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 District of Oklahoma, Tulsa, Oklahoma 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
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Peter Helmut Becker appeals his sentence for receipt and possession of child 

pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). He argues that the 

district court erred in finding that his earlier Illinois conviction for solicitation of a minor 

qualified as “relating to aggravated sexual abuse, 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 receipt of child pornography, 18 U.S.C. § 2252(a)(2), and 

possession of child pornography, § 2252(a)(4)(B). A Presentence 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) and (2). Subsections (b)(1) and 

(2) use identical language, applying if a defendant 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 offense of Aggravated Criminal Sexual Abuse be 

committed” when he solicited, over the Internet, someone whom 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 the PSR, applied § 2252(b)’s mandatory 

minimum provisions, and sentenced Becker to concurrent sentences of 180 months for 
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receipt of child pornography and 120 months for possession of child pornography. 

Becker’s only argument on appeal is that the district court improperly applied 

§ 2252(b)(1) and (2) based on his Illinois conviction. 

II 

“We review the district court’s interpretation of a criminal statute de novo.” 

United States v. Romero, 122 F.3d 1334, 1337 (10th Cir. 1997). If the plain language of 

the statute is unambiguous, “our inquiry ends.” Id. 

Becker suggests that the phrase “relating to” should be construed narrowly, thus 

excluding his prior conviction. Using his preferred narrow construction, he contends that 

his Illinois conviction: (1) was for an inchoate crime, and was therefore not “relating to 

aggravated sexual abuse, sexual abuse, or abusive sexual conduct”; and (2) was for 

soliciting a police officer, and so was not “relating to” a crime involving a minor or ward. 

His arguments are unavailing. In another context, 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 circuit 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 ambit, and his sentence must therefore be 

affirmed. 
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A 

In McCutchen, we rejected the argument that § 2252(b) should be construed in a 

“narrow categorical” manner. 419 F.3d at 1127. McCutchen’s predicate offense was a 

Kansas conviction for sexual battery. Id. at 1123. Although the victim of that prior 

crime was a child under the age of sixteen, Kansas’ sexual battery statute did not require 

a child victim as an element 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 crucial 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 predicate 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 have bearing or concern; to pertain; refer; to bring into 

association with or connection 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 majority 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. 2009); 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 Cir. 2003); United States 

v. Mills, 224 Fed. App’x 232, 234-35 (4th Cir. 2007) (unpublished) (broad application of 
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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 Sixth Circuit’s approach from 

McGrattan, 504 F.3d at 612. In Hubbard, the Northern District of Texas reasoned that 

the sex crimes listed in § 2252A(b)(1) were defined elsewhere in the federal criminal 

code—for example, “sexual abuse” is defined by specific elements in 18 U.S.C. § 2252—

and that Hubbard’s crime did not fit into any statutory definition included in 

§ 2252A(b)(1). See United States v. Hubbard, No. 3:04-CR-220-M, 2005 WL 936965, at 

*2 (N.D. Tex. Apr. 20, 2005) (unpublished). That 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 Becker’s, arose out of his Internet 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 categorical approach, which we have squarely 

rejected in a § 2252(b) context. 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 relevant language identical to § 2252(b)); 

United States v. Harding, 172 Fed. App’x 910, 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 whether the government could prove the elements of a prior 
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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 conviction in determining whether such conviction is sufficient 

to trigger application of the [statutory minimum].” 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 broad 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 distinguishes his case from 

McCutchen. 

Using the broad interpretation of § 2252(b), two of our sister circuits have held 

that inchoate sex crimes constitute prior convictions “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 sexual 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 concern in Shepard was ensuring 

that all facts relied upon for a federal sentencing enhancement were found by a jury or 

admitted by the defendant. 544 U.S. at 24-25. As we explained in McCutchen, a district 

court may rely on 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” to determine whether the prior conviction fits 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. 
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arguments Becker raises. Hubbard was convicted 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 actually 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 minimum, even though there was neither actual 

sexual contact nor an actual minor victim. Id. at 347, 350. 

Similarly, Becker’s conviction for Indecent 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,” “pertain to,” or have a “connection with” sexual 

abuse of a minor. 419 F.3d at 1127 (quotation omitted). The language of the Illinois 

statute under which Becker was convicted provides: 

A person of the age of 17 years and 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 types of acts explicitly listed under § 2252(b)(1), 

we have no difficulty concluding that his previous conviction has a clear connection to 

(i.e., stands in relation to or pertains to) sexual abuse of a minor. Furthermore, we agree 

with the Fifth Circuit that it is “of no moment” that the targeted victim of Becker’s 

previous criminal activity was, in reality, an adult law enforcement officer. Hubbard, 480 
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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 assault or sexually abuse a child. That no child 

was actually involved in Becker’s prior conviction 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 required ‘intent to commit sexual abuse.’ Such 

a mens rea demonstrates the offense is one ‘relating 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) encompasses Becker’s 

previous Illinois conviction, we AFFIRM. 

 3 Although we agree with the Fifth Circuit’s Hubbard decision in this regard, we 

caution that our opinion today should not be read to endorse the position, also adopted in 

Hubbard, that § 2252(b) “does not require aggravated 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 issue—whether the sexual abuse of adults would 

qualify as a predicate offense under § 2252(b)—is not before us today.