United States District Court, D. Maine
ORDER ON DEFENDANT'S MEMORANDUM IN OPPOSITION TO
APPLICATION OF THE MANDATORY MINIMUM UNDER 18 U.S.C.
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
defendant, who has pleaded guilty to a federal offense of
possession of child pornography, has a prior Connecticut
conviction of sexual assault in the second degree. Applying
an expansive view of the “relating to”
requirement of 18 U.S.C. § 2252A(b)(2) and the
categorial approach for statutory analysis, the Court
concludes the defendant's prior conviction constitutes a
qualifying prior offense that triggers the mandatory ten-year
imprisonment penalty under § 2252A(b)(2).
January 12, 2011, a federal grand jury indicted Robert
Frederick Goguen for failure to register as a sex offender.
Indictment (ECF No. 1), 1:11-cr-00003-JAW. On July
14, 2011, Mr. Goguen admitted that he committed the charged
crime, Min. Entry (ECF No. 43), and on September 14,
2012, the Court sentenced Mr. Goguen to thirty-seven months
of incarceration, three years of supervised release, a $100
special assessment and no fine. J. (ECF No. 80);
Am. J. (ECF No. 90). Mr. Goguen appealed neither his
conviction nor sentence to the Court of Appeals for the First
December 14, 2016, a federal grand jury indicted Mr. Goguen
for possession of child pornography, an alleged violation of
18 U.S.C. § 2252A(a)(5)(B). Indictment (ECF No.
1), 16-cr-00167-JAW. On September 15, 2017, Mr. Goguen
pleaded guilty to this charge. Min. Entry (ECF No.
64). Mr. Goguen's sentencing hearing has been delayed
while the Court considered his argument about the legal
impact of his prior state of Connecticut conviction in 1996
for sexual assault in the second degree. See
Def.'s Mem. in Opp'n to the App. of the Mandatory
Minimum under 18 U.S.C. § 2252A(b)(2) (ECF No. 83)
(Def.'s Mem.); Gov't's Resp. to
Def.'s Mem. in Opp'n to the App. of the Mandatory
Minimum under 18 U.S.C. § 2252A(b)(2) (ECF No. 86)
(Government's Opp'n); Def.'s Reply
to Gov't's Resp. to App. of Mandatory Minimum
(ECF No. 90) (Def.'s Reply).
2252A(b)(2) establishes a scale of penalties for possession
of child pornography. Simple possession exposes a defendant
to a maximum of ten years of imprisonment. Id. If
the defendant possessed an image of child pornography that
involved a prepubescent minor or a minor who has not attained
the age of twelve, the statutory maximum is increased to
twenty years. Id. Here, Mr. Goguen admitted that one
or more of the images involved a prepubescent minor or a
minor who had not attained twelve years of age.
Prosecution Version at 1 (ECF No. 62). Mr. Goguen
therefore faces a maximum sentence of twenty years of
imprisonment and he does not contest this conclusion.
Goguen possessed an image of child pornography and if he had
a qualifying prior conviction, he faces a mandatory minimum
prison term of ten years and a maximum prison term of twenty
years. Mr. Goguen challenges whether he has a qualifying
prior conviction and thus whether he faces a ten-year
mandatory minimum prison term under § 2252A(b)(2).
THE CONTESTED ISSUES
The Federal Enhancement
2252A(b)(2) of title 18 contains the following language
applicable to individuals convicted of the possession of
[I]f such person 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,
or the production, possession, receipt, mailing sale,
distribution, shipment, or transportation of child
pornography, such person shall be . . . imprisoned for not
less than 10 years nor more than 20 years.
The Connecticut Sexual Assault Statute
Presentence Investigation Report (PSR) reveals that in 1996,
Mr. Goguen was convicted of sexual assault in the second
degree under the laws of the state of Connecticut and on
September 6, 1996, he was sentenced to ten years in state
prison with four years to serve and five years of
probation. PSR ¶ 31. The Connecticut
statute under which Mr. Goguen was convicted reads in part:
(a) A person is guilty of sexual assault in the second degree
when such person engages in sexual intercourse with another
person and . . . (3) such other person is physically
Gen. Stat. § 53a-71(a)(3). The Connecticut statute
defines “physically helpless”:
“Physically helpless” means that a person is (A)
unconscious, or (B) for any other reason, is physically
unable to resist an act of sexual intercourse or sexual
contact or to communicate unwillingness to an act of sexual
intercourse or sexual contact.
Id. § 53a-65(6).
determine whether Mr. Goguen's prior Connecticut
conviction of sexual assault in the second degree from 1996
relates to “sexual abuse” as stated in §
2252A(b)(2), the Court must address the following sub-issues
raised by the parties:
(1) Whether the Court must use the categorical approach to
determine if Mr. Goguen's Connecticut conviction is a
qualifying predicate conviction for § 2252A(b)(2)'s
(2) The impact of the “relating to” language in
§ 2252A(b)(2) on what convictions fall under the purview
of “sexual abuse”.
(3) How should “sexual abuse” be defined -- by
looking at its plain meaning or referencing § 2242 --
and does either definition change whether Mr. Goguen's
prior conviction qualifies as predicate conviction under
(4) The definition of “sexual abuse” under §
Mr. Goguen's Memorandum
Goguen argues that the mens rea requirement for his prior
Connecticut conviction and the mens rea requirement under
§ 2252A(b)(2) are different, and as a result, his
Connecticut conviction does not constitute a qualifying prior
offense for application of the ten-year mandatory minimum
under § 2252A(b)(2). Def.'s Mem. at 1-2.
Mr. Goguen contends that for his 1996 Connecticut conviction
to constitute a qualifying offense under § 2252A(b)(2),
it must “relate” to “sexual abuse”,
which under federal law, requires a mens rea of
“knowingly”. Id. at 2-4 (quoting §
Goguen asserts that under Connecticut law there is no mens
rea requirement; instead, one is guilty of sexual assault in
the second degree when that person engages in sexual
intercourse with another person who is physically helpless.
Id. at 3-4 (quoting Conn. Gen. Stat. §
53a-71(a)(3)). Mr. Goguen argues that because Connecticut
does not require the state to show a defendant engaged in
sexual intercourse with a person under the age of sixteen
whom the defendant knew was underage, only that a defendant
knowingly in engaged in sexual intercourse with a person who
was not yet sixteen, that it stands to reason that there is
no “knowing” mens rea as to whether the person is
physically helpless. Id. at 4. He cites United
States v. Bruguier, 735 F.3d 754, 758, 760-61 (8th Cir.
2013), for the proposition that “knowingly” in
§ 2242(2) applies to both the engagement in the sexual
act and the awareness that the participant is helpless.
Id. at 5-6. In Mr. Goguen's view, because his
prior Connecticut conviction requires a lesser degree of mens
rea than the federal offense, the conviction is not a
qualifying conviction under § 2252A(b)(2).
The Government's Position
Government responds that the “relating to”
language of § 2252A(b)(2) should be treated broadly and
while §§ 2242(2) and 2252A(b)(2) provide some
guidance on what “sexual abuse” means, the term
“sexual abuse” for the purposes of the sentence
enhancement of § 2252A(b)(2) is not defined by reference
to § 2242(2)'s definition of sexual abuse.
Government's Opp'n at 4-5. Consequently, the
Government argues that “sexual abuse” for the
purposes of § 2252A(b)(2) should be given a common
meaning without tethering it to § 2242(2)'s
definition of sexual abuse. Id. at 5 (citing
United States v. Mateen, 806 F.3d 857, 860-61 (6th
Cir. 2015)). Under this approach, the Government sets forth
the Mateen Court's definition of sexual abuse:
“use or treatment of so as to injure, hurt, or damage
for the purpose of sexual or libidinal gratification.”
Id. at 6 (quoting Mateen, 806 F.3d at 861).
Government asserts that under the categorical approach Mr.
Goguen's prior Connecticut conviction is nevertheless
equivalent to § 2242(2)'s definition of sexual
abuse, and falls under the broader definition of sexual abuse
in § 2252A(b)(2). Id. The Government points to
this Court's previous conclusion that Mr. Goguen's
Connecticut conviction is comparable to the federal sexual
abuse statute listed in Tier III of the Sex Offender