By Katie Baiocchi
On March 15, 2017, the Fourth Circuit issued a public opinion in the criminal case of United States v. Mills. In Mills, the Fourth Circuit addressed the question of whether the district court erred in concluding that taking indecent liberties with children constitutes a state crime relating to the sexual exploitation of children pursuant to 18 U.S.C. § 2251(e). The Fourth Circuit disagreed with the defendant Bailey Joe Mills (“Mills”) and affirmed the opinion of the district court, holding that the North Carolina taking indecent liberties with children statute constituted a state law relating to the sexual exploitation of children.
Facts and Procedural History
On January 5, 2014, police uncovered 125 videos and 924 still images produced by Mills depicting the sexual exploitation of children. Mills used ten different children and paid several of them to have sex with him and other males. Mills possessed over 10,000 additional images of child pornography and over 100,000 images of child erotica and adult pornography. On August 24, 2014, Mills pled guilty to a one-count criminal information charging him with the manufacturing of child pornography in violation of 18 U.S.C. § 2251(a)(d). Mills had two prior convictions for violating North Carolina taking indecent liberties with children statute, including charges concerning a three-year old child and an eleven year old child. At the sentencing phase the district court determined that these prior convictions related to the sexual exploitation of children pursuant to 18 U.S.C § 2251 (e) and qualified Mills for a sentencing enhancement. Mills did not object to this at the trial. Based on the severity of the harm Mills caused and the likelihood of recidivism, Mills was sentenced to 45 years in prison. Mills has appealed this decision. Due to this lack of objection to his sentencing enhancement, Mills’ objection is reviewed for plain error. To show plain error Mills must demonstrate that there was an error, the error was plain, and the error affected his substantial rights.
Any Conviction for the North Carolina crime of Taking Indecent Liberties with Children Relates to the Sexual Exploitation of Children
The Fourth Circuit will only conclude that a state offense is a categorical match with a federal offense if a conviction of the state offense necessarily involved facts equating to the generic federal offense. 18 U.S.C. § 2251 (e) provides that any person with two prior convictions for violations of state law “relating to sexual exploitation of children … shall be fined under this title and imprisoned not less than 35 years nor more than life.” Mills argued that sexual exploitation of children should be interpreted narrowly to include only the offenses involving the manufacturing and marketing of child pornography. The government countered that sexual exploitation should be interpreted broadly to include any sexual conduct with children.
The Fourth Circuit used the plain meaning of sexual exploitation because Congress did not provide a definition. Using three different dictionaries, the Fourth Circuit found that the meaning of sexual exploitation of children is to take advantage of children for selfish and sexual purposes. The Fourth Circuit therefore found sexual exploitation to be broad and include all the behaviors identified in § 2251(e) for a single prior conviction enhancement.
North Carolina defines indecent liberty as any conduct with a minor child and includes the production of sexual images, touching, penetration, and masturbation within a child’s sight. Therefore, the Fourth Circuit found Mills’ two prior convictions related to the sexual exploitation of children and that Mills was eligible for the sentence enhancement. Because the district court correctly concluded Mills’ prior convictions related to the sexual exploitation of children he could not satisfy the first prong of the plain error analysis.
No Plain Error Existed
Even if Mills could prove the district court committed an error, the error was not clear or obvious because the plain meaning of the term sexual exploitation of children supported the decision. No persuasive authority from other circuits exists to support the argument made by Mills that the term should be read narrowly.
Further, Mills could not prove his substantial rights were affected by any error that might have existed. In making the sentencing determination, the district court looked to his actions, the harm his actions caused, and the likelihood of recidivism when imposing his sentence.
The Fourth Circuit found that the North Carolina taking indecent liberties with children statute constituted a state law relating to the sexual exploitation of children. The Fourth Circuit used the plain meaning of the term sexual exploitation to read the statute broadly. Accordingly, the Fourth Circuit affirmed the district court’s judgment.