02-2010 U.S. v. Rezin

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“The operative language in section 2252(b)(2) is ‘a prior conviction under this chapter, chapter 109A, chapter 117, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography.’ ‘[T]his chapter’ of the federal criminal code, Chapter 110, the chapter in which section 2252 itself appears, is indeed about the sexual exploitation of children. But Chapter 109A, ‘sexual abuse,’ 18 U.S.C. secs. 2241 et seq., and Chapter 117, ‘transportation for illegal sexual activity and related crimes,’ 18 U.S.C. secs. 2421 et seq., are not limited to crimes against children.”

“The defendant argues that ‘involving a minor’ in section 2252(b)(2) qualifies not just ‘abusive sexual conduct’ but also ‘aggravated sexual abuse’ and ‘sexual abuse.’ (He does not argue, however, that it also qualifies the enumerated federal offenses.) The punctuation is against him, though we do not regard that as determinative, since American standards of punctuation are notably lax. More important, it would have been strange had Congress on the one hand authorized heavier punishment for offenders who had a prior federal conviction for a sexual crime whether or not it involved a minor, and on the other hand insisted that if the prior conviction had been for a state offense, even one identical to one of the enumerated federal offenses, the victim had to be a minor. It would be stranger still if someone whose prior conviction did involve abusive sexual conduct with a minor escaped the heavier punishment because the age of the victim was not an element of the particular offense for which he was convicted. There is no mention of elements in section 2252(b)(2), and ‘prior conviction . . . relating to . . . abusive sexual conduct involving a minor’ is not naturally read to require that the age of the victim of the abusive sexual conduct be a statutory element.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Posner, J.