UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAY A. LIESTMAN, Defendant-Appellant.
No. 21-3225
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 27, 2023 — DECIDED APRIL 8, 2024
Before SYKES, Chief Judge, and EASTERBROOK, ROVNER, WOOD, BRENNAN, SCUDDER, ST. EVE, KIRSCH, JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges.1
SCUDDER, Circuit Judge. Before us is Jay Liestman‘s challenge to the federal sentence he received for transporting child pornography in violation of
I
In October 2019 Jay Liestman took to the Kik messenger app and divulged his sexual interest in underage boys to an undercover FBI agent. In ensuing discussions, Liestman sent the agent a link to 561 videos depicting sexual assaults of children. A federal prosecution followed, and Liestman pleaded guilty to a single count of transporting child pornography. See
At the federal sentencing, the government contended that Liestman‘s prior conviction for possessing child pornography triggered
The parties renew their positions on appeal, and we chose to convene the full court to decide whether Liestman‘s prior offense of conviction for possessing child pornography under
II
A
For all the consternation it tends to elicit, the categorical approach serves an essential need. Throughout the United States Code, Congress has attached adverse consequences to the fact that a person has been convicted of a certain kind of prior offense. See, e.g.,
When Congress does so, it ordinarily describes the range of qualifying offenses in general terms to account for the sheer variety of state and federal laws on the books. See Taylor v. United States, 495 U.S. 575, 590-91 (1990) (surveying a range of state burglary offenses); Diaz-Rodriguez v. Garland, 55 F.4th 697, 720-22 (9th Cir. 2022) (canvassing the “wide variety of approaches” states have taken “to labeling, categorizing, and defining crimes against children“). Because of this, determining whether a particular prior offense triggers an adverse consequence can be challenging.
The categorical approach emerged to address that challenge. Its cornerstone—rooted in both practical and Sixth Amendment concerns—is its insistence that we look only to the formal definition of the prior offense, cutting real-world facts out of the equation. Mathis v. United States, 579 U.S. 500, 504 (2016); see also Kawashima v. Holder, 565 U.S. 478, 483 (2012) (emphasizing that the categorical approach looks to “the statute defining the crime of conviction, rather than the specific facts underlying the crime“). Under the categorical approach, a prior offense can trigger a statutory consequence only if its statutory elements
The Supreme Court first interpreted a statute to require categorical analysis in Taylor v. United States, 495 U.S. 575 (1990). There the Court addressed whether Arthur Taylor‘s prior convictions for second-degree burglary under Missouri law qualified as “violent felon[ies]” that could trigger an enhanced sentence under
Focusing on the text, structure, and history of the enhancement, the Court concluded that the word “burglary” in
Today Taylor stands as the prime example of the so-called generic strand of categorical analysis. Its rationale is straightforward. When Congress hinges the applicability of a statutory consequence on whether a defendant‘s prior convictions qualify as a certain kind of offense—like burglary—we assume that Congress intended to give that term a uniform, federal “definition independent of the labels used by the various States’ criminal codes.” Id. at 575. And courts can give effect to Congress‘s “unadorned reference” to an offense only by “com[ing] up with a ‘generic’ version of the crime” against which the elements of state offenses can be compared. Shular v. United States, 140 S. Ct. 779, 783 (2020).
In the years since Taylor, the generic approach has played an important role in our categorical approach case law. See, e.g., United States v. Hatley, 61 F.4th 536, 539 (7th Cir. 2023) (generic extortion); United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013) (generic arson). But sometimes the categorical approach must proceed in a different way. As the Supreme Court recently explained in Shular, Congress has drafted many federal sentencing enhancements in ways that make the generic approach a poor fit. Instead of prompting courts to аsk whether prior offenses qualify as discrete crimes like “burglary,” “arson,” or “extortion,” many enhancements turn instead on whether a defendant‘s prior offense has some other attribute. See 140 S. Ct. at 783 (explaining that many statutes “ask the court to determine not whether the prior conviction was for a certain offense, but whether the conviction meets some other criterion“). The question these statutes ask is not whether a prior conviction is a particular kind of offense, but rather whether something else is true of its statutory elements.
Taylor and Shular illustrate that the categorical approach is not a one-size-fits-all formula. Rather, the proper categorical analysis can take different forms depending on the language Congress uses to frame the federal benchmark against which courts must compare prior offenses. Although categorical analysis always focuses on the elements of prior offenses, the precise mechanics of deciding whether those elements trigger a statutory consequence turn on how Congress articulates the applicable federal benchmark.
B
With these principles in mind, we return to the question before us. We start from the common point of agreement between Liestman and the government that
By its terms,
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, or sex trafficking of children.
No one contends that Liestman‘s prior conviction for possessing child pornography relates to sex trafficking or sexual abuse as
[w]hoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape,
or other recording of a child engaged in sexually explicit conduct under all of the following circumstances [commits a Class D felony]: (a) The person knows that he or she possesses or has accessed the material.
(b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.
(c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.
With the pertinent statutory language on the table, we agree with Liestman that
Resisting this conclusion, the government contends that the Wisconsin Supreme Court‘s decision in State v. Petrone, 468 N.W.2d 676 (1991), eliminates any possibility that a defendant could be convicted under
We are not persuaded. Foremost, it makes little sense to conclude that the Wisconsin legislature, in adding “breast” and “buttock” to
We have little trouble concluding, then, that a defendant could be prosecuted under
But that conclusion does not resolve this appeal. After all,
The proper beginning point is the phrase “relating to” itself. Congress left the term undefined, requiring us to give it its ordinary meaning absent countervailing evidence of a contrary intent in the text or structure of
Were “relating to” in
First, by giving “relating to” its broad and ordinary meaning, we avoid treating that language as synonymous with narrower connecting language Congress has used to frame other sentencing enhancements. Consider once more
Second, in the very statute that added the “relating to” language to
Third, at the time Congress added the “relating to” language to
The Supreme Court has relied on this kind of backdrop evidence in rejecting interpretations of other sentencing enhancements. Returning to Taylor, the Court there rejected a narrow, common-law definition of burglary in part because “construing ‘burglary’ to mean common-law burglary would come close to nullifying that term‘s effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.” 495 U.S. at 594. More recent examples abound, and each comes directly to us from the Supreme Court. See, e.g., Pugin, 599 U.S. at 607 (admonishing that courts “should not lightly conclude that Congress enacted a self-defeating statute“)
Together, these points combine to reinforce the starting presumption that Congress used “relating to” in
Albeit in more abbreviated reasoning, we reached this precise conclusion in United States v. Kaufmann. In no uncertain terms, we rejected the view that
Kaufmann was not an aberration. Then, and now, a majority of circuits to have interpreted “relating to” in
D
Represented by very able counsel, Liestman urges us to depart from the majority
On the latter point, the Supreme Court has never intimated that non-generic categorical analysis—which Liestman fairly calls the conduct-based approach—must follow mechanical rules applicable to all sentencing enhancements without regard to differences in text, structure, and purpose. To the contrary, the unifying principle that ties the Supreme Court‘s categorical approach cases together is the recognition that whether the categorical approach applies at all—and, if so, what form it takes—are fundamentally questions of statutory interpretation. See, e.g., United States v. Davis, 139 S. Ct. 2319, 2327 (2019) (observing that whether the categorical approach applies can be determined only through examination of statute‘s text, context, and history); Esquivel-Quintana, 581 U.S. at 391 (explaining that the meaning of “sexual abuse of a minor” must be determined “using the normal tools of statutory interpretation“).
Liestman‘s rulе also stands at odds with the Supreme Court‘s recent decision in Pugin v. Garland, which held that, as used in
Pugin shows that nothing inherent in the categorical approach precludes courts from giving “relating to” its ordinary meaning. Indeed, it is difficult to imagine where any such limitation would come from other than the Constitution, which Liestman does not invoke in this appeal. Cf. Portanova, 961 F.3d at 262-63 (considering and rejecting an as-applied void-for-vagueness challenge to
Neither Mellouli nor Ruth calls this conclusion into question. Today we apply the categorical approach while giving the phrase “relating to” its broad ordinary meaning in the context of
Mellouli and Ruth involved different statutory contexts. Take Mellouli first. The Supreme Court there considered whether Moones Mellouli‘s Kansas conviction for possessing drug paraphernalia triggered removal under the Immigration and Nationality Act. See 575 U.S. at 802. The operative provision,
The Court declined to adopt a broad interpretation of the term “relating to” in
The statute‘s history stood front and center in the Court‘s analysis. Earlier versions of
Ruth is much the same—a holding rooted in the history and context of the statute under review. In Ruth, we addressed whether an Illinois cocaine conviction qualified as a “felony drug offense” that would trigger a sentencing enhancement under
“narcotic drugs,” in turn, is defined in exactingly technical detail, down to the specific kinds of chemical isomers of cocaine—optical and geometric, but not positional—that qualify. See
Our overarching point is that neither Mellouli nor Ruth supports Liestman‘s key contention—that the phrase “relating to” cannot receive its broad, ordinary meaning when introducing sentence-enhancing conduct. Instead, those cases turned on statutory and historical features that have limited relevance to the proper interpretation of
III
All that remains is to apply our holding to Jay Liestman‘s case. The question is whether
The line between “accessing” and “possessing” child pornography is razor thin, if indeed one exists at all. Accessing was added to
Even if such a difference could be posited in the abstract, accessing child pornography still clearly bears the requisite connection to the possession or receipt of child pornography. Statutes that criminalize accessing and possessing child pornography “address[] the same harm—sexual exploitation of minors—that [
Nothing about the broader scope of Wisconsin‘s child pornography laws changes this. While we agree that Wisconsin‘s definition of child pornography reaches anatomy—the breasts and buttocks—that federal law does not, images of those parts of the body qualify as “sexually explicit conduct” under
For these reasons, we AFFIRM.
WOOD, Circuit Judge, joined by ROVNER, JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges, dissenting. When the Framers of the Constitution “split the atom of sovereignty,” as Justice Kennedy put it in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring), they set in motion complex forces with which we are still dealing today. On the plus side, our federal system preserves local accountability and choice, while at the same time it harnesses the power of the country as a whole for matters of national or international concern. But on the minus side, we have learned that federalism isn‘t always easy, and it isn‘t always neat. The question now occupying the en banc court‘s attention is a case in point. Federal criminal law intersects with its counterparts in the 50 states, the District of Columbia, and the territories in myriad ways. One of those ways—the one involved here—relates to the use of state convictions to enhance a federal sentence.
In an ideal world, it would be easy to identify which state convictions should be used in conjunction with federal sentencing: whichever ones Congress specifies in the relevant recidivism statute. But applying that rule turns out to be easier said than done. Enter the Supreme Court: In order to foster uniformity across the country in the face of the countless variations in state statutes, the Court has interpreted the federal recidivism statutes as normally taking a “categorical” approach to the task of comparing a state conviction with a
I
Because the majority has provided the key background facts about Liestman‘s conviction, I move straight to the legal question before the en banc court: whether the punishment for Liestman‘s federal crime of transporting child pornography in violation of
The case usually credited for adopting this method of reconciling state convictions with federal law is Taylor v. United States, 495 U.S. 575 (1990). The question before the Court in that proceeding concerned the meaning of the word “burglary” as it was used in
But that was not Taylor‘s only contribution to this area. Equally important was the way in which the Court applied that generic definition of burglary to the case before it. That required the resolution of another general issue: “whether the sentencing court in applying
In the years following Taylor, the Court has returned frequently to the categorical
The setting of Shular was a familiar one: it dealt with the proper way to apply the enhancement mandated by the Armed Career Criminal Act,
The Court opted for the government‘s approach. In so doing, it added a layer of complexity to Taylor‘s categorical approach. While the analysis is still applied in a categorical fashion—that is, in a way that does not depend on the facts of the particular case—Shular establishes that the categorical approach is a methodology that can be used in different ways. Specifically, it identifies two versions of the categorical approach. The first and more familiar one “requires the court to come up with a ‘generic’ version of a crime—that is, the elements of ‘the offense as commonly understood.‘” Id. at 158 (citation omitted). The second (previously unrecognized) variant asks the court “to determine not whether the prior conviction was for a certain offense, but whether the conviction meets some other criterion.” Id. One such criterion focuses on the elements of an offense: the court must determine whether the proposed state predicate offense has the designated elements that Congress highlighted. Id.
The latter approach, the Court held, was the appropriate one for Shular‘s case. It explained that the operative terms describing a “serious drug offense” logically referred to conduct, not to any recognizable crime such as burglary, arson, or extortion. The Court rejected the idea that something “involving” the designated activities necessarily described separate crimes. Wrapping up the opinion, the
With this general background about the categorical approach, I now turn to the particular statutes involved in Liestman‘s case.
II
A
My first step is to look carefully at the statute of conviction, the statute governing sentencing, and the predicate state-law offense. For convenience, I set them out here, so that the reader will not need to flip back to the majority opinion to find them. First, we have the statute of conviction,
(a) Any person who—
(1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
... .
shall be punished as provided in subsection (b) of this section.
Next there is the sentencing provision that applies for section 2252(a) offenses,
Whoever violates ... paragraph (1) ... of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such person 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, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
Finally, there is the language of
Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):
(a) The person knows that he or she possesses or has accessed the material.
(b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.
(c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.
Liestman offers two reasons why his prior state conviction under section 948.12(1m) does not qualify as a predi-cate for purposes of section 2252(b)(1). First, he argues that the Wisconsin statute sweeps more broadly than the federal law because it encompasses the lewd exhibition of the breasts and buttocks, see
The nub of the question before us is thus how those two words, “relating to,” affect the categorical analysis that normally applies to these cases. The majority, ante at 10-16, sees that phrase as a get-out-of-jail-free card from the categorical approach. The phrase, as they understand it, is so broad and undefined, that even the loosest of connections to the federal crime (here, transporting child pornography) will suffice to qualify the earlier state crime as a proper enhancer under section 2252(b)(1). In so doing, they rely on several cases from this court, and they then turn to guidance from the Supreme Court. My analysis of those materials, however, leads me to a different conclusion, as I now explain.
B
In order to provide the legal framework for this statutory-interpretation exercise, I begin with the Supreme Court‘s decisions interpreting the phrase “relating to” to see how they apply to the sentencing-enhancement issue here. Two cases are particularly relevant: Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992), and Mellouli v. Lynch, 575 U.S. 798 (2015). I discuss them in that order.
A layperson could be forgiven for being somewhat mystified by the notion that Morales has anything to do with Liestman‘s sordid activities. As I discuss in more detail in a moment, Morales was about airline pricing practices in a market that only recently had been deregulated. Ascertaining the proper prison term for a transporter of child pornography seems to be a far cry from an effort by state attorneys general to attack certain airline pricing stratagems as deceptive trade practices. For that matter, child pornography seems to have little to do with the regulation of pension plans under federal law pursuant to the Employee Retirement Income Security Act (ERISA),
The backdrop for Morales was Congress‘s decision to move from a world in which airline prices were regulated by an administrative body (the Civil Aeronautics Board) to a world in which unfettered price competition is the order of the day. The Airline Deregulation Act of 1978,
The job before the Court was to decide whether the state deceptive-practice laws fit within the saving clause, or if instead the preemption clause had the effect of overriding them. The Court thought that the latter reading was more faithful to section 1305(a)(1)‘s express preemption language. The key phrase, it said, was “relating to.” Consulting the fifth edition of Black‘s Law Dictionary, the Court observed that the “ordinary meaning” of those words is broad. Something “relates to” another thing if it “stand[s] in some relation; [has] a bearing or concern; pertain[s]; refer[s]; [or] bring[s] into association with or connection with” that other thing. 504 U.S. at 383. The Court found the same breadth in ERISA‘s preemptiоn provision,
Broad though the term “relating to” may be, however, it is still necessary to tether it to the legal framework of the law in which we find it. After all, as even the Palsgraf court recognized, chains of causation can become so long that liability dissipates. See Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928). For want of a nail, the kingdom may have been lost, but after a certain point we let that loss lie where it fell. In the law at issue in Morales, however, Congress signaled that it wanted a broad interpretation of laws that “relate to” airline pricing. And following that instruction, the Court held that the state laws before it were close enough to the core of pricing that they were preempted. This was entirely reasonable. We know from antitrust law that there are many ways to compete on value without direct price-fixing: quantities can be manipulated, warranties can be offered, information can be conveyed in advertising, product differentiation can occur, loss leaders can lure people in the door, and so on (and on, and on, and on). If the goal of a federal statute is price deregulation, it makes sense to say that state law should not get in the way of creative efforts by the airlines to compete through such measures as advertising, frequent flier programs (a form of discount from the customer‘s perspective), and compensation for disrupted travel. Boiled down to their essentials, these are all forms of competition, and thus they are all logically encompassed by a law that was designed to substitute a competitive regime for a regulatory one.
In short, there is inevitably a zone within which the deregulatory framework established by the federal Act must be free to reign, and a space beyond that line in which state law is free to continue to operate. No one thinks that the Act confers carte blanche on airline personnel to steal people‘s suitcases, or to skim their credit cards while the customer is paying to check a bag, or to flout a state‘s minimum-wage laws, see Hirst v. Skywest, Inc., 910 F.3d 961, 967 (7th Cir. 2018). Those activities are related to the person‘s decision to fly somewhere, but not in a way that requires preemption of state law.
The same logic explains why the analogy to ERISA fails in the end. ERISA preempts state laws “insofar as they ... relate to any employee benefit plan.”
The Court held that the law “related to” ERISA plans, reasoning that the history of ERISA‘s preemption provision “indicated that the section‘s preemptive scope was as broad as its language.” Id. In the course of doing so, it offered the following guidance for determining whether ERISA preemption exists: “A law ‘relate[s] to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Id. In order to see whether the state law has that type of connection to an ERISA plan, it is necessary to determine what laws Congress intended to supplant. Id. at 95-98.
Sometimes the proper conclusion is that Congress did intend that displacement, but as California Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., 519 U.S. 316 (1997), demonstrated in its rejection of ERISA preemption, sometimes Congress has no such intent. The state law there was not preempted for several reasons: it did not have a “connection with” ERISA plans, and it did not “reference” ERISA plans because its requirements applied to both apprenticeship programs covered by ERISA (those where the parties had set up separatе funds) and other programs that were not (those where the employer supported the program out of its general assets).
What we learn from Morales and the ERISA examples on which it relied is that it is essential to pay attention to legislative context. Neither airline deregulation nor the ERISA scheme operates in a vacuum. It was necessary to ascertain the scope of each statute before it was possible to see if a state law “related to” the federal provision for purposes of preemption. In contrast, in Mellouli, the same careful attention to legislative context caused the Court to require a tighter relation between the federal law and the state law.
Mellouli concerned the use of state convictions in immigration cases. In 2010, Moones Mellouli, a lawful permanent resident of the United States, pleaded guilty to a misdemeanor offense under Kansas law for the possession of drug paraphernalia to store a controlled substance. The “paraphernalia” was a sock, where he had put four Adderall pills, which contain a mixture of amphetamine and dextroamphetamine. Adderall is used to treat narcolepsy and ADHD, among other things. The state court imposed a suspended term of 359 days and 12 months’ probation.
After Mellouli successfully completed his probation, he was arrested by agents of Immigration and Customs Enforcement on the ground that the state misdemeanor rendered him removable pursuant to
We hold that Mellouli‘s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under
§ 1227(a)(2)(B)(i) . The drug-paraphernalia possession law under which he was convicted,Kan. Stat. Ann. § 21-5709(b) , by definition, related to a controlled substance: The Kansas statute made it unlawful “to use or possess with intent to use any drug paraphernalia to ... store [or] conceal ... a controlled substance.” But it was immaterial under [the Kansas] law whether the substance was defined in21 U.S.C. § 802 . Nor did the State charge, or seek to prove, that Mellouli possessed a substance on the§ 802 schedules. Federal law (§ 1227(a)(2)(B)(i) ), therefore, did not authorize Mellouli‘s removal.
575 U.S. at 801 (emphasis in original).
Note that the Court freely recognized in this passage that the law underlying Mellouli‘s Kansas conviction “relat-ed to” a controlled substance. But that was not enough to support the use of that conviction for removal, for the simple reason that the removal statute included an additional requirement: the only controlled substances that could be used as a reference point were those defined in
Taking the categorical approach, the Court noted that Kansas defines “controlled substances” more broadly than the federal government does; the Kansas definition includes “at least nine substances not included in the federal lists.” 575 U.S. at 802. The government argued, however, that the use of the words “relating to” in the immigration statute rendered that mismatch irrelevant. The Kansas drug misdemeanor of which Mellouli was convicted at least related to the federal controlled substance laws, and that (the government contended) was enough.
Not so, the Court responded. The majority accepted that “the last reasonable referent of ‘relating to,’ as those words appear in
C
That moves us closer to Liestman‘s case. It is common ground between the majority and me that his Wisconsin conviction could not be used to enhance his federal sentence if we were to use the “generic crime” version of the categorical approach. Wisconsin‘s statute covers more body parts—that is, more activity—than the federal statute does, and so it fails that test. But what about the “conduct” approach? And how should the words “relating to” affect
The first case I examine is United States v. Kraemer, 933 F.3d 675 (7th Cir. 2019), which was handed down on July 31, 2019. The facts in Kraemer were almost a carbon copy of those in Liestman‘s case. After being charged with five counts of distribution of child pornography in violation of
At the sentencing stage, Kraemer‘s two earlier convictions under Wisconsin law for first-degree sexual assault of a child became relevant. See
We upheld that decision, id. at 685, but our rationale differed subtly from that of the district court. We emphasized that the prior conviction supporting an enhancement needed only to “relate to” aggravated sexual abuse, id. at 679, not to be “absolute[ly] congruen[t]” with the federal law, id. at 680. Importantly, there was no statutory definition binding us, since chapter 110 (unlike chapter 109A) has no definition of the terms “aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduct.” In that setting, we concluded that the words “relate to” have their default broad meaning. Id. at 679 (citing Mellouli, 504 U.S. at 383). We distinguished Mellouli on the ground that it turnеd on “the particular removal statute‘s surrounding text and history.” Id. at 681. We could find no comparable history or text that informed the statutes at issue in Kraemer. Id. at 682. On the understanding that there was no contrary direction from Congress, we felt free to conclude that a “slight difference in the maximum age of the victim” (Wisconsin used age 13, while the federal statute used age 12) did not prevent the state crime from being “related to” the federal offense, id. at 684, and so we were relieved of the need to use the normal categorical approach.
Just three months later, we returned to this subject in United States v. Kaufmann, 940 F.3d 377 (7th Cir. 2019). Although Kaufmann purported to follow Kraemer‘s reasoning, id. at 381 (“[W]e adhere to our Kraemer decision today“), a closer look reveals that it missed a critical point. Like Kraemer, Kaufmann had pleaded guilty to child pornography offenses—in Kaufmann‘s case both receiving and possessing materials involving sexual exploitation of a minor, in violation of
What we missed in Kaufmann was the importance of a statutory definition. Although there was no governing stat-utory definition in Kraemer, the opposite was true in Kaufmann. The key term in Kaufmann was “child pornography,” not “sexual abuse” or one of its variants. The term “child pornography” is defined in
The third case I wish to highlight is United States v. Ruth, 966 F.3d 642 (7th Cir. 2020). Defendant Ruth pleaded guilty to one count of possession of a firearm by a felon,
The Controlled Substances Act defines the term “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
I take several lessons from all of these cases. First, the Supreme Court has steadfastly adhered to the categorical approach, and so any step we take must be consistent with it. The only thing that Shular did was to ensure that courts did not think, after Taylor, that it is always necessary to conjure up a generic offense. Second, whether federal and state laws can be compared depends on the conduct that each covers. Third, when it comes to identifying pertinent conduct, we must pay close attention to the text of the federal statute under consideration. Sometimes thе statute defines the actionable conduct quite broadly, as simply “relating to” airline pricing, controlled-substance offenses, child abuse, or whatever else Congress wishes to use as the point of comparison. Sometimes it has a narrower definition, and sometimes there is no definition at all. Another case on which the majority relies, Pugin v. Garland, 599 U.S. 600 (2023), is an example of the last type of case.
In Pugin, the question was whether a state offense “related to” obstruction of justice if there was no pending investigation or proceeding. The term “obstruction of justice” was undefined in the statute, and so the Court turned to definitions appearing in various state laws as a hint to what Congress may have had in mind when it used that term. See id. at 607. The majority does the same here. Ante at 13. But while 50-state surveys may be appropriate in cases involving the generic categorical approach where Congress leaves a term undefined, they cannot take precedence when Congress tethers the comparison to a defined term in federal law. We should presume that Congress knows what it is doing, even if it adopts a definition that only a minority of states follow. In Liestman‘s case, we need not guess what offenses are reached by the phrase “child pornography,” because the definition in section 2256 tells us exactly what conduct Congress had in mind. We are not free to ignore that definition even if (as in Mellouli) the phrase “relating to” occurs elsewhere in the law. As Mellouli held, we must stay within the definition Congress gave us.
III
All that remains is to apply this law to Liestman‘s case. His crime of conviction is the transportation of child pornography. As I noted earlier, the term “child pornography” is defined for purposes of chapter 110 in
Whoever violates, or attempts or conspires to violate, paragraph (1) ... of subsection (a) shall be fined under this title and imprisoned not less than 5
years and not more than 20 years, but if such person has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor (as defined in section 2256 of this title) or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography (as defined in section 2256 of this title), or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
The first line of section 2256 already does the work of the italicized parentheticals. Liestman‘s case is thus indistinguishable from Mellouli.
The proper comparison, using the conduct-based categorical approach, is between the conduct defined to be child pornography by the governing federal statute, and the conduct covered by Liestman‘s predicate Wisconsin conviction. We all agree that the Wisconsin statute criminalizes more conduct than the federal statute. That should be enough to require a holding that Liestman‘s earlier conviction cannot be used to enhance his sentence in this case.
I would remand for resentencing. I therefore respectfully dissent from the holding of the en banc court.
Notes
The definition reads as follows in its entirety:
(8) “child pornography” means 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 identifiable minor is engaging in sexually explicit conduct.