USCA11 Case: 22-11039 Document: 41-1 Date Filed: 04/12/2023 Page: 1 of 11 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-11039 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRADLEY DIEFFENBACHER, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cr-00504-MSS-CPT-1 ____________________ USCA11 Case: 22-11039 Document: 41-1 Date Filed: 04/12/2023 Page: 2 of 11 2 Opinion of the Court 22-11039 Before JORDAN, BRANCH, and MARCUS, Circuit Judges. PER CURIAM: Bradley Dieffenbacher appeals from his sentence of 444 months’ imprisonment for two counts of enticing a minor to en- gage in sexual activity, two counts of enticing a minor for the pur- pose of producing child pornography, and one count of commit- ting a felony involving a minor while being required to register as a sex offender. On appeal, he argues that the district court erred in holding that his prior state conviction for attempted use of a child in a sexual performance under New York Penal Law §§ 110.00 and 263.05 qualified as a conviction relating to the sexual abuse of a mi- nor, which triggered 18 U.S.C. § 2251(e)’s 25-year mandatory-min- imum statutory enhancement. After careful review, we affirm. We ordinarily review de novo the district court’s determi- nation that a prior conviction triggers a statutory sentencing en- hancement. United States v. Miller, 819 F.3d 1314, 1316 (11th Cir. 2016). However, we are not required to vacate a sentence and re- mand if the district court would have likely sentenced the defend- ant in the same way without the error. United States v. Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009). Additionally, following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 226–27 (2005), the Sentencing Guidelines are no longer mandatory. In deciding whether a defendant’s prior conviction qualifies as a predicate offense for a sentencing enhancement, federal courts USCA11 Case: 22-11039 Document: 41-1 Date Filed: 04/12/2023 Page: 3 of 11 22-11039 Opinion of the Court 3 usually apply the “categorical approach,” meaning we look only to the elements of the statute under which the defendant was con- victed and not at the facts underlying the prior conviction. Mathis v. United States, 579 U.S. 500, 504, 512 (2016). We then compare the statute’s elements to the generic offenses listed in the federal sentencing-enhancement statute. Id. at 504–05. If a generic offense is non-traditional, i.e., a crime not developed in the common law, we define it using its “ordinary, contemporary, and common meaning.” United States v. Ramirez-Garcia, 646 F.3d 778, 783 (11th Cir. 2011) (quotation omitted). Under the categorical approach, a prior conviction is pre- sumed to have “rested upon nothing more than the least of the acts criminalized” or the “least culpable conduct.” Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280, 1283 (11th Cir. 2013) (quotation omitted). If the elements of the prior offense are either “the same as, or narrower than, those of the generic offense,” …
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