United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED June 23, 2023 No. 22-10412 Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Sherman Moore,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-309-1 ______________________________

Before Smith, Higginson, and Willett, Circuit Judges. Jerry E. Smith, Circuit Judge: This case presents a pure question of statutory interpretation: What does the phrase “relating to the sexual exploitation of children” in 18 U.S.C. § 2251(e) mean? The statute in question, titled “Sexual exploitation of chil- dren,” criminalizes offenses relating to child pornography. It then provides a mandatory sentencing enhancement for those who have two or more prior state convictions “relating to the sexual exploitation of children.” Sherman Moore has two state convictions for indecent exposure to children. The government contends that those convictions “clearly” relate Case: 22-10412 Document: 00516798671 Page: 2 Date Filed: 06/23/2023

No. 22-10412

“to the sexual exploitation of children,” so Moore should be subject to the enhancement. Moore counters that “sexual exploitation of children,” in this context, applies only to offenses relating to child pornography, so his sen- tence is not subject to the enhancement. We hold that 18 U.S.C. § 2251(e)’s use of the phrase “relating to the sexual exploitation of children” refers to any criminal sexual conduct involv- ing children. Moore’s convictions for indecent exposure to a child neatly fall within that broad category, so we affirm the judgment of sentence.

I. Sherman Moore pleaded guilty of indecent exposure to a child under Texas Penal Code § 21.11(a)(2) in 1992 and was placed on deferred adjudi- cation probation. He was convicted under the same statute in 1995 for a sepa- rate offense and sentenced to eight years in prison. After serving six years, he was placed on parole. In 2021, Moore pleaded guilty of sexual exploitation of children under 18 U.S.C. § 2251(a). The presentence report (“PSR”) did not include the sentencing enhancement, but the government requested it in an objection to the PSR. The government contended that Moore’s two state convictions for indecent exposure to a child made him subject to the enhancement. Over Moore’s response, the district court agreed and sentenced Moore to 35 years’ imprisonment. Moore appeals, contending that his prior convictions are not convic- tions “relating to the sexual exploitation of children.”

II. Moore properly preserved the issue in the district court. Our review is thus de novo. United States v. Hubbard, 480 F.3d 341, 344 (5th Cir. 2007) (“We review the district court’s interpretation of a federal statute, as well as

2 Case: 22-10412 Document: 00516798671 Page: 3 Date Filed: 06/23/2023