NOT RECOMMENDED FOR PUBLICATION File Name: 20a0651n.06 Case No. 20-5006 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 16, 2020 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE WESTERN DISTRICT OF ) KENTUCKY MATTHEW J. O’NEAL, ) Defendant-Appellant. ) BEFORE: NORRIS, SUTTON, and KETHLEDGE, Circuit Judges. SUTTON, Circuit Judge. Matthew O’Neal pleaded guilty to possessing child pornography. 18 U.S.C. § 2252A(a)(5)(B). The child pornography statute imposes a ten-year mandatory-minimum sentence if the defendant has a prior conviction “under the laws of any State relating to . . . sexual abuse.” Id. § 2252A(b)(2). The district court found that O’Neal’s Kentucky conviction for attempted first-degree sexual abuse qualified. We affirm. What does it mean for a state law to “relat[e] to . . . sexual abuse”? Id. Sexual abuse covers actions that “injure, hurt, or damage for the purpose of sexual or libidinal gratification.” United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015). And “relat[e] to” is a “broad” phrase, Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quotation omitted), one that requires “only that the state statute be associated with sexual abuse,” Mateen, 806 F.3d at 861; see also United Case No. 20-5006, United States v. O’Neal States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007); United States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012). Both phrases considered, a state conviction counts under the statute if it is “associated with” actions that “injure, hurt, or damage for the purpose of sexual or libidinal gratification.” That’s not the end of it. The “categorical approach” guides the matching inquiry. United States v. Parrish, 942 F.3d 289, 295–96 (6th Cir. 2019). Instead of just looking at the facts of O’Neal’s prior conviction, we consider the range of conduct criminalized by the Kentucky law to see if convictions under the law categorically relate to sexual abuse. See Taylor v. United States, 495 U.S. 575, 600 (1990). If the least culpable conduct proscribed by the statute relates to sexual abuse, the entire statute does. Perez v. United States, 885 F.3d 984, 987 (6th Cir. 2018). What conduct generally criminalized under the state law, then, least relates to sexual abuse? The parties agree that the conduct least related to sexual abuse, but criminalized under Kentucky’s first-degree sexual abuse statute, is knowingly masturbating in the presence of a minor. See K.R.S. §§ 510.110(1)(c)(2), 510.110(1)(d). Does that conduct relate to sexual abuse? Is it associated with actions that “injure, hurt, or damage for the purpose of sexual or libidinal gratification”? Mateen, 806 F.3d at 861. We think so. Masturbation is “for the purpose of sexual or libidinal gratification.” Id. And masturbating in a minor’s presence constitutes action that “hurt[s] or damage[s]” the child. Id. Why? Whether or not the minor provides the mental stimulus for the masturbation, exposing a minor to sexually explicit acts is hurtful and damaging. Even if ...
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