US v. Bennett, Nos. 14-1384 and 14-1402 (Colo), 5/26/16, published - Defendant pled guilty to possession of child porn and was sentenced to 57 months in prison, with a supervised release condition that included penile plethysmograph testing, if recommended after an evaluation. Both parties appealed. The government claimed that a prior Colorado misdemeanor conviction for sexual exploitation of a child “related to” child pornography, which raised the sentencing floor to a mandatory minimum ten year term. Defendant claimed that he should not have to submit to plethysmograph testing.
Held - the ten year mandatory minimum applied because Congress intended a broad reading of “related to” and the statute under which defendant was convicted in the misdemeanor case, which covered possession of “sexually exploitative material,” which is defined to include more than the federal definition of child pornography, still qualified.
Hartz dissented from that holding that the defendant’s appeal was dismissed without prejudice on prudential grounds because the testing issue, which won’t arise for another ten years, posed too many speculative factual issues, and so was not ripe for review.