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United States v. Reinhart

United States Court of Appeals, Ninth Circuit

June 18, 2018

United States of America, Plaintiff-Appellant,
v.
David Wesley Reinhart, Defendant-Appellee.

          Argued and Submitted November 16, 2017 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding D.C. No. 4:15-cr-00330-JSW-1

          Jonas Lerman (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellant.

          Ned Smock (argued), Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, Oakland, California; for Defendant-Appellee.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Nancy Freudenthal, [*] Chief District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed the district court's imposition of a 78-month sentence for two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

         The government argued that based on the defendants' prior convictions for possession of child pornography (Calif. Penal Code § 311.11(a)) and sexual exploitation of child (Calif. Penal Code § 311.3(a)), he was subject to the ten-year mandatory minimum set forth in 18 U.S.C. § 2252(b)(2) for having had a prior state conviction "relating to" the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography. The government also argued that in determining whether the prior convictions trigger the § 2252(b)(2) enhancement, the usual Taylor categorical approach does not apply, because the words "relating to" in § 2252(b)(2) mandate a broader comparison of the offenses in the federal and state statutes than the usual comparison between the elements of the state and federal statutes.

         Because the terms "child pornography" and "sexually explicit conduct" are explicitly defined in the same statutory chapter as the sentencing enhancement provision at § 2252(b)(2), the panel did not depart from the usual, elements-based, categorical approach to determine whether the defendant's prior California statutes of conviction trigger the mandatory minimum provision in § 2252(b)(2).

         Following United States v. Chavez-Solis, 803 F.3d 1004 (9th Cir. 2015), the panel held that § 311.11(a) is categorically overbroad because it sweeps in depictions of a broader range of "sexual conduct" than the federal child pornography statute; and that the statute is not divisible. The panel likewise held that § 311.3(a) is categorically overbroad as compared to the federal definition of "sexually explicit conduct, " and that it is not divisible. The panel therefore did not look to any fact-specific documents to determine whether either of the defendant's prior convictions was an offense "relating to" the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography under § 2252(b)(2), and concluded that neither of the prior convictions triggers the mandatory minimum sentence.

          OPINION

          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 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 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).[1] Relying on this 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, 803 F.3d 1004 (9th Cir. 2015). The district court also found that § 311.11(a) was indivisible. The district court found California Penal Code § 311.3(a), sexual exploitation of a child, was overbroad because it included broader conduct than under the federal statutes, and that it was also indivisible. Because neither of Reinhart's prior California convictions was a categorical match to the federal definition of child pornography, the offenses did not constitute predicate offenses under § 2252(b)(2), and the ten-year mandatory minimum sentence did not apply.

         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 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, 797 F.3d 623, 635 (9th Cir. 2015) (citing United States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en banc)).

         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, 504 F.3d 737, 740 (9th Cir. 2007) (citing Taylor v. United States, 495 U.S. 575 (1990)). Under Taylor's familiar two-step test, "the court first defines the federal generic definition of the crime, and then compares the elements of the state offense with that definition" to determine whether there is a "categorical match." Sullivan, 797 F.3d at 635 (citation omitted). "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. But where a state statute of conviction criminalizes more conduct than the federal generic offense, it does not qualify as a categorical match" and is considered overbroad. Id. (internal citations omitted).

         When a statute is overbroad, the categorical inquiry does not end. Descamps v. United States, 133 S.Ct. 2276, 2283- 84 (2013). Instead, we inquire whether the statute, though overbroad, is nevertheless divisible. Id. A statute is divisible when it lists potential offense elements, some of which would fall under the generic federal definition and some that would not. Id. at 2284. The government must prove elements of an offense beyond a reasonable doubt. Id. Elements are not merely means of committing the offense listed in the alternative. Id. If the statute is divisible, the court applies the modified categorical approach in which it may look at certain documents that illuminate the underlying facts of the state conviction. Id. With those additional facts, the court may then be able to determine whether the particular state offense falls under the relevant federal statute.

         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. Id. at 627-28, 630. Unlike Reinhart, Sullivan's prior state convictions were not possession of child pornography offenses, but sexual abuse offenses.[2] 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 ...


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