United States v. Raymond Devore ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30205
Plaintiff-Appellee, D.C. No. 2:15-cr-00160-TSZ-1
v.
MEMORANDUM*
RAYMOND EARL DEVORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted March 8, 2019
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and JACK,** District Judge.
Raymond Earl Devore (“Devore”) was convicted of one count distribution
of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. §
2252(b)(1), one count receipt of child pornography, in violation of 18 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
2252(a)(2) and 18 U.S.C. § 2252(b)(1), two counts possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), one count production of
child pornography, in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2251(e),
and one count enticement of a minor, in violation of 18 U.S.C. §2422(b). On
appeal, he challenges the sufficiency of the indictment with regard to the one count
production of child pornography, and the district court’s determination that his
prior convictions under Washington law for possession and distribution of
depictions of a minor engaged in sexually explicit conduct trigger the recidivist
sentencing enhancement of 18 U.S.C. § 2251(e). This court has jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We hold that the indictment sufficiently stated the charge with regard to the
production of child pornography, in violation of 18 U.S.C. § 2251(a) and 18 U.S.C.
§ 2251(e) and affirm the district court’s application of the sentencing enhancement
pursuant to 18 U.S.C. § 2251(e).
1. In order for an indictment to be sufficient and put the defendant on
adequate notice it must contain the necessary elements of the crime alleged.
United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995). When used in the
law, the word “attempt” connotes both action and intent. United States v.
Resendiz-Ponce, 549 U.S. 102, 107 (2007). The indictment included the phrase
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“attempt to” in the relevant charge. Thus, the indictment adequately put Devore on
notice of the intent component of the charge.
2. The term “sexual exploitation of children” is not defined in 18 U.S.C. §
2251(e), so the district court had 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 Devore’s
Washington convictions under Wash. Rev. Code §§ 9.68A.050, 9.68A.070, and
9.68A.090 relate to the sexual exploitation of children within the meaning of §
2251(e) due to the “broadening effect” of “relating to” on the term that follows.
Sullivan, 797 F.3d at 638. The offenses under Wash. Rev. Code §§ 9.68A.050,
9.68A.070, and 9.68A.090 stand in some relation, bear upon, or are associated with
the generic offense of sexual exploitation of children. Id.
AFFIRMED.
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 FILED
U.S. v. Devore, No. 17-30205 MAY 31 2019
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with the majority that the indictment sufficiently alleged the
production of child pornography charge. I disagree, however, with the application
of the recidivist sentencing enhancement pursuant to 18 U.S.C. § 2251(e) for two
or more prior convictions. The majority’s holding is inconsistent with United
States v. Reinhart, 893 F.3d 606 (9th Cir. 2018). I would remand for resentencing.
Section 2251(e) provides a mandatory sentence of “not less than 35 years”
for an individual who “has 2 or more prior convictions under this chapter . . . or
under the laws of any State relating to the sexual exploitation of children.”1 In
determining whether Devore’s state convictions qualify under the multiple-
conviction enhancement, I would apply the categorical approach as set forth in
Taylor v. United States, 495 U.S. 575 (1990). United States v. Sullivan, 797 F.3d
623, 635 (9th Cir. 2015).
The categorical approach begins with identifying the federal generic
definition of “sexual exploitation of children.” Id. “[A]pplying well-established
statutory principles, where there is a federal definition of” sexual exploitation of
children “in the same statutory chapter as the sentencing enhancement . . . we
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This section provides a lower mandatory minimum for persons with a single prior
conviction “under this chapter . . . or under the laws of any State relating to” a
different, longer list of activities. 18 U.S.C. § 2251(e).
apply that definition.” Reinhart, 893 F.3d at 613. Section 2251 is titled “[s]exual
exploitation of children” and makes it a criminal offense where a person
“employs, uses, persuades, induces, entices, or coerces any minor to engage in, or
who has a minor assist any other person to engage in, or who transports any minor
in or affecting interstate foreign commerce . . . with the intent that such minor
engage in, any sexually explicit conduct for the purpose of producing any visual
depiction of such conduct or for the purpose of transmitting a live visual depiction
of such conduct.” 18 U.S.C. § 2251(a). In other words, section 2251 defines
“sexual exploitation of children” as specific acts for the production of child
pornography.
Moreover, in the context of the sentencing guidelines, our court has noted
that “‘[s]exual abuse or exploitation’ does not include trafficking in material
relating to the sexual abuse or exploitation of a minor.” United States v. Kemmish,
120 F.3d 937, 942 (9th Cir. 1997) (emphasis added); see also United States v.
Ketcham, 80 F.3d 789, 794 (3d Cir. 1996) (recognizing that “sexual abuse” and
“sexual exploitation” “are terms of art” and refer to different conduct).
Based on the text of section 2251 and the mandate from Reinhart that we
apply the definition of the generic crime provided in the statute, I would hold that
Devore’s prior convictions for possession of depictions of a minor engaged in
sexually explicit conduct, Wash. Rev. Code § 9.68A.070, dealing in depictions of a
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minor engaged in sexually explicit conduct, Wash. Rev. Code § 9.68A.050, and
communication with a minor for immoral purposes, Wash. Rev. Code § 9.68A.090,
are not categorical matches to sexual exploitation of children. See Sullivan, 797
F.3d at 635 (“[W]here a state statute of conviction criminalizes more conduct than
the federal generic offense, it does not qualify as a categorical match.”).
The phrase “relating to” in section 2251(e) does not change the result. See
Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (recognizing that, “extended to the
furthest reach of their indeterminancy,” the words “relating to” “stop nowhere”).
Reinhart held that California convictions for possession of child pornography and
“[s]exual exploitation of child,” violations of Cal. Penal Code §§ 311.11(a) and
311.3(a), respectively, were not offenses “relating to . . . child pornography” under
18 U.S.C. § 2252(b)(2). 893 F.3d at 608. Because the phrase following “relating
to” was defined in the same statutory chapter, Reinhart did not treat “relating to” as
a reason to depart from the categorical approach. Id. at 616.
Here, too, the phrase that follows “relating to” is defined in the same
statutory chapter. 18 U.S.C. § 2251 (labeling the section “[s]exual exploitation of
children”); id. § 2251(a) (defining what conduct is a criminal offense in this
section). Following the reasoning of Reinhart, because the possession and
distribution convictions are not categorical matches, they are not predicate
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convictions for the purpose of the multiple-convictions enhancement. I
respectfully dissent.
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