United States v. Whidden – Eleventh Circuit Re-Affirms Kushmaul and Clarifies the Categorical Test for § 2252A Recidivist Enhancements

Introduction

In United States v. Donovan E. Whidden, the Eleventh Circuit confronted yet another challenge to the federal 15-year mandatory-minimum sentencing enhancement contained in 18 U.S.C. § 2252A(b)(1). The defendant—already a registered sex offender—argued that his prior Florida conviction for “promoting a sexual performance by a child,” Fla. Stat. § 827.071(3), could not serve as a qualifying predicate because, under a strictly “categorical” lens, the state statute allegedly swept more broadly than the federal enhancement’s reference to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The district court disagreed, sentenced Whidden to 192 months, and the Eleventh Circuit has now affirmed.

The opinion is significant for two overlapping reasons:

1. It re-affirms and entrenches the court’s earlier decision in United States v. Kushmaul, 984 F.3d 1359 (11th Cir. 2021), holding that § 827.071(3) categorically qualifies as a § 2252A(b)(1) predicate; and
2. It clarifies the weight to be accorded to a prior decision decided on plain-error review when the same categorical question is reviewed de novo.

Summary of the Judgment

After pleading guilty to one federal count of receiving child pornography, Whidden faced either (1) a guideline range of 151–188 months (without the recidivist enhancement) or (2) a mandatory minimum of 180 months with a guideline range of 180–188 months (if the enhancement applied). Invoking Kushmaul and related precedent, the district court adopted the higher range and sentenced him near the top—192 months—plus 10 years’ supervised release.

On appeal, Whidden renewed (and expanded) his categorical-approach arguments, claiming: (a) the state statute is overbroad; (b) the court should compare the Florida statute not to § 2252A(a)(2) (receipt of child pornography) but to 18 U.S.C. § 2243(a) (sexual act with a minor aged 12–15); (c) the word “relating to” in § 2252A(b)(1) is unconstitutionally vague; and (d) the rule of lenity should apply. The Eleventh Circuit rejected every point, holding that:

• Kushmaul’s reasoning is persuasive even under de novo review;
• Whidden did not preserve his “§ 2243(a) analogue” theory, so only plain-error review applied—and no plain error existed; and
• The statute is neither vague nor “grievously ambiguous,” so the rule of lenity is inapposite.

Analysis

1. Precedents Cited and Their Influence

1. United States v. Kushmaul, 984 F.3d 1359 (11th Cir. 2021). Decided on plain-error review, Kushmaul found that Fla. Stat. § 827.071(3) is not overbroad compared with the federal generic offenses enumerated in § 2252A(b). Whidden sought to distinguish (or confine) that holding, but the panel characterized Kushmaul as the “most robust analysis” available and applied it wholesale.
2. United States v. Miller, 819 F.3d 1314 (11th Cir. 2016). Provides the basic framework for applying the categorical approach to § 2252A(b)(1) enhancements and interprets the phrase “relating to” broadly in the child-exploitation context.
3. United States v. McGarity, 669 F.3d 1218 (11th Cir. 2012). Although later abrogated on restitution issues by Paroline, McGarity’s interpretation of § 2252A(b)’s enhancement language remains authoritative and was reaffirmed in Whidden.
4. Mellouli v. Lynch, 575 U.S. 798 (2015). Cited by Whidden for the proposition that “relating to” should be read narrowly, but the Eleventh Circuit reiterated its prior view that Mellouli does not displace the circuit’s child-exploitation precedents.
5. Other circuit cases (Corbett, Lusk, Brown, Sanchez, Dudley) were invoked mainly on preservation and plain-error standards.

2. Legal Reasoning of the Court

The opinion deployed a classic categorical approach analysis, broken down into five key moves:

1. Identify the Relevant State Statute – Fla. Stat. § 827.071(3) criminalizes, knowingly employing, authorizing, or inducing a minor to engage in a sexual performance for any purpose.
2. Determine the “Least Culpable” Conduct – Following Kushmaul, the court assumed the minimum conduct involved some level of physical touching during the performance (e.g., an image of a hand on a clothed minor’s buttocks).
3. Define the Federal Generic Offenses – Because “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct” are “non-traditional” generic offenses, the court defined them according to their ordinary, contemporary meaning, not by reference to any one federal statute.
4. Compare the Elements – The court observed that the generic phrase abusive sexual conduct involving a minor has been held broad enough to capture offenses with no physical contact (e.g., online enticement). Therefore, a statute requiring some physical contact cannot be overbroad.
5. Address Preservation and Plain-Error – On Whidden’s new § 2243(a) theory, the panel applied plain-error review because that specific analogue was never argued below. No “binding precedent” or “explicit statutory language” foreclosed the district court’s approach, so any error was not “plain.”

Finally, the court disposed of Whidden’s vagueness and lenity arguments, holding that the phrase “relating to” has been consistently interpreted by the circuit and is not “grievously ambiguous.”

3. Likely Impact of the Judgment

• Binding Effect Beyond Plain-Error Context – By treating Kushmaul as effectively binding in a de novo setting, the panel signals that earlier plain-error analyses can carry substantial precedential weight when the reasoning is “robust.” Future defendants cannot assume that a prior “plain-error” posture lessens a decision’s force.
• State-Law Predicate Stability – Any defendant with a prior conviction under Fla. § 827.071(3) (or analogously worded state statutes) should now expect the 15-year mandatory minimum under § 2252A(b)(1) to apply in the Eleventh Circuit.
• Strategic Guidance for Defense Counsel – Whidden underscores the importance of preserving every analogue or categorical theory at the district-court level. Failure to do so will invite plain-error hurdles that are seldom overcome.
• Categorical-Approach Jurisprudence – The opinion deepens the circuit’s trend of reading the “relating to” language expansively in child -exploitation statutes, maintaining a defendant-unfriendly stance when it comes to breadth challenges.

Complex Concepts Simplified

• Categorical Approach – A method that compares the text (“elements”) of the defendant’s prior statute of conviction with the text of a federal generic offense, ignoring the actual facts of the defendant’s prior case.
• Least-Culpable Conduct – Courts presume the defendant was convicted of “the smallest thing the statute covers,” ensuring the analysis does not rely on aggravated circumstances that may not be present in every case under the statute.
• Plain-Error vs. De Novo Review – • De novo: The appellate court decides the legal question fresh, with no deference.
  • Plain-error: A stricter standard applied when the issue was not properly preserved; the defendant must show the error was clear/obvious and affected fairness.
• “Relating to” – A statutory phrase that the Eleventh Circuit reads broadly, meaning any offense having a logical or causal connection to child sexual abuse qualifies—not just carbon-copy offenses.
• Rule of Lenity – A doctrine that resolves grievous ambiguity in criminal statutes in the defendant’s favor. If ordinary tools of interpretation clarify Congress’s intent, lenity does not apply.

Conclusion

United States v. Whidden cements two doctrinal propositions in Eleventh Circuit law. First, Fla. Stat. § 827.071(3) is categorically a § 2252A(b)(1) predicate, guaranteeing a 15-year mandatory minimum for federal child-pornography defendants with that prior conviction. Second, reasoned analyses in earlier plain-error cases—here, Kushmaul—will be treated as effectively binding where no contrary authority exists. For practitioners, the case provides both a warning (preserve every analogue argument at sentencing) and a roadmap (understanding how the Eleventh Circuit defines and compares generic child-sex-abuse offenses). In the broader context, Whidden reinforces a tough-on-offenders posture and offers lower courts a clear, simplified template for applying the categorical approach in child-exploitation enhancements going forward.