BARBARA LYNN, District Judge

MEMORANDUM OPINION

Defendant Walter Bryan Hubbard appeared before the Court at a sentencing hearing on April 1, 2005. For the reasons stated on the record at the hearing, and explained in greater detail herein, the Court finds Defendant is not subject to a fifteen-year statutory minimum term of imprisonment under 18 U.S.C. § 2252A(b)(1) (2004).

Defendant pled guilty to one count of Distribution of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2). That statute provides for a term of imprisonment of no less than five years and no more than twenty years. However, if a defendant has a previous conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography," the mandatory term of imprisonment is increased to no less than fifteen and no more than forty years. 18 U.S.C. § 2252A(b)(1).

Before his commission of the crime which is the subject of the indictment in this case, Defendant was convicted in Oklahoma state court of "Attempting to Make Lewd or Indecent Proposals to a Child Under Sixteen", in violation of OKLA. STAT. tit. 21 § 1123 (2002). Defendant pled guilty to that charge, admitting that he attempted to solicit sex from a person whom he thought was under sixteen, but who was actually an adult law enforcement officer. The Government contends the Oklahoma conviction is a conviction "under the laws of any state relating to . . . sexual abuse, or abusive sexual conduct involving a minor," thereby requiring the Court to impose a fifteen-year minimum sentence.

The Court finds the penalty provision of 18 U.S.C. § 2252A(b)(1) ambiguous. The statute permits two plausible, yet inconsistent, interpretations of the circumstances mandating a fifteen-year minimum sentence, depending on which portion of the text is deemed to be modified by the phrase "relating to". Under one interpretation, a defendant is subject to the enhanced sentence if the state law under which he was previously convicted relates to sexual abuse or abusive sexual conduct involving a minor. In other words, under this interpretation, a defendant who was convicted under a generic "sexual misconduct" statute would be ineligible for the enhanced sentence, even if his victim was a child, because the statute applies to crimes against adults as well as children. See U.S. v. Roy, 114 F. Supp.2d 1, 2 (D. Me. 2000) (defendant found ineligible for fifteen-year minimum sentence because "according to the plain language [of the statute], it is the state law, not the conviction, that must be related to sexual abuse of a minor"). Under the other interpretation, a defendant is eligible for the fifteen-year minimum sentence whenever the conduct underlying his conviction is related to sexual abuse or abusive sexual conduct involving a minor, irrespective of the particularities of the statute under which he was convicted. See U.S. v. Rezin, 322 F.3d 443, 448 (7^th Cir. 2003). This distinction appears to raise an issue of first impression in this jurisdiction.

The Court has considered the language and structure of the statute, the legislative history, and the apparent motivating policies behind the statute, and concludes that a defendant's eligibility for the fifteen-year minimum sentence under 18 U.S.C. § 2252A(b)(1) is determined by his conduct, not by whether the state law under which he was convicted also sanctions unlawful conduct directed toward adults. See Rezin, 322 F.3d at 448 (noting the oddity of "someone whose prior conviction did involve abusive sexual conduct with a minor escap[ing] the heavier punishment because the age of the victim was not an element of the particular offense for which he was convicted"); U.S. v. Trogdon, 339 F.3d 620, 621 (8^th Cir. 2003) (same).

The Court notes that the operative terms in 18 U.S.C. 2252A(b)(1) appear to be drawn from federal law. "Sexual abuse" is defined in 18 U.S.C. 2242. The conduct at issue in Defendant's Oklahoma case does not satisfy its definition. Congress has not expressly defined abusive sexual "conduct" within 18 U.S.C. § 2252A(b)(1) or an analogous federal statute. However, abusive sexual "contact" is defined in 18 U.S.C. 2244. The definition of abusive sexual contact is the Court's best guidance for interpreting the reference in 18 U.S.C. 2252A(b)(1) to abusive sexual conduct. Many courts, including the Fifth Circuit Court of Appeals, have used these terms interchangeably. See, e.g., United States v. Urrabazo, 234 F.3d 904, 905 (5^th Cir. 2000); United States v. Bahe, 201 F.3d 1124, 1126 (9^th Cir. 2000); United States v. Downer, 143 F.3d 819, 820 (4^th Cir. 1998). The Defendant's activities which were the subject of Defendant's Oklahoma case do not satisfy the definition of abusive sexual contact.

The government argues that 18 U.S.C. 2252A(b)(1) reaches the conduct at issue in Defendant's Oklahoma case by suggesting that the term "relating to" has essentially the same meaning as "attempting to". The government urges that by soliciting sex from a person the Defendant believed to be under sixteen, Defendant attempted to engage in abusive sexual conduct with a minor. This Court disagrees with that construction of the statute. The words "relating to" allow for the inclusion of all acts of sexual abuse, sexual contact or sexual conduct, without regard to the particular terminology used in the laws of each state. See Rezin, 322 F.3d at 448. However, if Congress intended 18 U.S.C. § 2252A(b)(1) to compel a fifteen-year minimum sentence for any person who made a lewd proposal to a person he believed to be a minor, additional language would be required.

The Court finds that "sexual abuse" and "abusive sexual conduct" require some unlawful physical contact between a defendant and the defendant's victim. Since Defendant's Oklahoma conviction did not involve such contact, he is not subject to the fifteen-year minimum sentence under 18 U.S.C. § 2252A(b)(1).

SO ORDERED.