1 The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-3233

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United States of America,

Appellee,

v.

Gregory L. Trogdon,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: March 11, 2003

 Filed: July 3, 2003 

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Before HANSEN, Chief Judge,1

 RILEY and MELLOY, Circuit Judges.

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HANSEN, Circuit Judge.

Gregory L. Trogdon pleaded guilty to receiving child pornography, in violation

of 18 U.S.C. § 2252A(a)(2)(A) (2000), and was sentenced to sixty months in prison

and four years of supervised release. The only contested matter at sentencing, and the

only issue on appeal, is whether Trogdon is subject to a sixty-month statutory

minimum prison term due to his prior conviction for first-degree sexual misconduct.
2 The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

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We conclude, as did the district court,2 that this conviction triggers the enhanced

statutory minimum. Accordingly, we affirm the judgment of the district court.

I.

The enhanced statutory minimum applies, as relevant, if Trogdon "has a prior

conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C.

§ 2252A(b)(1). It is undisputed that Trogdon has a prior Missouri conviction for

sexual misconduct in the first degree, in violation of Mo. Rev. Stat. § 566.090.1

(1995). A person commits this offense if "he purposely subjects another person to

sexual contact," id., defined as "any touching of the genitals or anus of another person

. . . for the purpose of arousing or gratifying sexual desire of any person," Mo. Rev.

Stat. § 566.010(3). The Missouri crime of first-degree sexual misconduct can be

committed against either an adult or a minor. It is undisputed, however, that

Trogdon's offense conduct included placing his hand inside the underwear of a girl

under the age of twelve and inserting his finger into her vagina. The fact that the

victim was under the age of twelve was specifically alleged in the amended state court

information to which Trogdon pleaded guilty.

Thus, the question is whether the statute under which the defendant was

previously convicted must contain as an element the victim's status as a minor in

order to qualify as a conviction for "abusive sexual conduct involving a minor"

triggering § 2252A(b)(1)'s enhanced statutory minimum. Although one district court

has concluded that the victim's age must be included as an element, see United States

v. Roy, 114 F. Supp. 2d 1, 2-3 (D. Me. 2000), we reject this approach. Accord United

States v. Rezin, 322 F.3d 443, 446-49 (7th Cir. 2003) (construing 18 U.S.C.
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§ 2252(b)(2)'s enhanced statutory minimum for "a prior conviction . . . under the laws

of any State relating to . . . abusive sexual conduct involving a minor or ward" and

rejecting elements-only approach to determining victim's age in defendant's prior

offense).

We think that the better approach is the one we use when determining whether

a prior offense is a crime of violence triggering an enhanced sentence. If violence is

included as an element in the statute under which the defendant was previously

convicted, our inquiry ends. However, if violence is not included as an element, such

that the defendant could have committed the prior offense violently or nonviolently,

we proceed to examine the prior offense's underlying facts to determine whether

violence was involved. See United States v. Wright, 957 F.2d 520, 522 (8th Cir.),

cert. denied, 506 U.S. 856 (1992).

Applying this analysis to the instant case, to determine whether Trogdon's prior

conviction for first-degree sexual misconduct qualifies as abusive sexual conduct

involving a minor, our inquiry does not end with the Missouri statute because the

victim's age is not included as an element therein. We must proceed to examine the

underlying facts of the prior offense to determine whether the victim was a minor.

As noted above, it is undisputed that Trogdon's victim was a girl under the age of

twelve. Thus, he was properly subjected to the enhanced sixty-month statutory

minimum prison term of § 2252A(b)(1).

II.

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.