Best Tulsa Sex Crimes Attorney | Confidential Consultation | Call 918-277-4800
This content was written for Cale Law Office
Cale Law Office is the best Tulsa sex crimes attorney people go to for aggressive representation. Call the Cale Law Office at 918-277-4800 for a free initial consultation. Attorney Stephen Cale has 20 years of experience and dedicates his practice to criminal defense. Fight against your child pornography charges.
Walter Bryan Hubbard was convicted under Oklahoma law for attempting to make a series of lewd or indecent proposals to engage in unlawful sexual relations with a person he believed to be a 14-year-old girl. The person to whom he made such proposals over the internet and by phone was, in fact, an adult undercover agent. Later, Hubbard was convicted on an unrelated federal charge of distributing child pornography. He was sentenced to 97 months in prison.
The only issue in the Government’s appeal of that sentence is whether Hubbard’s Oklahoma conviction was “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor”. And therefore, whether a mandatory minimum sentence should have been imposed in this case. Because the mandatory minimum sentence of 15 years applied, the federal appeals court vacated Hubbard’s sentence and remanded for resentencing.
FBI agents found images of child pornography stored on Hubbard’s computer when they executed a search warrant at a home in Garland, Texas where Hubbard, a registered sex offender, was living. Hubbard admitted to the agents that, using the Yahoo! screen name “youngrllovers2003,” he had transmitted child pornography images over the internet. The government charged Hubbard with violating 18 U.S.C. § 2252A(a)(2), alleging that he distributed at least eight images depicting “minors engaged in sexually explicit conduct, sadistic and masochistic abuse, and the lascivious exhibition of the genitals and pubic area . . . .” Hubbard pleaded guilty to the charge. Call Tulsa sex crimes attorney Stephen Cale to fight your child pornography charges.
In the presentence report (PSR), United States Probation calculated Hubbard’s total offense level at 30, which, with a criminal history category of II, would yield an advisory Guidelines sentencing range of 108 to 135 months. The government conceded at the sentencing hearing that Hubbard qualified only for a 2-level enhancement under section 2G2.2(b)(2)(E) rather than a 5-level enhancement under section 2G2.2(b)(2)(B) that the PSR had assessed. This resulted in an advisory Guidelines’ range of 78 to 97 months.
However, the PSR had concluded that a mandatory minimum sentence of fifteen years (180 months) should be imposed based on 18 U.S.C. § 2252A(b)(1) because Hubbard had a prior state conviction for attempting to make lewd or indecent proposals to a child under the age of 16 by attempting to make proposals to engage in unlawful sexual relations. According to the PSR, in January 2002, Hubbard communicated with a person on the internet whom he thought was a 14-year-old girl named “Amber Davis.” Hubbard suggested that the two go to a hotel in Altus, Oklahoma to engage in various sex acts, including intercourse, and “Amber” agreed. Unbeknownst to Hubbard, “Amber” was actually an undercover detective, and Hubbard was arrested in a grocery store parking lot when he attempted to meet her as planned. Hubbard subsequently pleaded guilty to violations of title 21, sections 1123 and 42 of the Oklahoma Code, and received a 10-year, suspended sentence. The PSR concluded that this conviction was a “prior conviction under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” within the meaning of 18 U.S.C. § 2252A(b)(1) and thus that Hubbard should receive that section’s fifteen-year mandatory minimum sentence. With charges like this, you need the best Tulsa sex crimes attorney.
The district court rejected the PSR’s recommendation in this regard, holding that the terms “sexual abuse” and “abusive sexual conduct,” as used in § 2252A(b)(1), required “some unlawful physical contact between a defendant and the defendant’s victim” and that Hubbard’s Oklahoma conviction did not involve such contact. The district court further held that “relating to” did not mean “attempting to” and that a conviction for “soliciting sex from a person the Defendant believed to be under sixteen” would not qualify. Anyone charged with lewd proposal to a child needs the best Tulsa sex crimes attorney. Call the Cale Law Office at 918-277-4800 for your free initial consultation.
The court held “if Congress intended 18 U.S.C. § 2252A(b)(1) to compel a fifteen-year minimum sentence for any person who made a lewd proposal to a person he believed to be a minor, additional language would be required.” The district court found that Hubbard’s total offense level was 27 and sentenced him at the top of the advisory Guidelines range, to 97 months imprisonment. The government appeals, arguing that Hubbard is subject to the mandatory minimum sentence.
The question before the Court was whether Hubbard’s prior Oklahoma conviction is “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” For your sex crimes charge, get the best Tulsa sex crimes attorney. Hubbard was convicted for attempting to commit. The state-court judgment reflects that Hubbard pleaded guilty to two counts contained in the “Information” in the state court proceedings. One of those counts was that he had attempted to make a series of lewd or indecent proposals to a person he believed to be 14 years old in an attempt to engage in unlawful sexual relations.
The appeals Court first addressed the district court’s determination that Hubbard’s Oklahoma conviction was not one “involving a minor” within the meaning of 18 U.S.C. § 2252A(b)(1) because no minor was actually involved in his crime. When a statute criminalizes conduct because the victim or intended victim is a minor, we have held that it is of no moment that the person with whom a defendant attempted to engage in prohibited conduct was actually an adult as long as the defendant believed the intended victim to be a minor and there is proof of two elements. In such a complicated area, you need the best Tulsa sex crimes attorney.