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United States v. Kraemer

United States Court of Appeals, Seventh Circuit

July 31, 2019

United States of America, Plaintiff-Appellee,
v.
Richard Kraemer, Defendant-Appellant.

          Argued March 28, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cr-00035-PP-1 - Pamela Pepper, Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.

          Ripple, Circuit Judge.

         Richard Kraemer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). At sentencing, the district court determined that Mr. Kraemer's prior Wisconsin convictions for first-degree and second-degree sexual assault of a child constituted convictions "relating to ... abusive sexual conduct involving a minor" and therefore triggered a ten-year, mandatory minimum sentence. 18 U.S.C. § 2252(b)(2). The dis- trict court then imposed a sentence of 133 months' imprisonment, followed by eight years of supervised release.[1]

         Mr. Kraemer now challenges the district court's determination that he was subject to the mandatory minimum. As we explain more fully in the following paragraphs, because the applicable federal enhancement statute, 18 U.S.C. § 2252(b)(2), requires only that a prior state statute of conviction "relat[e] to," rather than be fully equivalent to, "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," the district court did not err in finding Mr. Kraemer was subject to the mandatory minimum.[2]

         I

         BACKGROUND

         In 2017, law enforcement officers discovered a series of downloads of child pornography from an IP (internet protocol) address associated with Mr. Kraemer's residence. FBI agents then executed a search warrant for that residence and found an external hard drive containing images of child pornography. Mr. Kraemer later admitted that he possessed child pornography on his desktop computer and on his external hard drive, that he searched for child pornography using specific search terms, and that his current collection of child pornography totaled about 100, 000 files.

         A federal grand jury returned an indictment. It charged Mr. Kraemer with five counts of distribution of child por- nography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). He entered a conditional guilty plea to one count of possession of child pornography, and the Government agreed to dismiss the five remaining counts. Mr. Kraemer reserved his right to appeal the sentencing judge's determination that his prior convictions for sexual assault of a child under Wisconsin law subjected him to a mandatory minimum sentence under the penalty-enhancement provision of the federal statute, 18 U.S.C. § 2252(b)(2). That provision provides that if a person convicted of possession of child pornography "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, ... such person shall be ... imprisoned for not less than 10 years nor more than 20 years." 18 U.S.C. § 2252(b)(2).

         This enhancement provision came into play because, in 1995, a Wisconsin court had convicted Mr. Kraemer of one count of first-degree sexual assault of a child and one count of second-degree sexual assault of a child. Wisconsin defined first-degree sexual assault of a child as "sexual contact or sexual intercourse with a person who has not attained the age of 13 years." Wis.Stat. § 948.02(1) (1995). Wisconsin defined second-degree sexual assault of a child as "sexual contact or sexual intercourse with a person who has not attained the age of 16 years." Wis.Stat. § 948.02(2) (1995). These convictions stemmed from an incident that occurred during Mr. Kraemer's incarceration for an unrelated conviction. His then twelve-year-old sister had visited him at the Oshkosh Correctional Institution. During her visit, on two occasions, Mr. Kraemer intentionally had touched her breasts, over her clothes.

         The presentence report prepared by the probation office advised the court that Mr. Kraemer's Wisconsin convictions qualified as predicates for the mandatory minimum under 18 U.S.C. § 2252(b)(2). Mr. Kraemer objected to that recommendation. At sentencing, the district court nevertheless agreed with the presentence report that Mr. Kraemer was subject to the mandatory minimum. Relying on our decision in United States v. Osborne, 551 F.3d 718 (7th Cir. 2009), the district court concluded that "sexual behavior is abusive ... only if it is similar to one of the crimes denominated as a form of abuse elsewhere in Title 18," specifically, the offenses listed in Chapter 109A.[3] The court further understood our precedent to require that a district court must employ a categorical approach to evaluate whether a prior conviction is a predicate for the mandatory minimum. Accordingly, the district court proceeded to compare Mr. Kraemer's Wisconsin conviction for first-degree sexual assault of a child to the four offenses enumerated in Chapter 109A: 18 U.S.C. §§ 2241, 2242, 2243, and 2244.

         First, the court determined that there was no match between Wisconsin Statutes § 948.02(1) and 18 U.S.C. § 2241(c); the state statute "prohibited] sexual contact or intercourse with a person who is not yet 13 while the federal statute prohibit[ed] a sex act with a person who has not yet reached the age of 12."[4] The state statute therefore was broader than the federal offense.

         Second, the court determined that there was no match between Wisconsin Statutes §948.02(1) and 18 U.S.C. § 2243(a). The federal statute required that the perpetrator be at least four years older than a victim who has attained the age of twelve but not the age of sixteen. Because the state statute required no difference in age between the perpetrator and his victim, the federal prohibition was narrower than the state offense.

         Third, the court determined that there was no match between Wisconsin Statutes § 948.02(1) and 18 U.S.C. § 2244(c), which prohibits sexual contact with a person under the age of twelve, because the state statute reached more victims than the federal offense.[5]

         Finally, the district court turned to 18 U.S.C. § 2242(2), which prohibits knowingly "engag[ing] in a sexual act with another person if that other person is ... incapable of appraising the nature of the conduct." The court observed that this provision "is a very broad statute," which "covers anybody regardless of age who is incapable of appraising the nature of the sexual conduct or the sexual act."[6] According to the court, its coverage "includes, presumably, one who is too young to comprehend the nature of the act in which they're engaged."[7] Therefore, the court concluded, there was a categorical match between this provision and the Wisconsin conviction for first-degree sexual assault of a child. The court also found a categorical match between the same provision and Mr. Kraemer's conviction for second-degree sexual assault of a child under Wisconsin Statutes § 948.02(2). It reasoned that the federal offense "is far broader than that statute of conviction because [§] 2242(2) covers full categories of people [], including underage people[, ] who are not capable [of] ever comprehending or can't comprehend the nature of their behavior."[8]

         The district court then calculated a guidelines range of 97 to 121 months' imprisonment, noting that the ten-year mandatory minimum subjected Mr. Kraemer to a sentence of at least 120 months. The Government and counsel for Mr. Kraemer jointly recommended a sentence of 120 months. The court imposed, however, an above-guidelines sentence of 133 months' imprisonment, followed by an eight-year term of supervised release. After the court entered judgment, Mr. Kraemer timely appealed his sentence.

         II

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