United States of America v. Darin Kaufmann

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2742
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D ARIN KAUFMANN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 15-cr-59 — Theresa L. Springmann, Chief Judge.
____________________
A RGUED SEPTEMBER 6, 2019 — D ECIDED OCTOBER 9, 2019
____________________
Before EASTERBROOK , KANNE , and BRENNAN, Circuit
Judges.
KANNE , Circuit Judge. For certain federal crimes involving
sexual exploitation of minors, a federal statute—
18 U.S.C. § 2252(b)—increases the mandatory minimum sen-
tence when the defendant has a prior conviction “under the
laws of any State relating to,” among other things, “posses-
sion … of child pornography.” Darin Kaufmann pled guilty
to two federal crimes involving sexual exploitation of a minor.

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2 No. 18-2742
The district court imposed an enhanced mandatory minimum
sentence under § 2252(b) because Kaufmann has prior convic-
tions for possession of child pornography under an Indiana
statute. Kaufmann challenged his sentence, arguing that his
prior state convictions do not support a § 2252(b) enhance-
ment because the Indiana statute of his convictions criminal-
ized conduct broader than the federal version of possession of
child pornography.
In United States v. Kraemer, we held that a § 2252(b) en-
hancement does not require the state statute of conviction to
be the same as or narrower than the analogous federal law.
933 F.3d 675 (7th Cir. 2019). Rather, the words “relating to” in
§ 2252(b) expand the range of enhancement-triggering con-
victions. Id. at 679–83. Under Kraemer, Kaufmann’s Indiana
convictions are ones “relating to … possession … of child por-
nography” and thus support the mandatory minimum en-
hancement. Adhering to our decision in Kraemer, we affirm
Kaufmann’s sentence.
I. BACKGROUND
Kaufmann arranged to care for an elderly man in ex-
change for room and board. The living arrangement ended
when police arrested Kaufmann for stealing money from the
man. As the man’s family packed Kaufmann’s belongings,
they discovered child pornography. A grand jury indicted
Kaufmann on charges of receiving and possessing materials
involving sexual exploitation of a minor, in violation of
18 U.S.C. § 2252(a)(2) and (a)(4), and Kaufmann pled guilty to
both offenses without a plea agreement.
The mandatory minimum sentence for this pair of convic-
tions is enhanced to fifteen years if the defendant has a prior

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No. 18-2742 3
conviction “under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involv-
ing a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child
pornography.” 18 U.S.C. § 2252(b)(1) (emphases added).1
The district court concluded that this enhancement applies
because Kaufmann has prior convictions for possession of
child pornography in violation of Indiana Code
§ 35-42-4-4 (2007). The court accordingly sentenced Kauf-
mann to an aggregate fifteen-year term of imprisonment, fol-
lowed by five years of supervised release. Kaufmann ap-
pealed that sentence, contesting the district court’s determi-
nation that his Indiana convictions trigger the enhancements
under § 2252(b).
II. A NALYSIS
We review de novo a district court’s determination that a
state conviction supports a sentencing enhancement under
§ 2252(b). Kraemer, 933 F.3d at 679.
Kaufmann argues that this determination calls for the
“categorical” approach of Taylor v. United States, 495 U.S. 575
1 Both subsection (b)(1) and subsection (b)(2) enhance the mandatory
minimum sentence for certain crimes involving sexual exploitation of mi-
nors. Subsection (b)(1) imposes a fifteen-year minimum for some crimes
(including Kaufmann’s conviction under § 2252(a)(2)) while subsection
(b)(2) imposes a ten-year minimum for other crimes (including Kauf-
mann’s conviction under § 2252(a)(4)). For each subsection, the enhance-
ment may be triggered by a prior conviction “under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive sexual con-
duct involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child pornogra-
phy.” 18 U.S.C. § 2252(b)(1), (2).

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4 No. 18-2742
(1990). Under that approach, we compare the elements of the
state offense to the elements of the comparable federal of-
fense. Kraemer, 933 F.3d at 679. Only if the state offense is the
same as or narrower than the federal offense does the state
conviction trigger an enhancement. Id. Kaufmann contends
that the “relating to” language in § 2252(b) does not broaden
the scope of state offenses that qualify as predicates for an en-
hancement.
Applying this categorical approach to Kaufmann’s Indi-
ana convictions, Kaufmann argues that the underlying Indi-
ana statute criminalizing possession of child pornography is
broader than federal possession of child pornography and
therefore cannot support an enhancement under § 2252(b).
A federal statute supplies the applicable definition of child
pornography:
any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image
or picture, whether made or produced by electronic, me-
chanical, or other means, of sexually explicit conduct,
where—
(A) the production of such visual depiction involves the use
of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer im-
age, or computer-generated image that is, or is indistin-
guishable from, that of a minor engaging in sexually ex-
plicit conduct; or
(C) such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is engag-
ing in sexually explicit conduct.
18 U.S.C. § 2256(8).

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No. 18-2742 5
Kaufmann argues that the Indiana statute captures not
only possession of materials falling within this definition of
“child pornography,” but also possession of materials falling
outside it. He specifically contends that the Indiana statute en-
compasses possession of images that do not depict an actual
minor.
Kaufmann is right that the Indiana statute does not repli-
cate the federal definition of child pornography. But it
demonstrates at least substantial overlap in content. The state
statute reads:
A person who knowingly or intentionally possesses:
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
that depicts or describes sexual conduct by a child who the
person knows is less than sixteen (16) years of age or who
appears to be less than sixteen (16) years of age, and that
lacks serious literary, artistic, political, or scientific value
commits possession of child pornography, a Class D felony.
I.C. § 35-42-4-4(c) (2007).
Setting aside all overlapping content, Kaufmann urges us
to engage in an element-by-element comparison. In other
words, he argues that the categorical approach ought to apply
to § 2252(b) and, accordingly, that the provision’s “relating

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6 No. 18-2742
to” language does not broaden the scope of enhancement-
triggering offenses.
Kaufmann’s position runs into a critical problem: his ar-
guments are incompatible with our decision in United States
v. Kraemer—a case we decided after the parties submitted
their briefs here.
In Kraemer, we held that the categorical approach does not
apply to § 2252(b)(2) because the “relating to” language in
that provision broadens the state criminal convictions that
support an enhancement. 933 F.3d at 683. We determined that
Kraemer’s conviction for first-degree sexual assault under a
Wisconsin law was a prior conviction “‘relating to’ abusive
sexual conduct involving a minor.” Id. at 684 (quoting
§ 2252(b)(2)). Even though the state law swept more broadly
than the federal law—by setting the victim’s maximum age at
thirteen years while the federal law set the victim’s maximum
age at twelve years—the state conviction still triggered the
sentencing enhancement. Id.
In reaching this conclusion, we reasoned that “relating to”
in § 2252(b)(2) “retains its usual broad meaning.” Id. at 682
(contrasting the usual broad meaning of “relating to” with the
limited meaning of “relating to” in the Immigration and Na-
tionality Act’s removal provision). That is, it means “to stand
in some relation; to have bearing or concern; to pertain; refer;
to bring into association with or connection with.” Id. at 679
(quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992)). We further explained that Congress typically uses this
phrase “to reach any subject that has ‘a connection with, or
reference to,’ the topics the statute enumerates.” Id. (quoting
Coventry Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190, 1197
(2017)).

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No. 18-2742 7
As in Kraemer, the state statute of conviction here indisput-
ably bears a connection to a topic enumerated in § 2252(b). In-
deed, the Indiana statute addresses the same harm—sexual
exploitation of minors—that the enhancement provision tar-
gets. And the state statute addresses that harm by criminaliz-
ing conduct that federal law deems possession of child por-
nography: knowing possession of images depicting sexual
conduct by actual minors. There is no doubt, then, that under
Kraemer, Kaufmann’s convictions under Indiana Code
§ 35-42-4-4 are ones “relating to … possession … of child por-
nography.”
Kaufmann does not argue that the Indiana statute bears no
connection to, or falls outside the “heartland” of, federal pos-
session of child pornography. Kraemer, 933 F.3d at 684. In-
stead, he asserts that Kraemer was wrongly decided and
presses for the categorical approach.
Regardless whether Kaufmann’s Indiana convictions
would trigger an enhancement under the categorical ap-
proach, his prior convictions support an enhancement under
Kraemer. And we adhere to our Kraemer decision today. Kauf-
mann’s state convictions thus qualify as predicates for the en-
hanced mandatory minimum sentence, and we reject Kauf-
mann’s challenge.
III. CONCLUSION
Following our decision in Kraemer, Kaufmann’s prior state
convictions trigger the sentencing enhancements of § 2252(b).
The district court’s sentencing decision based on the en-
hanced fifteen-year mandatory minimum is AFFIRMED.

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