PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. PETER HELMUT BECKER, Defendant–Appellant. No. 09-5154

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:09-CR-00077-GKF-1)
Terry Weber, Tulsa, Oklahoma, for the Defendant-Appellant. Leena Alam, (Clinton Johnson with her on the briefs), Office of the United States Attorney, Northern Di strict of Oklahoma, Tulsa, Okla homa for the Plaintiff-Appellee.

Before KELLY, LUCERO, and HOLMES, Circuit Judges.

LUCERO , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### December 1, 2010
Elisabeth A. Shumaker Clerk of Court-2- Peter Helmut Becker appeals his senten ce for receipt and possession of child pornography in viola tion of 18 U.S.C. § 2252(a)(2) a nd (a)(4)(B). He argues that the district court erred in finding that his earlie r Illinois conviction for solicitation of a minor qualified as “relating to aggravated sexual abus e, sexual abuse, or abusive sexual conduct of a minor” under 18 U.S.C. § 2252(b)(1) and (2). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S. C. § 1291, we affirm.
I Becker pled guilty to recei pt of child pornography, 18 U.S.C. § 2252(a)(2), and possession of child pornography , § 2252(a)(4)(B). A Presente nce Investigation Report (“PSR”) indicated that Becker was subject to mandatory minimum sentences of ten and fifteen years for the two crimes pursuant to § 2252(b)(1) a nd (2). Subsections (b)(1) and (2) use identical language, applying if a defe ndant has a previous conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The PSR relied upon a 2001 conviction for which Becker pled guilty to an Illinois state charge of Indecent Solicitation of a Child. This earlier crime’s indictment specified that Becker had the “intent that the offens e of Aggravated Criminal Sexual Abuse be committed” when he solicited, over the Internet, someone w hom he “believed was a child under seventeen” to perform oral sex. She was actually a police officer. When Becker left his home in Kansas to meet the “child ” for sex in Illinois, he was was arrested. The district court concurred with th e PSR, applied § 2252(b)’s mandatory minimum provisions, and sentenced Becker to concurrent sentences of 180 months for-3- receipt of child pornography and 120 mont hs for possession of child pornography. Becker’s only argument on appeal is that the distri ct court improperly applied § 2252(b)(1) and (2) based on his Illinois conviction.
II “We review the district court’s interpreta tion of a criminal statute de novo.” United States v. Romero , 122 F.3d 1334, 1337 (10th Cir. 19 97). If the plain language of the statute is unambiguous, “our inquiry ends.” Id. Becker suggests that the phrase “relati ng to” should be cons trued narrowly, thus excluding his prior conviction. Using his pref erred narrow construction, he contends that his Illinois conviction: (1) was for an inchoa te crime, and was therefore not “relating to aggravated sexual abuse, se xual abuse, or abusive sexual conduct”; and (2) was for soliciting a police officer, and so was not “rela ting to” a crime involving a minor or ward. His arguments are unavailing. In another cont ext, the Supreme Court held that the plain meaning of “relating to” is broad, though not unlimited. Morales v. Trans World Airlines , 504 U.S. 374, 383 (1992). We have applied this same broad interpretation to § 2252(b). United States v. McCutchen , 419 F.3d 1122, 1127-28 (10th Cir. 2005). Becker relies on the lone countervailing ci rcuit court decision, United States v.
McGrattan , 504 F.3d 608 (6th Cir. 2007), which contradicts McCutchen and undermines the plain meaning of § 2252(b). Because § 2252(b) must be read broadly, Becker’s Illinois conviction plainly falls within its am bit, and his sentence must therefore be affirmed.-4- A In McCutchen , we rejected the argument that § 2252(b) should be construed in a “narrow categorical” manner. 4 19 F.3d at 1127. McCutchen’s predicate offense was a Kansas conviction for sexual battery. Id. at 1123. Although th e victim of that prior crime was a child under the ag e of sixteen, Kansas’ sexual battery statute did not require a child victim as an elem ent of the offense. See id. at 1124. McCutchen relied on Taylor v. United States , 495 U.S. 575 (1990), a case in which the Supreme Court interpreted a mandatory minimum provision that applied if a defendant had a prior “burglary” conviction. Id. at 578. The Court held that the cr ucial test was whether the state crime had all the “basic elements” of burglary. Id. at 599. By analogy, McCutchen contended, § 2252(b)’s minimums apply only if the pred icate conviction included as an element the victim’s status as a minor. McCutchen , 419 F.3d at 1125. We rejected the “categorical” approach to § 2252(b), pointing to a critical feature distinguishing § 2252(b) and the statute at issue in Taylor : the phrase “relating to.” McCutchen , 419 F.3d at 1126. As we noted, the Supreme Court has held, “relating to carries a broad ordinary meaning, i.e., to stand in some relation to; to ha ve bearing or concern; to pe rtain; refer; to bring into association with or co nnection with.” Id. at 1126-27 (quoting Morales , 504 U.S. at 383) (internal quotation marks omitted). 1

1 Our holding in McCutchen is consistent with the majo rity of our sister circuits that have considered “relating to” in the context of § 2252(b). See, e.g. , United States v. Stults , 575 F.3d 834, 845 (8th Cir. 2 009); United States v. Hubbard , 480 F.3d 341, 348 (5th Cir. 2007); United States v. Sinerius , 504 F.3d 737, 743 (9th Cir. 2007) (interpreting § 2252A(b)(1)); United States v. Rezin , 322 F.3d 443, 448 (7th Ci r. 2003); United States v. Mills , 224 Fed. App’x 232, 234-35 (4th Cir. 20 07) (unpublished) (broad application of-5- Becker urges us, in essence, to depart from McCutchen and apply the district court decision reversed in Hubbard , 480 F.3d at 348, and the Si xth Circuit’s approach from
McGrattan , 504 F.3d at 612. In Hubbard , the Northern District of Texas reasoned that the sex crimes listed in § 2 252A(b)(1) were defined elsewh ere in the federal criminal code—for example, “sexual abus e” is defined by specific elem ents in 18 U.S.C. § 2252— and that Hubbard’s crime did not fit in to any statutory definition included in § 2252A(b)(1). See United States v. Hubbard , No. 3:04-CR-220-M, 20 05 WL 936965, at *2 (N.D. Tex. Apr. 20, 2005) (unpublished). Th at reasoning was rejected on appeal. See Hubbard , 480 F.3d at 343. McGrattan followed a similar logic. McGrattan’s predicate offense, like Hubbard’s and Be cker’s, arose out of his Inte rnet communication with a law enforcement officer’s child avatar. 504 F.3d at 609. Rejecting our approach in McCutchen , the Sixth Circuit applied the Taylor framework to determine whether McGrattan’s crime came categorically within § 2252(b ). McGrattan , 504 F.3d at 612. Neither the district court’s Hubbard decision nor the Sixth Circuit’s McGrattan opinion is persuasive. Both apply the cate gorical approach, which we have squarely rejected in a § 2252(b) cont ext. Additionally, McGrattan ’s holding that the phrase “relating to” is “immaterial in the constitutional context,” 504 F.3d at 612, does not apply to Becker because he does not advance a constitutional argument. 2 Thus, we have no

“relating to” in § 2252A(b)(1), which has rele vant language identical to § 2252(b)); United States v. Harding , 172 Fed. App’x 9 10, 912-13 (11th Cir. 2006) (unpublished) (favorably citing McCutchen ). But see McGrattan , 504 F.3d at 612 (rejecting our approach in McCutchen and adopting the categorical approach). 2 McGrattan relied upon Shepard v. United States , 544 U.S. 13 (2005), in which the central issue was whethe r the government could prove the elements of a prior-6- reason to depart from McCutchen ’s conclusion that “relating to” in § 2252(b) applies to a broad range of prior sex convictions, and a sentencing court may “look beyond the mere elements of a prior state conv iction in determining whether such conviction is sufficient to trigger application of the [statutory mi nimum].” 419 F.3d at 1127 (quotation omitted).
B Given our broad reading of § 2252(b), the only issue is whether Becker’s Illinois conviction fits within that broa d definition. Becker argues that the statute does not apply because his predicate conviction was for an inchoate crime, and the conviction relied on mere belief that a child was involved. He claims that this dis tinguishes his case from McCutchen

. Using the broad interpretation of § 2252(b), two of our sister circuits have held that inchoate sex crimes constitute prior co nvictions “relating to” sexual abuse of a minor. In Stults , the defendant had been convicted for attempted sexual assault of an actual child. 575 F.3d at 839. Applying Morales , the Eighth Circuit held that Stults’ attempt conviction “‘stands in some relation to ’ or ‘pertains to’ the crimes of aggravated sexual abuse, sexual abuse, or abusive sexua l conduct involving a minor,” and applied § 2252(b)’s mandatory minimum. Stults , 575 F.3d at 846. Hubbard addressed both

conviction with a police report. The only constitutional c oncern in Shepard was ensuring that all facts relied upon for a federal senten cing enhancement were found by a jury or admitted by the defendant. 544 U.S. at 24-25. As we expl ained in McCutchen , a district court may rely on the “statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit f actual finding by the trial judge to which the defendant assented” to determin e whether the prior conviction f its within the language of § 2252(b). 419 F.3d at 1128 (quoting Shepard , 544 U.S. at 16). Becker does not claim that the district court did otherwise.-7- arguments Becker raises. Hubbard was convic ted under state law for attempting to make a series of lewd or indecent proposals to engage in unlawful sexual relations with a person he believed was a child, but who was actu ally a police officer. 480 F.3d at 343. Based on the broad meaning of “relating to,” the Fifth Circuit reasoned that Hubbard’s earlier conviction triggered the statutory minimu m, even though ther e was neither actual sexual contact nor an actual minor victim. Id. at 347, 350. Similarly, Becker’s conviction for Indecen t Solicitation of a Child clearly “relates to . . . sexual abuse . . . involving a minor.” § 2252(b)(1). Under McCutchen , the offense need only “stand in some relation to,” “perta in to,” or have a “connection with” sexual abuse of a minor. 419 F.3d at 1127 (quota tion omitted). The lang uage of the Illinois statute under which Becker was convicted provides: A person of the age of 17 years an d upwards commits the offense of indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed , knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct . . . . 720 Ill. Comp. Stat. 5/11-6 (emphasis added ). Because the crime for which Becker was convicted requires intent to commit the type s of acts explicitly lis ted under § 2252(b)(1), we have no difficulty concl uding that his previous convic tion has a clear connection to (i.e., stands in relation to or pertains to) se xual abuse of a minor. Furthermore, we agree with the Fifth Circuit that it is “of no moment” that the ta rgeted victim of Becker’s previous criminal activity was, in reality, an adult law enforcem ent officer. Hubbard , 480-8- F.3d at 346. 3 Factual impossibility is “generally not a defense” to the crime of attempt, an intent-based transgression. United States v. Sims , 428 F.3d 945, 959-60 (10th Cir. 2005). What matters instead is the defendant’s intent and the actions he took toward his objective. Becker intended to sexually assa ult or sexually abuse a child. That no child was actually involved in Becker’s prior convic tion is largely immaterial. Becker believed one was, and acted in accordance with this belief. His crime, therefore, clearly stands in some relation to sexual abuse of a minor. Cf. United States v. Weis , 487 F.3d 1148, 1152 (8th Cir. 2007) (“Weis’s prior conviction requ ired ‘intent to commit sexual abuse.’ Such

a mens rea demonstrates the offense is one ‘rela ting to’ sexual abuse.”). Application of § 2252(b)’s mandatory minimums was thus entirely appropriate.
III Because the plain language of § 2252 (b)(1) and (2) enco mpasses Becker’s previous Illinois conviction, we AFFIRM

.

3 Although we agree with th e Fifth Circuit’s Hubbard decision in this regard, we caution that our opinion today s hould not be read to endorse the position, also adopted in Hubbard , that § 2252(b) “does not require aggrav ated sexual abuse or sexual abuse of a minor ,” and that “the phrase ‘involving a minor’ modifies only ‘abusive conduct.’” 480 F.3d at 350 (emphasis added). This issu e—whether the sexual abuse of adults would qualify as a predicate offense under § 2252(b)—is not before us today.