*

The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of

California, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0413p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

HENRY G. MCGRATTAN,

Defendant-Appellant.

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-

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,

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N

No. 06-3043

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 05-00307—Dan A. Polster, District Judge.

Argued: April 20, 2007

Decided and Filed: October 10, 2007 

Before: DAUGHTREY and GIBBONS, Circuit Judges; SCHWARZER,*

 District Judge.

_________________

COUNSEL

ARGUED: Vanessa F. Malone, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio,

for Appellant. Michael L. Collyer, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio,

for Appellee. ON BRIEF: Vanessa F. Malone, Dennis G. Terez, FEDERAL PUBLIC

DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Michael L. Collyer, ASSISTANT

UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. 

SCHWARZER, D. J., delivered the opinion of the court, in which GIBBONS, J., joined.

DAUGHTREY, J. (p. 9), delivered a separate opinion concurring in part and dissenting in part.

_________________

OPINION _________________

WILLIAM W SCHWARZER, District Judge. Henry G. McGrattan appeals his twenty-year

sentence for (1) using a computer connected to the internet to persuade a minor to engage in illegal

sexual activity, and (2) knowingly receiving and distributing child pornography. The district court

concluded that based on a prior Ohio state offense, a higher fifteen-year mandatory minimum

sentence applied to the first count. Because the Ohio offense does not categorically qualify as a

prior offense under federal law, and because the government has not provided sufficient

1
No. 06-3043 United States v. McGrattan Page 2

documentation of McGrattan’s actual conduct in that offense, we vacate his sentence and remand

for resentencing consistent with this opinion.

BACKGROUND

On February 22, 2001, Henry G. McGrattan pled guilty to a misdemeanor attempted

violation of Ohio Rev. Code section 2907.323(A)(3). According to the 1999 warrant affidavit of

an FBI agent, McGrattan had sent several explicit photographs of underage boys and girls to an

undercover Illinois detective.

As detailed in an affidavit of complaint, from March through June of 2005, McGrattan sent

pictures to and attempted to meet with an FBI agent posing as a twelve-year-old girl on the America

Online internet service. On June 29, 2005, McGrattan was indicted on one count of violation of

18 U.S.C. § 2422(b) for using a computer connected to the internet to persuade a minor to engage

in illegal sexual activity and one count of violation of 18 U.S.C. § 2252A(a)(2) for knowingly

receiving and distributing child pornography. On July 19, 2005, McGrattan pled not guilty on both

counts. On September 28, 2005, he changed his plea to guilty on both counts. 

The district court found that McGrattan's Ohio conviction qualified as a prior conviction

under 18 U.S.C. § 2252A(b)(1), raising the mandatory minimum for the child pornography offense

from five to fifteen years. The district court also verbally explained the Guidelines calculations for

both counts, resulting in a range of 262 to 327 months. The court acknowledged that McGrattan had

raised and preserved several objections to the Guidelines calculations, but decided that because

Count 1 carried a 5-year mandatory minimum and Count 2 carried a 15-year mandatory minimum

(with a prior conviction), and it was sentencing McGrattan to the mandatory minimum of 240

months, it need not address those objections.

On December 21, 2005, the district court sentenced McGrattan to 20 years’ imprisonment,

5 years’ supervised release, and a mandatory $200 assessment. McGrattan timely appealed.

 DISCUSSION

I. APPLICATION OF THE CATEGORICAL APPROACH

McGrattan’s primary contention is that the district court erred by finding that his conviction

under Ohio Rev. Code section 2907.323(A)(3) qualified as a prior conviction for the purposes of

18 U.S.C. § 2252A(b)(1). He argues that the statutory elements of his prior misdemeanor conviction

under section 2907.323 do not sufficiently overlap with 18 U.S.C. § 2256(8) (defining “child

pornography”) to result in a predicate child pornography offense under section 2252A(b)(1) in all

instances. 

We review de novo the district court’s legal conclusion that a prior conviction is a qualifying

offense. See, e.g., United States v. Armstead, 467 F.3d 943, 946 (6th Cir. 2006) (reviewing

conclusion that prior conviction was a “crime of violence” under the Sentencing Guidelines).

18 U.S.C. § 2252A(b)(1) provides that a violator of 18 U.S.C. § 2252A(a)(2) shall

be fined under this title and imprisoned not less than 5 years and not more than 20

years, but, if such person has a prior conviction under . . . the laws of any State

relating to . . . the production, possession, receipt, mailing, sale, distribution,

shipment, or transportation of child pornography, . . . such person shall be fined

under this title and imprisoned for not less than 15 years nor more than 40 years.

18 U.S.C. § 2252A(b)(1). 18 U.S.C. § 2256 defines “child pornography” as any

visual depiction, including any photograph, film, video, picture, or computer or
No. 06-3043 United States v. McGrattan Page 3

computer-generated image or picture, whether made or produced by electronic,

mechanical, or other means, of sexually explicit conduct, where--

(A) the production of such visual depiction involves the use of a minor engaging in

sexually explicit conduct; . . .

Finally, “sexually explicit conduct” is defined as “(i) sexual intercourse, including genital-genital,

oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of

the genitals or pubic area of any person; . . .” 18 U.S.C. § 2256(2)(A).

The Ohio statute under which McGrattan was convicted makes it illegal to “[p]ossess or view

any material or performance that shows a minor who is not the person's child or ward in a state of

nudity.” Ohio Rev. Code section 2907.323(A)(3). The scope of this statute was narrowed in 1990

when the United States Supreme Court adopted the Ohio Supreme Court’s interpretation limiting

section 2907.323(A)(3) to cover only “the possession or viewing of material or performance of a

minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a

graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the

person charged." Osborne v. Ohio, 495 U.S. 103, 113 (1990) (quoting State v. Young, 525 N.E.2d

1363, 1368 (1988)) (emphasis added).

Thus, the question is whether McGrattan’s Ohio conviction qualifies as “a conviction . . .

under the laws of a State relating to . . . the . . . possession, receipt, . . . [or] distribution . . . of any

visual depiction . . . [which] involves the use of a minor engaging in . . . lascivious exhibition of the

genitals or pubic area of any person” under 18 U.S.C. § 2252A(b)(1). 

The government’s principal argument is that the state conviction qualifies as a predicate

offense because it relates to the same conduct–child pornography–prohibited by section

2252A(b)(1). We look first to the Supreme Court’s explication of the general principles governing

the application of enhancements based on state convictions.

In Taylor v. United States, 495 U.S. 575 (1990), the Court held, in the context of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e), that sentencing enhancements based on a prior

jury conviction, “generally require[] the trial court to look only to the fact of conviction and the

statutory definition of the prior offense” in determining if that offense is a qualifying prior

conviction. Id. at 602; see also United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995)

(applying Taylor to the Sentencing Guidelines). Taylor allows the court additionally to consider

“the indictment or information and jury instructions” when they “show that the defendant was

charged only with” qualifying conduct. Taylor, 495 U.S. at 602.

 In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court further clarified what

types of documents a sentencing court may look to when the prior conviction was the subject of a

plea rather than a jury trial. There, the Court held that police reports could not be used, and that a

judge’s investigations into the conduct underlying prior pleas are “generally limited to examining

the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and

any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16. The Court

limited the evidence the court may consider because of concerns that allowing a judge to resolve a

“disputed finding of fact” based on a prior plea would present a “serious risk[] of

unconstitutionality” by raising the sentencing ceiling without the constitutionally-mandated jury

finding. Id. at 25-26.

The government cites cases from four circuits to support its argument that Taylor and

Shepard do not apply to the enhancement provision in 18 U.S.C. § 2252A. In United States v.

Rezin, 322 F.3d 443 (7th Cir. 2003), the Seventh Circuit rejected an argument that a prior conviction
No. 06-3043 United States v. McGrattan Page 4

1

McGrattan asserts that the Ohio statute’s language requires only “nudity,” which is much broader than the

statutory definition of “child pornography” under federal law. This, however, ignores the narrowing of the Ohio statute

in Osborne. McGrattan has given no reason why this panel should ignore the construction of the statute which had been

used by Ohio courts for almost ten years before McGrattan’s Ohio crime, or why the “statutory definition” in Taylor and

“the laws of any State relating to” in 18 U.S.C. § 2252A(b)(1) only refer to the uninterpreted statutory text, and so we

apply the narrowed language under Osborne in our analysis. See James v. United States, 127 S. Ct. 1586, 1594 (2007)

(performing a Taylor analysis on a Florida state law as narrowed by the Florida Supreme Court).

for third degree sexual assault against two minors in violation of a Wisconsin statute failed to qualify

as enhancement under 18 U.S.C. § 2252(b)(2), which is materially indistinguishable from the statute

at issue here. Id. at 449. The court discussed at length the policy implications that made the conduct

that gave rise to the prior conviction rather than the elements of the underlying offense important.

Id. at 448. Although Rezin departs from the later-decided Shepard in suggesting that facts which

are “uncontested or uncontestable” can be used even if not presented in documents allowed by

Taylor or Shepard, Rezin, 322 F.3d at 449, in view of the constitutional underpinning of Shepard, we are not persuaded that we should depart from its holding. Further, the Rezin court’s assumption

that the sentencing court should “look first to the charging document (the indictment or information)

and to the judgment, read in light of the statute under which the defendant was convicted” is

consistent with both Taylor and Shepard. Rezin, 322 F.3d at 449. In United States v. Trogdon, 339

F.3d 620 (8th Cir. 2003), also cited by the government, the court, following Rezin, first held that the

victim’s age was not an element of the statute of prior conviction required to qualify categorically

under section 2252A(b)(1). Id. at 621. The court then went on to examine the underlying facts to

determine whether the victim was a minor. Id. However, the only evidence the court considered

was the amended state court information, id. at 621, which Taylor explicitly allows, Taylor, 495 U.S.

at 602. We find nothing in Rezin or Trogdon to justify departing from the categorical approach

under Taylor and Shepard.

In United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), the Tenth Circuit rejected

“the narrow categorical approach to application of section 2253(b)(2).” Id. at 1127. It distinguished

the application of the enhancement under section 924(e) from that under section 2252(b)(2) on the

basis of the “relating to” language present in the latter. Id. But it then proceeded to analyze the

issue in terms of Sixth Amendment rights concluding that “a district court does not violate a

defendant’s constitutional rights by looking beyond the statute of conviction, so long as the district

court limits itself to the documents outlined in Shepard.” Id. at 1128. The government’s fourth case,

United States v. Harding, 172 Fed. Appx. 910 (11th Cir. 2006), cert. denied, 127 S. Ct. 88 (2006),

followed McCutchen in holding that Shepard applies to cases under section 2252(b)(2). Id. at 912.

We do not believe that the cases the government offers make a persuasive argument for

abandoning the Taylor-Shepard analytical framework in cases arising under section 2252A(b)(1).

The underlying concern is the protection of the defendant’s jury trial right under the Sixth and

Fourteenth Amendments. Shepard, 544 U.S. at 1262. The difference in the statutory language of

section 924(e) and section 2252A(b)(1) is immaterial in the constitutional context. We therefore

begin our analysis of this section 2252(b)(1) case by examining whether the statute of conviction

falls within the four corners of the federal statute. If that process is not conclusive, we will examine

available documents permissible under Shepard and Taylor.

Because nothing in the Ohio statute requires actual sexual activity, the only way in which

it will categorically fall within the federal “child pornography” definition is if crimes under that

statute must involve “lascivious exhibition of the genitals or pubic area of any person.” The

narrowed Ohio statute covers “nudity [which] constitutes a lewd exhibition or involves a graphic

focus on the genitals.” Osborne, 495 U.S. at 113 (quoting State v. Young, 525 N.E.2d 1363, 136

(1988)).1 McGrattan argues not that a “graphic focus on the genitals” would not qualify as a

“lascivious exhibition of the genitals,” but rather that all “lewd exhibitions” of nudity need not
No. 06-3043 United States v. McGrattan Page 5

2

The government does not argue that the federal requirement of exhibiting the “genitals or pubic area” should

be read broadly to include other forms of nudity, and such a reading is precluded by the plain language of the statute.

See, e.g., United States v. Gleich, 397 F.3d 608, 614 (8th Cir. 2005) (holding that an exhibition of buttocks did not meet

the definition of “child pornography” in 18 U.S.C. § 2256(2)(A)).

necessarily involve an “exhibition of the genitals or pubic area.” For example, video depicting

certain exhibitions of nude breasts or buttocks might be lewd, and therefore fall within the Ohio

statute without meeting the federal requirement of exhibiting the genitals or pubic area.2

Ohio law is not clear on exactly how section 2907.323(A)(3) should be interpreted. If the

statute is read by ignoring the disjunctive “or,” it will only cover lewd exhibitions of the genitals,

and therefore will fall entirely within the federal definition of child pornography. In fact, the United

States Supreme Court in Osborne indicated that it believed that “[t]he context of the opinion [below]

indicates that the Ohio Supreme Court believed that ‘the term “nudity” . . . refers to a lewd

exhibition of the genitals.’” Osborne, 495 U.S. at 114 n.11. This formulation, however, is neither

textually persuasive nor legally binding. First, the Court recognized that the distinction is not

“constitutionally significant,” and constitutionality was the only question before the Court. Id.

Second, it is not the United States Supreme Court, but the Ohio Supreme Court whose interpretation

of Ohio law is authoritative. Third, the dissent in Osborne made it clear why, as a linguistic matter,

reading “lewd exhibition” to modify “of the genitals” is incorrect. Id. at 129 n.4 (Brennan, J.,

dissenting). And finally, no Ohio state court decision has held this construction to be binding, while

several cases appear to assume it is not.

In State v. Kerrigan, 860 N.E.2d 816 (Ohio Ct. App. 2006), the Ohio Court of Appeals

discussed this issue. However, while the dissent argued that the majority incorrectly adopted the

“lewd exhibition of the genitals” interpretation, id. at ¶¶ 73-34 (Donovan, J., dissenting), it appears

that the majority did not actually do so, and adopted the Osborne opinion’s reasoning only to the

extent that it held that “it is the character of the material or performance, not the purpose of the

person possessing or viewing it, that determines whether it involves a lewd exhibition or a graphic

focus on the genitals.” Id. at ¶ 22. 

Several Ohio state cases have addressed a related, but distinct question: whether a depiction

which constitutes a graphic focus on the genitals must be lewd in order to qualify under section

2907.323(A)(3). In State v. Walker, 730 N.E.2d 419 (Ohio Ct. App. 1999), the court held that

because lewdness was a necessary element under section 2907.323(A)(3), a graphic focus on the

genitals was not sufficient to sustain a conviction if that focus was not lewd in nature. Id. at 422.

However, when the Ohio Court of Appeals analyzed the same question in State v. McCown, 2006

WL 3320344 (Ohio Ct. App. 2006), it pointed out that the syllabus in Young, which it held to be

binding precedent, used the disjunctive form, and accepted that all convictions under section

2907.323(A)(3) required lewdness only “for purposes of discussion.” Id. at ¶ 36. Additionally, we

note that even if lewdness is required, it does not necessarily follow that a lewd exhibition must also

focus on the genitals: grammatically, while “lewd exhibition” and “lewd focus on the genitals” are

valid, “lewd exhibition on the genitals” is not. 

Even if the Ohio statute is read so that “lewd exhibition” does not require depiction of the

genitals, it does not end the inquiry. In James v. United States, the United States Supreme Court

clarified the Taylor categorical approach in the context of violent felonies:

We do not view that approach as requiring that every conceivable factual offense

covered by a statute must necessarily present a serious potential risk of injury before

the offense can be deemed a violent felony. Rather, the proper inquiry is whether the

conduct encompassed by the elements of the offense, in the ordinary case, presents

a serious potential risk of injury to another.
No. 06-3043 United States v. McGrattan Page 6

James v. United States, 127 S. Ct. 1586, 1597 (2007). In a case addressing whether a California

statute fell within the ambit of “generic theft” under general law, the Court held that

to find that a state statute creates a crime outside the generic definition of a listed

crime in a federal statute requires more than the application of legal imagination to

a state statute's language. It requires a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside the

generic definition of a crime.

Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007). Therefore, even if the Ohio statute is read

to prohibit all lewd exhibitions of nudity involving minors, we must determine if there is a “realistic

probability” that the statute would be applied to someone who possessed depictions of nudity which

were lewd, but which did not involve the genitals. We find that such a realistic probability exists.

First, under Ohio law, “nudity” is defined as the showing, representation, or

depiction of human male or female genitals, pubic area, or buttocks with less than

a full, opaque covering, or of a female breast with less than a full, opaque covering

of any portion thereof below the top of the nipple, or of covered male genitals in a

discernibly turgid state.

Ohio Rev. Code section 2907.01(H). Under that definition, “nudity” clearly covers representations

which include the breast or buttocks, but which do not focus on or even include the genitals or pubic

area.

While we are not aware of any cases in which the Ohio Supreme Court has explicitly

addressed a situation involving a “lewd exhibition” which did not involve the genitals or pubic area

of any person or where Ohio has prosecuted someone entirely on the basis of such materials, the

analysis of section 2907.323(A)(3) performed by several other Ohio courts makes it clear that such

a possibility is contemplated by the law.

In State v. Powell, the Ohio Court of Appeals upheld a conviction under section

2907.323(A)(1), which uses language identical to section 2907.323(A)(3), based on the taking of

photographs which depicted a lewd exhibition of nudity consisting only of exposed buttocks. State

v. Powell, No. 99-CR-631, 2000 WL 1838716, *14 (Ohio Ct. App. 2000). Notably, Powell also

paraphrases the Osborne test as “lewd exhibition of nudity or a graphic focus on the genitals,”

producing a less ambiguous definition which clearly separates “lewd exhibition of nudity” from

“graphic focus on the genitals.” Id. at *13. 

In State v. Stoner, 2003-Ohio-5745, 2003 WL 22429530 (Ohio Ct. App. 2003), the same

court upheld a conviction based on a “lewd exhibition of nudity.” Id. at ¶ 43. Although the

videotapes and photographs in question did contain images of the pubic areas of the victims, the

court specifically separated the “lewd exhibition of nudity” from “graphic focus on the genitals,”

and analyzed the materials in question under the “lewd exhibition of nudity” language, indicating

that meeting that definition is sufficient to support a conviction. Id. at ¶¶ 36, 43. Finally, in State

v. Woods, the court upheld a conviction based on photographs depicting a 16-year-old female’s

“naked breasts and bikini line with visible pubic hair,” holding that a rational trier of fact could have

found the photographs lewd. State v. Woods, 2005-Ohio-2681, 2005 WL 1283711, at ¶ 18 (Ohio

Ct. App. 2005), not accepted for review, 835 N.E.2d 728.
No. 06-3043 United States v. McGrattan Page 7

3

As of May 1, 2002, Ohio abolished the distinction between published and unpublished opinions for purposes

of precedent. Ohio R. Ct., R. Reporting Opinions 4. 

4

The dissent suggests that we send this case to the Ohio Supreme Court with a certified question asking whether

section 2907.323(A)(3) applies only to “a lewd exhibition of the genitals.” While a clear answer to this question would

assist prosecutors and judges in both the state and federal courts in future cases, it would not assist us in deciding this

one. The question we must answer is whether there is a reasonable probability that the statute would have been applied

to McGrattan in 2001, and as a result McGrattan’s conduct which gave rise to that conviction could have fallen outside

the scope of the federal statute. Given the ambiguity in the narrowed statutory language and the holdings of Ohio state

cases discussed above, we have answered that question in the affirmative.

It does not matter what precedential weight Ohio state courts give these decisions.3 In the

absence of binding Ohio precedent indicating that section 2907.323(A)(3) does not apply in such

situations, these cases show that there is a “realistic probability” that someone could be prosecuted

and a conviction upheld for conduct which falls outside the definition under federal law.4

 As a

review of Ohio state cases indicates that convictions based on lewd exhibitions of nudity that do not

involve an “exhibition of the genitals or pubic area of any person” are not mere “theoretical

possibilities,” we conclude that Ohio Rev. Code section 2907.323(A)(3) does not categorically fall

within the definition of a prior offense under 18 U.S.C. § 2252A(b)(1).

II. USE OF THE WARRANT AFFIDAVIT

Because McGrattan’s prior conviction is not based on a statute whose elements fall within

the federal definition of child pornography, we must next determine whether the conduct upon which

that conviction was based, as shown by documents allowable under Shepard, falls within that

definition. The government’s argument is that the conduct underlying McGrattan’s Ohio conviction

is the exact same scenario underlying the conviction in the instant case: McGratttan conversed with

a purported minor over the internet and sent the minor images of child pornography. It cites an

affidavit of an FBI agent supporting a 1999 warrant to search McGrattan’s home and seize his

computer and related equipment, asserting that there is probable cause to believe that there is

evidence of a violation of section 2252. The government argues that the warrant affidavit is

admissible as “a reliable government record like an affidavit of complaint.” It cites our decision in

United States v. Jones, 453 F.3d 777 (6th Cir. 2006), cert. denied, 127 S. Ct. 611 (2006), holding

that 

[a]n affidavit of complaint is a type of record that a district court can properly rely

on in determining the nature of predicate offenses, consistent with the standards of

Shepard. Complaints are judicial documents, filed under oath and submitted in

furtherance of formal prosecution. They bear, accordingly, substantially greater

indicia of reliability than mere police reports, which are not filed in court, are not

sworn to, and are developed for an investigatory purpose.

Id. at 780. Shepard explicitly allowed “the terms of the charging document” to be considered in

making the determination under Taylor. A warrant affidavit does not fill the bill. It is more akin

to the police report or complaint applications ruled inadmissable in Shepard because it is not “in

furtherance of formal prosecution” and thus does not determine whether an earlier plea or conviction

was for a generic offense. Id. at 780. Because it was intended only to establish probable cause for

the search, it does not necessarily describe the conduct for which McGrattan was convicted. In this

case, as in Shepard, the record is silent on the generic element, there being no plea agreement, plea

colloquy or comparable judicial record. See Shepard, 544 U.S. at 26.

Accordingly, the warrant affidavit is not admissible to establish McGrattan’s conduct for the

purpose of determining whether his prior conviction falls within the scope of 18 U.S.C.

§ 2252A(b)(1). Because no other documentation of McGrattan’s actual conduct of conviction was
No. 06-3043 United States v. McGrattan Page 8

5

Because the district court did not use the Sentencing Guidelines calculations, McGrattan may argue his

objections at resentencing.

submitted to the court, his Ohio conviction cannot be a predicate offense under 18 U.S.C.

§ 2252A(b)(1). Should other documentation be provided at resentencing, the district court will need

to decide whether its use is permissible under Shepard.

III. CONCLUSION

In addition to the above arguments, McGrattan contends that the district court’s decision to

sentence him to consecutive rather than concurrent terms was unreasonable, that the mandatory

minimums were constitutionally unreasonable, and that there were several errors in the United States

Sentencing Guidelines calculations.5 As we are reversing on other grounds, we will not address

these questions. For the reasons stated, McGrattan’s sentence is VACATED and the case is

REMANDED for resentencing consistent with this opinion.
No. 06-3043 United States v. McGrattan Page 9

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in part.

Because, as the majority opinion makes clear, the Ohio Supreme Court’s interpretation of Ohio

Revised Code section 2907.323(A)(3) has proven to be linguistically difficult at least and thoroughly

ambiguous at most, I would send this case to that court with the following certified question:

Was the United States Supreme Court, in its opinion in Osborne v. Ohio, correct in assuming that “[t]he context of the opinion [below] indicates that the Ohio

Supreme Court believed that ‘the term “nudity” as used in R[evised] C[ode]

2907.323(A)(3) refers to a lewd exhibition of the genitals’”? Osborne, 495 U.S. 103,

114 n.11 (1990) (citing State v. Young, 525 N.E.2d 1363, 1373 (Ohio 1988)

(emphasis added). 

The Ohio Supreme Court has never clarified this ambiguity, and the Ohio Courts of Appeals

have rendered inconsistent opinions on the question. Compare, e.g., State v. Walker, 730 N.E.2d

419, 422 (Ohio App. 1999) (quoting Osborne and citing Young for the proposition that the Ohio

statute refers to a “lewd exhibition of the genitals”) with State v. Kerrigan, 860 N.E.2d 816, 825-26

(Ohio App. 2006) (appeal from a conviction under section 2907.323(A)(3) in which “lewd

exhibition” is interpreted as a separate offense from a “graphic exhibition of the genitals”). Clarity

on this issue would then permit us to determine with some assurance whether or not the appellant’s

conviction under Ohio Revised Code section 2907.323(A)(3) qualifies as a prior conviction under

18 U.S.C. § 2252A(b)(1).