Sentence enhancement under 18 U.S.C. § 2252(b)(2) does not require categorical approach for analysis of underlying prior conviction

SENTENCING United States v. McCutchen, No. 04-3498, ___ F.3d ___ (10th Cir. Aug. 17, 2005)(Kansas). Appeal of sentence for knowingly possessing child pornography transported in interstate commerce by computer in violation of 18 U.S.C. § 2252(a)(4)(B). HELD: Application of sentence enhancement provisions of 18 U.S.C. § 2252(b)(2) does not require categorical approach to analysis of underlying state conviction used as basis for enhancement. In 18 U.S.C. § 2252(b)(2), Congress’s use of phrase that “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” indicates intent to allow a sentencing court to look beyond the mere elements of a prior state conviction in determining whether such conviction is sufficient to trigger application of sentence enhancement provisions. Read the opinion here.