Case Information
*3
MURGUIA, Circuit Judge:
David Reinhart was convicted of two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). A defendant convicted of this offense who has “a prior conviction . . . under the laws of any State relating to . . . the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography” is subject to a ten-year mandatory minimum sentence. 18 U.S.C. § 2252(b)(2) (emphasis added). Reinhart was previously convicted of possession of child pornography and sexual exploitation of child, in violation of California Penal Code §§ 311.11(a) and 311.3(a), respectively. We decide whether Reinhart’s prior California convictions constitute offenses “relating to” child pornography under 18 U.S.C. § 2252(b)(2), which imposes a ten-year mandatory minimum sentence. The district court found neither of Reinhart’s prior convictions constituted prior convictions under 18 U.S.C. § 2252(b)(2). We affirm.
I. Background
In June 2015, the government charged Reinhart with two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The charges were based on images of child pornography discovered during an undercover online investigation and execution of a search warrant on Reinhart’s residence. Reinhart pleaded guilty to both counts without a plea agreement. At sentencing, the parties disputed whether Reinhart’s prior California *4 convictions constituted prior convictions under 18 U.S.C. § 2252(b)(2) and whether Reinhart should be sentenced pursuant to § 2252(b)(2)’s ten-year mandatory minimum. Prior to sentencing, both the government and Reinhart submitted sentencing memoranda arguing their respective positions on the issue.
Previously, in 2002, Reinhart was convicted of two misdemeanor counts of violating California Penal Code § 311.11(a), possession of child pornography, and one misdemeanor count of violating California Penal Code § 311.3(a), sexual exploitation of child. The convictions arose from police officers’ search of Reinhart’s apartment where the officers found printed images of children that qualified as child pornography under California law. At sentencing in the present case, the district court considered whether these prior California convictions triggered the federal sentencing enhancement, § 2252(b)(2), which would require the court to impose a ten-year mandatory minimum sentence. Section 2252(b)(2) is a recidivist penalty and sentencing enhancement for those, such as Reinhart, convicted federally of possession of child pornography under § 2252(a)(4), and who have certain prior offenses. It provides:
if such person [convicted under § 2252(a)(4)] 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, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.
§ 2252(b)(2) (emphasis added).
At sentencing before the district court, the government argued that the words “relating to” in § 2252(b)(2) should be *5 6 U NITED S TATES V . R EINHART read broadly to encompass state statutes even if the state statutes of conviction do not categorically match the definition of federal child pornography offenses. Reinhart contended that the usual categorical approach should apply, and under that analysis, Reinhart’s prior California convictions were not a categorical match and were overbroad as compared to the federal definition of child pornography offenses in § 2252(b)(2).
The district court agreed with Reinhart and concluded
that Reinhart’s prior California convictions were not
predicate offenses constituting convictions “relating to . . .
child pornography” under § 2252(b)(2). The district court
relied on the United States Supreme Court’s decision in
Mellouli v. Lynch
, 135 S. Ct. 1980 (2015), and found that
because “child pornography” was a federally-defined term,
the district court had to apply a narrower reading of “relating
to” in § 2252(b)(2) under the categorical approach. Applying
the categorical approach, the district court compared the
elements of Reinhart’s California statutes of conviction,
§ 311.11(a), possession of child pornography, and
§ 311.3(a), sexual exploitation of child, to the federal
definition of “child pornography.” This required the district
court to look at the federal definition of “sexually explicit
conduct,” a defined term within the definition of “child
pornography” at 18 U.S.C. § 2256(8). Relying on this
[C]hild pornography is defined as “any visual depiction, including
any photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic, mechanical,
or other means, of sexually explicit conduct, where--(A) the production
of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; (B) such visual depiction is a digital image, computer
image, or computer-generated image that is, or is indistinguishable from,
that of a minor engaging in sexually explicit conduct; or (C) such visual
depiction has been created, adapted, or modified to appear that an
district court’s prior case law, the court held that California
Penal Code § 311.11(a) was categorically broader than any
offense described in the federal counterparts 18 U.S.C.
§§ 2251, 2251A, or 2252.
See Chavez-Solis v. Lynch
,
Without the mandatory minimum, Reinhart’s sentencing guideline range was 78 to 97 months imprisonment. The district court sentenced Reinhart to 78 months imprisonment with a ten-year supervised release term to follow. The government appeals the district court’s determination that § 2252(b)(2)’s sentencing enhancement did not apply.
II. Discussion
On appeal, we must determine whether the words “relating to” in the ten-year mandatory minimum statutory sentencing provision at § 2252(b)(2) require us to break from our usual, elements-based categorical approach for determining when state statutes of conviction trigger a federal sentencing enhancement and instead, apply a broader comparison between the state statutes and the federal statutes. Here, we consider whether Reinhart’s prior identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8).
California statutes of conviction fall under the federal
definition of “child pornography” offenses as used in
§ 2252(b)(2). We review de novo whether prior convictions
support statutory mandatory-minimum enhancements.
United States v. Sullivan
,
A. “Relating to” and the Categorical Approach
This court applies the
Taylor
categorical approach to
determine whether a state statute of conviction falls within a
specified class of federal offenses.
See Sullivan
, 797 F.3d at
635–37 (citing this court’s “usual categorical approach”);
United States v. Sinerius
,
When a statute is overbroad, the categorical inquiry does
not end.
Descamps v. United States
,
Here, the portion of the federal sentencing statute at issue applies when an individual has a prior state conviction “relating to . . . the . . . possession . . . of child pornography.” 18 U.S.C. § 2252(b)(2). To ascertain the generic federal definition, we look to the federal definition of “child pornography.” See 18 U.S.C. § 2256(8). That federal definition is compared to the elements in Reinhart’s two state statutes of conviction—California Penal Code § 311.11(a), possession of child pornography, and § 311.3(a), sexual exploitation of child.
The government argues the usual Taylor categorical approach does not apply. Relying on our decision in Sullivan , it contends that the words “relating to” in § 2252(b)(2) mandate a broader comparison of the offenses in the federal and state statutes rather than the usual comparison between the elements of the state and federal statutes. See Sullivan , 797 F.3d at 638. In Sullivan , the defendant was in part convicted under the same federal provision as Reinhart, 18 U.S.C. § 2252(a)(4)(B). Id . at 627. Sullivan, however, had produced and possessed a sexually explicit video depicting a 14-year-old girl with whom he had a sexual relationship. . at 627–28, 630. Unlike Reinhart, Sullivan’s prior state convictions were not possession of *8 10 U NITED S TATES V . R EINHART child pornography offenses, but sexual abuse offenses. Id . at 627–28, 636.
The Sullivan court began by recognizing that this court would “generally apply the categorical approach set forth in Taylor .” Id . at 635. Sullivan’s prior state convictions correlated with the “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” clause in § 2252(b)(2). Id . at 636. The Sullivan court determined the commonality between the three types of offenses listed in the federal statute § 2252(b)(2) involve “sexual conduct and abuse,” and therefore, the court first had to identify the generic meaning of those terms. Id . There is no federal definition of “aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduct” in the same statutory chapter as § 2252(b)(2), chapter 110, sexual exploitation and other abuse of children. Without a specific definition, the court considered the definition of the offenses “based on the ordinary, contemporary, and common meaning of the statutory words.” Sullivan , 797 F.3d at 636 (quoting Sinerius , 504 F.3d at 740 (holding that in cases involving “non-traditional offenses” the court employs the categorical approach by defining the offenses based on the common meaning of the statutory words)). The Sullivan court undertook the categorical approach and concluded Sullivan’s priors were not a categorical match to the federal generic definitions for sexual abuse of a minor. . at 637. Specifically, Sullivan had been convicted of: unlawful sexual intercourse in violation of California Penal Code § 261.5(d); oral copulation with a minor in violation of California Penal Code § 288a(b)(2); pimping in violation of California Penal Code § 266h(a); and pandering in violation of California Penal Code § 266i(a)(2). Id . at 627–28.
*9
The court, however, did not stop there. It went on to hold
that the words “relating to” in the federal sentencing
enhancement at § 2252(b)(2) mandated a different method
than the usual elements-based categorical approach.
Id
. at
637–38. The court held that as to the sexual conduct and
abuse clause in § 2252(b)(2), because of the words “relating
to,” the court need only find that the state statute of
conviction “is one categorically ‘relating to’ such federal
offenses.”
Id
. The court cited to
Sinerius
, which considered
similar “relating to” language in 18 U.S.C. § 2252A(b).
Id
.
Sinerius
, like
Sullivan
, addressed sexual conduct and abuse
convictions, and
Sinerius
held that use of the phrase “relating
to” in that context mandated a federal enhancement for a
state offense “that stands in some relation, bears upon, or is
associated with th[e] generic offense.”
Sullivan distinguished its holding from Mellouli , in which the Supreme Court held the usual categorical approach applied to a federal statute despite that statute’s use of the words “relating to.” Id . at 638–39; Mellouli , 135 S. Ct. at 1984. The question presented in Mellouli was whether a Kansas conviction for using drug paraphernalia triggered the federal immigration statute that makes an alien subject to deportation if he is “convicted of a violation of [a state law] relating to a controlled substance (as defined in section 802 18 U.S.C. § 2252A is a statutory sentencing enhancement entitled, “Certain activities relating to material constituting or containing child pornography.”
of Title 21).” Id .; see 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). The Supreme Court rejected the government’s argument that “nearly a complete overlap” between the conduct punished under the state and federal statutes was sufficient for the state drug paraphernalia offense to trigger the federal controlled substance statute. Mellouli , 135 S. Ct. at 1989–91. Mellouli , citing the historical use of the categorical approach to determine whether a state conviction renders an alien removable, applied the usual categorical approach. . at 1985–87. Mellouli highlighted that in drafting the immigration statute, Congress predicated deportation “on convictions, not conduct,” and accordingly, the proper approach was to look to statutory definitions, not *10 underlying conduct. Id . at 1986. Mellouli cautioned that although the words “relating to” are “broad” and “indeterminate,” “those words, ‘extend[ed] to the furthest stretch of [their] indeterminacy, . . . stop nowhere.’” Id . at 1990. Mellouli held that “[c]ontext, therefore, may tug . . . in favor of a narrower reading.” Id . (internal quotation marks, citation, and alterations omitted).
From
Mellouli
, the
Sullivan
court drew the principle that
“where language and historical context tug ‘in favor of a
narrower reading,’” “relating to” may still allow for the
categorical approach.
Sullivan
, 797 F.3d at 638 (quoting
Mellouli
,
The government urges that Sullivan determines the outcome in this case. We disagree. At the outset, we recognize that Sullivan examined the same federal sentencing enhancement statute at issue here, § 2252(b)(2). But § 2252(b)(2) describes a number of prior types of state offenses, some of which include federally-defined terms, and some of which do not. As Sullivan directs, the language of a statute and any related textual restrictions may favor a narrower reading. See Sullivan , 797 F.3d at 638. Accordingly, we look at the different types of offenses listed in separate clauses in § 2252(b)(2) to determine whether a narrower reading of “relating to” and the categorical approach should apply. Here, it does.
The case at bar is distinguishable from
Sullivan
and
Sinerius
because in those cases, the applicable terms were
not defined within the same chapter that the terms appeared.
Here, we conclude that, applying well-established statutory
principles, where there is a federal definition of “child
pornography” in the same statutory chapter as the sentencing
enhancement provision at § 2252(b)(2), we apply that
definition.
See Sinerius
,
Sullivan dealt with the same statutory sentencing enhancement provision at issue here, § 2252(b)(2), but addressed the same types of offenses as in Sinerius —those involving “aggravated sexual abuse, sexual abuse, [or] abusive sexual conduct involving a minor or ward.” Sullivan ,
U NITED S TATES V . R EINHART 15
Here, the applicable clause in § 2252(b)(2) is “child
pornography.” Unlike the terms in
Sinerius
and
Sullivan
,
there is a federal definition of “child pornography” in the
same chapter as § 2252(b)(2), chapter 110. The definition of
“child pornography,” includes the term “sexually explicit
conduct,” which in turn, is also defined in chapter 110’s
definitional provision, § 2256. 18 U.S.C. § 2256(2)(A).
Accordingly, applying well-established statutory principles,
where there are federal definitions in chapter 110 that apply
to the relevant “child pornography” clause in § 2252(b)(2),
we apply those definitions.
See Sinerius
,
Because of the applicable definitional provisions, the present case is akin to Mellouli where, because of the statutory text and historical context, “relating to” was given a narrower reading and the Supreme Court applied the usual categorical approach. Mellouli , 135 S. Ct. at 1990–91. In Mellouli , the federal immigration statute, 8 U.S.C. § 1227(a)(2)(B)(i), used “relating to” referring “to a controlled substance,” and the statute included a parenthetical to clarify that “controlled substance” was defined as in § 802 of title 21, a federal drug schedule. Id . at 1984 (citing 8 U.S.C. § 1227(a)(2)(B)(i)). Accordingly, the Court held that the immigration provision, 8 U.S.C. § 1227(a)(2)(B)(i), limited the meaning of “controlled substance” to the referenced federal definition. . at 1990– 91. Despite the words “relating to” in the federal *13 immigration provision, the usual categorical approach applied. See id .
We are not convinced by the government’s attempt to distinguish this case from Mellouli . The governments argues that Mellouli required a narrow approach because of the immigration statute’s use of a parenthetical to specifically reference the federal definition of “controlled substance.” The statute in Mellouli was an immigration removal statute, title 8 U.S.C. § 1227, deportable aliens. Within that removal statute the definition of “controlled substance” referenced was title 21 U.S.C. § 802. The immigration statute specifically provided a cross-reference to the drug schedule definition because the two statutes were in completely different titles of the federal statutes. The reader needed guidance to the location of the federal drug schedule.
The federal statute at issue here—the mandatory minimum sentencing provision—is at 18 U.S.C. § 2252 within chapter 110, sexual exploitation and other abuse of children. The relevant definitions for “child pornography” and “sexually explicit conduct,” also are in title 18 and chapter 110 at § 2256, entitled “definitions for chapter.” Section 2256 states that the definitions of the terms therein apply “[f]or purpose of this chapter.” Unlike Mellouli , the reader of § 2252 need not venture out to a different federal statutory title or chapter. The reader need only look within the same chapter, 110, to the marked definitional section that applies to the entire chapter. Because the link to § 2256’s definitions for chapter 110 is clear from the statutory structure, we do not read the absence of a specific parenthetical referring to a definitional provision to be a significant distinction from Mellouli .
In sum, we hold that the because the terms “child pornography” and “sexually explicit conduct,” are explicitly defined in chapter 110, the statutory text “tug[s] . . . in favor of a narrower reading” of “relating to.” See Mellouli , 135 S. Ct. at 1990 (internal quotation marks and citation omitted); Sullivan , 797 F.3d at 638. Therefore, we do not depart from the usual, elements-based, categorical approach to determine whether Reinhart’s prior state statutes of conviction trigger the federal mandatory minimum provision in § 2252(b)(2) for individuals with prior offenses “relating to” child pornography.
In so holding, we note that we are at odds with the Tenth
Circuit.
See United States v. Bennett
,
We also recognize the government’s argument that in enacting § 2252(b)(2)’s mandatory-minimum enhancement for recidivists, Congress intended to broaden the scope of what prior crimes might trigger the enhancement. Despite this, as Mellouli cautioned and as the Bennett dissent reiterated, “[the ‘relating to’ language’s] interpretation must somehow be anchored to prevent it from drifting aimlessly.” Bennett . at 1327 (Hartz, J., dissenting). Here, that anchor is the federal definition of child pornography defined in the same chapter as § 2252(b)(2).
the broad interpretation of the phrase “relating to.” . Although we *15 assume that Congress used the phrase “relating to” for a purpose, Mellouli and Sullivan also counsel that we must look at the statutory scheme and text, which here, include a specific federal definitional provision, § 2256. Mayokok did not address this definitional provision, and we do not find Mayokok persuasive.
The government argues that applying the usual
categorical approach will have the effect of making
§ 2252(b)(2) inapplicable in numerous states that define
child pornography more broadly than the federal definition.
Indeed, this may be true. Because of the way Congress has
drafted the federal definition of child pornography, in some
cases the federal definition is more restrictive than state
definitions. In those cases, the ten-year mandatory minimum
sentence may not apply to defendants. However, that the
mandatory minimum may not apply does not mean that
overly lenient sentences will be imposed. District courts still
use the sentencing guidelines to guide their decisions.
Moreover, “[b]y focusing on the legal question of what a
conviction
necessarily
established, the categorical approach
ordinarily works to promote efficiency, fairness, and
predictability . . . .”
Mellouli
,
Finally, in support of its interpretation of “relating to,”
the government argues that a narrower interpretation of the
phrase would render the words meaningless, contrary to the
principles of statutory interpretation.
Mellouli
rejected this
argument when it applied the strict, usual categorical
approach.
See Mellouli
,
We conclude that the statutory scheme and text, including the applicable federal definitions of “child We acknowledge that our holding, in conjunction with Sullivan , results in reading the “relating to” phrase differently as to different provisions of § 2252(b)(2). However, this is the appropriate reading in light of Mellouli and the fact that § 2252(b)(2) contains some clauses of defined terms that require a narrow reading of “relating to,” and some of undefined terms that require a broad reading.
20 U NITED S TATES V . R EINHART pornography” and “sexually explicit conduct” weigh in favor of reading narrowly “relating to” in § 2252(b)(2). Accordingly, we apply the categorical approach.
B. Applying the Categorical Approach Under the Taylor categorical approach, we make a categorical comparison of the elements of the state statute of conviction and the federal generic definition. Chavez-Solis v. Lynch , 803 F.3d 1004, 1006 (9th Cir. 2015). Here, we compare the elements of California Penal Code § 311.11(a), possession of child pornography, and California Penal Code § 311.3(a), sexual exploitation of a child under 18 years old, with those of 18 U.S.C. §§ 2252(b)(2) and 2252(a)(4)(B).
The federal possession of child pornography statute, 18 U.S.C. § 2252(a)(4)(B), which Reinhart was convicted under, punishes a person who:
knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction . . . if—(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct.
18 U.S.C. § 2252(a)(4)(B)). The definitional provision in the same chapter, chapter 110, defines “child pornography” as “any visual depiction . . . of sexually explicit conduct, where—(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). In turn, § 2256 defines “sexually explicit conduct” as actual or simulated:
(i) sexual intercourse, including genital- genital, oral-genital, anal-genital, or oral- anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person; 18 U.S.C. § 2256(2)(A). [7] These definitions constitute the generic federal definition. See Chavez-Solis , 803 F.3d at 1006–07. We compare the elements of the generic federal The remainder of the statute reads: “(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). Within § 2256 there are two definitions for “sexually explicit
conduct.” The definition in § 2256(2)(B) applies only to one part of the definition of “child pornography” in subsection (8)(B) of § 2256, that addresses digital, computer, or computer-generated images. That there are two definitions is not meaningful in this case as both the definitions for § 2256(2)(A) and (2)(B) list the same underlying conduct. definition to Reinhart’s two prior convictions under California Penal Code §§ 311.11(a) and 311.3.
1. California Penal Code § 311.11(a) Reinhart was previously convicted under California Penal Code § 311.11(a), possession or control of matter depicting minor engaging in or simulating sexual conduct. The statute punishes a person who “knowingly possesses or controls any matter, representation of information, data, or image, . . . the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct.” Cal. Penal Code § 311.11(a). In turn, “sexual conduct” is defined as actual or simulated:
sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or *18 lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner.
Cal. Penal Code § 311.4(d)(1).
Our court has previously conducted the categorical
analysis of California Penal Code § 311.11(a) and the federal
definition of “child pornography” and “sexually explicit
conduct,” and held that the California statute of conviction
is overbroad compared to the federal definition.
Chavez-
Solis
,
24 U NITED S TATES V . R EINHART than the federal child pornography statute,” and therefore is categorically overbroad. Id .
As stated, that a state statute of conviction is not a
categorical match to the federal definition does not end the
inquiry. If a statute is divisible, we apply a “modified
categorical approach” that “allows us to look beyond the
statutory text to a limited set of documents to determine
whether the petitioner was necessarily convicted of all the
elements of the federal generic offense.”
Id
. at 1012 (citation
omitted). We only employ the modified categorical approach
where the state statute of conviction is divisible, meaning it
“lists multiple, alternative elements, and so effectively
creates several different . . . crimes.”
Id
. (quoting
Rendon v.
Holder
,
In sum, as the district court concluded, Reinhart’s California Penal Code § 311.11(a) conviction does not trigger the federal § 2252(b)(2)’s mandatory minimum because there is not a categorical match and the California statute is indivisible.
2. California Penal Code § 311.3(a) Reinhart also was previously convicted under California Penal Code § 311.3(a), sexual exploitation of child. Section 311.3(a) punishes anyone who “knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image . . . that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct.” Cal. Penal Code § 311.3(a). Section 311.3 defines “sexual conduct” within that provision as: *20 (1) Sexual intercourse, including genital- genital, oral-genital, anal-genital, or oral- anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.
(5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.
(6) Defecation or urination for the purpose of sexual stimulation of the viewer.
Cal. Penal Code § 311.3(b).
We agree with the district court’s conclusion below and hold that § 311.3 is overbroad as compared to the federal definition of “sexually explicit conduct.” The federal statute defining “sexually explicit conduct” covers “(i) sexual intercourse, . . . ; (ii) bestiality; (iii) masturbation; Unlike the definition that applies in California Penal Code § 311.11, the definition of “sexual conduct” in California Penal Code § 311.3 does not incorporate California Penal Code § 288. Accordingly, Chavez-Solis ’s reasoning regarding § 311.11’s overbreadth due to the broad scope of conduct under § 288 does not apply to California Penal Code § 311.3.
(iv) sadistic or masochistic abuse; or (v) lascivious
exhibition of the genitals or pubic area of any person.”
18 U.S.C. § 2256(2)(A). There is overlap between the first
five types of conduct listed in California Penal Code
§ 311.3(b) and the conduct listed in the federal statute.
However, California Penal Code § 311.3(b) includes a sixth
type of conduct, “[d]efecation or urination for the purpose of
sexual stimulation of the viewer.” For there to be a
categorical match, anyone convicted under the state statute
of conviction must necessarily be guilty of all the federal
statute’s elements.
See Moncrieffe v. Holder
,
That the California statute lists “defecation or urination” for sexual stimulation of the viewer separately from “exhibition of the genitals or the pubic or rectal area of any person” for the purpose of sexual stimulation of the viewer confirms that depictions of the former are not necessarily encompassed within the latter. The difference between the conduct of “lascivious exhibition of the genitals or pubic area,” in the federal statute at 18 U.S.C. § 2256(2)(A) and the California statute’s listing of “[d]efecation or urination for the purpose of sexual stimulation of the viewer” may seem to be a fine line. It is conceivable that in many cases when an individual is involved in defecation or urination for purposes of sexual stimulation of the viewer, there will be exhibition of the genital, pubic, or rectal area of that individual. This is not necessarily so, however. It is also conceivable, that in some instances, there may be a depiction of a minor that does not involve exhibition of the genitals or pubic or rectal area, but the minor is engaged in defecation or urination created for the purpose of sexual stimulation of the viewer. That depiction would fall under California Penal Code § 311.3(b)’s sixth type of conduct, but would not fall under any prong of the federal statute at 18 U.S.C. § 2256(2)(A) defining “sexually explicit conduct.” In sum, because broader conduct is encompassed in § 311.3(a), it is categorically overbroad as compared to the federal statute.
California Penal Code § 311.3(a) also is not divisible. Like Reinhart’s conviction under California Penal Code § 311.11(a), his conviction under § 311.3(a) refers to “sexual conduct,” albeit with a different definition of “sexual conduct.” Both statutes punish offenses dealing with depictions of minors and list the ways in which depictions might constitute minors engaged in acts of sexual conduct. See California Penal Code §§ 311.3, 311(a). Analyzing § 311.11(a), we held the statute’s reference to “‘sexual conduct’ does not create different crimes, each one depending on the particular sexual conduct depicted in an alleged image of child pornography.” Chavez-Solis , 803 F.3d 1012. “Rather, th[e] definition simply lists numerous ways in which an image may be considered to depict ‘sexual conduct’ and thus qualify for the single crime . . . .” . at 1012–13. The same rationale applies to § 311.3(a), sexual exploitation of child, which also lists ways *22 in which a depiction might show a minor engaged in sexual conduct.
[10] As stated, California Penal Code § 311.11(a) refers to “sexual conduct” as defined in § 311.4(d), whereas § 311.3 defines “sexual conduct” within the same provision as the list of six types of conduct noted above at § 311.3(b).
Although § 311.3’s definition of “sexual conduct” is worded in the disjunctive, as we held with regard to § 311.11, this does not mean the jury is required to find “that the pornographic materials portray any particular type of sexual conduct—only that the materials portray sexual conduct.” See id . at 1013 (citing California cases in which jury instructions involving “sexual conduct” listed the various types of sexual conduct without requiring the jury to determine the particular sexual conduct depicted). Because the jury need not unanimously decide what particular sexual conduct is depicted, the listed types of sexual conduct are only means, not elements of the crime. See Rendon , 764 F.3d at 1085–86 (holding that a statute is divisible “[o]nly when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute”). Finally, although § 311.3 and § 311.11 definitions’ of “sexual conduct” are different, the structure of both definitions parallel each other and Chavez-Solis leads us to the conclusion that § 311.3 is also not divisible.
In sum, because California Penal Code § 311.3 is
indivisible, the modified categorical approach does not
Although the parties did not provide a model jury instruction for
California Penal Code § 311.3 and the court did not locate one, it appears
California courts list the various types of sexual conduct in jury
instructions, without requiring that the jury agree on which type of sexual
conduct occurred.
See, e.g.
,
People v. Spurlock
,
U NITED S TATES V . R EINHART 29
apply, and therefore, we do not look to any fact-specific
documents to determine whether Reinhart’s offense triggers
the federal statute.
See Descamps
,
Neither of Reinhart’s two prior California statutes of convictions triggers the mandatory minimum sentence under 18 U.S.C. § 2252(b)(2). We affirm the district court’s sentencing determination that the ten-year mandatory minimum did not apply.
III. Conclusion
We hold that 18 U.S.C. § 2252(b)(2)’s reference to offenses “relating to” child pornography must be read more narrowly due to the statutory text that limits the meaning of “child pornography” and “sexually explicit conduct.” See 18 U.S.C. § 2256(2)(A), (8). In accordance with this more narrowed reading of “relating to,” we apply the categorical approach in determining whether Reinhart’s prior California statutes of conviction trigger the federal sentencing enhancement provision at 18 U.S.C. § 2252(b)(2). Under the categorical approach, we conclude that both California Penal Code § 311.11 and § 311.3 are overbroad compared to the federal statute and indivisible. Accordingly, neither of The court need not reach Reinhart’s argument that the government’s interpretation of § 2252(b)(2)’s “relating to” clause is unconstitutionally vague under Johnson v. United States , 135 S. Ct. 2551, 2556–57 (2015).
Reinhart’s prior California statutes of conviction triggers 18 U.S.C.§ 2252(b)(2)’s ten-year mandatory minimums sentencing enhancement.
We AFFIRM .