FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11420

Non-Argument Calendar

________________________

D. C. Docket No. 07-00214-CR-ORL-31-DAB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

FRANCIS DULLEA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 9, 2008)

Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

Francis Dullea, convicted of one count of possessing child pornography

under 18 U.S.C. § 2252A(a)(5)(B), appeals his 120-month sentence after the

district court applied an enhanced penalty under 18 U.S.C. § 2252A(b)(2). The

district court determined that Dullea’s prior Massachusetts conviction for indecent

assault and battery on a child under fourteen qualified, for the purposes of

§ 2252A(b)(2)’s ten-year mandatory minimum sentence, as a prior conviction

“relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor.” 18 U.S.C. § 2252A(b)(2)(2007). We AFFIRM.

I. BACKGROUND

In 1991, Dullea was convicted of a criminal offense in the Commonwealth

of Massachusetts. Initially, he was charged with a violation of Chapter 265,

Section 23 of the laws of Massachusetts, which prohibits sexual intercourse with a

child under sixteen. R1-29, Exh. 1 at 69. Dullea was ultimately convicted of a

lesser offense – a violation of Chapter 265, Section 13B (“Section 13B”) which

prohibits “indecent assault and battery on a child under the age of fourteen” R1-

29, Exh. 2 at 1 – and sentenced to sixty days in a house of correction, with all but

ten days suspended, followed by one year of probation. R1-29, Exh. 1 at 66. 

Because Dullea did not go to trial, or plead guilty or no contest, but rather

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“admitted to sufficient facts” under Massachusetts law, no written plea agreement

or plea colloquy or explicit factual findings by the state trial judge existed for the

district court to consider for sentencing purposes after his conviction for

possession of child pornography. R1-37 at 112. Nonetheless, the district court

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adjudged Dullea guilty and sentenced him to 120 months, the mandatory minimum

sentence under § 2252A(b)(2). 

On appeal, Dullea argues that his Section 13B conviction does not qualify

under § 2252A(b)(2) for sentencing enhancement purposes because Section 13B

could capture conduct outside of the boundaries set forth in § 2252A(b)(2). 

Because the district court knew only that Dullea admitted to sufficient facts to

sustain a conviction on the 1991 indecent assault charge, but had no way of

knowing what those facts might have been, Dullea contends that conduct that was

not sexually motivated could be found to violate Section 13B but be outside the

ambit of § 2252A(b)(2). As such, Dullea argues that the district court erred in

The district court notes that under Massachusetts law, “[a]n ‘admission to sufficient facts’ 1

... means an admission to facts sufficient to warrant a finding of guilty.” R1-37 at 112 (quoting

Commonwealth v. Duquette, 438 N.E.2d 334, 338 (Mass. 1982), superseded by statute, Mass. Gen.

Laws ch. 278, § 18 (2007)). 

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ruling his Section 13B conviction a predicate offense for § 2252A(b)(2)

enhancement purposes. 

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II. DISCUSSION

We review de novo whether a prior conviction qualifies as an offense for

the purposes of the § 2252A(b)(2) sentencing enhancement. See United States v.

Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008)(per curiam); United States v.

Walker, 228 F.3d 1276, 1277 (11th Cir. 2000)(per curiam). “[I]n determining

whether a prior conviction is a qualifying offense for enhancement purposes, we

apply a categorical approach-that is, we look no further than the fact of conviction

and the statutory definition of the prior offense.” United States v. LlanosAgostadero, 486 F.3d 1194, 1196-97 (11th Cir. 2007) (per curiam) (quotations and

citation omitted). However, where the judgment and statute are ambiguous, we

will remand to the district court to examine the facts underlying the predicate

conviction, and “the district court is generally limited to relying only on the

charging documents, written plea agreement, transcript of plea colloquy, and any

Dullea also raises a rule of lenity argument. We conclude that this line of argument is 2

without merit. As the Supreme Court held in Muscarello v. United States, 524 U.S. 125, 138, 118 

S. Ct. 1911, 1919 (1998), “[t]he simple existence of some statutory ambiguity ... is not sufficient to

warrant application of that rule, for most statutes are ambiguous to some degree.” 

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explicit factual finding by the trial judge to which the defendant assented.” Id. at

1197 (quotations, citations, and internal markings omitted). 

In this case, the district court was effectively limited to consideration of the

charging document and the statutory language of Section 13B and § 2252A(b)(5). 

As previously noted, the charging document provides only that Dullea was

initially charged with sexual intercourse with a child under sixteen but was

ultimately convicted of the lesser offense of indecent assault and battery on a child

under the age of fourteen. We now consider the language of each statute in turn. 

Section 13B does not define any of its terms. Massachusetts courts have

held, however, that “[t]o be ‘indecent,’ an act need not be for the purpose of sexual

gratification or arousal.” Commonwealth v. Conefrey, 640 N.E.2d 116,123 (Mass.

App. Ct. 1994), rev’d, 650 N.E.2d 1268 (Mass. 1995). The same courts have

provided that “[a] touching is indecent when, judged by the normative standard of

societal mores, it is violative of social and behavioral expectations, in a manner

which is fundamentally offensive to contemporary moral values and which the

common sense of society would regard as immodest, immoral and improper.” 

Commonwealth v. Vasquez, 839 N.E.2d 343, 346 (Mass. App. Ct. 2005)

(quotations and citation omitted). Dullea offers no Massachusetts case law in

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which conduct was found to be indecent, and so violative of Section 13B, but not

sexual in nature. We now consider the statutory language of § 2252A(b)(5).

 “Whoever violates [18 U.S.C. § 2252A(b)(5)] shall be . . . imprisoned not

more than 10 years . . . but, if such person has a prior conviction . . . under the

laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor . . . such person shall be . . . imprisoned for not

less than 10 years nor more than 20 years.” 18 U.S.C. § 2252A(b)(2)(2007). The

phrase “relating to” has been defined by the Supreme Court in a different statutory

context as broadly meaning “to stand in some relation; to have bearing or concern;

to pertain; refer; to bring into association with or connection with . . . .” Morales

v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S. Ct. 2031, 2037 (1992)

(citation omitted) (interpreting 49 U.S.C. § 1305(a)(1)). Although we have not yet

addressed § 2252A(b)(2)’s scope in this context, other courts have construed the

“relating to” language as casting a wide net in interpreting § 2252A(b)(2). See,

e.g., United States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (“In short, 

§ 2252A does not simply mandate a sentencing enhancement for individuals

convicted of state offenses equivalent to sexual abuse. Rather, it mandates the

enhancement for any state offense that stands in some relation, bears upon, or is

associated with that generic offense.”). Moreover, we have affirmed the

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application of the similar § 2252A(b)(1) mandatory minimum sentence based on a 3

prior state conviction for performing a lewd act in front of a minor, because such

conviction related to abusive sexual conduct involving a minor. See United States

v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam).

Upon review of the record and the parties’ briefs, we discern no error by the

district court. Applying the Supreme Court’s broad interpretation of the phrase

“relating to,” Dullea’s prior state conviction need only have had some association

or connection with sexual abuse or abusive sexual conduct involving a minor to

trigger the § 2252A(b)(2) sentence enhancement. As provided under

Massachusetts law, Section 13B generally proscribes the touching of a child under

fourteen in a manner that is immodest, immoral and improper. We agree with the

district court that the standard set for a violation of Section 13B is sufficiently

high as to bring it within the statutory language of § 2252A(b)(2) and so conclude

that the district court did not err. 

18 U.S.C. § 2252A(b)(1) provides for an enhanced range of punishment for a violation of 3

§ 2252A(a)(1)-(4) or (6) if the offender “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)(2007). 

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III. CONCLUSION

Dullea appeals the district court’s determination that his prior

Massachusetts conviction for indecent assault and battery on a child under

fourteen qualified for § 2252A(b)(2)’s sentence enhancement. We conclude that

Dullea’s Section 13B conviction is sufficiently related to sexual abuse or abusive

sexual conduct involving a minor to support the application of § 2252A(b)(2)’s

ten-year mandatory minimum sentence. Accordingly, the judgment of the district

court is AFFIRMED. 

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