No. 23-3012 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Joseph Garner

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Arkansas - Central ____________

Submitted: June 10, 2024 Filed: October 21, 2024 ____________ Before LOKEN, ERICKSON, and GRASZ, Circuit Judges. ____________ LOKEN, Circuit Judge.

Joseph Garner pleaded guilty to Receipt/Distribution of Child Pornography in violation of 18 U.S.C. §§ 2251(a)(2) and (b). The plea agreement acknowledged that, under the governing sentencing statute, § 2252(b)(1), Garner would be subject to a statutory five-year mandatory minimum term of imprisonment that would increase to fifteen years if the court determines that he has a prior conviction under enumerated federal laws or “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The government agreed to dismiss a second count charging Garner with Attempted Production of Child Pornography in violation of 18 U.S.C. § 2251(a). After a change of plea hearing, the district court1 accepted the guilty plea and dismissed the attempted production count.

Garner’s Presentence Investigation Report (“PSR”), published prior to sentencing, noted that his criminal history included a 2015 Texas conviction for Indecency with a Child; Exposing Anus or Genitals in violation of Texas Penal Code § 21.11(a)(2)(A). Section 21.11(a), titled Indecency With a Child, provides:

(a) A person commits an offense if, with a child younger than 17 years of age . . . [he]:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of the child’s genitals. Tex. Penal Code § 21.11 (effective Sept. 1, 2009 to Aug. 31, 2017). Garner was convicted in 2015 after a jury trial for masturbating in front of a child for the purpose of sexual gratification. The Fifth Circuit has held that both contact and exposure offenses “constitute sexual abuse of a minor for purposes of § 2L1.2(b)(1)(A)(ii)” of

1 The Honorable Lee P. Rudofsky, United States District Judge for the Eastern District of Arkansas.

-2- the Guidelines. See United States v. Romero-Hernandez, 588 F. App’x 382, 382 (5th Cir. 2014), cert. denied, 575 U.S. 972 (2015).

The PSR determined that this conviction qualifies as a predicate state law offense under 18 U.S.C. § 2252(b)(1). Garner objected to application of the statutory enhancement. At sentencing, after a discussion focused primarily on our prior decision in United States v. Sonnenberg, 556 F.3d 667 (8th Cir. 2009), the district court overruled Garner’s objection and adopted the PSR without change. “I think Sonnenberg ties my hands. . . . [W]hile it’s not the same statute, the logic in Sonnenberg applied to the statute here makes it 100 percent clear that . . . the Eighth Circuit would apply the enhancement.”

Based on a total offense level of 30 and Garner’s Category IV criminal history, the court determined his advisory guidelines sentencing range is 135 to 168 months imprisonment,