United States of America v. Christopher Scott Jepsen

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3136
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Christopher Scott Jepsen
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Sioux City
____________
Submitted: September 26, 2019
Filed: December 18, 2019
____________
Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
____________
LOKEN, Circuit Judge.
On May 7, 2018, Christopher Scott Jepsen pleaded guilty to possessing child
pornography on August 5, 2014, in violation of 18 U.S.C. § 2252(a)(4)(B). In the
conditional plea agreement, Jepsen reserved the right to appeal the mandatory
minimum ten-year sentence that would result if his 2011 Iowa conviction for third

-- 1 of 8 --

degree sexual abuse was a “prior conviction” under § 2252(b)(2). The district court1
concluded that the 2011 Iowa conviction was a “prior conviction” and denied
Jepsen’s motion to strike the § 2252(b)(2) enhancement. Jepsen appeals his 120-
month sentence. The issue turns on the effect under federal law of a state court order
correcting the 2011 Iowa Judgment and Sentence which was entered after Jepsen
committed his federal offense in 2014 but before he was indicted. Whether a state
law conviction is a “prior conviction” for purposes of the § 2252(b) enhancement is
an issue of federal law we review de novo. United States v. Gauld, 865 F.3d 1030,
1032 (8th Cir. 2017) (en banc). We affirm.
I.
On August 24, 2011, an Iowa jury found Jepsen guilty of two counts of third
degree sexual abuse in violation of Iowa Code §§ 709.4(2)(b) and (2)(c)(4). On
September 23, the state court entered a Judgment and Sentence sentencing Jepsen to
consecutive ten-year prison terms on each count, suspending imprisonment, and
placing him on probation for five years. Three years later, after Jepsen admitted to
using the internet to obtain child pornography, the State moved to revoke probation.
It also determined that one of Jepsen’s 2011 offenses made him ineligible for a
suspended sentence under Iowa law and moved to correct an illegal sentence.
On January 29, 2016, the state court entered a Corrected Judgment and
Sentence declaring that “[t]he Judgment and Sentence filed September 23, 2011, is
void and vacated,” and sentencing Jepsen to concurrent ten-year prison terms on the
two sexual abuse counts. On February 1, 2016, the court issued a “clarification”
Order stating that the 2011 Judgment and Sentence is void and vacated “except to the
extent any terms were reaffirmed and incorporated into the . . . Corrected Judgment
1The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
-2-

-- 2 of 8 --

and Sentence.” Later that month, a federal grand jury indicted Jepsen for violating
18 U.S.C. § 2252(a)(4)(B) by obtaining child pornography on August 5, 2014.
II.
A defendant who violates § 2252(a)(4) is subject to a ten-year mandatory
minimum sentence if he has a “prior conviction” for an offense listed in 18 U.S.C.
§ 2252(b)(2). The issue is whether Jepsen’s 2011 conviction is a “prior conviction”
under § 2252(b)(2). The parties agree that Iowa third degree sexual abuse is a
qualifying offense and that “prior” means a conviction that occurred before Jepsen
committed the federal offense. See United States v. Talley, 16 F.3d 972, 977 (8th Cir.
1994); United States v. King, 509 F.3d 1338, 1343 (11th Cir. 2007) (interpreting
“prior conviction” in 18 U.S.C. § 2252A(b)(2)). Jepsen argues he lacked a state
“conviction” at the time of his 2014 federal offense because the 2016 Corrected
Judgment and Sentence declared the 2011 Judgment and Sentence “void and
vacated.” The government argues the February 1, 2016, Order confirmed that the
Corrected Judgment and Sentence did not affect the state court jury’s August 2011
finding of guilt that, in the government’s view, determines when a “conviction”
occurred.
The applicable child pornography statutes do not define the term “conviction”
in § 2252(b)(2). See 18 U.S.C. § 2256. Looking at the United States Code more
generally, “the meaning of the terms ‘convicted’ and ‘conviction’ vary from statute
to statute.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113 n.7 (1983). Judge
Posner has observed, “The word ‘conviction’ is a chameleon.” Harmon v. Teamsters
Local Union 371, 832 F.2d 976, 978 (7th Cir. 1987). Closer to the issue in this case,
the Supreme Court observed in Deal v. United States “that the word ‘conviction’ can
mean either the finding of guilt or the entry of a final judgment.” 508 U.S. 129, 131
(1993). The Court in Deal, interpreting the term “second or subsequent conviction”
in 18 U.S.C. § 924(c)(1), applied the “fundamental principle of statutory construction
-3-

-- 3 of 8 --

(and, indeed, of language itself) that the meaning of a word cannot be determined in
isolation, but must be drawn from the context in which it is used.” Id. at 132, citing
King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991).2
The parties argue on appeal, as they did to the district court, that this issue
requires us to decide whether a “conviction” under § 2252(b)(2) requires a judgment
of conviction and the imposition of punishment, or merely a finding of guilt. The
district court, agreeing with the government, concluded that “Eighth Circuit precedent
compels me to conclude that ‘prior conviction’ within the meaning of § 2252(b)(2)
requires only a finding of guilt by a court or a jury.” We have interpreted the term
“prior conviction” in 18 U.S.C. § 2252A(b)(2) as including a plea of nolo contendere
that “resulted in a finding of guilt with adjudication withheld.” United States v.
Storer, 413 F.3d 918, 922 (8th Cir. 2005). But Jepsen argues that Storer does not
resolve whether a “conviction” can precede sentencing because a plea of nolo
contendere results in “some form of punishment.” Therefore, he urges us to follow
the decision in United States v. Pratt, No. 12-20196, 2012 WL 2847573, at *2 (E.D.
Mich. July 11, 2012), where the government was denied an enhancement for a state
conviction when the federal offense occurred after entry of the state court guilty plea
but before imposition of the sentence. The court concluded that the meaning of “prior
conviction” in § 2252A(b)(2) is ambiguous, applied the rule of lenity, and denied the
statutory enhancement. Id. at *4-7.
2Congress has recurring interest in these issues of statutory construction. The
Court’s decision in Dickerson was legislatively amended by the Firearms Owners’
Protection Act, Pub. L. No. 99-308, 100 Stat. 449, see Logan v. United States, 552
U.S. 23, 27-28 (2007); and its interpretation of 18 U.S.C. § 924(c)(1) in Deal was
legislatively superseded by The First Step Act of 2018, Pub. L. 115-391, § 403(a),
132 Stat. 5221, see United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019).
-4-

-- 4 of 8 --

We conclude we do not need to decide whether a finding of guilt is always
sufficient to establish a “prior conviction” because this case presents a significantly
different issue than the one in Pratt. Jepsen conceded at oral argument that entry of
the Judgment and Sentence on September 23, 2011, made his third degree sexual
abuse conviction a “prior conviction” under § 2252(b)(2) by either definition of the
word “conviction” -- there was a finding of guilt by the jury and an adjudication of
guilt and imposition of punishment by the court. It was still a “prior conviction”
nearly three years later, when Jepsen committed his federal offense on August 5,
2014. But, Jepsen argues, it was not a prior conviction once the state court declared
the Judgment and Sentence “void and vacated” and entered a Corrected Judgment and
Sentence on January 29, 2016, prior to his federal indictment. Thus, he contends, the
enhancement cannot apply because a void judgment is a legal nullity.
The Supreme Court of Iowa considers a suspended sentence that was not
authorized by statute to be a “void sentence” that an Iowa court may correct at any
time. State v. Ohnmacht, 342 N.W.2d 838, 842-43 (Iowa 1983); see Iowa R. Crim.
Pro. 2.24(5)(a). Jepsen’s argument equates a void sentence with a void judgment or
conviction. But the Supreme Court of Iowa has never even hinted that a sentence that
is “void” because it was more favorable to the defendant than the Iowa Legislature
permitted invalidates the underlying conviction. Moreover, in construing the word
“conviction” in § 2252(b)(2), “Iowa’s law is not federal law, and it does not control
our decision here.” Dickerson, 460 U.S. at 114 n.9.
Turning to that question of federal law, this case involves a recurring issue:
when does a subsequent modification of a qualifying state conviction preclude or
invalidate a federal sentencing enhancement? The issue has arisen in many contexts.
On the one hand, “courts recognize an obvious exception to the literal language of
federal recidivist statutes imposing enhanced penalties . . . where the predicate
conviction has been vacated or reversed on direct appeal.” United States v. Sanders,
-5-

-- 5 of 8 --

909 F.3d 895, 903 (7th Cir. 2018), cert. denied, 139 S. Ct. 2661 (2019), quoting
Dickerson, 460 U.S. at 115; see Arreola-Castillo v. United States, 889 F.3d 378, 381
(7th Cir. 2018) (defendant can reopen sentence under 18 U.S.C. § 841(b)(1)(A) after
enhancing convictions vacated due to ineffective assistance of counsel); United States
v. Simard, No. 2:10-CR-47, 2019 WL 5704226, at *1 (D. Vt. Nov. 5, 2019) (federal
sentence corrected after state court vacated “prior conviction” supporting
§ 2252(b)(2) enhancement); cf. Johnson v. United States, 544 U.S. 295, 303 (2005).
The Supreme Court held in Dickerson, on the other hand, that an Iowa statute
expunging a deferred judgment of conviction after the defendant completed probation
did not nullify the conviction under federal law because “expunction does not alter
the legality of the previous conviction and does not signify that the defendant was
innocent of the crime to which he pleaded guilty.” 460 U.S. at 115. We applied that
reasoning in United States v. Townsend, concluding that expunction of a deferred
judgment under Iowa law did not disqualify the conviction as a “prior sentence”
under USSG § 4A1.1, in part because it “did not exonerate the person of the
conviction.” 408 F.3d 1020, 1024 (8th Cir. 2005) (quotation omitted); accord United
States v. Nelson, 589 F.3d 924, 925 (8th Cir. 2009) (“our decision in Townsend was
predicated on the basis for expunging the state conviction, not on the effect of
expungement”), cert. denied, 559 U.S. 1113 (2010). As then-Judge Gorsuch
explained in United States v. Dyke, the federal question “is whether the defendant
was previously convicted, not the particulars of how state law later might have, as a
matter of grace, permitted that conviction to be excused, satisfied, or otherwise set
aside.” 718 F.3d 1282, 1293 (10th Cir. 2013).
The same reasoning has been applied in construing other federal sentencing
enhancements. In United States v. Norbury, the Ninth Circuit concluded that a state
court conviction subsequently dismissed with prejudice because defendant complied
with the Sentence and Judgment qualified as a “prior conviction” under 21 U.S.C.
-6-

-- 6 of 8 --

§ 841(b)(1) because the dismissal “neither alters the legality of the conviction nor
indicates that Norbury was actually innocent of the crime.” 492 F.3d 1012, 1014-15
(9th Cir. 2007), cert. denied, 552 U.S. 1239 (2008). Likewise, in United States v.
Martinez-Cortez, we concluded that state court sentences modified after they were
served “for reasons unrelated to [defendant’s] innocence or errors of law” should be
counted in calculating his criminal history score under the Guidelines. 354 F.3d 830,
832-33 (8th Cir.), cert. denied, 543 U.S. 847 (2004).
The enhancement in § 2252(b)(2) increases the punishment imposed on a
repeat offender. When construing a sentence enhancement that combats recidivism,
“[t]hat purpose would not be served by affording a defendant relief from his federal
sentence whenever a state provides him procedural relief related to a previous state
conviction after he has already committed another federal . . . offense.” United States
v. London, 747 F. App’x 80, 85 (3d Cir. 2018); accord Sanders, 909 F.3d at 903;
United States v. Diaz, 838 F.3d 968, 974-75 (9th Cir. 2016), cert. denied sub nom.
Vasquez v. United States, 137 S. Ct. 840 (2017).
Applying these principles, we conclude that Jepsen’s 2011 third degree sexual
abuse conviction is a “prior conviction” that qualifies for the § 2252(b)(2)
enhancement. The Corrected Judgment and Sentence, entered in 2016 long after
Jepsen committed this federal offense, was not based on constitutional invalidity, trial
error, or actual innocence. As the Order clarifying the Corrected Judgment and
Sentence made clear, the sentence correction did not “alter the legality” of the
conviction or “signify that [Jepsen] was innocent of the crime.” Dickerson, 460 U.S.
at 115. Quite the contrary, the prosecution was granted this belated relief because the
original sentence imposed less punishment than the Legislature permitted.
Accordingly, as a matter of federal law, the conviction qualifies for the § 2252(b)(2)
enhancement whether or not the word “conviction” is construed as always requiring
-7-

-- 7 of 8 --

an adjudication of guilt and imposition of sentence as well as a finding of guilt. We
leave that broader interpretive question to another day.
The judgment of the district court is affirmed.
______________________________
-8-

-- 8 of 8 --