Sentencing – Defendant’s conviction for promoting the sexual performance of a child under Florida law was a predicate offense triggering an enhanced mandatory minimum sentence for distributing child pornography.
Jason Kusmaul pleaded guilty to possession and distribution of child pornography. At sentencing, the parties debated whether the 15-year mandatory minimum sentence applied for the distribution offense based on Kausmaul’s prior conviction under Florida law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The sentencing court held that it did.
On appeal, the Court of Appeals held that it was not plain error for the sentencing court to apply the enhanced mandatory minimum, rejecting the defendant’s argument that his prior conviction wasn’t a predicate offense because it had broader elements than its federal counterpart based on the fact that Florida law allows a conviction for distributing images depicting touching of a clothed private area.
Employing the categorical approach, the Court held that the plain meaning of the state and federal statutes “strongly suggest” that they are similar enough for the state offense to qualify as a predicate prior conviction.
Appeal from the Northern District of Florida
Per Curiam Opinion
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