United States v. Edward Sullivan ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10196
Plaintiff-Appellee,
D.C. No.
v. 4:09-cr-00167-
DLJ-1
EDWARD LEE SULLIVAN,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-10217
Plaintiff-Appellant,
D.C. No.
v. 4:09-cr-00167-
DLJ-1
EDWARD LEE SULLIVAN,
Defendant-Appellee. ORDER AND
OPINION
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding
Argued and Submitted
January 14, 2014—San Francisco, California
Filed July 29, 2015
2 UNITED STATES V. SULLIVAN
Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
Judges, and Beverly Reid O’Connell, District Judge.*
Opinion by Judge Ikuta
SUMMARY**
Criminal Law
The panel withdrew an opinion filed on May 28, 2014,
and filed a superseding opinion affirming in part and
reversing in part a criminal judgment, and remanding, in a
case in which the defendant was convicted under 18 U.S.C.
§§ 2251(a) and 2252(a)(4)(B) for producing and possessing
a sexually explicit video depicting a 14-year-old girl.
The panel held that venue in the Northern District of
California for the production count was not improper, and
that National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012), does not undermine this court’s
precedent that Congress may regulate even purely intrastate
production of child pornography and criminalize its intrastate
possession.
The panel held that the district court did not err in
denying the defendant’s motion to suppress evidence
*
The Honorable Beverly Reid O’Connell, United States District Court
Judge for the Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SULLIVAN 3
obtained from his laptop computer. Balancing the nature of
the intrusion into the defendant’s possessory interests against
the government’s interests justifying the intrusion, the panel
concluded that the government’s seizure and retention of the
laptop for 21 days before obtaining a search warrant was,
under the totality of the circumstances, not unreasonable
under the Fourth Amendment.
The panel held that violations of Calif. Penal Code
§ 261.5(d) (unlawful sexual intercourse with a minor under
16 years of age) and Calif. Penal Code § 288a(b)(2) (oral
copulation with a minor under 16 years of age) are
categorically offenses “relating to” aggravated sexual abuse,
sexual abuse or abusive sexual conduct involving a minor or
ward, and that the district court therefore properly applied the
mandatory minimum sentence enhancement provisions
contained in 28 U.S.C. §§ 2251(e) and § 2252(b)(2). Reading
together Morales v. Trans World Airlines, Inc., 504 U.S. 374
(1992), and Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the
panel interpreted the phrase “relating to” broadly when
applying the Taylor categorical approach unless the text and
history of the statute require a narrower construction, which
it concluded is not the case with §§ 2251(e) or 2252(b)(2).
On the government’s cross-appeal, the panel held that the
district court erred in its legal analysis when sustaining the
defendant’s objection to the inclusion of a two-level
enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. The panel remanded for resentencing because it
could not tell if the district court would impose the same
sentence if it applied the correct legal analysis.
4 UNITED STATES V. SULLIVAN
COUNSEL
John J. Jordan, San Francisco, California, 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, California, for Plaintiff-Appellee/Cross-
Appellant.
Sean Kennedy, Federal Public Defender; Koren Bell, Deputy
Federal Public Defender, Los Angeles, California, for Amicus
Curiae Federal Public Defender for the Central District of
California.
ORDER
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
18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and
possessing a sexually explicit video depicting a 14-year-old
girl. He raises multiple challenges to these convictions, as
UNITED STATES V. SULLIVAN 5
well as to the mandatory minimum sentences imposed under
18 U.S.C. §§ 2251(e) and 2252(b)(2). The government cross
appeals, arguing that the district court miscalculated
Sullivan’s Sentencing Guidelines range. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and
affirm in part and reverse in part.1
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 victim: (1) unlawful sexual
intercourse with a minor in violation of California Penal Code
§ 261.5(d); (2) oral copulation with a minor in violation of
California Penal Code § 288a(b)(2); (3) pimping in violation
of California Penal Code § 266h(a); and (4) pandering in
violation of California Penal Code § 266i(a)(2). Sullivan was
sentenced to 140 months imprisonment for the California
convictions.
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 be
searched without a warrant by an agent of the Department of
1
We resolved Sullivan’s remaining claims in a previously filed
memorandum disposition. United States v. Sullivan, 575 F. App’x 973
(9th Cir. 2014).
6 UNITED STATES V. SULLIVAN
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 left 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
UNITED STATES V. SULLIVAN 7
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 photographs
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 testified that Sullivan had shot and narrated the
video, and is also the man seen in the video. This sex video
was later uploaded to Sullivan’s laptop computer. After the
video was produced, Sullivan recorded and narrated two other
videos, one of which showed Erika naked from the waist up,
and the other showed Sullivan questioning Erika regarding
whether she wanted to be a porn star.
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
8 UNITED STATES V. SULLIVAN
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
2
On April 14, 2008, Sullivan agreed to a disposition of the violation
charges.
UNITED STATES V. SULLIVAN 9
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 18 U.S.C.
§ 2251(a). Count 2 charged Sullivan with possession of child
pornography pursuant to 18 U.S.C. § 2252(a)(4)(B). Sullivan
entered a plea of not guilty, and later waived his right to a
jury trial.
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
3
This consent form stated:
I, Edward Sullivan, give Officer Kaplan and Sgt. Ross
of the Berkeley Police Department permission to search
through all files, hard drives and all information
contained on my computer that was taken from me by
Agent Tran [, a parole officer,] when I got arrested.
Including all drives, internal and external storage
devices.
I give this permission and consent freely. I was not
coerced.
I also give consent to search my camera.
10 UNITED STATES V. SULLIVAN
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
§ 2252(a)(4)(B)) because the sex video was not sufficiently
connected to interstate commerce, and moved to dismiss
Count 1 (production of child pornography under § 2251(a))
for lack of venue, because the video had been filmed in
Vacaville (in the Eastern District of California), and the
district court was in the Northern District of California. The
district court denied both motions.
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
18 U.S.C. §§ 2251(e), 2252(b)(2), applied to Sullivan based
on his California convictions for unlawful sexual intercourse
with a minor and oral copulation with a minor, see Cal. Penal
Code §§ 261.5(d), 288a(b)(2). The district court also ruled on
4
Sullivan filed several post-verdict motions, one of which reiterated his
arguments that the district court lacked jurisdiction and venue. The
district court concluded there was no basis to revisit its prior rulings.
UNITED STATES V. SULLIVAN 11
Sullivan’s objection to the two-level Guidelines enhancement
for obstruction of justice recommended in the Presentence
Investigation Report (PSR). Despite having found Sullivan’s
testimony “not credible” and “not true,” the district court
sustained the objection and declined to increase Sullivan’s
offense level from 36 to 38.
The district court sentenced Sullivan to the mandatory
minimum 25 years imprisonment for the conviction under
§ 2251(a) and the mandatory minimum 10 years
imprisonment for the conviction under § 2252(a)(4)(B), to be
served concurrently, followed by a lifetime of supervised
release. Sullivan timely appealed his convictions and
sentence. The government cross appealed the district court’s
ruling regarding the obstruction enhancement.
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 18 U.S.C. § 2251(a)) for improper venue, and his
motion to dismiss Count 2 of the indictment (possession of
child pornography under 18 U.S.C. § 2252(a)(4)(B)) for lack
of federal jurisdiction.
A
Sullivan argues that the district court was required to
dismiss the production of child pornography count, 18 U.S.C.
§ 2251(a), for lack of venue in the Northern District of
California because Sullivan produced the sex video at issue
in the Eastern District of California. We review the district
12 UNITED STATES V. SULLIVAN
court’s venue determination de novo. United States v.
Gonzalez, 683 F.3d 1221, 1224 (9th Cir. 2012).
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.” U.S. Const. art. III, § 2, cl. 3;
see also Fed. R. Crim. P. 18 (“Unless a statute or these rules
permit otherwise, the government must prosecute an offense
in a district where the offense was committed.”). Under
18 U.S.C. § 3237(a), offenses “begun in one district and
completed in another, or committed in more than one district,
may be inquired of and prosecuted in any district in which
such offense was begun, continued, or completed.” To
determine whether a crime is a continuing offense for
purposes of § 3237, “a court must initially identify the
conduct constituting the offense (the nature of the crime) and
then discern the location of the commission of the criminal
acts.” United States v. Stinson, 647 F.3d 1196, 1204 (9th Cir.
2011) (quoting United States v. Rodriguez-Moreno, 526 U.S.
275, 279 (1999)). “Venue is proper under § 3237 when an
‘essential conduct element’ of the offense continues into the
charging district.” Id. (quoting Rodriguez-Moreno, 526 U.S.
at 280–82).
Here, the conduct constituting the elements of a § 2251(a)
offense include: (1) employing, using, persuading, inducing,
enticing or coercing any minor to engage in “any sexually
explicit conduct”; (2) “for the purpose of producing any
visual depiction of such conduct”; (3) if the depiction “was
produced or transmitted using materials that have been
mailed, shipped, or transported in or affecting interstate or
foreign commerce.” 18 U.S.C. § 2251(a). Sullivan engaged
in conduct constituting the offense in both the Northern and
Eastern Districts of California. First, the district court found
UNITED STATES V. SULLIVAN 13
that Sullivan “established and maintained physical and mental
control over the relationship between himself and the girl
from the time she first entered his car” in Berkeley, which is
in the Northern District, and used this control to coerce her
into making a sex video. Second, the court found that
Sullivan used his control over Erika to induce her to produce
the sex video at issue (the second element of the § 2251(a)
offense) in Vacaville, which is in the Eastern District.
Accordingly, Sullivan’s conduct constituting the § 2251(a)
offense spanned more than one district. Sullivan argues that
his interactions with Erika in the Northern District of
California were merely preliminary, or were for the sole
purpose of recruiting Erika to become a prostitute, and
therefore were not essential steps towards making the video.
This argument is meritless; the evidence adduced at trial
supports the district court’s findings that the persuasion,
inducement, enticement and coercion that led to the video’s
filming in Vacaville had their genesis in the Northern
District. See United States v. Engle, 676 F.3d 405, 417–18
(4th Cir. 2012) (holding that venue for a violation of
§ 2251(a) is proper in the district where a defendant entices
the victim to engage in sexual conduct, even though the
defendant created the video at issue in a different district).
Therefore, venue was proper in the Northern District of
California under § 3237(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 § 2251(a)
14 UNITED STATES V. SULLIVAN
nor § 2252(a)(4)(B) can constitutionally be applied to him.5
We have previously rejected this argument, concluding that
Congress could rationally “conclude that homegrown child
pornography affects interstate commerce,” and therefore
Congress may regulate even purely intrastate production of
child pornography, see United States v. McCalla, 545 F.3d
750, 755–56 (9th Cir. 2008), and criminalize its intrastate
possession, United States v. Gallenardo, 579 F.3d 1076, 1081
(9th Cir. 2009). Nevertheless, Sullivan claims that the
Supreme Court’s recent decision in National Federation of
Independent Business v. Sebelius (NFIB), 132 S. Ct. 2566
(2012), requires us to overrule this precedent. We disagree.
Chief Justice Roberts’s separate opinion in NFIB stated that
the Commerce Clause did not give Congress authority to
“compel[] individuals to become active in commerce by
purchasing a product.” Id. at 2587 (emphasis omitted). The
four dissenting justices agreed that “one does not regulate
commerce that does not exist by compelling its existence.”
Id. at 2644 (Scalia, J., dissenting). Accordingly, five justices
agreed that the Commerce Clause gives Congress authority
only to regulate commerce, not to compel it. This precedent
is not applicable here, however, because § 2251 and § 2252
do not compel commerce, but merely regulate an activity that
Congress could rationally determine would affect interstate
commerce, taken in the aggregate. See Gallenardo, 579 F.3d
at 1081; McCalla, 545 F.3d at 755–56. Because NFIB is not
“clearly irreconcilable” with our precedents, they remain
5
Following the government’s completion of its case-in-chief in the
bench trial, Sullivan moved for acquittal on Count 1 of the indictment on
the ground that it could not be constitutionally applied to him, but he did
not challenge Count 2 on this basis. We review a sufficiency of the
evidence challenge that is first brought on appeal for plain error. United
States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
UNITED STATES V. SULLIVAN 15
binding. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)
(en banc); see also United States v. Sheldon, 755 F.3d 1047,
1050 (9th Cir. 2014) (concluding that because the recorder
used to produce child pornography was manufactured in
China, there was “sufficient [evidence] to satisfy the
jurisdictional element of § 2251(a)”). Accordingly, § 2251(a)
and § 2252(a)(4)(B) are constitutional as applied to Sullivan.
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 denial of
Sullivan’s suppression motion. United States v. Hernandez,
313 F.3d 1206, 1208 (9th Cir. 2002). We review the district
6
Sullivan’s suppression motion in the district court pertained to
evidence obtained from his laptop computer. To the extent Sullivan
claims on appeal that evidence obtained from his digital camera should
have also been suppressed, this argument is waived. See Fed. R. Crim. P.
12(b)(3)(C), (e) (providing that a party waives any objection that must be
made in a pretrial motion, including a motion to suppress evidence, by
failing to raise it at the proper time); see also United States v. Davis,
663 F.2d 824, 831 (9th Cir. 1981) (motions to suppress evidence must be
raised prior to trial). “Although we may grant relief from a waiver if the
defendant present[s] a legitimate explanation for his failure to raise the
issue in a timely manner,” United States v. Mausali, 590 F.3d 1077,
1080–81 (9th Cir. 2010) (internal quotation marks omitted), Sullivan has
presented no such legitimate explanation here.
16 UNITED STATES V. SULLIVAN
court’s factual findings for clear error. United States v. Gill,
280 F.3d 923, 928 (9th Cir. 2002).
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend IV. An unreasonable delay between the seizure of a
package and obtaining a search warrant may violate the
defendant’s Fourth Amendment rights. The touchstone is
reasonableness. See United States v. Van Leeuwen, 397 U.S.
249, 252–53 (1970). We “determine whether the delay was
‘reasonable’ under the totality of the circumstances, not
whether the Government pursued the least intrusive course of
action.” Hernandez, 313 F.3d at 1213. Such determinations
are made on a case-by-case basis. See Van Leeuwen,
397 U.S. at 253.
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 (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 (2006)
(parolee status significantly diminishes privacy interests); see
UNITED STATES V. SULLIVAN 17
also Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68–69 (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 United
States v. Segura, 468 U.S. 796, 813 (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
property” has not made a sufficient showing that the delay
was unreasonable. United States v. Johns, 469 U.S. 478, 487
(1985).
18 UNITED STATES V. SULLIVAN
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; United
States v. Knights, 534 U.S. 112, 119 (2001). Under these
circumstances, “[t]he actual interference” with Sullivan’s
possessory interests was minimal. See Segura, 468 U.S. at
813 (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.
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 (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.
UNITED STATES V. SULLIVAN 19
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 defendant consented to a search of
his laptop, the agents removed and retained the computer’s
20 UNITED STATES V. SULLIVAN
hard drive, but did not obtain a search warrant until 21 days
later. 565 F.3d at 1350–51. On the facts of that case, the
Eleventh Circuit held that the delay was unreasonable
because the defendant had a substantial possessory interest in
the hard drive, which was likely to contain information “of
exceptional value to its owner,” and the “detention of the hard
drive for over three weeks before a warrant was sought
constitute[d] a significant interference with Mitchell’s
possessory interest.” Id. at 1351. On the other side of the
balance, the court held that there was no compelling
justification for the government’s delay. Id.
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 reasonable 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, California Penal Code § 261.5(d), and
UNITED STATES V. SULLIVAN 21
oral copulation with a minor under 16 years of age, California
Penal Code § 288a(b)(2), do not qualify as federal generic
offenses for which the mandatory minimum enhancements
under § 2251(e) and § 2252(b)(2) must be imposed. We
review de novo whether Sullivan’s prior convictions support
the statutory mandatory minimum enhancements. United
States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en
banc).
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 (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, 133 S. Ct. 2276, 2283–85 (2013).
The Taylor categorical approach requires us to look only to
the statutory definition of the prior offense and not to the
facts underlying that conviction. See Mellouli v. Lynch,
22 UNITED STATES V. SULLIVAN
135 S. Ct. 1980, 1986–87 (2015); Taylor, 495 U.S. at
600–01.7
Applying the Taylor framework, we begin by defining the
generic federal offense. Under § 2251(e) (mandatory
minimum for production of child pornography), a defendant
with a prior conviction “under the laws of any State relating
to aggravated sexual abuse, sexual abuse, [or] abusive sexual
contact involving a minor or ward” is subject to a mandatory
minimum sentence of “not less than 25 years.” 18 U.S.C.
§ 2251(e).8 Similarly, under § 2252(b)(2) (mandatory
minimum for the possession of child pornography), a
defendant with a prior conviction “under the laws of any State
7
Sullivan’s argument that a jury must decide whether a prior conviction
is an offense “relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward,” 18 U.S.C. §§ 2251(e),
2252(b)(2), is foreclosed by United States v. Brown, 417 F.3d 1077 (9th
Cir. 2005) (per curiam), which held that the categorization of a prior
conviction under Taylor “is a legal question, not a factual question coming
within the purview of Apprendi [v. New Jersey, 530 U.S. 466 (2000)].”
Id. at 1079–80.
8
Section 2251(e) states, in pertinent part:
Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30
years, but if such person has one prior conviction . . .
under the laws of any State relating to aggravated
sexual abuse, sexual abuse, abusive sexual contact
involving a minor or ward, or sex trafficking of
children, 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 25 years nor more than
50 years . . . .
UNITED STATES V. SULLIVAN 23
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward” is subject to a
mandatory minimum sentence of “not less than 10 years.” Id.
§ 2252(b)(2).9 Under this language, the federal generic
offense is a class of offenses “relating to” any of three types
of abusive sexual conduct. When considering such a class of
offenses, we “‘compare the crime of conviction with crimes
we have previously determined to’ fall into that particular
classification of crimes.” Rodriguez-Castellon v. Holder, 733
F.3d 847, 853 (9th Cir. 2013) (quoting Cerezo v. Mukasey,
512 F.3d 1163, 1166 (9th Cir. 2008)) (considering “crimes of
violence”). “Under the categorical approach, we follow our
common practice in cases involving non-traditional offenses
by defining the offense based on the ordinary, contemporary,
and common meaning of the statutory words.” Sinerius, 504
F.3d at 740 (internal quotation marks omitted).
Because each of the three types of offenses listed in
§ 2251(e) and § 2252(b)(2) involve sexual conduct and abuse,
we begin by identifying the federal generic meaning for these
terms. We give “the term ‘sexual’ its ordinary and
commonsense meaning.” Sinerius, 504 F.3d at 741. We have
9
Section 2252(b)(2) provides, in pertinent part:
Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this
title or imprisoned not more than 10 years, or both, 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, such person shall be fined under
this title and imprisoned for not less than 10 years nor
more than 20 years.
24 UNITED STATES V. SULLIVAN
addressed the term “abuse” in several different contexts.
“[W]e have defined ‘abuse’ to mean ‘misuse . . . to use or
treat so as to injure, hurt, or damage . . . to commit indecent
assault on.’” Id. at 740 (alterations in original) (quoting
United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.
2006)). This definition “encompass[es] behavior that is
harmful emotionally and physically.” Id. (alteration in
original) (quoting Lopez-Solis, 447 F.3d at 1207). In
addition, we have previously determined that a statutory rape
offense constitutes “the generic offense of ‘sexual abuse of a
minor’” if it includes the elements set forth in 18 U.S.C.
§ 2243, specifically: “(1) a mens rea level of knowingly; (2)
a sexual act; (3) with a minor between the ages of 12 and 16;
and (4) an age difference of at least four years between the
defendant and the minor.” Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), overruled on
other grounds by United States v. Aguila-Montes de Oca, 655
F.3d 915 (9th Cir. 2011) (en banc) (per curiam), abrogated by
Descamps, 133 S. Ct. 2276. This definition of “sexual abuse
of a minor” also “comports with ‘the ordinary, contemporary,
and common meaning of the words’” sexual abuse of a
minor. Id. (quoting United States v. Baron-Medina, 187 F.3d
1144, 1146 (9th Cir. 1999)). While we have rejected the
argument that the term “sexual abuse” must be defined by
reference to the federal offenses listed in 18 U.S.C.
§§ 2241–2248, see Sinerius, 504 F.3d at 742 (considering the
generic federal definition of “sexual abuse” for purposes of
18 U.S.C. § 2252A(b)), and thus we are not limited “to
looking to federal statutes to define federal generic offenses
where the federal statute uses the same name as a federal
generic offense,” United States v. Farmer, 627 F.3d 416, 421
(9th Cir. 2010), such federal statutes nevertheless are relevant
to our consideration of whether a particular state statute is
one “relating to” abusive sexual conduct, see Estrada-
UNITED STATES V. SULLIVAN 25
Espinoza, 546 F.3d at 1152–53 (stating that “it is unnecessary
to survey current criminal law to ascertain a federal [generic
definition of ‘sexual abuse of a minor’] because Congress has
already supplied it”).
We now turn to the California crimes of conviction at
issue here in order to compare them with the federal generic
offenses. Section 261.5(d) proscribes any person who is 21
years of age or older from engaging in an act of unlawful
sexual intercourse with a minor who is under 16 years of age.
Cal. Penal Code § 261.5(d). Section 288a(b)(2) proscribes
any person over age 21 from participating in an act of oral
copulation with a person who is under 16 years of age. Id.
§ 288a(b)(2). Neither of these offenses includes misusing or
treating another so as to “to injure, hurt, or damage,” or
committing “indecent assault on” another, as an element,
which would constitute abuse. See Sinerius, 504 F.3d at 743.
We have previously determined that because section 261.5(d)
criminalizes sexual relations with a person who is “a day shy
of 16,” it is not necessarily abusive. Pelayo-Garcia v.
Holder, 589 F.3d 1010, 1015–16 (9th Cir. 2009); see also
United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.
2009). The same reasoning applies to section 288a. Further,
the offenses described in section 261.5(d) and section
288a(b)(2) are not equivalent to the federal generic offense of
“sexual abuse of a minor” described in Estrada-Espinoza
because one element of that offense requires the government
to prove that the defendant engaged in the sexual act
“knowingly,” Pelayo-Garcia, 549 F.3d at 1013, and neither
California statute includes this mens rea requirement.
Therefore, the state offenses are not a categorical match to the
federal generic definitions we have adopted for sexual abuse
of a minor.
26 UNITED STATES V. SULLIVAN
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 particular federal
offense, but only that the state conviction is one categorically
“relating to” such federal offenses. We have held that the
phrase “relating to” generally has a broadening effect on what
follows. For example, in the context of similar language in
18 U.S.C. § 2252A(b),10 we held that the phrase “relating to”
“does not simply mandate a sentencing enhancement for
individuals convicted of state offenses equivalent to sexual
abuse.” Sinerius, 504 F.3d at 743. “Rather, it mandates the
enhancement for any state offense that stands in some
relation, bears upon, or is associated with that generic
offense.” Id. This interpretation is consistent with Supreme
Court precedent, which has broadly defined the term “relating
to” as “to stand in some relation; to have bearing or concern;
to pertain; refer; to bring into association with or connection
with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374,
383 (1992) (quoting Black’s Law Dictionary 1158 (5th
ed.1979)) (construing “relating to” in a different statutory
context). Accordingly, we reject Sullivan’s argument that a
prior conviction triggers a sentencing enhancement under
§ 2251(e) or § 2252(b)(2) only if the statutory definition of
the prior offense is equivalent to a federal generic definition.
Indeed, requiring such equivalence would render the words
“relating to” in § 2251(e) and § 2252(b)(2) meaningless.
In considering the application of the Taylor categorical
approach to a statute that used the term “relating to,” the
10
That offense imposes a mandatory minimum enhancement where the
defendant 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.” 18 U.S.C. § 2252A(b)(1), (2).
UNITED STATES V. SULLIVAN 27
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 Kan. Stat. Ann.
§ 21-5709(b)). “At the time of Mellouli’s conviction,
Kansas’ schedules included at least nine substances not
included in the federal lists.” Id. at 1984. The Board of
Immigration Appeals (BIA) determined Mellouli was
deportable under an immigration provision that authorizes the
removal of an alien “convicted of a violation of . . . any law
or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in
section 802 of Title 21).” Id. at 1984–85 (alteration in
original) (quoting 8 U.S.C. § 1227(a)(2)(B)(i)). The BIA
reasoned that § 1227(a)(2)(B)(i) covered Mellouli’s drug
paraphernalia offense because it involved “the drug trade in
general”; accordingly, there was no “need to show that the
type of controlled substance involved in a paraphernalia
conviction is one defined in § 802.” Id. at 1988 (internal
quotation marks omitted). The Eighth Circuit upheld this
determination on the ground that the offense was a crime
“associated with the drug trade in general” and because there
was “nearly a complete overlap between the drugs controlled
under state and federal law.” Id. at 1988–89 (internal
quotation marks omitted).
28 UNITED STATES V. SULLIVAN
The Court reversed, concluding that both the BIA and the
Eighth Circuit erred by failing to give effect to the
parenthetical limiting controlled substances to those “defined
in section 802 of Title 21.” Id. at 1990–91. The Court based
this determination on its analysis of the statutory language
and its historical context. Id. According to the Court, the
Taylor categorical approach had routinely been applied “to
assess whether a state drug conviction triggers removal under
the immigration statute.” Id. at 1987. The Court noted that
the removal statute as originally enacted “specifically listed
covered offenses and covered substances.” Id. In 1986,
Congress “replaced the increasingly long list of controlled
substances [in § 1227] with the now familiar reference to ‘a
controlled substance (as defined in [§ 802]).’” Id. (second
alteration in original). In determining whether a state statute
of conviction rendered an alien removable, the BIA
historically asked “whether the state statute under which the
alien was convicted covered federally controlled substances
and not others.” Id. This historical background, the Court
explained, “demonstrates that Congress and the BIA have
long required a direct link between an alien’s crime of
conviction and a particular federally controlled drug.” Id. at
1990. Therefore, the Court concluded that a state crime of
conviction does not “fall[] within a category of removable
offenses” defined by § 1227(a)(2)(B)(i) unless it covers the
same drugs as are listed in § 802, which the Kansas statute
did not. Id. at 1986, 1990–91.
Because Congress intended there to be a direct link
between the alien’s crime of conviction and the controlled
substances listed in § 802, the Court rejected the
government’s argument that state offenses that did not cover
drugs listed in § 802 could be offenses “relating to” the
substances controlled under § 802. Id. at 1990. In doing so,
UNITED STATES V. SULLIVAN 29
the Court first acknowledged that the words “relating to” are
broad.11 Id. Indeed, the Court noted that “[i]f
§ 1227(a)(2)(B)(i) stopped with the words ‘relating to a
controlled substance,’” it “would make sense” to interpret the
Kansas offense as meeting the requirements of
§ 1227(a)(2)(B)(i). Id. at 1988 n.9. But because Congress
“qualified ‘relating to a controlled substance’ by adding the
limitation ‘as defined in [§ 802],’” it intended to include only
those state offenses in which a controlled substance as
defined in § 802 figured as an element of the offense. Id. at
1988 n.9, 1990–91 (alteration in original).
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.
at 1988 n.9, 1990–91; Morales, 504 U.S. at 383.
11
Indeed, even though the Kansas offense “would not have qualified as
a drug-paraphernalia offense” under federal law because “possession
alone” is not a federal crime, id. at 1985, the Court gave no weight to this
distinction because “[t]he drug-paraphernalia possession law under which
he was convicted, Kan. Stat. Ann. § 21–5709(b), by definition, related to
a controlled substance.” Id. at 1984.
30 UNITED STATES V. SULLIVAN
Applying this framework, we first consider whether
anything in the text or historical background of § 2251(e) or
§ 2252(b)(2) indicate that Congress intended to limit the
sexual abuse offenses listed in those statutes to certain
specific federally defined offenses or acts, in the same way
that Congress intended to limit “controlled substance” to only
those listed in § 802. See Mellouli, 135 S. Ct. at 1990–91.
We conclude they do not. Neither the text of § 2251(e) nor
the text of § 2252(b)(2) contains any language analogous to
the parenthetical considered in Mellouli. Instead, the terms
“sexual abuse” and “abusive sexual conduct involving a
minor or ward” are unqualified, just as the term “controlled
substance” would have been without the limiting
parenthetical. See id. at 1988 n.9. Other circuits agree that an
enhancement for a prior conviction “relating to” specified
abusive sexual acts “does not require that the predicate
conviction amount to ‘sexual abuse’ or ‘abusive sexual
conduct involving a minor.’” E.g., United States v. Colson,
683 F.3d 507, 511 & n.2 (4th Cir. 2012) (considering
18 U.S.C. § 2252A(b)(1)). Turning to the historical
background of § 2251(e) and § 2252(b)(2), we have
previously determined that Congress did not require a “direct
link,” Mellouli, 135 S. Ct. at 1990, between the state crime of
conviction and a particular federal statute. See Sinerius,
504 F.3d at 742 (rejecting the argument that the phrase
“sexual abuse” must be defined by reference to the federal
offenses listed in 18 U.S.C. § 2241–2248). Rather,
“Congress’s use of [the ‘relating to’] phrase in § 2252(b)(2)
indicates its intent to allow a sentencing court to look beyond
the mere elements of a prior state conviction in determining
whether such conviction is sufficient to trigger application of
the sentence enhancement provisions.” United States v.
McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005). Because
neither context nor history tugs “in favor of a narrower
UNITED STATES V. SULLIVAN 31
reading,” cf. Mellouli, 135 S. Ct. at 1990 (internal quotation
marks omitted), we define the phrase “relating to” in
§ 2251(e) and § 2252(b)(2) broadly. See Morales, 504 U.S.
at 383.
We now consider whether the specific state offenses at
issue here, sections 261.5(d) and 288a(b)(2) of the California
Penal Code, are categorically offenses “relating to”
aggravated sexual abuse, sexual abuse or abusive sexual
conduct involving a minor or ward, 18 U.S.C. §§ 2251(e),
2252(b)(2) (emphasis added). Sections 261.5(d) and
288a(b)(2) are crimes that relate to the generic offense
“sexual abuse of a minor” as defined in Estrada-Espinoza.
Although the state offenses lack the mens rea element noted
in Estrada-Espinoza, 546 F.3d at 1158, this element relates to
the culpability of the defendant, not to the impact of the
conduct on the minor. The elements relating to the effect of
the offense on the minor indicate that under our generic
federal statutory rape definition, sexual conduct is abusive
when the minor is under 16 and the defendant is four or more
years older. Section 261.5(d) and section 288a(b)(2) include
these elements, because they proscribe sexual acts between a
minor under 16 and a defendant who is 21 years of age or
older. Accordingly, the state crimes necessarily involved
“conduct that causes physical or psychological harm in light
of the age of the victim in question,” Pelayo–Garcia,
589 F.3d at 1014 (internal quotation marks omitted), and as
such, are crimes “relating to . . . sexual abuse.” Therefore,
they are categorically offenses “relating to” aggravated sexual
abuse, sexual abuse or abusive sexual conduct involving a
minor or ward, 18 U.S.C. §§ 2251(e), 2252(b)(2).
In reaching this conclusion, we join the Eighth Circuit. In
a similar context, the Eighth Circuit concluded that because
32 UNITED STATES V. SULLIVAN
the term “relating to” “carries a broad ordinary meaning,” a
state conviction for lascivious acts with children was an
offense “relating to” sexual abuse, even though the state
offense did not include the element of physical contact
required for the generic federal offenses spelled out in 18
U.S.C. §§ 2241, 2242, or 2243. United States v. Sonnenberg,
556 F.3d 667, 670–71 (8th Cir. 2009) (internal quotation
marks omitted); cf. United States v. McGarity, 669 F.3d 1218,
1262–63 (11th Cir. 2012) (noting that “any perceived
difference” between “abusive sexual contact” in § 2251(e)
and the state offense of “enticing a minor for indecent
purposes,” which did not require touching or attempting to
touch a minor, “is overcome by our interpretation of the
phrase ‘relating to’”).
Applying this approach, we conclude that the conduct
proscribed by section 261.5(d) and section 288a(b)(2) is
categorically a conviction “under the laws of any State
relating to . . . sexual abuse” for purposes of § 2251(e) and
§ 2252(b)(2). Because Sullivan’s prior conviction
categorically relates to sexual abuse as that phrase is
ordinarily understood, we conclude the district court properly
applied the mandatory minimum enhancement provisions
contained in both statutes of conviction.12
12
Because we decide the enhancements were proper on this ground, we
need not address Sullivan’s argument regarding Descamps or the
government’s argument that the same enhancements are also appropriate
based on Sullivan’s pimping and pandering convictions, see Cal. Penal
Code §§ 266h(a), 266i(a)(2).
UNITED STATES V. SULLIVAN 33
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
Guidelines 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. U.S.S.G.
§ 3C1.1. The enhancement applies when the district court
finds that the defendant gave materially false testimony at
trial with the willful intent to provide false testimony. United
States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir.
2007) (per curiam).
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
13
Although we have yet to resolve the “intracircuit conflict as to
whether the standard of review for application of the Guidelines to the
facts is de novo or abuse of discretion,” United States v. Swank, 676 F.3d
919, 921–22 (9th Cir. 2012), the standard of review is not at issue here.
34 UNITED STATES V. SULLIVAN
not be included in Sullivan’s offense level. The district court
explained its reasoning as follows. First, the district court
indicated that the § 3C1.1 enhancement was not applicable
because the court was not actually misled. The court
explained that “[t]he question is whether or not I was
obstructed as far as justice is concerned,” and concluded that
it was not, and that it “had the responsibility of making
credibility determinations under any circumstance.” Second,
the court noted that “the defendant has the right to testify, and
that there is a problem of when you punish, and you punish
for that testimony you are in a sense punished twice.”
Finally, the district court remarked that applying the two-
level enhancement would result in a sentencing impact which
was “far more than it should be.”
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.
U.S.S.G. § 3C1.1 cmt. n.4(F). Second, the Supreme Court
has rejected the view that imposing a penalty for perjury at
trial violates the privilege of an accused to testify on his own
behalf. As the Supreme Court has explained, “a defendant’s
right to testify does not include a right to commit perjury,”
and thus the enhancement penalizes the defendant for perjury,
not for testifying. United States v. Dunnigan, 507 U.S. 87, 96
(1993). Finally, while the district court has discretion in
pronouncing a sentence, it must first correctly calculate the
applicable Guidelines range. See Carty, 520 F.3d at 993.
“The Supreme Court has made clear that the district court
UNITED STATES V. SULLIVAN 35
must correctly calculate the recommended Guidelines
sentence and use that recommendation as the starting point
and the initial benchmark.” United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam)
(internal quotation marks omitted). Accordingly, the district
court erred in its legal analysis of Sullivan’s offense level.
Although there are circumstances 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.