UNITED STATES оf America, Plaintiff-Appellee, v. Edward Lee SULLIVAN, Defendant--Appellant. United States of America, Plaintiff-Appellant, v. Edward Lee Sullivan, Defendant--Appellee.
Nos. 12-10196, 12-10217.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 14, 2014. Filed July 29, 2015.
795 F.3d 623
Before: RICHARD C. TALLMAN and SANDRA S. IKUTA, Circuit Judges, and BEVERLY REID O‘CONNELL, District Judge.*
John J. Jordan, San Francisco, CA, for Defendant-Appellant/Cross-Appellee.
Anne Voigts (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division, San Francisco, CA, for Plaintiff-Appellee/Cross-Appellant.
Sean Kennedy, Federal Public Defender; Koren Bell, Deputy Federal Public Defender, Los Angeles, CA, for Amicus Curiae Federal Public Defender for the Central District of California.
The opinion filed on May 28, 2014, and appearing at 753 F.3d 845, is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.
OPINION
IKUTA, Circuit Judge:
Edward Sullivan was convicted of violations under
I
Sullivan‘s use of 14-year-old Erika Doe to produce the sexually explicit video at issue in this case was not the first time he engaged in sex-related conduct with a minor. In 2001, Sullivan was convicted in Nevada of conspiracy to commit pandering involving a 13-year-old girl. In 2002, Sullivan was convicted in California of four offenses involving a 14-year-old female
In November 2007, Sullivan was released on parole. As a parolee, Sullivan was subject to a range of standard and special parole conditions. Among the standard parole conditions was a consent to search, which stated: “You and your residence and any property under your control may bе searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.” In addition, Sullivan was subject to a number of special parole conditions, which (among other things) prohibited him from having any contact with females between the ages of 14 and 18 years, and provided that “[a]ny computer or mobile telecommunications device under your control, or [to] which you have access, is subject to search and seizure by your Parole Agent.” The California Department of Corrections gave Sullivan notice of these conditions, which Sullivan acknowledged by signing the notice form and initialing each of the special conditions.
Sullivan took up temporary residence at the Bay Breeze Inn located in Oakland, California. In March 2008, about four months after his release, Sullivan approached Erika, a 14-year-old girl who was standing on a street in Berkeley, California, with her friends after school. After Erika and Sullivan talked, she lеft with Sullivan in his car. Erika stayed with Sullivan for the next two weeks. On the first night, Sullivan took Erika to the house of Kimberlea Reed, a friend of his who lived in Vacaville, California. Reed knew that Sullivan was not allowed to have contact with minor girls, and when Erika failed to produce a license proving she was 18 years old, Reed told Sullivan not to bring Erika to her home. For the next two weeks, Sullivan and Erika stayed at the Bay Breeze Inn or in Sullivan‘s car, but returned at least once to the house in Vacaville. While at the Bay Breeze Inn, Sullivan had sex with Erika.
The district court found that during this period, Sullivan became the dominating force in Erika‘s life, and controlled all of her daily activities. Among other things, Sullivan replaced Erika‘s clothing with more adult and sophisticated outfits and paid to have her hair straightened and amplified with extensions. Erika testified that she was afraid of Sullivan, a large man in his forties, about six feet five inches tall and 250 pounds.
Over the course of the two weeks that Erika remained with Sullivan, he took numerous videos and still phоtographs of Erika in various poses. In several of the videos, Sullivan discussed prostitution with Erika. In one video, Sullivan discussed a past incident where he had “checked” or punished Erika because she had tried to leave him. Sullivan uploaded one of the still photographs of Erika onto an adult website, “Fungirlsplay,” using his name and e-mail address.
On March 9, 2008, Sullivan returned to the house in Vacaville where he made the sex video at issue in this case using a digital camera that had been manufactured in China and exported to the United States. According to the district court, the video, 100_0064.mov, showed Erika performing oral sex on Sullivan. Erika‘s face was clearly visible in the video, and a man‘s voice could be heard in the background, directing and describing the activities that were taking place. At trial, Erika
On March 17, 2008, an Oakland police officer saw Erika standing on the street in an area frequented by prostitutes. Suspecting she was engaging in prostitution, the officer stopped her for questioning. In response to a question about Sullivan, who was standing nearby, Erika denied he was her pimp. Although the Oakland police stopped and questioned Sullivan, they did not arrest him. The officer took Erika into custody, and after learning that she was the subject of a missing persons report, returned her to her mother. Once Erika was home, her mother took her to the hospital, where Erika made a statement to the police. Because the initial abduction occurred in Berkeley, jurisdiction over the investigation was transferred to the Berkeley Police Department.
About a week later, on March 24, 2008, Erika‘s mother contacted Sullivan‘s parole officer and reported that Sullivan had kidnaped, raped, and pimped her daughter. Based on this report, Sullivan‘s parole was revoked. On March 25, 2008, parole officers arrested Sullivan in his car outside of the Bay Breeze Inn. During a parole search of the car, the agents seized several items, including the laptop computer, digital camera, a book about pimping, and a cellular telephone. The parole officers took Sullivan into custody and charged him with eight parole violations, including that Sullivan forced Erika to engage in intercourse and had kept pornographic images on his cellular telephone, in violation of his parole conditions.2 On April 2, 2008, the parole officers transferred custody of the evidence to the Berkeley Police Department because the California Department of Corrections did not have the technical ability to conduct a forensic search of the laptop.
On April 10, 2008, Detective Kaplan and Sergeant Ross of the Berkeley Police Department interviewed Sullivan at the jail where he was being held. Sullivan claimed that in one of the videos on his laptop, Erika stated that she was 19 years old. Sullivan agreed that the police should view the video to corroborate his belief about Erika‘s age. He stated, “Look in the computer. I give you consent.” Sullivan also signed a consent form.3 On April 15, 2008, Detective Kaplan also obtained a search warrant to search the laptop. A forensic search of Sullivan‘s laptop revealed the sex video at issue in this case.
The federal government filed a two-count indictment against Sullivan in the Northern District of California on February 18, 2009. Count 1 charged Sullivan with production of child pornography pursuant to
Before trial, Sullivan moved to suppress the evidence obtained from his laptop computer. Relevant to this appeal, he argued that the 21-day delay between March 25, 2008, the date the parole officers seized the laptop, and April 15, 2008, the date the police obtained a warrant, was unreasonable, and therefore the search and seizure of the laptop violated his Fourth Amendment rights. The district court denied the motion.
The bench trial commenced on December 14, 2010. At the close of the government‘s case-in-chief, Sullivan moved to dismiss Count 2 (possession of child pornography under
At the conclusion of the 13-day bench trial, the district court found Sullivan guilty on both counts. The district court found incredible Sullivan‘s testimony that he did not know Erika was a minor, given that Erika‘s physical appearance made it clear that she was an adolescent.4
During the sentencing phase of the proceeding, the district court determined that the mandatory minimum enhancement provisions contained in the two statutes of conviction, see
The district court sentenced Sullivan to the mandatory minimum 25 years imprisonment for the conviction under
II
We begin by addressing Sullivan‘s threshold arguments that the district court erred in denying his motion to dismiss Count 1 of the indictment (production of child pornography under
A
Sullivan argues that the district court was required to dismiss the production of child pornography count,
The Constitution provides that the trial in a criminal prosecution shall be in the “[s]tate where the said [c]rimes shall have been committed.”
Here, the conduct constituting the elements of a
B
We next address Sullivan‘s argument that Congress lacks the authority to regulate purely intrastate production and possession of a single video, and therefore neither
III
We next consider Sullivan‘s argument that the district court erred in denying his motion to suppress evidence obtained from his laptop computer. He claims that under the reasoning in United States v. Dass, 849 F.2d 414 (9th Cir.1988), and the Eleventh Circuit‘s decision in United States v. Mitchell, 565 F.3d 1347 (11th Cir.2009) (per curiam), the government‘s unexplained 21-day delay in obtaining a search warrant was unreasonable, and therefore violated his Fourth Amendment rights.6 We review de novo the deni-
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The Supreme Court has adopted a balancing test to determine whether a seizure is reasonable. We must balance “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In balancing these interests, courts may consider whether the individual consented to a seizure and search: See, e.g., United States v. Stabile, 633 F.3d 219, 235 (3d Cir.2011). “Where a person consents to search and seizure, no possessory interest has been infringed because valid consent, by definition, requires voluntary tender of property.” Id.; see also United States v. Christie, 717 F.3d 1156, 1163 (10th Cir.2013); United States v. Laist, 702 F.3d 608, 618 (11th Cir.2012). Courts may also consider a defendant‘s parolee status. See Samson v. California, 547 U.S. 843, 849-50, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (parolee status significantly diminishes privacy interests); see аlso Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68-69, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that intrusions into possessory and privacy interests resulting from a seizure must satisfy similar Fourth Amendment standards).
In applying this balancing test to the seizure of Sullivan‘s laptop, we start by considering the extent of the intrusion on Sullivan‘s possessory interests given the totality of the circumstances. We conclude they were minimal. During the entire time period when the laptop was retained by the government, Sullivan was in custody on eight parole violation charges. He does not claim that he could have made use of the laptop while incarcerated or that he sought return of his laptop to himself or a third party. Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced. See Segura v. United States, 468 U.S. 796, 813, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (Burger, C.J.) (plurality opinion) (holding that defendants’ possessory interests in their apartment were “virtually nonexistent” when they “were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment“); see also United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir.2012) (determining that when defendant was in jail at the time of the seizure of his computer, the seizure “did not meaningfully interfere with his possessory interests“). Moreover, an individual who did “not even allege[ ], much less prove[ ], that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment” and “never sought return of the
Further, several of the factors that reduce an individual‘s possessory interest applied here. Some seventeen days after his laptop was seized, Sullivan gave his express consent to the search of his laptop, and indeed urged the police officers to review videos stored on the laptop, claiming they contained exculpatory evidence. Because such consent “requires voluntary tender of property,” Stabile, 633 F.3d at 235, it further vitiates his claim that any possessory interest was infringed. Moreover, because Sullivan was a parolee subject to a consent condition for seizure, his possessory interest in the laptop was reduced. Cf. Samson, 547 U.S. at 850, 126 S.Ct. 2193; United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Under these circumstances, “[t]he actual interference” with Sullivan‘s possessory interests was minimal. See Segura, 468 U.S. at 813, 104 S.Ct. 3380 (Burger, C.J.) (plurality opinion).
We next consider the degree to which the seizure and retention of the laptop was necessary for the promotion of legitimate governmental interests. Place, 462 U.S. at 703-04, 103 S.Ct. 2637. The state “has an overwhelming interest in supervising parolees because parolees ... are more likely to commit future criminal offenses.” Samson, 547 U.S. at 853, 126 S.Ct. 2193 (internal quotation marks omitted). Moreover, under the circumstances of this case, the government had a reasonable basis for retaining and searching the laptop based on the likelihood that it contained evidence of Sullivan‘s parole violations, as well as child pornography. Because the parole officers who initially seized the laptop from Sullivan‘s vehicle did not have the capability to perform a forensic search, they transferred it to the Berkeley police. The Berkeley police then obtained Sullivan‘s consent to the search of the laptop and also sought a search warrant.
The government‘s course of conduct was reasonable under the totality of the circumstances given Sullivan‘s incarceration and the government‘s interest in retaining and searching the laptop for evidence of crimes. Even if the government could have moved faster to obtain a search warrant, the government is not required to pursue “the least intrusive course of action.” Hernandez, 313 F.3d at 1213. Accordingly, we conclude that the government‘s seizure and retention of the laptop for 21 days before obtaining a search warrant was not an unreasonable seizure under the Fourth Amendment.
Sullivan‘s reliance on Dass and Mitchell is misplaced. In Dass, law enforcement officials collected suspicious packages at post offices and allowed police dogs to sniff them. 849 F.2d at 414. If the dog alerted, suggesting the presence of marijuana, then the agents would retain the package in order to obtain a search warrant. Id. In holding that law enforcement acted unreasonably by detaining packages for 7 to 23 days before executing a search warrant, Dass implicitly determined that such a lengthy retention of mailed packages constituted a substantial intrusion into the possessory interests of the individuals who placed the packages in the mail. Id. at 415. Dass‘s conclusions regarding the interests of a member of the public putting a package in the mail are not applicable here, where a parolee under a consent-to-seizure condition was arrested for violation of other parole conditions.
Nor does Mitchell help Sullivan. In Mitchell, ICE agents went to the defendant‘s residence based on their suspicion that he was engaged in distributing and receiving child pornography. After the
Here, by contrast, Sullivan was in custody the entire time on distinct charges, does not argue he made any request for the laptop‘s return, and had a reduced possessory interest due to his status as a parolee. On the government-interest side of the balance, the government had a reasonablе basis for its delay, including the need to transfer the laptop between agencies. Cf. id. at 1352-53 (applying a rule of reasonableness “dependent on all of the circumstances,” and indicating that “if the assistance of another law enforcement officer had been sought, we would have been sympathetic to an argument that some delay in obtaining that assistance was reasonable“). Because this case presents different circumstances than Dass and Mitchell, the district court did not err in striking the balance between the intrusion into Sullivan‘s interests and the opposing law enforcement interests in favor of the government.
IV
We next turn to Sullivan‘s arguments that his prior state convictions for unlawful sexual intercourse with a minor under 16 years of age,
To determine whether a prior state conviction falls into the specified class of federal offenses, we generally apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Sinerius, 504 F.3d 737, 740 (9th Cir.2007). Under Taylor, the court first defines the federal generic definition of the crime, and then compares the elements of the state offense with that definition. United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir.2014). If the state offense criminalizes the same or less conduct than the federal generic definition of the crime, then it is a categorical match to the federal generic offense. See id. But where a state statute of conviction criminalizes more conduct than the federal generic offense, it does not qualify as a categorical match. Id. Under these circumstances, a court may apply a modified categorical approach if the state criminal statute is divisible. See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-85, 186 L.Ed.2d 438 (2013). The Taylor categorical approach requires us tо look only to the statutory definition of the prior offense and not to the facts underlying that conviction. See Mellouli v. Lynch, — U.S. —, 135 S.Ct. 1980, 1986-87, 192 L.Ed.2d 60 (2015); Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143.7
Because each of the three types of offenses listed in
We now turn to the California crimes of conviction at issue here in order to compare them with the federal generic offenses.
Unlike our usual categorical approach, however, the federal statutes here do not require us to find that the state conviction is categorically the same as any
In considering the application of the Taylor categorical approach to a statute that used the term “relating to,” the Supreme Court recently affirmed that the words “relating to” are “broad” and “indeterminate,” but cautioned that courts may not extend these terms “to the furthest stretch of [their] indeterminacy” where language and historical context tug “in favor of a narrower reading.” Mellouli, 135 S.Ct. at 1990 (alteration in original) (internal quotation marks omitted). In Mellouli, a lawful permanent resident had been convicted of a misdemeanor offense for storing Adderall tablets in his sock under a Kansas law making it unlawful “to use or possess with intent to use any drug paraphernalia” to conceal a controlled substance. Id. at 1983-84 (quoting
Because Congress intended there to be a direct link between the alien‘s crime of conviction and the controlled substances listed in
In sum, Mellouli cautions that while a federal statute‘s use of the terms “relating to” broadens its coverage, that extension is not limitless. A court must consider history and context to determine if they “tug in favor of a narrower reading” of the federal provision. See id. at 1990 (alterations and internal quotation marks omitted). Specifically, where Congress expressly narrows the definition of the federal offense (for example, by referring to a specific list of controlled substances), we must conclude that a state offense that exceeds that definition is not one “relating to” the federal offense. See id. at 1990-91. Reading Morales and Mellouli together, we interpret the phrase “relating to” broadly when applying the Taylor categorical approach unless the text and history of the statute require a narrower construction. See id.
We now consider whether the specific state offenses at issue here, sections
Applying this approach, we conclude that the conduct proscribed by
V
Finally, we address the government‘s argument on cross appeal that the district court erred by sustaining Sullivan‘s objection to the inclusion of a two-level Guidelines enhancement for obstruction of justice. “In determining whether the district court committed procedural error, we review the district court‘s interpretation of the Sentencing Guidelinеs de novo and its factual findings for clear error.” United States v. Smith, 719 F.3d 1120, 1123 (9th Cir.2013).13 “It would be procedural error for a district court to fail to calculate—or to calculate incorrectly—the Guidelines range.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).
Section 3C1.1 of the Guidelines is applicable if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice” with respect to the prosecution of the offense of conviction.
Although the district court did not credit Sullivan‘s testimony, and concluded that Sullivan had testified untruthfully during the trial, the district court determined that the two-level enhancement for obstruction of justice should not be included in Sullivan‘s offense level. The district court explained its reasoning as follows. First, the district court indicated that the
None of these concerns is a correct basis for excluding the obstruction of justice enhancement from the calculation of the base offense level. First, conduct that “has the potential for obstructing” the prosecution of the offense is sufficient to warrant enhancement. United States v. Draper, 996 F.2d 982, 986 (9th Cir.1993). Indeed, an application note to the Guidelines states that “providing materially false information to a judge” is conduct to which the enhancement applies.
Although there are circumstanсes where an erroneous Guidelines calculation can be harmless, id. at 1030 & n. 5, this is not one of those cases. If a two-level obstruction enhancement were imposed, Sullivan‘s Guidelines range would have been 324 to 405 months (as opposed to 262 to 327 months), requiring the district court to provide a greater justification for imposing a below-Guidelines sentence of 300 months. See id. at 1031; see also Carty, 520 F.3d at 991-92 (noting the district court must explain its reasoning for the extent of a variance).
Because we cannot tell if the district court would impose the same sentence if it applied the correct legal analysis, a remand for resentencing is required. See Jimenez-Ortega, 472 F.3d at 1103-04 (explaining that findings regarding factual predicates of an obstruction enhancement must be made by the district court in the first instance).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.