In United States v. Cole, No. 07–4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant’s sentence. The defendant had pleaded guilty to transporting and possessing child pornography. The district court had declined to enhance the defendant’s sentence based on his previous state conviction "relating to" statutorily enumerated sex crimes with minors. The defendant had a 1999 conviction for possession of matter portraying a sexual performance by a minor, in violation of Kentucky law. The district court sentenced the defendant to 120 months of imprisonment.
The panel looked to the case of United States v. McGrattan, 504 F.3d 608 (6th Cir. 2007), in which the court applied the categorical/modified-categorical approach to determine whether a prior conviction was sufficiently similar to the federal offense to trigger the enhancement. The Cole panel considered that at the time of the Cole defendant’s prior conviction the statute under which he was convicted was overly broad because it criminalized every instance in which a child is photographed exhibiting his or her genitals—without requiring proof that the exhibition was volitional and in a lewd manner. The federal statutes, in contrast, require lascivious exhibition.
Because there was no proof under the categorical approach that the defendant’s prior conviction involved the "lewd manner" element, his prior conviction was not categorically equivalent to the federal offenses. The panel declined to adopt the broader reading of "relating to" urged by the government. The panel concluded it was bound by McGrattan.