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United States v. Jepsen

United States District Court, N.D. Iowa, Western Division

January 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER SCOTT JEPSEN, Defendant.

          OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO STRIKE PRIOR CONVICTION ENHANCEMENT

          MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         A. The Alleged Prior Conviction .................................................... 2

         B. The Current Proceedings .......................................................... 4

         C. Arguments Of The Parties ........................................................ 5

         II. LEGAL ANALYSIS ........................................................................ 8

         A. Applicable Standards ............................................................... 8

         B. Discussion .......................................................................... 10

         1. Prior to what? ............................................................. 10

         2. When was the “conviction” incurred? ............................... 11

         a. Eighth Circuit interpretations of § 2252(b)(2) and § 2252A(b)(2) ................................................ 11

         b. Other principles of interpretation ............................. 15

         3. Application of the interpretation ...................................... 24

         III. CONCLUSION ............................................................................ 25

         This motion raises the surprisingly rarely litigated question of whether and when a seeming prior conviction is actually a “prior conviction” for purposes of a sentencing enhancement in a criminal prosecution for possession of child pornography. It matters, because if the prior conviction is a “prior conviction” under federal law, the defendant faces a mandatory minimum sentence of 120 months. If the prior conviction is not a “prior conviction, ” there is no mandatory minimum.

         Defendant Christopher Scott Jepsen has moved to strike part of the Indictment against him on a charge of violating 18 U.S.C. § 2252(a)(4)(B) (possession of child pornography) that seeks an enhanced penalty pursuant to 18 U.S.C. § 2252(b)(2) for a “prior conviction.” Jepsen contends the alleged “prior conviction” was not “prior” to the date on which he allegedly violated § 2252(a)(4)(B). This is so, he contends, because his original sentence on the alleged “prior conviction” was vacated as “illegal, ” and a new sentence and judgment were not imposed until after he allegedly committed the current offense. In short, he argues that a “prior conviction” requires that he was not only found guilty, but sentenced, and a valid judgment entered before the date of the alleged commission of the § 2252(a)(4)(B) offense for the § 2252(b)(2) “prior conviction” enhancement to apply. Not surprisingly, the prosecution disagrees.

         I. INTRODUCTION

         A. The Alleged Prior Conviction

         The focus of Jepsen's Motion, and hence, the focus of the following background is on Jepsen's alleged “prior conviction, ” rather than on the current charge against him. Jepsen admits that, on August 24, 2011, a jury in Iowa District Court for Crawford County found him guilty of two counts of sexual abuse in the third degree. The first was pursuant to Iowa Code § 709.4(2)(c)(4), which applies when the victim was 14 or 15 years old and the defendant was at least four years older than the victim. The second was pursuant to Iowa Code § 709.4(2)(b), which applies when the victim was 12 or 13 years old. On September 23, 2011, Jepsen was sentenced to two consecutive 10-year prison terms for the two counts of sexual abuse, but the state court suspended the prison sentences and placed Jepsen on probation for five years. See September 23, 2011, Judgment and Sentence (Suspended), Defendant's Exhibit A. Neither party appealed from that judgment.

         In October 2014, the state moved to revoke Jepsen's probation based on his alleged admissions that he had used the internet to obtain child pornography. While preparing for the revocation proceedings, the state prosecutor noticed that Jepsen's original sentence on the second count of sexual abuse was illegal, because the age of the victim made the offense a forcible felony, so Jepsen was not eligible for a suspended sentence. Opinion of Iowa Court of Appeals, Defendant's Exhibit E, 3 (citing Iowa Code § 702.11). Thus, the state filed a Motion To Correct Illegal Sentence, pursuant to Rule 2.24(5)(a) of the Iowa Rules of Criminal Procedure, which permits correction of an illegal sentence “at any time.” Defendant's Exhibit B.

         On January 29, 2016, the Iowa District Court held a hearing on the state's Motion To Correct Illegal Sentence, granted the motion, ruled that the initial sentence was illegal, and overruled Jepsen's contention that a corrected prison sentence would violate his right not to be subjected to double jeopardy. Transcript Of Hearing, Defendant's Exhibit C, 11:16-15:22. The court resentenced Jepsen to two concurrent, unsuspended 10-year prison terms. Id. at 36:24-37:7. That same day, the court filed a Corrected Judgment and Sentence, reiterating that, “[o]n the 24th day of August, 2011, Defendant was found guilty of the crime[s]” charged and stating Jepsen's corrected sentence on those charges. See January 29, 2016, Corrected Judgment and Sentence, Defendant's Exhibit D, 1-2. On February 1, 2016, the court filed an Order, which stated the following:

As further clarification of the court's Corrected Judgment and Sentence filed January 29, 2016, except to the extent any terms were reaffirmed and incorporated into the January 29, 2016, Corrected Judgment and Sentence, the court ORDERS that the September 23, 2011, Judgment and Sentence is void and vacated accordingly.

         Plaintiff's Exhibit 1.

         Jepsen appealed the Corrected Judgment and Sentence on the ground that the court's failure to credit his corrected sentence for the time he served on probation violated his double jeopardy rights. Opinion of Iowa Court of Appeals, Defendant's Exhibit E, at 2. On April 5, 2017, the Iowa Court of Appeals conditionally affirmed Jepsen's new sentence and remanded for the district court to give Jepsen credit for time served in an “alternate jail facility” or a residential treatment facility. Id. at 12. Jepsen sought further review by the Iowa Supreme Court, and that appeal remains pending.

         B. The Current Proceedings

         On February 18, 2016, in a single-count Indictment, a grand jury charged Jepsen with “possession of child pornography” on or about August 5, 2014, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). In pertinent part, for present purposes, the Indictment charged that “[o]n or about September 23, 2011, defendant was convicted of two counts of sexual abuse in the 3rd degree in the Iowa District Court for Crawford County, Iowa.”

         On December 21, 2017, Jepsen filed the Motion To Strike Prior Conviction Enhancement now before me; on December 28, 2017, the prosecution filed its Response; and on December 31, 2017, Jepsen filed his Reply. On January 10, 2018, I entered an Order setting a hearing on defendant's Motion for Tuesday, January 23, 2018.

         On January 11, 2018, Jepsen waived his personal presence at the January 23, 2018, hearing. The parties' arguments were particularly thoughtful and helpful to me in the disposition of this motion.

         C. Arguments Of The Parties

         Jepsen acknowledges that the question of whether any sentence on the charged offense may be enhanced for a “prior conviction” pursuant to 18 U.S.C. § 2252(b)(2) is for the court, not a jury. He also acknowledges that, if the Indictment correctly alleges that he has a “prior conviction” of the nature described in the statute, he is subject to a minimum sentence of 10 years in prison and a maximum of 20 years in prison. If it doesn't, he faces no mandatory minimum sentence and the same 20-year maximum. Jepsen also acknowledges that the statute does not define “prior conviction, ” so the court looks to federal, not state law, for a definition.

         Jepsen contends that the disposition of his Motion depends upon the answers to two questions: (1) what must his “prior conviction” be “prior” to, and (2) when did he incur that “conviction”? He argues that the answer to the first question, under applicable federal law, is that he must have incurred the “prior conviction” before the date that he allegedly committed the federal child pornography offense. He contends that the answer to the second question is that he did not incur the “conviction” until a judgment was entered after sentencing on a finding of guilt.

         In support of his argument, Jepsen contends that, in Deal v. United States,508 U.S. 129 (1993), which considered the “second or subsequent conviction” enhancement in 18 U.S.C. § 924(c)(1), the Supreme Court recognized that the word “conviction” can mean either the finding of guilt or the entry of a final judgment on that finding, but that the context in which the word appears in § 924(c)(1) showed that it referred to the finding of guilt by a judge or jury. At oral arguments, Jepsen went further by arguing that Deal held that “conviction, ” standing alone, was “ambiguous.” Jepsen argues that, here, in contrast, nothing in § 2252(b)(2) suggests that Congress intended “conviction” to mean just a finding of guilt, rather than the entry of a judgment of conviction, and that interpreting “conviction” in § 2252(b)(2) to mean the entry of judgment after sentencing does not produce a nonsensical result. Jepsen relies primarily on United States v. Pratt, No. 12-20196, 2012 WL 2847573, at *3 (E.D. Mich. July 11, 2012) (unpublished). He contends that the court in Pratt saw nothing in the statute or other interpretive aids suggesting one meaning of “conviction” over another, so that the rule of lenity required the court to adopt the less punitive alternative. Although Pratt did not involve a void judgment ...


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