Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, January 06, 2021

Kushmaul: Prior Florida Conviction for Promoting Minor Sexual Abuse Triggered CP Mandatory Minimum

In United States v. Kushmaul, No. 20-10924 (Jan. 6, 2021) (Jordan, Luck, Tjoflat) (per curiam), the Court, without oral argument, affirmed the defendant’s 15-year mandatory minimum sentence for distributing child pornography.

The district court applied the mandatory minimum because the defendant’s prior Florida conviction for promoting the sexual performance of a child related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.  The Court found no plain error.  It rejected the defendant’s categorical-approach argument that the Florida offense was obviously broader than the federal definition because the former encompassed clothed as opposed to unclothed minors.  And because there was no precedent on point, the defendant could not show plain error.