U.S. Justin Rosenbohm

Justin Rosenbohm is a registered
sex offender with a prior conviction for sexual misconduct
against a minor. In this case, the actions resulting
in his conviction were abhorrent, but Rosenbohm’s
sole argument on appeal is one of statutory interpretation,
permitting us to spare the reader the details
of his conduct.

On October 17, 2007, Rosenbohm was indicted on three
charges related to improper sexual conduct with minors

1Rosenbohm has two prior convictions for sex-related offenses.
The Illinois conviction occurred in 2000, and, only one month
later, Rosenbohm was convicted for violating federal law by
possessing child pornography. Under 18 U.S.C. § 3559(e)(2)(A),
a prior conviction for possession of child pornography is not
a qualifying offense that triggers § 3559(e)(1)’s mandatory
life sentence. Therefore, this conviction is not at issue in
this appeal.

and failure to update his sex offender registration. On
February 8, 2008, Rosenbohm pled guilty to sexually
exploiting children and producing sexually explicit images
of minors, in violation of 18 U.S.C. §§ 2251(a), 2260A, and
3559(e)(1). In the presentence investigation report, the
probation officer recommended a total offense level of
forty and a criminal history category III, resulting in an
advisory Sentencing Guidelines range of 360 months to
life in prison. However, based on Rosenbohm’s prior
conviction for aggravated criminal sexual abuse in
Peoria County, Illinois,1 the probation officer recommended
that the district court apply 18 U.S.C. § 3559(e)(1),
which imposes a mandatory life sentence for a repeat
offender who has a “prior sex conviction” against a child.

On June 27, 2008, the district court held Rosenbohm’s
sentencing hearing. Rosenbohm objected to the applicability
of the mandatory life sentence under § 3559(e)(1),
arguing that his Illinois state conviction was not a qualifying
“prior sex conviction.” The district court disagreed,
finding that the statute was “very straightforward” and
encompassed Rosenbohm’s prior conviction. Although
the district judge applied the mandatory life provision

Because Rosenbohm 2 was a registered sex offender at the
time he committed the instant offense, the district court also
imposed an additional ten-year prison term, to be served
consecutively with his sentence for the underlying offense, as
required by 18 U.S.C. § 2260A. Rosenbohm does not challenge
the applicability of § 2260A.

of § 3559(e)(1), he went on to address each of the sentencing
factors in 18 U.S.C. § 3553(a). After stating that
Rosenbohm’s conduct “[i]s about as serious as it gets
under this statute,” the district judge noted the
importance of protecting the public. Based on § 3559(e)’s
mandatory life sentence provision and his analysis of
the sentencing factors, the district judge sentenced
Rosenbohm to life imprisonment without parole.2

The sole issue that Rosenbohm presents on appeal is
whether his prior state conviction for aggravated criminal
sexual abuse constitutes a “prior sex conviction” under
18 U.S.C. § 3559(e). The interpretation of a statute is a
question of law, which we review de novo. United States
v. Thornton, 539 F.3d 741, 745 (7th Cir. 2008). We find
that Rosenbohm’s prior Illinois conviction qualifies as a
triggering offense for the mandatory life sentence, and
we therefore affirm his sentence.

In short, § 3559(e) imposes a mandatory life sentence
for a defendant who commits repeated sex offenses
against a child. The operative provision reads: “A person
who is convicted of a Federal sex offense in which a
minor is the victim shall be sentenced to life imprisonment
if the person has a prior sex conviction in which a
minor was the victim, unless the sentence of death is
imposed.” 18 U.S.C. § 3559(e)(1). A “prior sex conviction,”
for purposes of this statute, is “a conviction for which
the sentence was imposed before the conduct occurred
constituting the subsequent Federal sex offense, and
which was for a Federal sex offense or a State sex offense.”
Id. § 3559(e)(2)(C).

Thus, to determine whether Rosenbohm’s Illinois
conviction for aggravated criminal sexual assault constitutes
a “prior sex conviction,” we turn to the definitions
of “Federal sex offense” and “State sex offense,” which
are as follows:

(A) the term “Federal sex offense” means an offense
under section 1591 (relating to sex trafficking
of children), 2241 (relating to aggravated sexual
abuse), 2242 (relating to sexual abuse), 2244(a)(1)
(relating to abusive sexual contact), 2245 (relating
to sexual abuse resulting in death), 2251 (relating
to sexual exploitation of children), 2251A (relating
to selling or buying of children), 2422(b) (relating
to coercion and enticement of a minor into prostitution),
or 2423(a) (relating to transportation of
minors);

(B) the term “State sex offense” means an offense
under State law that is punishable by more than
one year in prison and consists of conduct that
would be a Federal sex offense if, to the extent or
in the manner specified in the applicable provision
of this title—
(i) the offense involved interstate or foreign
commerce, or the use of the mails; or
(ii) the conduct occurred in any commonwealth,
territory, or possession of the
United States, within the special maritime
and territorial jurisdiction of the United
States, in a Federal prison, on any land or
building owned by, leased to, or otherwise
used by or under the control of the Government
of the United States, or in the
Indian country (as defined in section 1151)
. . . .
Id. § 3559(e)(2)(B).

Although the provisions of § 3559(e) are lengthy, the
question in this appeal boils down to whether
Rosenbohm’s Illinois offense constitutes a “State sex
offense,” as defined by § 3559(e)(2)(B). If it does, then the
mandatory life sentence applies. Rosenbohm’s primary
argument is that § 3559(e)(2)(B) requires that a prior
state conviction have had an actual basis for exercising
federal jurisdiction to trigger the mandatory life sentence,
and that his prior Illinois conviction does not qualify
because no federal nexus actually existed. The government,
however, contends that the plain language of
§ 3559(e)(2)(B)’s definition of a “State sex offense” encompasses
all conduct that would have constituted a “Federal
sex offense” had a federal jurisdictional hook existed.

As with any question of statutory interpretation, we
seek to discern Congress’s intent and begin with the
language it used. See Lamie v. U.S. Tr., 540 U.S. 526, 534
(2004); United States v. Vallery, 437 F.3d 626, 630 (7th Cir.
2006). A cardinal canon of statutory construction is that
we “must presume that a legislature says in a statute
what it means and means in a statute what it says there.”
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). If
the language of a statute is clear and unambiguous, “in
the absence of a clearly expressed legislative intent to
the contrary, that language must ordinarily be regarded
as conclusive.” United States v. Turkette, 452 U.S. 576,
580 (1981) (quotations omitted); see also United States v.
Chemetco, Inc., 274 F.3d 1154, 1159 (7th Cir. 2001).

We turn to the plain language of § 3559(e) and find no
ambiguity in the statute’s definition of a “State sex offense.”
Under this provision, a “State sex offense” is any
conviction under state law, punishable by more than
one year in prison, involving conduct that “would be a
Federal sex offense if ” a basis for exercising federal jurisdiction
had existed. Id. § 3559(e)(2)(B) (emphases added).
The statute then defines two bases for federal jurisdiction:
(1) using the mails or interstate or foreign com
For the purposes 4 of § 3559, “State” is defined as “a State of
the United States, the District of Columbia, and a commonwealth,
territory, or possession of the United States.” 18 U.S.C.
§ 3559(c)(2)(G).
merce, and (2) committing the conduct on property
within the reach of a federal prosecution. See id. By the
statute’s clear language, Congress intended that a prior
state conviction must be congruent to one of several
specific, enumerated federal offenses before triggering a
mandatory life sentence. The plain meaning of this language
is that a qualifying state conviction must have
been based on conduct that—although lacking a federal
nexus—would have constituted a “Federal sex offense”
had such a federal nexus existed. Accord United States
v. Sinerius, 504 F.3d 737, 743-44 (9th Cir. 2007) (citing
§ 3559(e)(2)(B) as an example of a statute that “expressly”
requires a state offense to be congruent with a corresponding
federal offense).

Not only is Rosenbohm’s interpretation of § 3559(e)
contrary to the provision’s plain language, but it would
render portions of § 3559(e)(2)(B)(ii) insignificant and
largely superfluous, which is something we try to avoid.
See Duncan v. Walker, 533 U.S. 167, 174 (2001); United States
v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). The statute
expressly contemplates a prior state conviction, but, even
under the statute’s definition,4 no “state” prosecution
could occur in some of the geographic locales enumerated
in § 3559(e)(2)(B)(ii). A defendant would not have a
prior state conviction based on conduct occurring in a
special maritime or territorial jurisdiction, for example.
The statute also includes “any land or building owned
by, leased to, or otherwise used by or under the control
of the Government of the United States” (which could be
anywhere in the world) and “the Indian country.” Id.
We can think of numerous situations where no state
conviction would be possible in these locations, and to
read § 3559(e)(2)(B) in the manner Rosenbohm suggests
would mean that Congress served no purpose by including
these in the statute.

Another factor favoring our interpretation of § 3559(e) is
that Congress has passed similar statutes requiring that
conduct resulting in a prior state conviction be congruent
with a federal crime before a sentencing enhancement
applies. For example, 18 U.S.C. § 2241(c), which prohibits
aggravated sexual abuse against children, imposes a
mandatory life sentence if a defendant “has previously
been convicted of another Federal offense under this
subsection, or of a State offense that would have been
an offense under either such provision had the offense
occurred in a Federal prison” (emphases added). Presumably,
by limiting a repeat offender’s qualifying prior state
convictions to those that would have been a federal
offense had a federal nexus existed, Congress sought to
confine the serious penalty of a mandatory life sentence
to a standardized, uniform type of criminal conduct,
rather than rely on the states’ various definitions of their
offenses. The statute, as written, ensures that a defendant
previously convicted of a state offense is sentenced to a
mandatory life sentence for the same conduct as a qualifying
federal offense.

On the other hand, and as even Rosenbohm points out
in his brief, if Congress wanted to encompass any prior
state conviction for sexual misconduct involving a
minor, it certainly knew how to do so and could have
worded the statute more broadly. The criminal code is
full of provisions that enhance a penalty for repeat offenders
yet make no distinction between prior convictions
under state and federal law. See, e.g., 18 U.S.C. § 3592(c)(3)
(stating that an aggravating factor for considering
whether to impose the death penalty is a prior conviction
“of another Federal or State offense resulting in the death
of a person” (emphasis added)); 21 U.S.C. § 802(44) (defining
“felony drug offense” as one “punishable by imprisonment
for more than one year under any law of the
United States or of a State or foreign country that prohibits
or restricts conduct relating to [certain drugs]”(emphasis
added)); 21 U.S.C. § 841(b)(1)(A) (“If any person
commits a violation of this subparagraph . . . after two
or more prior convictions for a felony drug offense have
become final, such person shall be sentenced to a mandatory
term of life imprisonment . . . .” (emphasis added)).
Instead, Congress chose to restrict the prior state convictions
triggering § 3559(e)’s mandatory life sentence
to those based on conduct that violated the terms of
specifically enumerated federal laws.

Because we find the definition of a “State sex offense” to
be unambiguous, it is not necessary for us to address
the legislative history of § 3559(e). That said, even a
brief examination of that history supports our interpretation,
and, at the very least, there is no “clearly expressed
legislative intent to the contrary.” Turkette, 452 U.S. at


Consistent with Congress’s a 5 ppetite for appropriate acronyms,
the PROTECT Act is the short form of the Act’s full title: the
Prosecutorial Remedies and Other Tools to end the Exploitation
of Children Today Act of 2003.
580 (quotations omitted). Congress added § 3559(e) in
Section 106(a) of the PROTECT Act of 2003, Pub. L.
No. 108-21, 117 Stat. 650.5 According to House Reports, the
mandatory life sentence applies to “any person convicted
of a ‘Federal sex offense’ if they had previously
been convicted of a similar offense under either Federal or
state law.” H.R. Rep. No. 108-47(I), at 17 (2003) (emphases
added); see also H.R. Rep. No. 107-373, at 2 (2002). This
statement is similar to the final wording of the statute,
but the inclusion of the term “similar” in reference to a
comparison between “Federal or state law” indicates
that Congress intended to ensure that a state conviction
is congruent with its federal counterpart before imposing
a mandatory life sentence. Further, after
describing the increasing recurrence of sexual assault
against children and the high rate of recidivism among sex
offenders, the 2002 House Report concludes: “Children
have the right to grow up protected from sexual predators
and free from abuse. H.R. 2146 will protect America’s
children by permanently removing the worst offenders
from our society—those who repeatedly victimize children.”
H.R. Rep. No. 107-373, at 3 (2002). To provide
children this protection from only those sex offenders
who abused their victims using interstate commerce or
the mails or on federal land would frustrate Congress’s
intent in enacting § 3559(e).

For these reasons, we agree with the government that,
under § 3559(e), a mandatory life sentence is appropriate
for a defendant with a prior state conviction based on
conduct that would have been a “Federal sex offense” had
there been a basis for federal jurisdiction. The statute
does not require that a federal jurisdictional hook actually
exist. In other words, the statute demands only that
the conduct resulting in the prior state conviction satisfy
the elements of one of the Federal sex offenses enumerated
in § 3559(e)(2)(A) before a district court may rely on it as
the basis for imposing a mandatory life sentence.
Rosenbohm’s prior Illinois conviction for aggravated
criminal sexual assault meets that requirement, and it is
therefore a qualifying “State sex offense” under § 3559(e).

One additional argument merits brief discussion.
Rosenbohm contends that, even if we interpret § 3559(e)
in the government’s favor, we should apply the rule of
lenity because the statute was ambiguous, and we
should not impose a mandatory life sentence “based
upon mere speculation as to Congressional intent.” (Petr.’s
Br. 17-18.) The rule of lenity instructs courts to read an
ambiguous statute narrowly to ensure “fair warning of the
boundaries of criminal conduct and that legislatures, not
courts, define criminal liability.” Crandon v. United States,
494 U.S. 152, 158 (1990). The rule applies, however, only
when the statute is, in fact, ambiguous. See Moskal v.
United States, 498 U.S. 103, 107 (1990) (“[T]he touchstone
of the rule of lenity is statutory ambiguity.” (quotations
omitted)). Thus, we only need to reach the issue if “a
reasonable doubt persists about a statute’s intended scope
even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Id. at
108 (quoting Bifulco v. United States, 447 U.S. 381, 387
(1980)). We have no doubt about the intended scope of
§ 3559(e)’s definition of a “State sex offense,” and we are
not resorting to “mere speculation as to Congressional
intent” in our interpretation. The rule of lenity does not
apply.

For the above reasons, the district court did not err
in sentencing Rosenbohm to a mandatory life sentence.
We AFFIRM.
4-30-09

Chicago Criminal Lawyer - Robert J Callahan