" under § 2252(b)(2). The district
courtconcluded that the 2011 Iowa conviction was
a "prior conviction" and denied Jepsen's motion
to strike the § 2252(b)(2) enhancement. Jepsen appeals
his 120-month sentence. The issue turns on the effect under
federal law of a state court order correcting the 2011 Iowa
Judgment and Sentence which was entered after Jepsen
committed his federal offense in 2014 but before he was
indicted. Whether a state law conviction is a "prior
conviction" for purposes of the § 2252(b)
enhancement is an issue of federal law we review de
novo. United States v. Gauld, 865 F.3d 1030,
1032 (8th Cir. 2017) (en banc). We affirm.
August 24, 2011, an Iowa jury found Jepsen guilty of two
counts of third degree sexual abuse in violation of Iowa Code
§§ 709.4(2)(b) and (2)(c)(4). On September 23, the
state court entered a Judgment and Sentence sentencing Jepsen
to consecutive ten-year prison terms on each count,
suspending imprisonment, and placing him on probation for
five years. Three years later, after Jepsen admitted to using
the internet to obtain child pornography, the State moved to
revoke probation. It also determined that one of Jepsen's
2011 offenses made him ineligible for a suspended sentence
under Iowa law and moved to correct an illegal sentence.
January 29, 2016, the state court entered a Corrected
Judgment and Sentence declaring that "[t]he Judgment and
Sentence filed September 23, 2011, is void and vacated,"
and sentencing Jepsen to concurrent ten-year prison terms on
the two sexual abuse counts. On February 1, 2016, the court
issued a "clarification" Order stating that the
2011 Judgment and Sentence is void and vacated "except
to the extent any terms were reaffirmed and incorporated into
the . . . Corrected Judgment and Sentence." Later that
month, a federal grand jury indicted Jepsen for violating 18
U.S.C. § 2252(a)(4)(B) by obtaining child pornography on
August 5, 2014.
defendant who violates § 2252(a)(4) is subject to a
ten-year mandatory minimum sentence if he has a "prior
conviction" for an offense listed in 18 U.S.C. §
2252(b)(2). The issue is whether Jepsen's 2011 conviction
is a "prior conviction" under § 2252(b)(2).
The parties agree that Iowa third degree sexual abuse is a
qualifying offense and that "prior" means a
conviction that occurred before Jepsen committed the federal
offense. See United States v. Talley, 16 F.3d 972,
977 (8th Cir. 1994); United States v. King, 509 F.3d
1338, 1343 (11th Cir. 2007) (interpreting "prior
conviction" in 18 U.S.C. § 2252A(b)(2)). Jepsen
argues he lacked a state "conviction" at the time
of his 2014 federal offense because the 2016 Corrected
Judgment and Sentence declared the 2011 Judgment and Sentence
"void and vacated." The government argues the
February 1, 2016, Order confirmed that the Corrected Judgment
and Sentence did not affect the state court jury's August
2011 finding of guilt that, in the government's view,
determines when a "conviction" occurred.
applicable child pornography statutes do not define the term
"conviction" in § 2252(b)(2). See 18
U.S.C. § 2256. Looking at the United States Code more
generally, "the meaning of the terms 'convicted'
and 'conviction' vary from statute to statute."
Dickerson v. New Banner Inst., Inc., 460 U.S. 103,
113 n.7 (1983). Judge Posner has observed, "The word
'conviction' is a chameleon." Harmon v.
Teamsters Local Union 371, 832 F.2d 976, 978 (7th Cir.
1987). Closer to the issue in this case, the Supreme Court
observed in Deal v. United States "that the
word 'conviction' can mean either the finding of
guilt or the entry of a final judgment." 508 U.S. 129,
131 (1993). The Court in Deal, interpreting the term
"second or subsequent conviction" in 18 U.S.C.
§ 924(c)(1), applied the "fundamental principle of
statutory construction (and, indeed, of language itself) that
the meaning of a word cannot be determined in isolation, but
must be drawn from the context in which it is used."
Id. at 132, citing King v. St. Vincent's
Hosp., 502 U.S. 215, 221 (1991).
parties argue on appeal, as they did to the district court,
that this issue requires us to decide whether a
"conviction" under § 2252(b)(2) requires a
judgment of conviction and the imposition of punishment, or
merely a finding of guilt. The district court, agreeing with
the government, concluded that "Eighth Circuit precedent
compels me to conclude that 'prior conviction' within
the meaning of § 2252(b)(2) requires only a finding of
guilt by a court or a jury." We have interpreted the
term "prior conviction" in 18 U.S.C. §
2252A(b)(2) as including a plea of nolo contendere
that "resulted in a finding of guilt with adjudication
withheld." United States v. Storer, 413 F.3d
918, 922 (8th Cir. 2005). But Jepsen argues that
Storer does not resolve whether a
"conviction" can precede sentencing because a plea
of nolo contendere results in "some form of
punishment." Therefore, he urges us to follow the
decision in United States v. Pratt, No. 12-20196,
2012 WL 2847573, at *2 (E.D. Mich. July 11, 2012), where the
government was denied an enhancement for a state conviction
when the federal offense occurred after entry of the state
court guilty plea but before imposition of the sentence. The
court concluded that the meaning of "prior
conviction" in § 2252A(b)(2) is ambiguous, applied
the rule of lenity, and denied the statutory enhancement.
Id. at *4-7.
conclude we do not need to decide whether a finding of guilt
is always sufficient to establish a "prior
conviction" because this case presents a significantly
different issue than the one in Pratt. Jepsen
conceded at oral argument that entry of the Judgment and
Sentence on September 23, 2011, made his third degree sexual
abuse conviction a "prior conviction" under §
2252(b)(2) by either definition of the word
"conviction" -- there was a finding of guilt by the
jury and an adjudication of guilt and imposition of
punishment by the court. It was still a "prior
conviction" nearly three years later, when Jepsen
committed his federal offense on August 5, 2014. But, Jepsen
argues, it was not a prior conviction once the state court
declared the Judgment and Sentence "void and
vacated" and entered a Corrected Judgment and Sentence
on January 29, 2016, prior to his federal indictment. Thus,
he contends, the enhancement cannot apply because a void
judgment is a legal nullity.
Supreme Court of Iowa considers a suspended sentence that was
not authorized by statute to be a "void sentence"
that an Iowa court may correct at any time. State v.
Ohnmacht, 342 N.W.2d 838, 842-43 (Iowa 1983);
see Iowa R. Crim. Pro. 2.24(5)(a). Jepsen's
argument equates a void sentence with a void judgment or
conviction. But the Supreme Court of Iowa has never even
hinted that a sentence that is "void" because it
was more favorable to the defendant than the Iowa Legislature
permitted invalidates the underlying conviction. Moreover, in
construing the word "conviction" in §