EFTA00191587

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F.3d 737) 
§ 2243 and "abusive sexual contact" under 
18 U.S.C. § 2244. We decline to interpret 
these terms by cross-reference to the cited 
federal crimes for the same reasons we de-
cline to interpret the term "sexual abuse" 
in such manner. 
We have never defined predicate sex offenses 
under § 2252A by cross reference to the federal 
r
provisions Sinerius cites, nor 
any other court of 
appeals. See United States 
Hubbard, 480 F.3d 
341, 348 (5th Cir.2007) (construing "aggravated 
sexual abuse, sexual abuse, [and] abusive sexual 
conduct involving a minor" under § 2252A(bX1) as 
"generic offenses"); Rezin. 322 F.3d at 447-48 
(reaching the same conclusion in construing materi-
ally indistinguishable language in § 2252). Our 
reasons for declining to do so derive from *743 
well-established principles of statutory interpreta-
tion. First, the federal crime of "sexual abuse" un-
der § 2242 is not a definitional provision applicable 
to § 2252A. Section 2252A is codified in title 18, 
chapter no. The definitions applicable to chapter 
110 are located in 18 U.S.C. § 2256. Section 2242, 
on the other hand, is located in chapter 109A. 
While Congress did not provide a specific 
definition of "sexual abuse" in § 2256, we believe 
its decision not to do so reflects Congress's intent to 
define "sexual abuse" as a generic offense, under-
by its ordinary and common meaning, see 
Solis, 447 F.3d at 1206-07, rather than to im-
port the elements of offenses delineated elsewhere 
in the U.S.Code. See Hubbard, 480 F.3d at 348. 
Our conclusion is strengthened by the plain 
language of § 2252A. That section specifically ac-
counts for the federal crime of "sexual abuse" tin-
der § 2242 in a separate category of predicate of-
fenses. Section 2252A(b) requires an enhanced sen-
tence if the defendant "has a prior conviction under 
... chapter 109A ...or under the laws of any State re-
lating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward." 
18 U.S.C. § 2252A(b)(1),(2) (emphasis added). 
Thus, § 2252A(b) treats federal offenses located in 
Page 6 of 27 
Page 6 
chapter 109A (which includes sexual abuse under § 
2242) as a separate category of predicate offenses, 
independent from its treatment of state law convic-
tions like the one at issue here. 
Further, § 2252A employs broader language 
when defining state convictions that qualify as a 
predicate sex offenses than it does when defining 
predicate federal offenses, such as those located in 
chapter 109A. An individual must be convicted of 
the specific federal offense listed to be subject to an 
enhanced sentence. However, such individual need 
only be convicted of a state offense "relating to... 
sexual abuse" to have the same penalty imposed. 18 
U.S.C. § 2252A(bX1),(2) (emphasis added). The 
phrase "relating to," as defined by the Supreme 
Court, means "to stand in some relation to; to have 
bearing or concern; to pertain; refer; to bring in 
association with or connection with." Morales 
Trans World Airlines, 504 U.S. 374, 383, 112 S. . 
2031, 119 L.Ed.2d 157 (1992) (quoting Black's 
Law Dictionary 1128 (5th ed.1979)) (construing 
"relating to" in a different statutory context). We 
have construed "relarg to" language broadly in 
the past, see Luu-Le 
INS, 224 F.3d 911, 915-16 
(interpreting the phrase "relating to a controlled 
substance" in section 241(aX2XBXi) of the Immig-
ration and Nationality Act), and the Fifth, Eighth, 
and Tenth Circuits have done the same when inter-
preting this provision and the materially indistin-
guishable text of § 2252, see Hubbard. 480 F.3d at 
347 ("We must assume that Congress chose the 
words 'relating to' [iris§ 2252A(bX1) ] for a pur-
pose."); United States I Weis, 487 F.3d 1148, 1152 
(8th Cir.2007) (construing "relating to" broadly in § 
2252); United States' McCutchen, 419 F.3d 1122, 
1127 (10th Cir.2005) (same). In short, § 2252A 
does not simply mandate a sentencing enhancement 
for individuals convicted of state offenses equival-
ent to sexual abuse. Rather, it mandates the en-
hancement for any state offense that stands in some 
relation, bears upon, or is associated with that gen-
eric offense. 
3 
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Page 7 of 27 
504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Sew. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F.3d 737) 
Finally, experience indicates that when Con-
gress intends to require a state offense to be con-
gruent to a corresponding federal offense for sen-
tencing enhancement purposes, it will draft such a 
requirement expressly. For example, *74418 U.S.C. 
§ 2241(c) requires a life sentence where the defend-
ant "has previously been convicted of another Fed-
eral offense under this subsection, or of a State of-
fense that would have been an offense under either 
such provision had the offense occurred in a feder-
al prison." 18 U.S.C. § 2241(c) (emphasis 
added).FN4 Similarly, 18 U.S.C. § 3559(eX2XB) 
defines a "State sex offense" for purposes of that 
subsection to mean "an offense under State law that 
is punishable by more than one year in prison and 
consists of conduct that would be a federal sex of 
fense." 18 U.S.C. § 3559(eX2XB) (emphasis ad-
ded). 
FN4. The phrase "either such provision" 
refers to 18 U.S.C. §§ 2241(c) and 
2243(a). United States 
Etimani, 328 F.3d 
493, 503 (9th Cir.2003). 
Sinerius 
cites 
both 
§ 
2241(c) 
and 
§ 
3559(eX2XB) as evidence that his Montana convic-
tion is not a predicate offense "relating to ... sexual 
abuse" under § 212.), relying on our decision 
in United States 
Etimani, 328 F.3d 493 (9th 
Cir.2003), as support. Given the material differ-
ences in the statutory language, however, Sinerius's 
reliance on Etimani is misplaced. In Etimani, we re-
fused to qualify categorically a conviction under a 
state statute prohibiting "sexual contact" as a pre-
dicate offense under § 2241(c). The state statute 
defined "sexual contact" to include touching 
through 
clothing, 
while § 2241(c) 
required 
"skin-to-skin contact." Etimani, 328 F.3d at 503. 
But as discussed previously, § 2241(c) ex-
pressly requires that a state predicate offense in-
clude all the elements of a corresponding federal 
crime; § 2252A(b) imposes no such limitation. For 
that reason, Etimani not only fails to support Sineri-
us's interpretation, it provides reliable evidence that 
Congress's failure to include an equivalency re-
Page 7 
quirement in § 2252A(b) manifested its intent that 
no such requirement exist. See Hubbard. 480 F.3d 
at 348 (concluding that the terms "aggravated sexu-
al abuse," "sexual abuse," and "abusive conduct in-
volving a minor" in § 2252A(b)(1) are "generic 
terms, describing generic offenses" without refer-
ence to federal offenses defined elsewhere in the 
Code). 
Accordingly, we interpret § 2252A(b) in light 
of its plain text and reject Sinerius's argument that a 
state conviction "relating to ... sexual abuse" must 
meet the federal definition of sexual abuse under § 
2242 in order to qualify as a predicate offense for 
purposes of § 2252A. We therefore conclude that 
Sinerius's conviction under the Montana sexual as-
sault statute categorically qualifies as a predicate 
offense triggering the sentencing enhancement un-
der § 2252A(b). 
C 
Since 
we 
conclude 
that 
Sinerius's prior 
Montana 
conviction 
categorically qualifies as 
"sexual abuse" for purposes of § 2252A(b), we 
need not consider whether the conviction would 
also qualify as "aggravated sexual abuse" or 
"abusive sexual conduct involving a minor" under 
the same provision, nor is it necessary that we ex-
amine Sinerius's conviction under the "modified" 
categorical approach. 
III 
For the foregoing reasons, we agree with the 
district court's determination that Sinerius's prior 
conviction under the Montana sexual assault statute 
qualifies 
as a 
predicate 
offense 
under 
§§ 
2252A(bX1) & (2). Therefore, we conclude that the 
district court did not err in imposing an enhanced 
mandatory minimum sentence of 15 years for Sin-
erius's conviction under *745 § 2252A(aX2) and an 
enhanced mandatory minimum sentence of 10 years 
for Sinerius's conviction under § 2252A(aX5)(B). 
The decision of the district court is 
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EFTA00192008

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F3d 737) 
AFFIRMED. 
C.A.9 (Mont.),2007. 
U.S. I Sinerius 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 
Daily Journal D.A.R. 14,672 
END OF DOCUMENT 
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Page 9 of 27 
Westiaw. 
495 F.3d 536 
495 F.3d 536 
(Cite as: 495 F.3d 536) 
U.S. II. Johnson 
C.A.7 (Ind.),2007. 
United States Court of Appeals,Seventh Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
V. 
Charles M. JOHNSON, Jr., Defendant-Appellant. 
No. 06-3968. 
Argued April 10, 2007. 
Decided July 30, 2007. 
Background: Defendant was convicted, upon a 
conditional guilty plea, following denial of his mo-
tion to suppress, in the United States District Court 
for the Southern District of Indiana, John Daniel 
Tinder, J., of production of child pornography. De-
fendant appealed. 
Holdings: The Court of Appeals, Ripple, Cir-
cuit Judge, held that: 
(I) defendant voluntarily consented to search 
of his computer and living area; 
(2) law enforcement agents had probable cause 
to search defendant's computer and living quarters; 
and 
(3) imposition of did not violate defendant's 
Fifth or Sixth Amendment rights. 
Affirmed. 
West Headnotes 
III Criminal Law 110 C=4139 
110 Criminal Law 
I I0XXIV Review 
I I0XXIV(L) Scope of Review in General 
110k1139 k. Additional Proofs and Trial 
De Novo. Most Cited Cases 
The Court of Appeals reviews a district court's nil-
Page I 
ing on a motion to suppress de novo. 
121 Criminal Law 110 4>;>11158(2) 
110 Criminal Law 
110XXIV Review 
110XX IV(O) Questions of Fact and Findings 
I1Ok1158In General 
110k1158(2) 
k. 
Conclusiveness 
of 
Findings on Preliminary Proceedings in Conduct of 
Trial in General. Most Cited Cases 
Because the voluntariness of a defendant's consent 
to search is a factual determination, the Court of 
Appeals reviews a district court's resolution of this 
question for clear error. 
131 Searches and Seizures 349 C=.171 
349 Searches and Seizures 
349V Waiver and Consent 
349k171 k. In General. Most Cited Cases 
The Fourth Amendment's prohibition against war-
rantless searches does not apply when the defendant 
consents 
voluntarily to 
the 
search. U.S.C.A. 
Const.Amend. 4. 
141 Searches and Seizures 349 C=194 
349 Searches and Seizures 
349VI Judicial Review or Determination 
349k192 Presumptions and Burden of Proof 
349k194 k. Consent, and Validity There-
of. Most Cited Cases 
The government bears the burden of proving that 
consent to starch was given freely and voluntarily. 
U.S.C.A. Const.Amend. 4. 
151 Searches and Seizures 349 C=201 
349 Searches and Seizures 
349VI Judicial Review or Determination 
349k201 k. Questions of Law or Fact. Most 
Cited Cases 
Whether a defendant voluntarily consented to a 
search is a factual assessment which turns on the 
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Page 10 of 27 
495 F.3d 536 
495 F.3d 536 
(Cite as: 495 F.3d 536) 
totality 
of 
the 
circumstances. 
U.S.C.A. 
Const.Amend. 4. 
161 Searches and Seizures 349 Co180 
349 Searches and Seizures 
349V Waiver and Consent 
349kI79 Validity of Consent 
349k180 k. Voluntary Nature in General. 
Most Cited Cases 
Searches and Seizures 349 E .183 
349 Searches and Seizures 
349V Waiver and Consent 
349k179 Validity of Consent 
349k183 k. Knowledge of Rights; Warn-
ings and Advice. Most Cited Cases 
Searches and Seizures 349 C=184 
349 Searches and Seizures 
349V Waiver and Consent 
349k179 Validity of Consent 
349k184 k. Custody, Restraint, or Deten-
tion Issues. Most Cited Cases 
Among the factors a court considers in determining 
whether consent to search was voluntarily given 
are: (1) the person's age, intelligence, and educa-
tion, (2) whether he was advised of his constitution-
al rights, (3) how long he was detained before he 
gave his consent, (4) whether his consent was im-
mediate, or was prompted by repeated requests by 
the authorities, (5) whether any physical coercion 
was used, and (6) whether the individual was in po-
lice custody when he gave his consent. U.S.C.A. 
Const.Amend. 4. 
171 Searches and Seizures 349 C=181 
349 Searches and Seizures 
349V Waiver and Consent 
349kI79 Validity of Consent 
349k181 k. Particular Concrete Applica-
tions. Most Cited Cases 
Page 2 
349 Searches and Seizures 
349V Waiver and Consent 
349k179 Validity of Consent 
349k183 k. Knowledge of Rights; Warn-
ings and Advice. Most Cited Cues 
Defendant voluntarily consented to a search of his 
computer and living area; although law enforce-
ment agents requested more than once that defend-
ant consent to search, and agents told him that they 
would need to secure the residence until a search 
warrant issued if he did not consent, defendant 
stated that he did not feel threatened or coerced and 
that he understood the consent form he signed, de-
fendant was 48 years old, he was of at least average 
intelligence, and the interview with agents was 
calm and professional at all times. U.S.C.A. 
Const.Amend. 4. 
181 Criminal Law 110 C=394.1(3) 
110 Criminal Law 
110XVII Evidence 
110XVII(I) Competency in General 
110k394 Evidence Wrongfully Obtained 
110k394.1 In General 
110k394.1(3) k. Effect of Illegal 
Conduct on Other Evidence. Most Cited Cases 
The doctrine of inevitable discovery provides that, 
when the government can establish by a preponder-
ance of the evidence that the information obtained 
would have been discovered ultimately or inevit-
ably by lawful means, the deterrence rationale of 
the exclusionary rule no longer applies and the 
evidence 
should 
be 
admitted. 
U.S.C.A. 
Const.Amend. 4. 
PI Obscenity 281 €=1.6 
281 Obscenity 
281k7.5 Pretrial Seizure, Suppression, or Cen-
sorship 
281k7.6 k. In General; Necessity for Ad-
versary Hearing. Most Cited Cases 
Law enforcement agents had probable cause to 
search defendant's computer and living quarters, 
where they had acquired detailed information from 
Searches and Seizures 349 C=183 
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Page 11 of 27 
495 F.3d 536 
495 F.3d 536 
(Cite as: 495 F.3d 536) 
minor victim that defendant had taken pornographic 
photographs of her, that defendant used a silver di-
gital camera, and that he possessed a black com-
puter, and during the course of his conversation 
with agents, defendant confirmed that he owned a 
silver digital camera and black computer, and that 
he previously lived in the same city as victim. 
U.S.C.A. Const.Amend. 4. 
1101 Jury 230 C=34(7) 
230 Jury 
230II Right to Trial by Jury 
230k30 Denial or Infringement of Right 
230k34 Restriction or Invasion of Func-
tions of Jury 
230k34(5) Sentencing Matters 
230k34(7) k. Particular Cases in 
General. Most Cited Cues 
Imposition of mandatory minimum life sentence for 
defendant convicted of production of child porno-
graphy, based on determination of the fact of a pri-
or conviction by sentencing judge, rather than jury, 
did not violate defendants Fifth or Sixth Amend-
ment rights. U.S.C.A. Const.Amends. 5, 6; 18 
U.S.C.A. §§ 2251(e), 3559(e). 
1111 Indictment and Information 210 C=113 
210 Indictment and Information 
210V Requisites and Sufficiency of Accusation 
210k113 k. Matter of Aggravation in Gener-
al. Most Cited Cases 
Jury 230 C=34(6) 
230 Jury 
230I1 Right to Trial by Jury 
230k30 Denial or Infringement of Right 
230k34 Restriction or Invasion of Func-
tions of Jury 
230k34(5) Sentencing Matters 
230k34(6) k. In General. Most 
Cited Cases 
Sentencing and Punishment 350H €=>322 
Page 3 
350H Sentencing and Punishment 
350HI1 Sentencing Proceedings in General 
350Hll(F) Evidence 
350Hk322 k. Degree of Proof. Most Cited 
Cases 
For sentencing purposes, the fact of a prior convic-
tion need not be found by a jury beyond a reason-
able doubt, nor must it be alleged in the indictment. 
U.S.C.A. Const.Amends. 5, 6. 
*537 Gayle Helart (argued), Office of the United 
States Attorney, Indianapolis, IN, for Plaintiff-Ap-
pellee. 
William H. Dazey, Jr. (argued), Indiana Federal 
Community Defenders, Inc., Indianapolis, IN, for 
Defendant-Appellant. 
Before BAUER, POSNER and RIPPLE, Circuit 
Judges. 
*538 RIPPLE, Circuit Judge. 
Charles Johnson was charged in a two-count 
indictment with production of child pornography in 
violation of 18 U.S.C. § 2251(a) Fm and (e).1/42
Mr. Johnson filed a motion to suppress certain evid-
ence on the ground that his consent to the search 
was involuntary. He also claimed that his waiver of 
his Miranda rights was involuntary. The district 
court conducted an evidentiary hearing and denied 
Mr. Johnson's motion to suppress. Mr. Johnson 
pleaded guilty but preserved his right to appeal the 
denial of his motion to suppress. The district court 
accepted his plea. After a sentencing hearing, Mr. 
Johnson was sentenced to concurrent terms of life 
imprisonment. He timely filed this appeal. For the 
reasons set forth in the following opinion, we af-
firm the judgment of the district court. 
FN I . 18 U.S.C. § 2251(a) provides: 
(a) Any person who employs, uses, persuades, 
induces, entices, or coerces any minor to engage in, 
or who has a minor assist any other person to en-
gage in, or who transports any minor in interstate or 
foreign commerce, or in any Territory or Posses-
sion of the United States, with the intent that such 
minor engage in, any sexually explicit conduct for 
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495 F.3d 536 
495 F.3d 536 
(Cite as: 495 F3d 536) 
the purpose of producing any visual depiction of 
such conduct, shall be punished as provided under 
subsection (e), if such person knows or has reason 
to know that such visual depiction will be transpor-
ted in interstate or foreign commerce or mailed, if 
that visual depiction was produced using materials 
that have been mailed, shipped, or transported in in-
terstate or foreign commerce by any means, includ-
ing by computer, or if such visual depiction has ac-
tually been transported in interstate or foreign com-
merce or mailed. 
FN2. 18 U.S.C. § 2251(e) provides: 
(e) Any individual who violates, or attempts or 
conspires to violate, this section shall be fmed un-
der this title and imprisoned not less than 15 years 
nor more than 30 years, but if such person has one 
prior conviction under this chapter, section 1591, 
chapter 71, chapter 109A, or chapter 117, or under 
section 920 of title 10 (article 120 of the Uniform 
Code of Military Justice), or under the laws of any 
State relating to aggravated sexual abuse, sexual 
abuse, abusive sexual contact involving a minor or 
ward, or sex trafficking of children, or the produc-
tion, possession, receipt, mailing, sale, distribution, 
shipment, or transportation of child pornography, 
such person shall be fined under this title and im-
prisoned for not less than 25 years nor more than 50 
years, but if such person has 2 or more prior con-
victions under this chapter, chapter 71, chapter 
109A, or chapter 117, or under section 920 of title 
10 (article 120 of the Uniform Code of Military 
Justice), or under the laws of any State relating to 
the sexual exploitation of children, such person 
shall be fined under this title and imprisoned not 
less than 35 years nor more than life. Any organiza-
tion that violates, or attempts or conspires to viol-
ate, this section shall be fmed under this title. Who-
ever, in the course of an offense under this section, 
engages in conduct that results in the death of a per-
son, shall be punished by death or imprisoned for 
not less than 30 years or for life. 
I 
Page 4 
BACKGROUND 
A. 
The National Center for Missing and Exploited 
Children ("NCMEC") conducted an investigation 
into sexually explicit images of a prepubescent fe-
male known as Jane Doe. Images of this young girl 
had been found on several individuals' computers 
and were labeled with Jane Doe's actual name. 
NCMEC analysts used this information to locate 
the girl in Indianapolis, Indiana. 
Law enforcement officials interviewed Jane 
Doe. She stated that a man she called "Charlie" had 
been a live-in babysitter for her neighbor's family. 
She stated that "Charlie" had taken nude photos of 
her since she was six or seven years old and *539 
that he had molested her and two of the children 
living with him at the time. She also stated that the 
photos had been taken with a silver digital camera 
and that she had seen him transfer the photos to a 
black Dell-brand computer. 
"Charlie" was identified as Mr. Johnson, and a 
warrant for his arrest issued on December 15, 2005. 
Law enforcement officials executed this arrest war-
rant the following day at a home in Cincinnati, 
Ohio. Mr. Johnson resided there as a live-in 
babysitter for the same family with whom he had 
lived in Indianapolis. 
The law enforcement officials who went to ar-
rest Mr. Johnson included Agent Tim Rothrock and 
Sergeant Chris Hunt. The officers knocked on the 
door of the home, and the owner allowed them in-
side. The officers proceeded to the basement where 
the owner told them Mr. Johnson could be found. 
Sgt. Hunt had left his firearm in the car, and, al-
though Agent Rothrock had his firearm in his hand, 
he carried it behind his back. The agents identified 
themselves to Mr. Johnson, who was in the base-
ment with a toddler. The toddler was removed from 
the room. Agent Rothrock then put away his fire-
arm and did not take it out again during the inter-
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495 F.3d 536 
(Cite as: 495 F.3d 536) 
view with Mr. Johnson." The law enforcement 
officers told Mr. Johnson his name had come up 
during an investigation and read him his Miranda 
rights. Mr. Johnson and the officers each signed a 
form indicating Mr. Johnson's waiver of his Mir-
anda rights. 
FN3. Mr. Johnson later testified that he 
never saw the firearm. 
The two officers then proceeded to a small bed-
room where they interviewed Mr. Johnson. The 
tone was conversational and, although there were 
other officers in the home, only Sgt. Hunt and 
Agent Rothrock remained in the room with Mr. 
Johnson. Mr. Johnson stated that he had lived with 
the children who had been depicted in the photo-
graphs and that he had a computer in his bedroom 
area. Agent Rothrock asked if Mr. Johnson would 
consent to a search of his bedroom area and his 
computer, and Mr. Johnson calmly replied that he 
would not. Agent Rothrock then asked Mr. Johnson 
if he would continue talking; Mr. Johnson replied 
that he would. Mr. Johnson then confirmed that he 
owned a black Dell computer and that he likewise 
owned a silver digital camera. At this point in the 
conversation, Agent Rothrock gave Mr. Johnson 
more information about the investigation including 
the fact that a victim had stated that he had taken 
photos of her and that he had used a specific digital 
camera and computer. Further, Agent Rothrock told 
Mr. Johnson that some of these photos had been 
found on the intemet. He then told Mr. Johnson that 
he believed he had probable cause to obtain a 
search warrant which would allow him to search 
Mr. Johnson's computer and living area. He ex-
plained that the statement about the warrant was not 
meant as a threat and that a magistrate judge, and 
not he, would make the decision as to whether to is-
sue a warrant. Agent Rothrock then told Mr. John-
son he would have to secure the residence until the 
magistrate judge could be contacted, which would 
involve limiting the residents' ability to enter and 
exit the house. 
The officers then left and Agent Rothrock con-
Page 5 
tacted 
an 
Assistant 
United 
States 
Attorney 
("AUSA") in Indianapolis. He described the house 
and the property inside the house, including the 
computer and the camera, in which Mr. Johnson re-
tained a privacy interest. He also discussed the 
factors that supported probable cause, at which 
point the AUSA agreed to start the process of ob-
taining a search warrant. Agent Rothrock then re-
turned to the home, told Mr. Johnson that the pro-
cess of *540 obtaining a warrant had been started 
and that the AUSA believed that probable cause ex-
isted. Agent Rothrock again asked Mr. Johnson if 
he would consent to a search. Sgt. Hunt recalled 
Agent Rothrock stating that Mr. Johnson's consent 
"could possibly save time for us." R.53 at 105-06. 
Mr. Johnson was read fonts acknowledging his 
consent to the search of his computer and his living 
area, and he was reread his Miranda warnings. Mr. 
Johnson signed both forms. Mr. Johnson stated that 
the police might find child pornography on the 
computer. The officers continued to question Mr. 
Johnson about the child pornography on his com-
puter. Mr. Johnson then acknowledged that he had 
taken the photos. He declined to answer any ques-
tions as to the identity of the children in the photos 
and was then asked if he wished to speak to an at-
torney regarding that particular question; he replied 
that he would. 
Mr. Johnson identified Jane Doe in one photo-
graph in which she was fully clothed and stated that 
the photo had been taken in his Indianapolis bed-
room. He declined to answer questions about 
whether he had any knowledge as to how the photo 
had become available on the intemet and stated that 
he wished to speak to an attorney as to that question 
as well. When Agent Rothrock sought confirmation 
that Mr. Johnson wished to speak to an attorney re-
garding that question only, Mr. Johnson declined to 
answer any further questions. At that point, Mr. 
Johnson's computer was removed, and he was arres-
ted. 
On July 6, 2006, the district court held a sup-
pression hearing. Mr. Johnson testified that he had 
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495 F.3d 536 
495 F.3d 536 
(Cite as: 495 F.3d 536) 
not seen Agent Rothrock's weapon when he came 
down the stairs. He stated that the officers were not 
harsh or mean to hint. He also said that he under-
stood that he was suspected of a crime and that he 
had signed the Miranda waiver. He agreed that he 
never felt threatened or coerced into answering 
questions. He further stated that he was concerned 
for the other residents of the home because Agent 
Rothrock had mentioned his intent to secure the 
home until the search warrant was issued. He 
claimed that his consent to the search was involun-
tary because he perceived that hardship would be-
fall other members of the household if he persisted 
in declining consent. When he invoked his right to 
counsel as to certain questions, he indicated that he 
did not believe he had to answer questions on those 
topics. He stated that he had read and understood 
the consent to search forms and the Miranda waiver 
at the time he signed it. 
Mr. Johnson's computer was found to contain 
approximately 3,700 images of child pornography 
and child erotica. The nine images of Jane Doe 
found by the NCMEC were on the computer, and 
the computer allowed file sharing. 
B. 
The district court found that Mr. Johnson's con-
sent to search his living area and computer was vol-
untary. The court did not believe that Agent Ro-
throck's statements that he would secure the home 
while a search warrant was obtained had overborne 
Mr. Johnson's free will. The district court found 
this consent to be voluntary because Mr. Johnson 
(1) was approximately 48 years old, had two years 
of college and had his associate's degree, (2) had 
demonstrated computer savvy, (3) had gained and 
used managerial experience in his employment, (4) 
had declined consent earlier in the encounter and 
stated that he did not feel threatened, (5) had con-
sented after he was told that the process of obtain-
ing a warrant had commenced, (6) had been read 
his Miranda warnings a second time, (7) had con-
sented after one hour and five minutes which was 
Page 6 
not an overly long *541 period of detention, (8) 
was not barraged with requests for consent, and (9) 
was not subject to a threatening atmosphere. The 
district court also found that Mr. Johnson select-
ively had waived his Miranda rights, only request-
ing counsel as to two specific questions which was 
an ambiguous assertion of his right to counsel as to 
all questions. Finally, the district court found that, 
even if his consent were not voluntary, the evidence 
would not be suppressed because it would be ad-
missible under the inevitable discovery doctrine. 
At sentencing, the district court computed, 
without objection, the sentencing guidelines range. 
The applicable guidelines range of 188-235 months 
was trumped by 18 U.S.C. § 3559(e),F** which re-
quires mandatory life imprisonment for repeated 
sex offenses against children. Mr. Johnson qualified 
as a repeat sex offender against minors on the basis 
of convictions in 1989 for second degree rape, 
second degree sodomy and sexual abuse offenses 
for victimizing two children under the age of 
twelve. Mr. Johnson preserved Fifth, Sixth and 
Eighth Amendment objections to the invocation of 
the recidivist statutes. The district court sentenced 
Mr. Johnson to concurrent terms of life imprison-
ment. 
FN4. 18 U.S.C. § 3559(e) provides: 
(e) Mandatory life imprisonment for repeated 
sex offenses against children.-
(1) In general.-A person who is convicted of a 
Federal sex offense in which a minor is the victim 
shall be sentenced to life imprisonment if the per-
son has a prior sex conviction in which a minor was 
the victim, unless the sentence of death is imposed. 
II 
DISCUSSION 
A. 
[l][2] Mr. Johnson submits on appeal that his 
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consent to the search of his bedroom area and com-
puter was involuntary and, therefore, that his mo-
tion to suppress evidence should have been 
granted.FNS We review a district court's ruling on a 
motion to suppress de novo. However, we review 
the district coif 's factual findings for clear error. 
United States 
Lawshea, 461 F.3d 857, 859 (7th 
Cir.2006). Because the voluntariness of a defend-
ant's consent to search is a factual determination, 
we review a district court's resoluti
 of this ques-
tion for clear error. United States I Raibley, 243 
F.3d 1069, 1076 (7th Cir.2001). 
FNS. Mr. Johnson does not appeal the dis-
trict court's denial of his motion to sup-
press statements to law enforcement offi-
cials. He recognizes that he selectively 
waived his Miranda rights, see United 
States It Amara, 816 F.2d 284, 286 (7th 
Cir.I98 , and that suppression of his 
statements would have left the Govern-
ment's case largely unchanged. See Appel-
lant's Br. at II. 
[3][4][5][6] The Fourth Amendment's prohibi-
tion against warrantless searches does not apply 
when the defendant c 
nts voluntarily to the 
search. United States 
Sandoval-Vasquez, 435 
F.3d 739, 744 (7th Qr.2006). The Government 
bears the burden of proving that consent freely and 
voluntarily was given. Id. Whether a defendant vol-
untarily consented to a search is a factual assess-
ment which tutus o 
the totality of the circum-
stances. Schneckloth 
Bustamonte, 412 U.S. 218, 
227, 93 S.Ct. 2041, 6 L.Ed.2d 854 (1973). We 
must keep in mind that "a determination of volun-
tariness does not ride on the presence or abre of 
a single controlling factor." United States 
LaG-
tone, 43 F.3d 332, 334 (7th Cir.1994) (internal cita-
tions and quotation marks omitted). Rather, we 
must undertake a "careful scrutiny of all the sur-
rounding circumstances." Id. (citing *542 Schneck-
loth. 412 U.S. at 226, 93 S.Ct. 2041). Among the 
factors we consider are: "(I) the person's agc, intel-
ligence, and education, (2) whether he was advised 
Page 7 
of his constitutional rights, (3) how long he was de-
tained before he gave his consent, (4) whether his 
consent was immediate, or was prompted by re-
peated requests by the authorities, (5) whether any 
physical coercion was used, and (6) whether the in-
dividual was in police custody when he gave his 
consent." Sandoval-Vasquez, 435 F.3d at 744. 
[7] Mr. Johnson contends that his consent was 
given involuntarily because of two occurrences in 
the course of the police requests for consent: (1) 
Agent Rothrock requested more than once that Mr. 
Johnson consent to a search; (2) Agent Rothrock 
said that he would need to secure the residence un-
til the warrant issued, thereby causing his free will 
to be overborne. Mr. Johnson was concerned that 
the other residents of the home would be unable 
freely to come and go. We shall examine each of 
these contentions. 
hns
With respect to Mr. Jo 
n's first submission, 
our opinion in United States 
LaGrone, 43 F.3d 
332, 333 (7th Cir.1994), is he ! pful. In LaGrone, as 
in this case, the defendant was asked more than 
once whether he would consent to a search. We 
stated that "[w]hile it is true that the officers asked 
LaGrone more than once whether he would consent 
to the search, we do not believe this constitutes the 
sort of repetitive psychological harassment that 
should tip the balance in favor of LaGrone." Id. at 
334. Here, Agent Rothrock asked Mr. Johnson to 
consent on more than one occasion. However, Mr. 
Johnson himself stated that at no time did he feel 
threatened or coerced. 
With res 
t to the second submission, in 
United States I Santiago. 428 F.3d 699, 705 (7th 
Cir.2005), we determined that a defendant had con-
sented freely and voluntarily to a search despite his 
claim that officers had threatened to arrest his 
fiancée and to have their children taken into pro-
tective custody. The district court, however, con-
cluded that no actual threat had been issued. Rather, 
the district court determined that, when his home 
address had been discovered and he realized that a 
search of his home was therefore likely, Santiago 
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495 F.3d 536 
(Cite as: 495 F.3d 536) 
became "rightful[ly] concern[ed]" for his family. 
Id. The district court further found that this 
"rightful 
concern" 
did 
not 
amount 
to 
"psychological pressure." Id. In reaching this con-
clusion, the district court found it important that the 
authorities had behaved professionally, that the en-
tire incident took only twenty minutes and that the 
encounter was "devoid of any badgering or harass-
ment." Id. Looking to the totality of the circum-
stances considered by the district court, we con-
cluded, in Santiago, that the district court's volun-
tariness finding was not clearly erroneous. Id. Sim-
ilarly, we must conclude that Mr. Johnson's concern 
that he might inconvenience the other residents of 
the home was a "rightful concern," but not one that 
caused "psychological pressure." 
Mr. Johnson is 48 years of age and of at least 
average intelligence. He testified at the suppression 
hearing that he understood the consent form, that he 
never felt coerced or threatened and that he under-
stood he was waiving his Fourth Amendment 
rights. The interview was calm and professional at 
all times. Considering the totality of the factors sur-
rounding Mr. Johnson's consent, we certainly can-
not say the district court clearly erred in finding 
that consent was voluntarily and freely given. 
B. 
[8] Even if Mr. Johnson did not consent, the 
evidence would have been othenvise*543 admiss-
ible ruder the inevitable discovery doctrine. See 
Nix 
Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 
81 L.Ed.2d 377 (1984). This doctrine provides that, 
when the Government can establish by a preponder-
ance of the evidence that the information obtained 
would have been discovered ultimately or inevit-
ably by lawful means, the deterrence rationale of 
the exclusionary rule no longer applies and the 
evidence should be admitted. /6"The prosecution 
must establish that it had probable cause and prove 
the existence of a chain of events that would have 
led to a wait [ ] independent of the search." 
United States 
Brown, 328 F.3d 352, 357 (7th 
Page 8 
Cir.2003) (internal citations and quotation marks 
omitted). 
(9) The facts of this case clearly demonstrate 
that pr
ble cause existed for the search. See 
Illinois I Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 
L.Ed.2d 527 (1983) (establishing a totality of the 
circumstances test by which to determine whether 
probable cause exists). The officers had acquired 
detailed information from Jane Doe that Mr. John-
son had taken the photos, that she was the child de-
picted in the photos and that Mr. Johnson had used 
a silver digital camera. She also mentioned that he 
possessed a black Dell computer. R.53 at 15-16. In-
deed, based on this information, Agent Rothrock 
obtained a warrant for Mr. Johnson's arrest before 
his encounter with Mr. Johnson. Moreover, before 
Mr. Johnson consented to the search, he had a con-
versation with the officers. During the course of 
that conversation, he stated that he owned a black 
Dell computer and a silver digital camera. He con-
firmed that he previously had lived in Indianapolis. 
This information would more than suffice to estab-
lish probable cause upon which to issue a search 
warrant. Therefore, the deterrence rationale of the 
exclusionary rule would not apply, and the evid-
ence would be admissible under the inevitable dis-
covery doctrine. 
C. 
[10] Mr. Johnson also submits that the district 
court violated his Fifth and Sixth Amendment 
rights by imposing the mandatory minimum life 
sentence, required by 18 U.S.C. § 3559(e) and 18 
U.S.C. § 2251(e), because the underlying fact of a 
prior conviction had not been charged in the indict-
ment or proven beyond a reasonable doubt to a jury. 
[1l] Mr. Johnson acknowledges that this court 
is without power to decide this issue in his favor. 
The governing law of the Supreme Court unequi-
vocally states that the fact of a prior conviction 
need not be found by a jury beyond a reasonable 
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495 F.3d 536 
495 F.3d 536 
(ate as: 495 F.3d 536) 
doubt, nor must i  alleged in the indictment. Al-
mendarez-Torres 
United States, 523 U.S. 224, 
246-47, 1( S.Ct. 1219, 140 L.Ed.2d 350 (1998). 
Apprendi 
New Jersey, 530 U.S. 466, 120 S.Ct. 
2348, 147 .Ed.2d 435 (2000), explicitly preserved 
Almendarez-Torres, see530 U.S. at 490, 120 S.Ct. 
2348 ("Other than the fact of a prior conviction, 
any fact that increases the penalty for a crime bey-
ond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable 
doubt") (emphasis added), although left open the 
possibility that future cases might revisit its hold-
ing, see id. at 48190, 120 S.Ct. 2348. Later cases, 
including Blakely 
Washington, 542 U.S. 296, 124 
I
.Ct. 2531, 159 L.Ed.2d 403 (2004), United States 
Booker, 543 U.S. 220, 125 I.Ct. 738, 160 
Ed.2d 621 (2005), and Shepard 
United States, 
544 U.S. 13, 125 S.Ct. 1254, 1 1 L.Ed.2d 205 
(2005), each have confirmed Almendr-Torres' 
continuing vitality. See United States 
Sachsen-
maier, 
491 
F.3d 
680, 
683 
(7th 
Cir.2007) 
(confirming that Almendarez-Torres remains the 
governing law but noting that *544 the defendant 
had preserved the argument for consideration by the 
Supreme Court). Therefore, we cannot accept Mr. 
Johnson's claim that the district court's failure to 
submit this issue to the jury constitutes reversible 
error. 
Conclusion 
For these reasons, the judgment of the district 
court is affirmed. 
AFFIRMED 
C.A.7 (Ind.),2007. 
U.S. I. Johnson 
495 F.3d 536 
END OF DOCUMENT 
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1,M3stjaye 
491 F.3d 858 
491 F.3d 858 
(Cite as: 491 F.3d 858) 
H 
U.S. I. Leach 
C.A.8 (Mo.),2007. 
United States Court of Appeals,Eighth Circuit 
UNITED STATES of America, Appellant, 
Tyler M. LEACH, Appellee. 
No. 06-1471. 
Submitted: Feb. 14, 2007. 
Filed: June 22, 2007. 
Background: Defendant was convicted in the 
United States District Court for the Western District of 
Missouri, Howard F. Sachs, Senior District Judge, of 
knowingly using a facility of interstate commerce to at-
tempt to persuade, induce, and entice a minor to engage 
in illegal sexual activity, and the government appealed 
his 72-month sentence. 
Holdings: The Court of Appeals, Smith, Circuit 
Judge, held that: 
(1) government did not breach plea agreement by 
advocating at sentencing for application of sentencing 
guidelines offense level enhancement, and 
(2) offense level enhancement was warranted for 
having committed the offense subsequent to sustaining 
a sex offense conviction. 
vacated and remanded. 
West Headnotes 
Ill Sentencing and Punishment 350H C=290 
350H Sentencing and Punishment 
350HII Sentencing Proceedings in General 
350H1I(E) Presentence Report 
350Hk290 k. Successive, Supplemental and 
Updated Report. Most Cited Cases 
Sentencing and Punishment 35011 6=299 
Page 
350H Sentencing and Punishment 
350H1I Sentencing Proceedings in General 
350H1I(E) Presentence Report 
350Hk299 k. Objections and Disposition 
Thereof. Most Cited Cases 
Government's failure to timely object to original presen-
tence investigation report (PSR) prepared for defend-
ant's sentencing for knowingly using facility of inter-
state commerce to attempt to persuade, induce, and en-
tice a minor to engage in illegal sexual activity did not 
preclude government from advocating at sentencing for 
sentencing guidelines offense level enhancement that 
was not mentioned in original PSR; probation office 
amended PSR more than a month before the sentencing 
hearing to include the enhancement, giving defendant 
ample opportunity before sentencing to prepare senten-
cing memoranda on applicability of enhancement and to 
formulate an argument regarding the enhancement. 
Fed.Rules Cr.Proc.Rule 32(f), 18 U.S.C.A. 
121 Criminal Law 110 C=.273.1(2) 
110 Criminal Law 
110XV Pleas 
110k272 Plea of Guilty 
110k273.1 Voluntary Character 
I 10Ic273.1(2) k. Representations, Promises, 
or Coercion; Plea Bargaining. Most Cited Cases 
Government did not breach plea agreement pursuant to 
which defendant pleaded guilty to knowingly using fa-
cility of interstate commerce to attempt to persuade, in-
duce, and entice a minor to engage in illegal sexual 
activity by advocating at sentencing for application of 
sentencing guidelines offense level enhancement under 
chapter 4 of guidelines for having committed offense 
subsequent to sustaining a sex offense conviction; al-
though government stipulated in plea agreement that de-
fendant's base offense level was 24, agreement only re-
ferred to base offense level under chapter 2 of 
guidelines, and did not address adjustments from 
chapter 4, and agreement stated that, as to unmentioned 
guidelines issues, parties were free to advocate their po-
sitions at sentencing. U.S.S.G. § 1B1.1 et seq., 18 
U.S.C.A. 
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491 F.3d 858 
491 F.3d 858 
(Cite as: 491 F.3d 858) 
131 Criminal Law 110 C=1139 
110 Criminal Law 
I
 Review 
110XXIV(L) Scope of Review in General 
110k1139 k. Additional Proofs and Trial De 
Novo. Most Cited Cases 
Issues regarding the interpretation and enforcement of a 
plea agreement are reviewed de novo. 
141 Criminal Law 110 C=273.1(2) 
110 Criminal Law 
110XV Pleas 
110k272 Plea of Guilty 
110k273.1 Voluntary Character 
110k273.1(2) k. Representations, Promises, 
or Coercion; Plea Bargaining. Most Cited Cases 
Plea agreements are contractual in nature, and should be 
interpreted according to general contract principles. 
151 Sentencing and Punishment 350H C=P795 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(E) Prior or Subsequent Misconduct 
350Hk795 k. Order. Most Cited Cases 
In a case in which the defendant had pleaded guilty in 
Kansas state court to attempted aggravated criminal 
sodomy with a child under age 14, but had not yet been 
sentenced for that offense when he committed the feder-
al offense of knowingly using a facility of interstate 
commerce to attempt to persuade. induce, and entice a 
minor to engage in illegal sexual activity, a sentencing 
guidelines offense level enhancement was warranted for 
having committed the offense subsequent to sustaining 
a sex offense conviction. U.S.S.G. § 4B1.5(a), 18 
U.S.C.A. 
*859 Philip M. Koppe, Asst. U.S. Any., argued, Kansas 
City, MO (Bradley J. Schlozman, U.S. Atty., Cynthia L. 
Phillips, Asst. U.S. Atty., on the brief), for appellant. 
Stephen C. Moss, Asst. Fed. Public Defender, argued, 
Kansas City, MO (Raymond C. Conrad, Jr., Fed. Public 
Defender, on the brief), for appellee. 
Page 2 
SMITH, Circuit Judge. 
Tyler Leach pleaded guilty, pursuant to a plea 
agreement, to knowingly using a facility of interstate 
commerce to attempt to persuade, induce, and entice a 
minor to engage in illegal sexual activity, in violation of 
18 U.S.C. § 2422(b). In sentencing Leach, the district 
court declined to apply enhancements advocated by the 
government under U.S.S.G. § 4B1.5(a) or, alternatively, 
under § 4B1.5(b). Leach was sentenced to 72 months' 
imprisonment. The government appeals the district 
court's decision that neither enhancement applies. We 
reverse. 
*860 I. Background 
On February 22, 2005, Leach pleaded guilty in 
Kansas state court to attempted aggravated criminal 
sodomy with a child under the age of 14 years ("the 
Kansas offense"). The Kansas offense involved Leach 
receiving oral sex from a 13-year old girl that he had 
met in an intemet chat-room. Leach's sentencing on that 
offense was set for March 15, 2005. 
On March 8, 2005, one week before his scheduled 
sentencing on the Kansas offense, Leach conversed in a 
chat-room with someone that he thought was a 14-year 
old girl named "Amber." However, "Amber" was actu-
ally an undercover FBI agent. Leach's conversations 
with "Amber" quickly became sexual. The next day, 
Leach again contacted "Amberi
e arrangements 
to travel from his residence in 
Kansas, to her 
residence in Kansas City, Missouri, to engage in sexual 
activity. On March 10, 2005, Leach arrived at the Kan-
sas City, Missouri address provided by "Amber," and 
was arrested by federal agents. During a post-arrest in-
terview, Leach admitted that he had arranged to have 
vaginal and oral sex with "Amber," whom he believed 
to be a 14-year old girl. Because of Leach's arrest, his 
sentencing on the Kansas offense did not occur as 
scheduled. 
The government charged Leach in a three-count 
federal indictment with knowingly using a facility of in-
terstate commerce to attempt to entice a minor into en-
gaging in illegal sexual conduct, in violation of 18 
Before WOLLMAN, BYE, and SMITH, Circuit Judges. 
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491 F.3d 858 
(Cite as: 491 F.3d 858) 
U.S.C. § 2422(b) (Count One); traveling in interstate 
commerce for the purpose of engaging in illicit sexual 
conduct with another person, in violation of 18 U.S.C. § 
2423(b) (Count Two); and criminal forfeiture, pursuant 
to 18 U.S.C. § 2253 (Count Three). Leach entered into a 
plea agreement, pleading guilty to Count One in return 
for the government dropping the remaining counts. In 
the plea agreement, Leach acknowledged that he was 
subject to a 5-year minimum and a 60-year maximum 
sentence under 18 U.S.C. § 2426(a) because his federal 
"offense occurred after [Leach) had a prior sex offense 
conviction." 
The parties stipulated in the plea agreement that: 
(1 )"the applicable Guidelines section for the offense 
was U.S.S.G. § 2GI.3 (Travel to engage in prohibited 
sexual conduct with a minor);" (2) "the base level of-
fense is 24 pursuant to U.S.S.G. § 2G1.3(a);" (3) Leach 
was subject to a two-level enhancement pursuant to 
U.S.S.G. § 262.2(bX3XA) because the offense involved 
the use of a computer; (4) Leach was entitled to a three-
level reduction for acceptance of responsibility; (5) 
"there [was] no agreement between the parties regard-
ing the defendant's criminal history category;" (6) 
neither party would seek a departure from the applicable 
guidelines range; and (7) the court would detemnne the 
"applicable criminal history category after receipt of the 
presentence investigation report." 
Additionally, the plea agreement limited its scope 
to issues explicitly addressed therein and had no effect 
on any unmentioned Sentencing Guidelines issues. As 
to any unmentioned issues, "the parties were free to ad-
vocate their respective positions at the sentencing hear-
ing." It is undisputed that the plea agreement was nego-
tiated without any consideration of U.S.S.G. § 4B1.5. In 
fact, 
the 
government acknowledges 
that it was 
"completely unaware" of the potential applicability of 
the enhancement when it negotiated and executed the 
plea agreement. 
The presentence investigation report ("PSR") was 
prepared on October 3, 2005, and revised, along with an 
addendum, on November 3, 2005. The PSR concluded 
that Leach's Guidelines range was 60-63 •861 months 
FNI based on an offense level of 23 and criminal his-
Page 3 
tory category of II. Neither party objected to these cal-
culations. Thereafter, on November 10, 2005, the proba-
tion office filed a second addendum to the PSR, stating 
that "the guidelines were inaccurately calculated" in the 
original PSR and suggesting that Leach was subject to 
an enhancement under Guidelines § 4B1.5(a) based on 
the existence of the Kansas offense for which he had 
already been adjudicated guilty but had not yet been 
sentenced. If the § 401.5(a) enhancement applied, 
Leach's offense leve would have been 34 with a crimin-
al history Category 
g
 
making Leach's Guidelines range 
168-210 months' imprisonment. Leach timely objected 
to the § 4B1.5(a) enhancement. 
FNI. The Guidelines range would have been 
51-63 months, if not for the statutory minimum 
sentence of 60 months. 
Both parties filed briefs, prior to sentencing, on the 
applicability of the § 4B 1.5(a) enhancement. Leach 
contended that the enhancement did not apply because 
he had not yet been sentenced for the Kansas offense, 
and therefore had not yet sustained a prior sex offense 
conviction. Additionally, Leach urged the court to honor 
the parties' stipulations in the plea agreement and sen-
tence him accordingly. The government, despite having 
not objected to the initial or first-amended PSR, which 
did not include the § 4B 1.5 enhancement-and admitting 
that it had previously been "completely unaware" of § 
4B1.5-adopted the position of the probation office and 
advocated for the application of § 4B 1.5(a). 
On December 20, 2005, the court held a hearing on 
the applicability of § 4B 1.5(a) and concluded that the 
enhancement did not apply because Leach had not yet 
been sentenced for the Kansas offense. The court de-
termined that it was unclear whether the "conviction" 
requirement of § 4B 1.5(a) required the defendant to 
have been sentenced for the prior offense or merely 
have been adjudicated guilty by plea of guilty, nolo 
contendre, or a finding of guilt. Based on the failure of 
the 
enhancement 
section 
to 
define 
the 
term 
"conviction," recent legislative enactments regarding 
the term, and the rule of lenity, the court refused to ap-
ply the § 4B1.5(a) enhancement to Leach. RC
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491 F.3d 858 
(Cite as: 491 F.3d 858) 
FN2. After the court ruled that § 4B1.5(a) did 
not apply, Leach stated for the record that in 
the event the court's decision on the enhance-
ment was overturned, his position was that the 
plea agreement prevented the government from 
advocating for the enhancement. At no time 
during the December 20, 2005, hearing did 
Leach assert that the government's failure to 
object to the original PSR precluded it from ad-
vocating for enhancement. 
The government moved for reconsideration of the 
court's ruling on the § 4B1.5(a) enhancement, and the 
probation office filed a third addendum to the PSR, sug-
gesting that if § 4B1.5(a) did not apply, then a five-level 
enhancement under § 4B1.5(b) should apply because 
the defendant had engaged "in a pattern of activity in-
volving prohibited sexual conduct." If § 4B1.5(b) ap-
plied, Leach's total offense level would increase from 
23 to 28, causing his Guidelines range to increase from 
60-63 months to 87-108 months' imprisonment. Both 
parties filed sentencing briefs regarding the applicabil-
ity of § 4B I.5(b). 
On January 13, 2006, the court conducted Leach's 
sentencing hearing and heard arguments on both the re-
consideration of § 4B1.5(a) and the applicability of § 
4B1.5(b). After oral argument, the court denied the gov-
ernment's motion to reconsider its ruling on the § 
4B1.5(a) enhancement, concluding that the government 
had no standing to seek the enhancement*862 because it 
had failed to timely object to the original PSR.140
Moreover, the court determined that the plea agreement 
prevented the government from advocating for the en-
hancement. Alternatively, the court denied the motion 
to reconsider for the same reasons given in its original 
decision-that it was unclear whether § 4B1.5(a)'s con-
viction requirement required a defendant to have been 
sentenced on the conviction or merely adjudicated 
guilty and that the rule of lenity favored Leach. Further, 
the court determined that § 4B1.5(b) was inapplicable 
because the government failed to prove two prior occa-
sions that were distinct from the offense of conviction. 
FN3. Prior to the January 13, 2006 sentencing 
hearing, Leach had not argued that the govern-
Page 4 
ment had no standing to advocate for the en-
hancements because it had failed to timely ob-
ject to the original PSR which did not include 
either enhancement. 
The district court ultimately concluded that Leach's 
offense level was 23, his criminal history was a Cat-
egory II and his advisory guideline range was 60-63 
months. The court then sentenced Leach to 72 months' 
imprisonment, a 9-month increase from the top of the 
calculated Guidelines range. The government appeals. 
II. Discussion 
The government contends that the district court 
erred in not applying § 4B1.5(a), or alternatively, § 
481.5(b). Leach agrees with the district court's conclu-
sion that neither enhancement should apply but alternat-
ively asserts that the plea agreement and the govern-
ments failure to timely object to the original PSR pre-
vent it from advocating for either enhancement. 
A. Untimely Objections to the PSR 
Federal Rule of Criminal Procedure 32(f) states that 
"[w]ithin 14 days after receiving the presentence report, 
the parties must state in writing any objections ... con-
tained in or omitted from the report." "The reason for 
the fourteen-day filing requirement is 'so that the objec-
tions can be addressed and investigated prior to the sen-
tencing hearing.' "United States I May. 411 F.3d 841, 
849 (8th Cir.2005) (quoting United States 
Jones, 70 
F.3d 1009, 1010 (8th Cir.1995)) (emphasis de cted). 
[I] Here, the probation officer did not include the § 
4B1.5(a) enhancement in the initial or first-amended 
PSR, and the government did not object to the omission. 
However, when the probation office amended the PSR, 
through the second addendum, to include the § 481.5(a) 
enhancement, Leach was put on notice-more than a 
month before his initial sentencing hearing-that the en-
hancement could be at issue. This gave Leach ample op-
portunity before sentencing to prepare a sentencing 
memoranda on the applicability of § 4B1.5(a) and for-
mulate an argument regarding the enhancement. Given 
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491 F.3d 858 
(Cite as: 491 F.3d 858) 
these circumstances, any possible prejudice to Leach 
from the government's failure to object to the original 
and fast-amended PSR was cured by the adequate op-
portunity he w 
given to oppose the enhancement. See 
United States 
Soto-Beniquez, 356 F.3d I, 52 (1st 
Cir.2004) ("Any possible prejudice to [defendant] from 
the government's non-compliance [with Federal Rule of 
Criminal Procedure 32] was cured by the district court's 
two-week continuance to give defense counsel an ad-
equate opportunity to respondlo the government's late 
submission."); United States 
Young, 140 F.3d 453, 
457 (2d Cir.1998) ("The sentencing court may impose 
sentencing enhancements belatedly •863 suggested by 
the Government and not contained in the PSR, provided 
the defendant is afforded an adequate opportunity to re-
spond to the Government's late submission and any re-
vision of the PSR.") (internal citation omitted). We hold 
that the government's arguments for the enhancements 
were not foreclosed. 
B. The Plea Agreement 
[2] Leach argues that the government's advocacy 
for the § 4B1.5(a) enhancement breached the plea 
agreement. The government stipulated that Leach's base 
offense level was 24, but the enhancement, if applied, 
would have increased Leach's offense level to 34. Leach 
further contends that because the plea agreement stipu-
lated to a two-level enhancement for use of a computer, 
pursuant to § 2G2.2(b)(3XA), without any reference to 
§ 4B1.5 or any other enhancement, the agreement ne-
cessarily implied that no other enhancements would be 
applied. 
[3][4] Issues regarding the interpretation and en-
forcement of a plea agreement are reviewed de novo. 
United States' Martinez-Noriega, 418 F.3d 809, 811 
(8th Cir.2005); United States' DeWitt, 366 F.3d 667, 
669 (8th Cir.2004). "Plea agreements are contractual in 
nature, and should be interpreted according to general 
contract principles." DeWitt, 366 F.3d at 669. 
Leach asserts that our decision in DeWitt, compels 
us to find a breach of the plea agreement in this case. 
We disagree. In DeWitt. the government and the defend-
Page 22 of 27 
Page 5 
ant stipulated to a base offense level and a specific drug 
quantity in a plea agreement. Id. at 668. After the plea 
agreement was accepted by the court at a change of plea 
hearing, the probation office prepared a PSR suggesting 
that DeWitt's relevant conduct made her accountable for 
additional drug amounts and recommended a higher 
base offense level. Id. at 668-69. At the sentencing 
hearing, the government, on its own initiative, sought to 
introduce evidence to establish the higher drug quantity 
set forth in the PSR, and DeWitt objected, claiming that 
the government had stipulated in the plea agreement to 
the base offense level and the drug quantity. Id. at 669. 
The district court allowed the evidence and sub-
sequently found DeWitt accountable for the drug quant-
ity recommended in the PSR and adopted the PSR's re-
commended base offense level. Id. 
On appeal, we reversed, holding that the govern-
ment breached the plea agreement when it introduced 
evidence at sentencing to attribute a greater drug quant-
ity to the defendant when it had previously stipulated to 
the total drug quantity in the plea agreement. Id. at 
670-72. Although the plea agreement entitled the gov-
ernment to offer evidence of uncharged relevant con-
duct, we ruled that such a general provision could not 
be read to override the specific provision to recommend 
only a certain drug quantity for Guidelines calculation 
purposes. Id. at 670. We noted that when stipulations in 
the plea agreement differ from recommendations in a 
PSR, there is no breach of the plea agreement if the 
court requests the parties to provide evidence or argu-
ment on the issue. Id. at 671. But, we ultimately con-
cluded that "[w]here the government stipulates to a drug 
quantity and a base offense level, it may not then initi-
ate an effort at the sentencing hearing to obtain a greater 
sentence, even if the government has come to believe 
that the stipulation was made in error." Id. at 671-72. 
Although there are certainly some similarities 
between this case and DeWitt, we believe that the in-
stant case is controlled by our decision in Martinez-
Noriega. In Martinez-Noriega, the plea agreement •864 
stipulated that the defendant's base offense level was 
20, pursuant to § 2D1.1. 418 F.3d at 810. The plea 
agreement in Martinez-Noriega, like the plea agreement 
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491 F.3d 858 
(Cite as: 491 F.3d 858) 
here, made no agreement regarding the defendant's 
criminal history category under Chapter Four of the 
Guidelines and made no reference to any potential ad-
justment to his offense level under Chapter Four. Id. at 
810-11. Prior to the sentencing hearing, the probation 
office prepared a PSR, which recommended that Mar-
tinez-Noriega be assessed an offense level of 32, pursu-
ant to the career offender guideline, § 4B1.1(b)(C), be-
cause he had two prior felony drug convictions. Id. at 
811. Martinez-Noriega objected, arguing that because 
his plea agreement stipulated that his base offense level 
was 20 and did not refer to § 481.1, the court was pre-
cluded from applying the career offender guideline. Id. 
The district court disagreed and sentenced Martinez-
Noriega as a career offender. Id. 
On appeal, Martinez-Noreiga argued that applica-
tion of the career offender enhancement would render 
his base-offense-level stipulation under § 2D1.1 mean-
ingless. He contended the existence of the specific stip-
ulation concerning the base offense level necessarily 
implied that his offense level would be computed 
without regard to § 481.1. M"We reject(ed] Martinez-
Noriega's argument because we [found] it inconsistent 
with the structure of the sentencing guidelines." Id. In 
reaching this conclusion, we explained: 
The "Application Instructions" for use of the 
guidelines set forth nine sequential steps to be followed 
by the sentencing court in applying the provisions of the 
guidelines manual. The second step calls for the court to 
"(d]etermine the base offense level ... contained in the 
particular guideline in Chapter Two."USSG § 181.1(6). 
The next three steps direct the court to apply adjust-
ments from Chapter Three of the guidelines. The sixth 
step then states that the court should "(d]etennine the 
defendant's criminal history category as specified in 
Part A of Chapter Four," and "fdjetermine from Part B 
of Chapter Four any other applicable adjustments." 
USSG § 181.1(f). These adjustments from Part B in-
clude the enhanced offense levels for career offenders 
pursuant to USSG § 4B1.1. 
Id. at 812. (emphasis in original). 
We further explained that "[t]he guidelines contem-
plate ... that even when a defendant ultimately is subject 
Page 23 of 27 
Page 6 
to [a Chapter Four adjustment], the court will first com-
pute the defendant's `base offense level' under Chapter 
Two of the guidelines." Id. Thus, by stipulating to a 
base offense level, "[the] defendant has solidified where 
he will start in Chapter Two of the guidelines, but he 
has not protected himself against adjustments in 
Chapter Four."/d. at 813. Accordingly, we held that the 
district court did not err in applying the career-offender 
Guideline to Martinez-Noriega because the agreement 
only resolved the defendant's base offense level under 
Chapter Two, but did not resolve any issues with re-
spect to Chapter Four. Id. 
Like the agreement in Martinez-Noriega, Leach's 
plea agreement only stipulated to his base offense level 
under Chapter Two of the Guidelines. Although the 
parties were free to do so, they did not address possible 
adjustments "from Part B of Chapter Four," which in-
cludes the enhanced offense levels for repeat and dan-
gerous sex offenders against minors pursuant to 
U.S.S.G. § 4B1.5. Thus, in contrast to DeWitt, the gov-
ernment here did not advocate for anything inconsistent 
with the stipulations of the plea agreement; it advocated 
for something that was not resolved by the plea agree-
ment. Paragraph *865 11 of Leach's plea agreement 
stated that "[t]he parties understand, acknowledge and 
agree that there are no agreements between the parties 
with respect to any Sentencing Guidelines issues other 
than those specifically listed" and that "(a]s to any other 
Guidelines issues, the parties are free to advocate their 
respective positions at sentencing." We conclude, there-
fore, that the government was free to advocate for the § 
4B1.5(a) enhancement because it was an issue that had 
not been agreed to or specifically listed in the agree-
ment. Accordingly, we hold that the government did not 
breach the plea agreement. 
C. U.S.S.C. § 481.5(a) 
[5] Having concluded that the government was not 
precluded from arguing in favor of the § 4B1.5 en-
hancement, we must now determine whether that sec-
tion should have been applied. Section 4B1.5, entitled 
"Repeat and Dangerous Sex Offender Against Minors," 
states under subsection (a) that: 
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491 F.3d 858 
(Cite as: 491 F.3d 858) 
(a) In any case in which the defendant's instant offense 
of conviction is a covered sex crime, § 4131.1 (Career 
Offender) does not apply, and the defendant committed 
the instant offense of conviction subsequent to sustain-
ing at least one sex offense conviction: 
(1) The offense level shall be the greater of: 
(A) the offense level determined under Chapters Two 
and Three; or 
(B) the offense level from the table below decreased by 
(i) Life. 
(ii) 25 years or more. 
(iii) 20 years or more, but 
less than 25 years. 
(iv) 15 years or more, but 
less than 20 years. 
(I) 10 years or more, but less 
than 15 years. 
(vi) 5 years or more, but less 
than 10 years. 
(vii) More than I year, but 
less than 5 years. 
(2) The criminal history category shall be the great-
er of: (A) the criminal history category determined un-
der Chapter Four, Part A (Criminal History); or (B) 
criminal history Category'. 
U.S.S.G. § 4B1.5(a).°N' 
FN4. The plea agreement stipulated that the ap-
plicable Guidelines Manual was "the one that 
took effect on November 5, 2004." Section 
4B1.5(a) remains unchanged in the current edi-
tion of the Guidelines Manual. 
Put simply, Leach would be subject to the § 
4B1.5(a) enhancement if: (I) his "instant offense of 
conviction is a covered sex crime;" (2) the career of-
fender enhancement (§ 4B I .1) does not apply to him; 
and (3) he "committed the instant offense of conviction 
subsequent to sustaining at least one sex offense convic-
tion." Id. Leach unquestionably meets the first two pre-
requisites of § 481.5(a). His "instant offense of convic-
tion"-knowingly using a facility of interstate commerce 
to attempt to entice a minor to engage in sexual activity-
Page 24 of 27 
Page 7 
the number of levels corresponding to any applicable 
adjustment from § 3E1. I (Acceptance of Responsibil-
ity): 
Offense Statutory Maximum Offense Level 
37. 
34. 
32. 
29. 
24. 
17. 
12.. 
qualifies as a "covered sex crime" as that term is 
defined in Application Note 2 to § 4B I .5." 
More 
specifically, the offense *866 was perpetrated against a 
minor I'm and fell under 18 U.S.C. § 2422(b) which is 
under Chapter 117 of Title 18 of the United States Code 
and th 
constituting a "cove
i
red sex crime." See United 
States 
Blazek, 431 F.3d 1104, 1110 (8th Cir.2005) 
(uphol mg the application of § 4B1.5(a) enhancement 
and ruling that a conviction for attempted enticement of 
a minor under 18 U.S.C. § 2422(b) is a "covered sex 
crime" for purposes of the enhancement, even if the in-
tended victim was an undercover officer and not an ac-
tual minor). Additionally, § 4B1.1, the career offender 
enhancement, does not apply to Leach because he did 
not have at least two prior felony convictions of either a 
crime of violence or a controlled substance offense. 
Therefore, § 4B1.5(a) would apply to Leach if he 
"committed the instant offense of conviction subsequent 
to sustaining at least one sex offense conviction."§ 
4B1.5(a). 
ENS. Application Note 2 of § 4B1.5, entitled 
"Covered Sex Crime as Instant Offense of Con-
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491 F.3d 858 
491 F.3d 858 
(ate as: 491 F3d 858) 
viction," states: 
For purposes of this guideline, the instant offense 
of conviction must be a covered sex crime, i.e.: (A) an 
offense, perpetrated against a minor, under (i) chapter 
109A of title 18, United States Code; (ii) chapter 110 of 
such title, not including trafficking in, receipt of, or 
possession of, child pornography, or a recordkeeping 
offense; (iii) chapter 117 of such title, not including 
transmitting information about a minor or filing a factu-
al statement about an alien individual; or (B) an attempt 
or conspiracy to commit any offense described in subdi-
visions (AXi) through (iii) of this note. 
FN6. Although Application Note 1 to § 4B1.5, 
defines "minor" as a person under the age of 18 
and defines "minor victim" to include "an un-
dercover law enforcement officer who repres-
ented to the defendant that the officer was a 
minor," this court has specifically held that a 
conviction for attempted enticement of a minor 
under 18 U.S.C. § 2422(b)-Leach's instant of-
fense of conviction-is a "covered sex crime" 
for purposes of § 4B1.5 even though the inten-
ded victim was in fact an underver law en-
forcement officer. United States 
Blazek. 431 
F.3d 1104, 1110 (8th Cir.2005). 
It is undisputed that Leach committed the instant 
offense of conviction after he pleaded guilty to the Kan-
sas offense-attempted aggravated criminal sodomy. 
However, sentencing on Leach's Kansas offense was 
pending when the district court sentenced him on the in-
stant offense. Thus, no final judgment of conviction had 
been entered on the Kansas offense. Leach contends, 
therefore, that the Kansas offense cannot be counted as 
a prior "sex offense conviction" for purposes of § 
4B1.5(a) because the section does not define whether 
the term "conviction" requires the defendant to have 
been sentenced pursuant to the conviction (a final judg-
ment of conviction) or whether a "conviction" only re-
quires that the defendant was adjudicated guilty of the 
offense, whether by the court, jury, or accepted plea of 
guilty or nolo contendere. If the prior conviction under 
§ 481.5(a) only requires that the defendant have been 
found guilty of the offense, the enhancement would ap-
Page 25 of 27 
Page 8 
ply to Leach. However, if the prior "conviction" re-
quires that the defendant have been sentenced for the 
offense and a final judgment of conviction entered, then 
§ 4B1.5(a) would not apply to him. 
The district court ruled that the term "conviction" 
in § 4B1.5(a) was ambiguous. The court noted that the 
it
term is not defined in § 4B1.5(a), relying on 
nguage 
from the Supreme Court's decision in Deal 
United 
States. 508 U.S. 129, 131-32, 113 S.Ct. 1 3, 124 
L.Ed.2d 44 (1993) ("It is certainly correct that the word 
'conviction' can mean either the finding of guilt or the 
entry of a final judgment on that finding," which 
"includes both the adjudication of guilt and the sen-
tence."). The district court considered that the context 
of § 4B1.5(a) did not clear up the ambiguity of the term 
"conviction," so it applied the rule of lenity and found 
the Kansas offense could not count as a prior sex con-
viction under the section. 
We disagree with the district court's interpretation 
and find that the context of § 4B1.5-much like the con-
text of the statute at issue in Deal-makes "it unambigu-
ous that 'conviction' refers to the finding of guilt by a 
judge or jury that necessarily precedes the entry of a fi-
nal judgment of conviction." See id. at 132, 113 S.Ct. 
1993. The first clause of § 4B1.5(a) speaks of "the in-
stant offense of conviction," which is *11O the crime 
for which the defendant was now to be sentenced, and 
for which the enhancement would apply if the defendant 
has a previous sex offense conviction. See§ 4B1.5(a). 
The term "conviction" in § 4B1.5(a) therefore cannot 
mean a judgment of conviction. Clearly, the term con-
viction refers to a conviction without an entry of final 
judgment in the phrase "instant offense of conviction" 
because the sentencing was not yet complete. The term 
should be read to have the same meaning when used 
later in the same sentence unless otherwise stated or im-
plied.no We do not read § 4B1.5(a) as requiring the 
formal entry of a judgment of conviction before a de-
fendant is considered convicted for the provision's en-
hancements to apply. Any other reading is at best 
strained. See Deal, 508 U.S. at 132, 113 S.Ct. 1993 
(finding that if "conviction" in § 924(c)(1) meant 
"judgment of conviction," then "the provision would be 
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