United States v. Cavon Clark ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30301
Plaintiff-Appellee, D.C. No.
2:11-cr-00173-LRS-1
v.
CAVON C. CLARK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted May 17, 2018
Seattle, Washington
Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.
Cavon C. Clark was convicted of one count of production of child
pornography, in violation of 18 U.S.C. § 2251(b), and one count of transportation
of child pornography, in violation of 18 U.S.C.§ 2252A(a)(1). On appeal, he
challenges the district court’s determination that his prior convictions under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
Washington law for possession of depictions of a minor engaged in sexually
explicit conduct trigger the recidivist sentencing enhancement of 18 U.S.C. §
2251(e) on the production count. Clark also challenges the district court’s
imposition of a single-conviction enhancement under 18 U.S.C. § 2252A(b)(1) on
the transportation count. Finally, Clark appeals the district court’s inclusion in its
written judgment of a lifetime term of supervised release that it failed to pronounce
orally at sentencing.
We affirm the district court’s application of the sentencing enhancements,
vacate the portion of the written judgment imposing a term of supervised release,
and remand to allow the district court to consider whether to pronounce orally the
term of supervised release.
1. Because the term “sexual exploitation of children” is not defined in 18
U.S.C. § 2251, the district court was required to “‘defin[e] the offense based on the
ordinary, contemporary, and common meaning of the statutory words.’” United
States v. Sullivan, 797 F.3d 623, 636 (9th Cir. 2015) (quoting United States v.
Sinerius, 504 F.3d 737, 740 (9th Cir. 2007)); accord United States v. Reinhart, 893
F.3d 606, 611-12 (9th Cir 2018). The district court correctly concluded that Clark’s
Washington convictions under Rev. Code Wash. 9.68A.070 “relat[e] to the sexual
exploitation of children” within the meaning of § 2251(e), noting that the phrase
has “a broadening effect on what follows” and that it “mandates the enhancement
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for any state offense that stands in some relation, bears upon, or is associated with
that generic offense.” (quoting Sullivan, 797 F.3d at 638 (internal quotation marks
and citation omitted)).1
2. Clark’s challenge to the single-conviction enhancement of 18 U.S.C. §
2252A(b)(1) in the sentence on the transportation conviction also fails. The
Washington offense of possession of depiction of a minor engaged in sexually
explicit conduct, Rev. Code Wash. 9.68A.070, is a categorical match to the federal
crime of “possession” of “child pornography,” 18 U.S.C. § 2252A(a)(5)(B).
3. “The only sentence that is legally cognizable is the actual oral
pronouncement in the presence of the defendant.” United States v. Hicks, 997 F.2d
594, 597 (9th Cir. 1993) (internal citation and quotation omitted). The inclusion of
a term of lifetime supervised release in the written judgment does not remedy an
oral omission at sentencing. We therefore vacate the supervised release portion of
Clark’s sentence and remand to afford the district court the opportunity to impose
the intended term. See id.
1
The district court did not err in determining that Clark’s two Washington
convictions for the same statutory offense triggered the multiple-conviction
enhancement. The court correctly held that, despite the consolidation of the
charges into a single adjudicatory proceeding, Clark’s “decision to download on
different dates to different media” constituted distinct violations of the law. See,
e.g., United States v. Phillips, 149 F.3d 1026, 1031-32 (9th Cir. 1998); United
States v. Liquori, 5 F.3d 435, 437-38 (9th Cir. 1993); United States v. Maxey, 989
F.2d 303, 306 (9th Cir. 1993).
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AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
4 16-30301