Case: 21-11135 Document: 00516598577 Page: 1 Date Filed: 01/05/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 5, 2023 No. 21-11135 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Eric Grzywinski, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CR-578-1 Before Higginbotham, Duncan, and Engelhardt, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Eric Grzywinski appeals his 45-year sentence for attempting to produce child pornography. The district court enhanced his sentence based on Grzywinski’s prior aggravated sexual assault of a child under Texas law. Grzywinski contests the enhancement because, while the Texas crime can be committed against minors up to 16 years old, he claims the federal predicate offense only includes victims younger than 16. We disagree. The federal enhancement statute at issue, 18 U.S.C. § 2251(e), specifically allows increased sentences for state sex crimes against minors up to 17 years old. See 18 U.S.C. § 2256(1). We therefore affirm Grzywinski’s sentence. Case: 21-11135 Document: 00516598577 Page: 2 Date Filed: 01/05/2023 No. 21-11135 I. Grzywinski pled guilty of attempting to produce child pornography in violation of 18 U.S.C. § 2251(a). 1 Grzywinski admitted he repeatedly texted a 15-year-old girl asking her to send him sexually explicit photos of herself. His written plea agreement advised that he could be subject to an enhanced prison sentence under § 2251(e). That section generally imposes 15–30 years of imprisonment. But the sentence climbs to 25–50 years if, as relevant here, the defendant has one prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children.” § 2251(e). 2 According to his presentence report (PSR), Grzywinski qualified for this enhancement because, inter alia, he previously pled guilty in Texas of aggravated sexual assault of a child in violation of Texas Penal Code § 22.021. 3 At sentencing, Grzywinski’s lawyer did not object to the PSR, acknowledged that Grzywinski understood he was facing a 25-year minimum and asked that the sentence run concurrently with his state sentences. The government argued that 25 years were inadequate given Grzywinski’s criminal history and asked for 30–35 years instead. The district court adopted the PSR’s findings and imposed a sentence of 45 years, to run concurrently 1 All statutory references are to Title 18 of the U.S. Code unless otherwise noted. 2 The term climbs to 35 years to life if the defendant has two or more prior convictions, inter alia, “under the laws of any State relating to the sexual exploitation of children.” Ibid. 3 The aggravated sexual assault charge accused Grzywinski of performing oral sex on a 7-year-old boy he was babysitting. See Tex. Penal Code § 22.021(a)(1)(B)(iii) & (a)(2)(B). The PSR also reported that Grzywinski pled guilty of three charges of indecency with a child, in violation of Texas Penal Code § 22.11. Two of the indecency charges accused Grzywinski of exposing himself …
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