UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHARLES VICTOR FLINT, Defendant - Appellant. No. 23-8069 (D.C. No. 2:23-CR-00067-ABJ-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Last year, Charles Flint pleaded guilty to possess ing child pornography under 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district c ourt determined, over Flint’s objection, that his 2007 Colorado convicti on for attempted sexual assault on a child triggered a mandatory minimu m ten-year sentence under § 2252A(b)(2) because that conviction “relat[es] to aggravated sexua l abuse, sexual abuse, or abusive sexual

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the ca se, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### July 30, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8069 Document: 010111087270 Date Filed: 07/30/2024 Page: 12 conduct involving a minor.” The district c ourt then sentenced F lint to ten years in prison, followed by five y ears of supervised release. Flint now challenges the di strict court’s applicati on of the enhancement under § 2252A(b)(2). He argues that under th e categorical approach, his Colorado conviction for attempted sexual assault on a child does not qualify as a predicate offense for the enhancement be cause the state statute crimin alizes a broader range of conduct than the generic federal o ffenses listed in § 2252A(b)(2). See Descamps v. United States , 570 U.S. 254, 261 (2013) (explaini ng that under formal categorical approach, state-law conviction cannot trigge r statutory enhancement “if the [state] statute sweeps more broadly than the generic [federal] crime”). But Flint acknowledges that our precedent forecloses his argument, and he brings it only to preserve it for further review. Indeed, we have held that “neither the text nor the history of the enhancement statute limits triggering o ffenses to those mirroring fede rally[ ]defined offenses.” United States v. Bennett , 823 F.3d 1316, 1325 (10th Cir. 2016); see also United States v. Hebert , 888 F.3d 470, 475 (10th Cir. 2018) (same). By its plain terms, the statute requires a mandatory minimum ten-y ear prison sentence if the defendant “has a prior conviction . . . under the laws of any [s]tate relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” § 2252A(b)(2) (emphasis added). Giving the ph rase “relating to” its ordina ry meaning, we explained that “the offense need only ‘stand in some relation to,’ ‘pertain to,’ or ‘have a connection’ with” aggravated sexual abuse, sexual abuse, or a busive sexual conduct Appellate Case: 23-8069 Document: 010111087270 Date Filed: 07/30/2024 Page: 23 involving a minor. Bennett , 823 F.3d at 1322 (quoting United States v. Becker , 625 F.3d 1309, 1310 (10th Cir. 2010)). If it does, the e nhancement in § 2252A(b)(2) applies—even if the state statute crimina lizes more conduct th an the federal law. Id. at 1322–25. And here, Flint does not disput e that under this in terpretation of the statute, his Colorado convicti on for attempted sexual assaul t on a minor qualifies as a predicate offense for the mandatory minimum under § 2252A(b)(2). As Flint recognizes, “[w]e are bound by th e precedent of prior panels absent en banc reconsideration or a superseding c ontrary decision by the Supreme Court.” United States v. Begay , 974 F.3d 1172, 1176 (10th Cir. 2020) (quoting In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (per cu riam)). Because our precedent forecloses Flint’s challenge to the app lication of the § 2252A(b)(2) enhancement, we affirm. 1

Entered for the Court
Nancy L. Moritz Circuit Judge

1 Because our precedent forecloses Fl int’s challenge, we affirm without reaching the government’s contention—whic h Flint vigorously disputes—that Flint waived his appellate arguments by “chang[i ng] his theory on appeal” and failing to argue plain error. Aplee. Br. 7; see also United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an ap pellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinar ily deem the issue wa ived (rather than merely forfeited) and decline to re view the issue at all . . . .”). Appellate Case: 23-8069 Document: 010111087270 Date Filed: 07/30/2024 Page: 3