Virginia Prior Triggers Child Porn Enhancement

US v. Colson: Colson pleaded guilty to multiple counts of receiving movies depicting child pornography.  He was sentenced to a 15-year mandatory minimum term under 18 USC 2252A(a)(2) based on a prior Virginia conviction for the "production, publication, sale, or possession, etc. of obscene items involving children."  Colson argued that, when analyzed under the categorical approach, such a conviction does not qualify for the enhancement because it could have been committed in ways that "relates to the sexual abuse of a minor," as required for the enhancement to apply.

On appeal, Colson renewed his argument, which the Fourth Circuit rejected.  Applying a purely categorical approach and reviewing the Virginia statute in force at the time of Colson's prior conviction (in 1984 - all the records had since been destroyed), the court first concluded that the Virginia statute did not, as Colson claimed, cover "innocuous depictions of nudity" because it punished only the "lewd" exhibition of nudity, not simply the nudity.  In addition, the court concluded that the enhancement applies not only if the prior conviction at issue is for "sexual abuse" or "abusive sexual conduct involving a minor," but whether it is related to those two offenses.  The Virginia statute at issue here categorically "relates to" those offenses.