United States v. Kushmaul, No. 20-10924 (11th Cir. 2021)Annotate this Case
A tip came in that a Kik app user was distributing child pornography. The tip included the user's IP address and Gmail account, which was tied to Kushmaul, who had been convicted of “Promoting the Sexual Performance of a Child” in Florida in 2016. Officers went to Kushmaul’s address, which was listed in the Florida Sex Offender Registry. Kushmaul handed over his cell phone. The officers discovered a Snapchat3 account that was not listed on Kushmaul’s sex offender registry. Kushmaul went to the Bay County Sheriff’s Office, where he was advised of his Miranda rights. He subsequently admitted to viewing child pornography. Kushmaul signed a “consent to search form,” and an officer downloaded Kushmaul’s cell phone, revealing 20 images of “child sexual abuse material.” He pled guilty under 18 U.S.C. 2252A(a)(2), (b)(1) and 2252A(a)(5)(b), (b)(2), for distribution and possession of child pornography. Although the statutory minimum sentence under section 2252A(a)(2) is only five years, that minimum increases to 15 years if the offender “has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Kushmaul was sentenced to the 180-month mandatory minimum. The Eleventh Circuit affirmed, rejecting Kushmaul’s claims that his Florida offense does not qualify for sentencing enhancement because the Florida offense is broader than its federal counterpart.