Sex Offender Enhancements Addressed

U.S. v. McCutcheon, 2005 WL 1972569 (8/17/05) - An important case regarding sex offender enhancements. The 10th approved an enhancement for a child porn defendant to a 10 year mandatory minimum under 18 U.S.C. 2252((b)(2) because of a prior sex offense conviction involving a minor. The defendant had previously been convicted of sexual battery in Kansas. The elements of sexual battery did not require that the victim be a minor. Nonetheless, the 10th said it was okay to enhance as though the conviction was for sexual abuse of a minor because the documents the d.ct. reviewed made it clear the victim was actually a minor. The 10th refused to apply the categorical approach under Taylor that is used for Armed Career Criminal Act purposes, for example. The Taylor approach is not universally applicable to all sentencing enhancements. The wording of § 2252(b)(2) indicates the sentencing court may look beyond the elements of the prior offense to determine if the enhancement applies. The statute says the conviction must "relate to" sexual conduct involving a minor, not "be" for such conduct. Even if the d.ct.'s consideration of a presentence report in the prior case, [a document not specifically noted as okay to review in Shepard], violated the defendant's right to a jury, it was harmless beyond a reasonable doubt because the defendant did not challenge the truthfulness of the report.