United States v. Cavon Clark ( 2020 )


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  •                     UNITED STATES COURT OF APPEALS                        FILED
    FOR THE NINTH CIRCUIT                         MAR 18 2020
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                         No.   16-30301
    Plaintiff-Appellee,               D.C. No.
    2:11-cr-00173-LRS-1
    v.                                               Eastern District of Washington,
    Spokane
    CAVON C. CLARK,
    ORDER
    Defendant-Appellant.
    Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,* District Judge.
    The petition for panel rehearing, Dkt. 35, is granted. The memorandum
    disposition filed on March 1, 2019, is withdrawn and replaced by the memorandum
    disposition filed concurrently with this order.
    *
    The Honorable Raymond J. Dearie, United States District Judge for
    the Eastern District of New York, sitting by designation.
    NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       MAR 18 2020
    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 support imposition of the 18 U.S.C. § 2251(e) recidivist sentencing
    enhancement 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 contests the inclusion in the written
    judgment of a lifetime term of supervised release that the district court failed to
    pronounce orally at sentencing.
    We reverse the district court’s application of the sentencing enhancements,
    vacate the portion of the written judgment imposing a lifetime term of supervised
    release, and remand for resentencing.
    1.     After Clark was sentenced, this Court held that the term “sexual
    exploitation of children” in 18 U.S.C. § 2251(e) is defined within § 2251 as “the
    production of child pornography,” and that the “relating to” language in the
    enhancement does not expand its reach beyond offenses that “contain the requisite
    element of ‘exploitation.’” United States v. Schopp, 
    938 F.3d 1053
    , 1061, 1067 (9th
    Cir. 2019). Because Clark’s convictions under Wash. Rev. Code 9.68A.070 for
    possession of depictions of a minor engaged in sexually explicit conduct do not
    include as an element the production of child pornography, the district court erred in
    finding that they triggered the two-or-more-convictions enhancement of 18 U.S.C.
    2
    § 2251(e).1
    2.      The district court also erred in applying the single-conviction
    enhancement of 18 U.S.C. § 2252A(b)(1) in arriving at the sentence on the
    transportation conviction. As the government concedes, the Washington offense of
    possession of depictions of a minor engaged in sexually explicit conduct, Wash. Rev.
    Code 9.68A.070, is not a categorical match to the federal crime of “possession” of
    “child pornography,” 18 U.S.C. § 2252A(a)(5)(B). Like the California statute in
    United States v. Reinhart, 
    893 F.3d 606
    , 617-21 (9th Cir. 2018), the Washington
    statute defines “sexually explicit conduct” more expansively than the federal one, as
    it includes conduct such as clothed touching of a person’s genitals. Compare Wash.
    Rev. Code § 9.68A.011(4), with 18 U.S.C. § 2256(2)(A), (8).
    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 lifetime term of supervised release in the written judgment does not remedy the
    omission of an oral pronouncement. We therefore vacate the supervised release
    portion of Clark’s sentence and remand to afford the district court the opportunity to
    1
    Because we find that Clark’s Washington convictions do not trigger the
    two-or-more-convictions enhancement of 18 U.S.C. § 2251(e), we do not address
    his alternative argument that the two convictions should not count as separate
    qualifying predicate offenses for the purposes of that enhancement.
    3
    impose the intended term. See 
    id. REVERSED IN
    PART, VACATED IN PART, AND REMANDED.
    4
    

Document Info

Docket Number: 16-30301

Filed Date: 3/18/2020

Precedential Status: Non-Precedential

Modified Date: 3/18/2020