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Defendant's Sentence Improperly Enhanced Based on Prior Military Conviction

By Shari Allison

U.S. v. Brown, -- F.3d --, 2008 WL 2485933 (10th Cir. 6/23/08) - sentence for possession of child porn was erroneously enhanced under 18 U.S.C. § 2252A(b)(2) based on Mr. Brown's previous conviction under Article 134 of the Uniform Code of Military Justice. The statute provides that prior convictions "under this chapter" count as sentence-enhancers and Mr. Brown's prior conviction was for a violation of the catch-all provision of Article 134, not § 2522, even though the military court assimilated the elements of the prior crime from § 2252 and the elements of Mr. Brown's prior crime were identical to the elements of the enumerated sentence-enhancer. Plain language rules and does not produce an absurd result.

Full post as published by Tenth Circuit Blog on June 24, 2008 (boomark / email).