United States v. Jason Kaushmaul (11th Cir. January 2021)

The Federal Docket

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

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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