FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 6, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13576

Non-Argument Calendar

________________________

D. C. Docket No. 04-00086-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GARY MARK HARDING, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 6, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Gary Mark Harding, who pled guilty to possessing child pornography in
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violation of 18 U.S.C. § 2252(a)(4) and (b)(2), appeals his 120-month sentence. 

He contends that the district court erred in enhancing his sentence based on his

prior convictions for “lewd sexual battery” in Florida state court. Specifically,

Harding argues that (1) his lewd sexual battery convictions were not qualifying

offenses under § 2252(b)(2), and (2) the application of § 2252(b)(2) violated his

Fifth and Sixth Amendment rights, because the Government failed to allege in the

Indictment–and Harding did not admit–the fact of the prior convictions. Finding

no error, we affirm.

I. Qualifying Offense

We review de novo whether Harding’s prior convictions constitute

qualifying offenses under § 2252(b)(2). See United States v. James, 430 F.3d

1150, 1153 (11th Cir. 2005) (reviewing “de novo whether a conviction is a ‘violent

felony’ or a ‘serious drug offense’ within the meaning of [18 U.S.C.] § 924(e)”),

petition for cert. filed, (U.S. Feb. 14, 2006) (No. 05-9264). Generally,

§ 2252(b)(2) provides that a person who, like Harding, violates § 2252(a)(4) “shall

be fined under this title or imprisoned not more than 10 years, or both . . . .” 

However, if that person 

has a prior conviction 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 aggravated sexual abuse, sexual abuse, or abusive sexual
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conduct involving a minor or ward . . . such person shall be fined

under this title and imprisoned for not less than 10 years nor more

than 20 years.

18 U.S.C. § 2252(b)(2). The application of this enhancement was error, Harding

argues, because his state law convictions for lewd sexual battery are not

necessarily convictions “under the laws of any State relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” within

the meaning of § 2252(b)(2). According to Harding, the quoted statutory language

is best understood by turning to 18 U.S.C. § 2243, which criminalizes “[s]exual

abuse of a minor or ward.” Under § 2243(a), the minor being abused must not

only be at least 12 and younger than 16, but must also be “at least four years

younger” than the abuser. 18 U.S.C. § 2243(a). Nothing in the record we are

permitted to consult, Harding argues, establishes that he was at least four years

older than the victim at the time of the lewd sexual battery. We disagree with

Harding’s analysis.

In determining whether a prior conviction is a qualifying offense under

§ 2252(b)(2), a sentencing court is “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.” 

Shepard v. United States, 544 U.S. 13, __, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d
4

205 (2005) (applying the rule to the sentencing enhancement contained in 18

U.S.C. § 924(e)); Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143,

2160, 109 L. Ed. 2d 607 (1990) (in determining whether a prior conviction is a

qualifying offense under § 924(e), sentencing court is prohibited from delving into

particular facts disclosed by the record of conviction, but must normally look only

to the fact of conviction and the statutory definition of the prior offense); United

States v. McCutchen, 419 F.3d 1122, 1128 (10th Cir. 2005) (concluding that the

rule outlined in Shepard “applies to cases . . . involving application of

§ 2252(b)(2)”). Here, the Criminal Information introduced at sentencing charged

Harding with three counts of lewd sexual battery “upon . . . a child under the age of

16 years,” in violation of Fla. Stat. 800.04(3) (1995). Under that provision, a

person who “[c]ommits an act defined as sexual battery under s. 794.011(1)(h)

upon any child under the age of 16 years . . . without committing the crime of

sexual battery, commits a felony of the second degree . . . .” Fla. Stat. § 800.04(3)

(1995). Section 794.011(1)(h) states: “‘Sexual battery’ means oral, anal, or vaginal

penetration by, or union with, the sexual organ of another or the anal or vaginal

penetration of another by any other object; however, sexual battery does not

include an act done for a bona fide medical purpose.” Fla. Stat. 794.011(1)(h)

(1995). Counts One and Three of the Criminal Information charged Harding with
 Similarly, § 2244, entitled “Abusive sexual contact,” prohibits knowingly engaging in or 1

causing sexual contact with or by another person if doing so would violate “subsection (a) of section

2243 of this title had the sexual contact been a sexual act . . . .”

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committing sexual battery on the child “by placing his penis in union with or

penetrating her vagina,” and Count Two charged him with committing sexual

battery “by penetrating her vagina with his finger(s).”

Notwithstanding the foregoing, Harding contends that his convictions under

§ 800.04(3) are not convictions “under the laws of any State relating to aggravated

sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”

under § 2252(b)(2). In order to understand what constitutes “abusive sexual

conduct involving a minor,” Harding argues, we must look to 18 U.S.C. § 2243,

because § 2252(b)(2) “provides no definitions.” Section 2243, entitled “Sexual

abuse of a minor or ward,” makes it a federal crime to engage knowingly in a

sexual act with another person who is (1) at least 12 but younger than 16, and (2)

“at least four years younger than the person so engaging.” 18 U.S.C. § 2243(a).

1

Thus, Harding concludes, for his lewd sexual battery convictions to qualify under 

§ 2252(b)(2), the minor-victim must have been at least four years younger than

Harding at the time of the conduct underlying the convictions. This age difference

was not established at sentencing, Harding explains, because it was not an essential

element of an offense under § 800.04(3), was not charged in the Criminal
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Information, and was not admitted by him.

We reject Harding’s attempt to engraft the requirements of § 2243 on to

§ 2252(b)(2). While § 2243 may “define” the federal crime of “Sexual abuse of a

minor,” it is not a definitional provision applicable to § 2252. See 18 U.S.C.

§ 2243(a). Indeed, § 2252, unlike § 2243, is codified in chapter 110 of Title 18,

Part 1. The definitions applicable to chapter 110 are located in 18 U.S.C. § 2256,

which defines “minor” as “any person under the age of eighteen years,” and

contains no age difference requirement similar to § 2243(a)(2). Thus, Harding’s

approach would create a conflict between the definition of “minor” applicable to

§ 2252 through § 2256, and the definition of minor Harding draws from § 2243,

which refers to a person who is at least 12 but younger than 16 (and at least four

years younger than the abuser). See 18 U.S.C. §§ 2243(a), 2252(b), 2256(1). Such

an interpretation cannot be squared with our obligation to read the statute as a

whole. See Dolan v. United States Postal Serv.,__ U.S.__, __ S. Ct.__, __ L. Ed.

2d __, No. 04-848, slip op. at 4 (Feb. 22, 2006). 

Furthermore, § 2252(b)(2) already accounts for prior convictions under

§ 2243 by encompassing “a prior conviction under . . . chapter 109A.” 18 U.S.C.

§ 2252(b)(2). When addressing state law convictions, however, § 2252(b)(2) uses

broader language, reaching any conviction under a state law “relating to . . .
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abusive sexual conduct involving a minor . . . .” Id. (emphasis added). We find

that Harding’s convictions for lewd sexual battery under Fla. Stat. § 800.04(3) fall

well within the plain meaning of this language, and are supported by the charges in

the Criminal Information. See McCutchen, 419 F.3d at 1127 (Congress’s use of

“relating to” in § 2252(b)(2) “indicates its intent to allow a sentencing court to look

beyond the mere elements of a prior state conviction” in determining whether

conviction triggers enhancement); United States v. Rezin, 322 F.3d 443, 448 (7th

Cir. 2003) (“From the standpoint of rational penal policy . . . what is important is

the conduct that gave rise to the prior conviction, not the elements of the offense

underlying that conviction.”); accord James, 430 F.3d at 1155 (explaining that for

state law offense to constitute “serious drug offense” under Armed Career Criminal

Act, or “ACCA,” language of state statute need not exactly match ACCA’s

definition of “serious drug offense,” but merely fall within that definition); cf. 

United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001) (concluding

that plain meaning of phrase “sexual abuse of a minor” in 8 U.S.C.

§ 1101(a)(43)(A) includes a violation of Fla. Stat. 800.04 (1987)); United States v.

Smith, 367 F.3d 748, 751 (8th Cir. 2004) (per curiam) (“Although the term “sexual

exploitation of children” is not defined in the statute, the term unambiguously

refers to any criminal sexual conduct with a child). But see United States v. Galo,
 Harding contends that even if we disagree with him, we must apply the rule of lenity. 2

“[W]hen there are two rational readings of a criminal statute, one harsher than the other, the rule of

lenity dictates that we are to choose the harsher one only when Congress has spoken in language that

is clear and definite.” United States v. Inclema, 363 F.3d 1177, 1182 (11th Cir. 2004) (per curiam)

(internal quotes and citation omitted). For the reasons explained above, Harding has not proposed

a rational reading of § 2252(b)(2), and we therefore need not apply the rule of lenity. See United

States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.) (per curiam) (“We will apply the rule

of lenity only if the provision being construed is still ambiguous after application of normal rules

of construction.”), cert. denied, __ U.S. __, 125 S. Ct. 457, 163 L. Ed. 2d 347 (2005). Harding also

asserts that, to the extent § 2252(b)(2) is “without definition,” it is void for vagueness. He raised

this argument for the first time in his reply brief, and it is therefore waived. See United States v.

Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999).

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239 F.3d 572, 582 (3rd Cir. 2001)(“It is the elements of a given statute, not the

conduct that violates it that determines if the statute relates to the sexual

exploitation of children.”). 

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II. Almendarez-Torres

Harding next argues that the application of § 2252(b)(2) violated his Fifth

and Sixth Amendment rights, because his lewd sexual battery convictions were not

charged in the Indictment or admitted by him. As Harding raised his constitutional

objections before the district court, we review them de novo. United States v.

Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001).

In Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219,

1223, 140 L. Ed. 2d 350 (1998), the Supreme Court “held that the government

need not allege in its indictment and need not prove beyond a reasonable doubt that

a defendant had prior convictions for a district court to use those convictions for
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purposes of enhancing a sentence.” United States v. Marseille, 377 F.3d 1249,

1257 (11th Cir.), cert. denied, 543 U.S. 1013, 125 S. Ct. 637, 160 L. Ed. 2d 480

(2004). Although Harding contends that Almendarez-Torres has been “gravely

wounded” by subsequent Supreme Court cases, he concedes we have held that it

remains good law. See, e.g., United States v. Gibson, 434 F.3d 1234, 1247 (11th

Cir. 2006) (“Though wounded, Almendarez-Torres still marches on and we are

ordered to follow. We will join the funeral procession only after the Supreme

Court has decided to bury it.”). Even so, Harding argues, his case is different

because, unlike the defendant in Almendarez-Torres, he did not even admit to the

existence of his prior convictions. See Almendarez-Torres, 523 U.S. at 227, 118 S.

Ct. at 1222. This argument is unavailing, for Harding does not deny that other

evidence as to the existence of his prior convictions was produced at sentencing. 

We find no error in the district court’s decision to enhance Harding’s

sentence, pursuant to 18 U.S.C. § 2252(b)(2), based on his prior Florida

convictions for lewd sexual battery. Accordingly, we affirm Harding’s sentence.

AFFIRMED.