UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4039

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
GARY RANDALL GILBERT,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.
Irene C. Berger,
District Judge. (1:09-cr-00069-1)

Argued:

March 22, 2011

Decided:

April 28, 2011

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

separate opinion concurring in part and
judgment.

Judge Agee wrote a

concurring in the

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Charleston, West Virginia, for Appellant.
Erik S.
Goes, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Karen B. Schommer, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Gary Randall Gilbert pled guilty to knowingly possessing
child pornography, in violation of 18 U.S.C. 2252A(a)(5)(b).
The

district

under

North

court

concluded

Carolina

law

that

for

Gilberts

taking

prior

indecent

conviction

liberties

with

children triggered the sentencing enhancement in 2252A(b)(2)

and sentenced him to 121 months imprisonment and a lifetime
term of supervised release.

Gilbert appeals, contending that

the district court erred in applying the enhancement and imposed

an unreasonable sentence.

We affirm.

I.
In

June

2008,

North

Carolina

probation

officer

found

child pornography on Gilberts computer during a surprise visit

to

his

home.

forensic

examination

of

Gilberts

computer

revealed 159 still images and 8 videos of child pornography.

Among those images were depictions of children under the age of
twelve

engaged

in

sadistic

conduct

and

other

violent

acts.

Gilbert admitted to using his computer and a peer-to-peer file

sharing program to download images and videos from the Internet.
At the time this child pornography was discovered, Gilbert was
on probation for his 2007 North Carolina felony convictions for
second

degree

kidnapping

and

taking

indecent

liberties

with

children.

Under the terms of his probation, Gilbert was not

permitted to possess a computer or have access to the Internet.

On March 18, 2009, a federal grand jury returned a onecount

indictment

charging

Gilbert

with

knowingly

possessing

child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B).

On August 4, 2009, Gilbert pled guilty to the indictment without
the benefit of a plea agreement.

At the plea hearing, the

probation officer who found the child pornography testified that

Gilberts North Carolina offenses involved sexual contact with
a six-year-old child.

Gilbert did not contest this point.

Gilberts presentence report (PSR) calculated his total

offense level as 30 with a criminal history category of III,
which carried an advisory Guidelines range of 121 to 151 months
imprisonment.

Gilberts

conviction

also

carried

statutory

mandatory term of supervised release, ranging from five years to

life.

Gilbert did not object to the calculations.

At sentencing, the district court adopted the Guidelines

calculation contained in the PSR.

The court further found that

based on Gilberts North Carolina conviction for taking indecent

liberties

with

children

he

was

subject

to

18

U.S.C.

2252A(b)(2), which requires a mandatory minimum sentence of

ten years when the defendant 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

4

ward.

Ultimately, the district court sentenced Gilbert to 121

months

imprisonment,

to

be

followed

by

lifetime

term

of

supervised release.
Gilbert timely noted this appeal challenging the district
courts

imposition

of

the

statutory

enhancement

and

his

sentence, particularly the lifetime term of supervised release.

II.
Gilbert contends that the district court erred in finding
that his North Carolina conviction for indecent liberties with
children

triggered

2252A(b)(2).

the

sentencing

enhancement

in

18

U.S.C.
See

We review his claim of error de novo.

United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
A defendant convicted of possessing child pornography faces
an

increased

statutory

sentencing

range

under

18

U.S.C.

2252A(b)(2) if
such 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 conduct involving a minor or
ward, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of
child pornography . . . .
The district court applied a categorical approach in determining
that

North

Carolinas

indecent

such an offense.
5

liberties

statute

constituted

Under

categorical

approach,

courts

analyze

offenses

generically -- that is, by relying solely on [their] essential

elements,

rather

than

on

the

particular

underlying

facts.

United States v. White, 571 F.3d 365, 368 (4th Cir. 2009); see
James v. United States, 550 U.S. 192, 208 (2007); Taylor v.
United States, 495 U.S. 575, 600 (1990) (explaining categorical
approach requires looking only to the fact of conviction and
the statutory definition of the predicate offense, rather than
to

the

particular

underlying

facts).

Under

this

approach,

Gilbert argues that the district court erred in concluding that

the North Carolina statute at issue triggered the enhancement in
2252A(b)(2).
The Government makes two arguments in this regard.
the

Government

categorical

contends

approach

that

because

this

court

need

the

language

not

of

First,

apply

the

2252A(b)(2)

clearly permits a broader inquiry . . . into whether a prior

offense relates to sexual abuse of a minor.

Appellants Br.

at 13 (quoting United States v. Mills, 224 F. Appx 232, 234-35

(4th Cir. 2007); see also United States v. McCutchen, 419 F.3d
1122,

1126-27

(10th

Cir.

2005)

(noting

that

Taylor

did

not

impose the categorical approach as a universal requirement of

all

sentencing

relating

to

enhancements
indicates

and

concluding

[Congresss]

that

intent

to

the

phrase

allow

sentencing court to look beyond the mere elements of a prior

6

state

conviction

in

determining

whether

such

conviction

is

sufficient to trigger application of the identical sentencing

enhancement

in

Government,

then,

Carolinas

18

U.S.C.
we

indecent

can

2252(b)(2)).
look

liberties

beyond

statute

According

the
to

elements

Gilberts

to
of

the
North

underlying

conduct to assess whether the sentencing enhancement applies.

The Government also argues that even under a categorical
approach -- looking only to the elements of the state statute -North

Carolinas

triggers

the

indecent

enhancement

liberties
in

with

children

2252A(b)(2).

offense

Because

we

ultimately agree with this argument, we will assume, without

deciding, that the categorical approach applies.
The state law at issue here provides:
A person is guilty of taking indecent liberties with
children if, being 16 years of age or more and at
least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd
or lascivious act upon or with the body or any part or
member of the body of any child of either sex under
the age of 16 years.
N.C. Gen. Stat. 14-202.1.
The gravamen of Gilberts argument is that because one can
offend the indecent liberties statute without making physical
contact

with

minor,

the

statute

does

not

categorically

relat[e] to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.
578

S.E.2d

when

642,

defendant

648-49

(N.C.App.

repeatedly

See, e.g., State v. Every,

2003)

engaged

(affirming

the

victim

conviction

in

extremely

graphic and explicit [telephone] conversations that were sexual

in nature); State v. McClees, 424 S.E.2d 687 (N.C.App. 1993)
(affirming

conviction

of

high

school

principal

videotaped a female student undressing).

the

enumerated

offenses

of

secretly

According to Gilbert,

2252A(b)(2)

some type of harmful physical contact.

who

necessarily

involve

Appellants Br. at 14.

We disagree.
Turning

first

to

the

text

of

the

statutory

provision,

2252A(b)(2) does not expressly require that predicate state

laws criminalize only sexually-based physical contact.

Nor does

chapter 110 generally define sexual abuse or abusive sexual

conduct to require physical contact.

In fact, the chapter does

not define these terms at all.

Gilbert relies on Begay v. United States, 553 U.S. 137,

143-45 (2008), in which the Supreme Court concluded that to
trigger the sentencing enhancement in a different statute, the
Armed Career Criminal Act, a state offense must be roughly
similar, in kind as well as in degree of risk posed, to that
federal statutes enumerated offenses.
Even assuming Begay
applies in this context, Gilberts argument rests on his
contention
that
the
enumerated
offenses
of
2252A(b)(2)
criminalize only harmful physical contact, a contention we
reject.
8

Chapter
require

109A

physical

does

define

contact.

See

similar
18

federal

U.S.C.

offenses

2241

to

(aggravated

sexual abuse); 2242 (sexual abuse); 2243 (sexual abuse of a

minor or ward); 2244 (abusive sexual contact).
however,

2252A(b)(2)

federal definitions.

does

not

for

us

to

apply

these

Congress certainly could have done so and

has done so in other provisions.

(providing

instruct

Critically,

life

See, e.g., 18 U.S.C. 2241(c)

sentence

when

the

defendant

has

previously been convicted of . . . a state offense that would

have been [a federal] offense); id. 3559(e)(2)(B) (defining
State sex offense as an offense that consists of conduct that
would

be

Federal

sex

offense).

Moreover,

2252A(b)(2)

enumerates abusive sexual conduct involving a minor (emphasis

added), which is not defined in chapter 109A.
(criminalizing abusive sexual contact).

Compare 2244

Accordingly, we find

no indication that Congress intended to import the definitions

of chapter 109A to chapter 110.

United States v. Sonnenberg,

556 F.3d 667, 670 (8th Cir. 2009); see also United States v.
Sinerius, 504 F.3d 737, 742-44 (9th Cir. 2007); United States v.
Hubbard, 480 F.3d 341, 347-48 (5th Cir. 2007); but see United
States v. Osborne, 551 F.3d 718, 720-21 (7th Cir. 2009).
Moreover, 2252A(b)(2) encompasses prior convictions under
federal law that by definition do not require physical contact.
For example, the Uniform Code of Military Justice criminalizes
9

indecent liberty with a child and defines indecent liberty as

indecent

conduct,

but

physical

10 U.S.C.

920(j),

(t)(11).

contact

Like

the

is

Fifth

not

required.

Circuit,

[w]e

discern no intent on the part of Congress to impose such a

limitation with regard to prior convictions under state law.
Hubbard, 480 F.3d at 347.

Indeed, Congress expressly included

within 2252A(b)(2) prior convictions under state law relating

to the possession of child pornography, which does not involve
physical contact.
Because Congress has not defined the terms at issue, we
interpret [them] by employing the common meaning of the words.
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).
See also Sonnenberg, 556 F.3d at 671 (giving the identical terms
in 2252(b)(1) their ordinary, contemporary, common meaning);
Sinerius, 504 F.3d at 743 (noting Congresss intent to define
sexual abuse as a generic offense, understood by its ordinary
and

common

meaning).

In

Diaz-Ibarra,

we

defined

the

term

sexual abuse of a minor found in the Sentencing Guidelines to

mean

the

perpetrators

physical

or

nonphysical

misuse

or

maltreatment of a minor for a purpose associated with sexual

gratification.

522

F.3d

at

352

(quoting

United

States

v.

Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (emphasis

added)).

See

also

Sonnenberg,

10

556

F.3d

at

671

(adopting

identical

definition).

We

find

that

definition

instructive

here.
Accordingly, we assess whether North Carolinas offense of
taking indecent liberties with children is an offense relating
to the physical or nonphysical misuse or maltreatment of a
minor for a purpose associated with sexual gratification.
doing

so,

we

are

mindful

relating to for a purpose.

that

Congress

chose

the

In

words

United States v. Weis, 487 F.3d

1148, 1152 (8th Cir. 2007) (internal quotation omitted).

The

phrase relating to carries a broad ordinary meaning, i.e., to

stand in some relation; to have bearing or concern; to pertain;
refer; to bring into association with or connection with.

Id.

(quoting Morales v. Trans World Airlines Inc., 504 U.S. 374, 383
(1992) (internal quotation marks omitted)).
In
holding
contact,

light
in
we

of

the

broad

scope

of

that

abuse

need

Diaz-Ibarra
have

little

difficulty

2252A(b)(2)
not

involve

concluding

prior conviction triggers the enhancement.

that

and

our

physical
Gilberts

Under the terms of

North Carolinas statute, a perpetrator must be at least five

years older than the victim, who must be under 16 years of age.
Cf. Osborne, 551 F.3d at 719-20 (concluding state statute that
lacked

four-year

age

difference

enhancement in 2252(b)(1)).

did

not

trigger

identical

The perpetrator must engage in

some immoral, improper, or indecent liberties with the minor

11

for the purpose of arousing or gratifying sexual desire.

In

our view, such conduct relat[es] to the nonphysical misuse or

maltreatment of a minor for a purpose associated with sexual
gratification.
hold

that

offense

Diaz-Ibarra, 522 F.3d at 352.

North

Carolinas

triggers

the

indecent

sentencing

Accordingly, we

liberties

enhancement

with

in

children

2252A(b)(2).

See Sonnenberg, 556 F.3d at 671 (holding prior conviction under

Iowas

lascivious

acts

with

children

offense,

which

required

either physical or nonphysical misuse or maltreatment of a minor

with the intent to seek libidinal gratification, triggered the
enhancement);
defendant's
proposals

Hubbard,
prior

to

480

state

child

F.3d

at

350-51

conviction

under

16

years

for
of

(holding
lewd
age

that

or

the

indecent

triggered

the

identically-worded enhancement in 2252A(b)(1)).

III.
Gilbert next contends that his sentence is unreasonable.
We apply a deferential abuse-of-discretion standard to determine
the

reasonableness

of

Gilberts

sentence,

looking

first

to

whether the district court committed any procedural error in

fashioning the sentence.
court

commits

Layton, 564 F.3d at 335.

procedural

error

if

it

fails

A district
to

properly

calculate the Guidelines, treats the Guidelines as mandatory,

fails

to

consider

the

statutory
12

factors

under

18

U.S.C.

 3553(a), bases a sentence on facts that are clearly erroneous,

or fails to adequately explain the sentence imposed.

Id. at

335-36 (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

In the absence of any significant procedural error, we then
examine the sentence for substantive reasonableness in light of
all relevant facts.

Id. at 336 (internal quotation omitted).

Gilbert argues that the district court failed to adequately

explain

its

rationale

for

imposing

the

121-month

term

of

imprisonment, the very bottom of the Guidelines range, because

the court failed to address Gilberts lengthy argument for a
downward

variance.

Gilbert

acknowledges,

however,

that

this

argument rests on the conclusion that the district court erred

in

applying

mandatory

the

enhancement

minimum

sentence

of

in

120

2252A(b)(2),
months.

In

which
light

set
of

our

holding that the district court did not so err, and thus could
not have sentenced Gilbert to a term of imprisonment shorter
than 120 months, Gilberts argument must fail.
Moreover,
individualized

the

district

assessment

court
of

provided

Gilberts

an

adequate

within-Guidelines

sentence to permit meaningful appellate review.

United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

The district

court considered Gilberts prior criminal history of deviant

conduct involving children, the nature and circumstances of the
current offense, Gilberts need for treatment and monitoring,
13

and the need to avoid sentencing disparities.

See JA 257-58; 18

U.S.C. 3553(a).
Having

found

that

the

district

court

committed

no

significant procedural error, we address Gilberts claim that

the

lifetime

term

of

supervised

release

is

substantively

unreasonable in that it is greater than necessary to comply

with the purposes of sentencing.

Appellants Br. at 20.

He

asserts that possessing child pornography is one of the lesser

offenses for which a lifetime term of supervised release can be
imposed.

Gilbert does not dispute, however, that his

Id.

crime made him eligible for the lifetime term.

See 18 U.S.C.

3583(k) ([T]he authorized term of supervised release for any

offense under section . . . 2252A . . . is any term of years not
less

than

5,

or

life.).

Nor

does

he

dispute

that

the

Guidelines recommend the statutory maximum term of supervised

release,

when

the

instant

offense

of

conviction

offense.

U.S.S.G. 5D1.2 (policy statement).

is

sex

In accordance with 18 U.S.C. 3583(c), the district court

considered relevant sentencing factors in fashioning the term of
supervised release.

See JA 258-59.

The court considered the

nature of the offense and history and characteristics of the

defendant,

citing

Gilberts

prior

conviction

for

sexually-

based crime involving a minor and that Gilbert was on probation

for

that

offense

when

he

committed
14

the

present

offense.

Further,

the

court

considered

that

Gilbert

downloaded

significant number of images in a short period of time using a

peer-to-peer file sharing program.

See 18 U.S.C. 3553(a)(1).

The court also found that the lifetime term was necessary to
reduce the likelihood that Gilbert would reoffend and to protect
the public, particularly children, from further crimes.
3553(a)(2)(B),(C).

See id.

Lastly, the district court determined that

the lifetime term would provide an opportunity for Gilbert to

receive long-term treatment and monitoring of that treatment.
See id. 3553(a)(2)(D).
In light of the deferential abuse-of-discretion standard of
review, we cannot conclude that the supervised release term was
substantively unreasonable in light of all the relevant facts.
Layton, 564 F.3d at 337.

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

15

AGEE, Circuit Judge, concurring in part and concurring in the

judgment:
I join in Parts I and III of the majority opinion, which
rejects Gilberts argument that his sentence was unreasonable,
and concur in the judgment.

I also agree with the majoritys

conclusion

Gilberts

in

Part

II

that

sentence

was

properly

enhanced under 18 U.S.C. 2252A(b)(2) based on his prior North

Carolina

conviction

for

indecent

liberties

with

child.

However, I write separately because I would neither assume nor

decide that the categorical approach should be used to reach
that conclusion.
categorical

(Majority Op. at 7 (assuming without deciding

approach

applies).)

Instead,

for

the

reasons

set

forth herein, I would follow the Tenth Circuits decision in

United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), and
this Courts unpublished decision in United States v. Mills, 224
F. Appx 232 (4th Cir. 2007), which concluded that an elementsbased categorical approach was unnecessary given the breadth of
provisions identical to 18 U.S.C. 2252A(b)(2).
The categorical approach, set forth in Taylor v. United
States, 495 U.S. 575 (1990), was applied to 18 U.S.C. 924(e),
the Armed Career Criminal Act (ACCA).

See United States v.

Dean, 604 F.3d 169, 175 (4th Cir. 2010) (explaining that the
categorical approach was [o]riginally developed in the context
of [the ACCA] and has been extended to the career offender

16

provisions

under

the

[United

States

Sentencing]

Guidelines).

As the McCutchen court explained, Taylor determined, based on

the specific language and background of 924(e), that the word
burglary as used therein was meant by Congress in the generic
sense in which the term is now used in the criminal codes of
most States.
598).

419 F.3d at 1126 (quoting Taylor, 495 U.S. at

Thus,

a person has been convicted of burglary for purposes

of a 924(e) enhancement if he is convicted of any
crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure,
with intent to commit a crime.
Taylor, 495 U.S. at 599.

And, as we noted in Mills, 924(e)

requires by its plain terms an elements of the crime analysis:

The [ACCA] provides for a sentencing enhancement only
if the defendant is convicted of a felony that has as
an element the use . . . of physical force or is
burglary, arson, or extortion, involves the use of
explosives or otherwise involves conduct that presents
a serious potential risk of physical injury to
another. 18 U.S.C. 924(e)(2)(B).
Mills, 224 F. Appx at 234 (emphases in original).
Accordingly, the language of 924(e), as interpreted in
Taylor, dictates that courts examine the essential elements of
a defendants previous crime, in order to determine whether it
is a predicate offense for ACCA purposes.

See United States v.

White, 571 F.3d 365, 368 (4th Cir. 2009) (under a categorical
approach,

the

offense

is

analyzed

17

genericallythat

is,

by

relying solely on its essential elements, rather than on the

particular underlying facts); James v. United States, 550 U.S.
192, 208 (2007) (in addressing the residual clause of 924(e),
the proper inquiry is whether the conduct encompassed by the
elements

of

the

offense,

in

the

ordinary

case,

presents

serious potential risk of injury to another).

In contrast to 924(e), the language in the enhancement
statute at issue here, 18 U.S.C. 2252A(b)(2), is completely
different.

McCutchen examined an identically-worded provision

found in 2252(b)(2).

As the McCutchen court explained, unlike

924(e), which was triggered by a felony that is burglary,

2252(b)(2) does not state that a prior state crime
will trigger the sentence enhancement provisions if it
is aggravated sexual abuse, sexual abuse, or abusive
sexual
conduct
involving
a
minor.
Rather,
2252(b)(2) states that 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 will trigger the sentence
enhancement provisions.
18 U.S.C. 2252(b)(2)
(emphasis added). As the Supreme Court has indicated,
the phrase 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, . . . . Morales
v. Trans World Airlines, 504 U.S. 374, 383 (1992)
(quoting Blacks Law Dictionary 1158 (5th ed. 1979)).
419

F.3d

at

1126-27

(emphases

in

original);

see

also

United

States v. Rezin, 322 F.3d 443, 448 (7th Cir. 2003) ([t]here is
no

mention

McCutchen

of
court

elements

in

concluded

section
that

18

the

2252(b)(2)).
categorical

Thus,

the

approach

was

inapplicable and that defendants prior conviction for sexual

battery fell within the scope of the enhancement provision.

419

F.3d at 1127.
McCutchen was also cited with approval and followed by our
unpublished
authority,
court

decision
I

find

its

determined

that

battery

was

sexual

2252A(b)(1).
first

in

that

notably

Mills.

While

reasoning
a
a

Mills

persuasive.

Virginia

conviction

proper

predicate

224 F. Appx at 234.

the

language

in

the

broader

than

that

of

not

In

Mills,

for

binding
this

aggravated

offense

under

The Mills court noted

enhancement
the

is

ACCA,

provision
and

that

was
the

enhancement provision clearly permits a broader inquiry not

tied to federal law definitionsinto whether a prior offense
relates to sexual abuse of a minor.
concluded

that

the

categorical

approach

Id. at 235.
was

It thus

inapplicable

and

that the district court was not limited to considering only the
statutory elements of the state offenses.

Id. at 234-35.

I would follow the same approach as McCutchen and Mills in

this case.

In short, Gilberts offense of indecent liberties

with a child 1 is one that clearly falls within the language of

the enhancement provision, for it is a prior conviction . . .

See Majority Op. at 7-8 (describing statutory language);

see id. at 4 (noting Gilbert did not contest that his offense
involved sexual contact with a six-year-old child).
19

under the laws of any State relating to . . . abusive sexual

conduct involving a minor . . . .
(emphasis added).
that

sentencing

18 U.S.C. 2252A(b)(2)

I would apply this plain language to conclude

courts

tasked

with

deciding

whether

North

Carolina conviction for indecent liberties with a child is a

proper predicate offense under 2252A(b)(2) may examine the
facts of a defendants conviction, without requiring an analysis
limited to the elements of that offense. 2

See McCutchen, supra;

Mills, supra; see also United States v. Becker, 625 F.3d 1309,
1311 & n.1 (10th Cir. 2010) (following McCutchen based on the
broad

relating

to

language

in

the

enhancement

provision),

petition for cert. filed, (U.S. Mar. 1, 2011) (No. 10-9229);

United States v. Hubbard, 480 F.3d 341, 348-350 (5th Cir. 2007)
(rejecting an elements-based approach and relying on the broad
relating to language); United States v. Rezin, 322 F.3d 443,
448-49 (7th Cir. 2003) (same).

But see, e.g., United States v.

I also agree with the majority that Begay v. United

States, 553 U.S. 137 (2008) has no impact on the instant case
(Majority Op. at 8 n.*), although for different reasons. Begay,
like Taylor, was an ACCA case. 553 U.S. at 139.
Begay was
specifically concerned with the so-called residual clause of
924(e)(2)(B),
and held that a prior conviction is a proper
predicate conviction only when it is roughly similar, in kind
as well as in degree of risk posed to the enumerated offenses.
Id. at
143.
The language of that statute, however, is a
differently-worded (and narrower) enhancement provision. See id.
at 143-45.
For the same reasons I find resort to the
categorical approach unnecessary here, I do not find Begay to be
applicable.
20

Sonnenberg,

556

F.3d

667,

670

(8th

Cir.

2009)

(applying

categorical approach); United States v. McGrattan, 504 F.3d 608,

612 (6th Cir. 2007) (same); cf. United States v. Strickland, 601
F.3d 963, 967-68 (9th Cir.) (en banc) (applying the modified
categorical approach), cert. denied, 131 S. Ct. 505 (2010).
For the foregoing reasons, I respectfully concur in the
decision to affirm the judgment of the district court.

21