United States v. Michael Portanova

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1381
_____________
UNITED STATES OF AMERICA
v.
MICHAEL PORTANOVA,
Appellant
______________
On Appeal from the United States
District Court for the Middle District of Pennsylvania
(D.C. Crim. Action No. 3-18-cr-00015-001)
District Judge: Hon. James M. Munley
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 4, 2019
______________
Before: SHWARTZ, SCIRICA and FUENTES, Circuit
Judges.
(Opinion Filed: May 27, 2020)
Frederick W. Ulrich
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Francis P. Sempa
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
______________
OPINION
______________
FUENTES, Circuit Judge.
Michael Portanova pleaded guilty to receiving child
pornography.1 Applying a statutory sentencing enhancement,
the District Court determined that his prior Pennsylvania
conviction for possessing and distributing child pornography2
was a conviction relating to the possession of child
pornography and sentenced him to a mandatory fifteen-year
term of imprisonment.3
1
18 U.S.C. § 2252(a)(2), (b)(1).
2
18 Pa. Cons. Stat. § 6312(c)–(d).
3
18 U.S.C. § 2252(b)(1).
2
We conclude, first, that under our “looser categorical
approach,” 18 U.S.C. § 2252(b)(1)’s “relating to” language
does not require an exact match between the state and federal
elements of conviction, and second, that the provision is not
unconstitutionally vague. Accordingly, we will affirm.
I.
In 2017, Portanova admitted to downloading child
pornography onto his cell phone, on which investigators found
sixty-three videos depicting minors engaged in sexually
explicit conduct. Portanova subsequently pleaded guilty to
receipt of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2) and (b)(1). An individual who violates
§ 2252(a)(2) is subject to a fifteen-year mandatory minimum
sentence if that 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.”4
This enhancement also applies to a prior state conviction
“relating to . . . the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography.”5 Portanova had previously been convicted of
possessing and distributing child pornography under
Pennsylvania law.6
At sentencing and over Portanova’s objection, the
District Court concluded that his state conviction triggered the
4
18 U.S.C. § 2252(b)(1).
5
Id.
6
18 Pa. Cons. Stat. § 6312(c)–(d).
3
fifteen-year mandatory minimum enhancement. Portanova
appeals this sentence.
II.7
On appeal, Portanova makes two arguments that the
District Court erred in concluding that his conviction triggered
the mandatory minimum provision. First, he asserts that
§ 2252(b)(1) requires a narrow analysis under the formal
categorical approach, and that state child pornography offenses
that are broader than the federal child pornography definition,
including his, cannot constitute mandatory minimum predicate
offenses.8 Second, Portanova argues that § 2252(b)(1)’s broad
“relating to” language is void for vagueness.9 Accordingly,
Portanova argues that he is not subject to the fifteen-year
mandatory minimum enhancement.
7
The District Court had subject matter jurisdiction
under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742. In evaluating the District
Court’s imposition of a mandatory minimum sentence, we
must interpret a statute, so our review is plenary. United States
v. Pavulak, 700 F.3d 651, 671 (3d Cir. 2012). Similarly, our
review of a constitutional challenge to a statute is plenary.
United States v. John-Baptiste, 747 F.3d 186, 200 (3d Cir.
2014).
8
See United States v. Reinhart, 893 F.3d 606, 609–10
(9th Cir. 2018).
9
See Johnson v. United States, 135 S. Ct. 2551, 2556–
57 (2015); Bouie v. City of Columbia, 378 U.S. 347, 350–51
(1964).
4
A.
Portanova challenges the District Court’s broader
application of the mandatory minimum sentence enhancement
under 18 U.S.C. § 2252(b)(1). He asserts that the District
Court should have applied the formal categorical approach,
construing “relating to” narrowly. Because the Pennsylvania
child pornography statute criminalizes conduct not covered
under federal law, he argues, it could not constitute a
§ 2252(b)(1) predicate offense.
1.
To determine whether Portanova’s prior conviction
triggers the § 2252(b)(1) enhancement, we begin with the
categorical approach.10 Under this approach, “the sentencing
court can look only to the fact of conviction and the statutory
definition of the prior offense.”11 In other words, it may look
10
United States v. Galo, 239 F.3d 572, 582–83 (3d Cir.
2001) (applying the categorical approach to an analogous
enhancement under 18 U.S.C. § 2251(d)) (citing Taylor v.
United States, 495 U.S. 575, 598 (1990)). Similar to
§ 2252(b)(1), the version of § 2251(d) that was in effect when
Galo was decided provides for mandatory sentencing
enhancements, of different magnitudes, where a defendant
“has one prior conviction under this chapter [18 U.S.C. § 2251
et seq.], . . . or under the laws of any State relating to the sexual
exploitation of children.” Galo, 239 F.3d at 576 (alterations in
original).
11
Galo, 239 F.3d at 577 (citing Taylor, 495 U.S. at 600–
02). Contrary to Portanova’s arguments, this is a legal, rather
5
to “the elements . . . of a defendant’s prior offenses, and not ‘to
the particular facts underlying those convictions.’”12 Under the
formal categorical approach,13 we line up the elements of the
state crime of conviction with the federal generic offense, that
is, “the offense as commonly understood,”14 and determine if
than factual determination that depends only on the “fact of a
prior conviction,” an explicit exception to Apprendi v. New
Jersey’s teaching that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. 466, 490 (2000).
12
Descamps v. United States, 570 U.S. 254, 261 (2013)
(quoting Taylor, 495 U.S. at 600); see also United States v.
Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (“The elements, not the
facts, are key.”).
13
We have variously referred to this usual application
of the categorical approach as the “strict categorical approach,”
Quinteros v. Attorney Gen. United States, 945 F.3d 772, 782
(3d Cir. 2019), “traditional categorical approach,” United
States v. Peppers, 899 F.3d 211, 232 (3d Cir. 2018) (internal
quotation marks removed), and “formal categorical approach,”
Rosa v. Attorney Gen. United States, 950 F.3d 67, 75 (3d Cir.
2020).
14
Mathis v. United States, 136 S. Ct. 2243, 2247 (2016).
Mathis addressed Armed Career Criminal Act predicates such
as burglary, id., whose narrow common law definition the
Court rejected in favor of “the generic sense in which the term
is now used in the criminal codes of most States,” Taylor, 495
U.S. at 598. In the immigration context, we have termed the
federal reference statute delimiting the federal generic offense
6
they match.15 A prior conviction counts as a sentencing
enhancement predicate “if its elements are the same as, or
narrower than, those of the generic offense[, b]ut if the crime
of conviction covers any more conduct than the generic
offense,” it does not.16
As we have previously recognized, the present statute
and circumstances are “quite different” from the 18 U.S.C.
the “federal analog.” Rosa, 950 F.3d at 75; see also Salmoran
v. Attorney Gen. United States, 909 F.3d 73, 78 (3d Cir. 2018).
15
Mathis, 136 S. Ct. at 2249; Williams v. Attorney Gen.
United States, 880 F.3d 100, 104 (3d Cir. 2018), cert. denied
sub nom. Williams v. Whitaker, 139 S. Ct. 863 (2019).
16
Mathis, 136 S. Ct. at 2248. This comparison is
“straightforward when a statute sets out a single (or
‘indivisible’) set of elements to define a single crime.” Id.
Other, “divisible” statutes “list elements in the alternative, and
thereby define multiple crimes.” Id. at 2249. If so, we employ
a “modified categorical approach,” enabling a limited factual
inquiry. Descamps, 133 S. Ct. at 2283–84. The parties do not
propose this approach here, and we have suggested that a
similarly-organized statute is not divisible. See Salmoran, 909
F.3d at 77 n.7 (noting no dispute as to the indivisibility of N.J.
Stat. § 2C:24-4(b)(5)(b)); see also Reinhart, 893 F.3d at 618
(citing Chavez-Solis v. Lynch, 803 F.3d 1004, 1013 (9th Cir.
2015) (California Penal Code § 311.4(d)’s definition of “sexual
conduct” “simply lists numerous ways in which an image may
be considered to depict ‘sexual conduct’” and is thus not
divisible)).
7
§ 924(e) context.17 Consistent with our treatment of the
analogous “relating to” language in 18 U.S.C. § 2251(d),
§ 2252(b)(1) “does not require a sentencing court to determine
if the prior conviction satisfies the generic elements of a crime
as does [18 U.S.C. § 924(e)],” under our usual, formal
categorical approach.18 Instead, § 2252(b)(1) requires only
that Portanova’s previous state conviction be one “relating to
. . . the . . . possession . . . of child pornography.”19 In other
contexts, we have applied this broader “relating to” language
under a somewhat different inquiry, which we have termed the
“looser categorical approach.”20 This approach does not
require a precise match between the federal generic offense and
state offense elements.21 So too here. “[T]he phrase ‘relating
to’ must be ‘read expansively’ and ‘encompass[es] crimes
other than those specifically listed in the federal statutes.’”22
In determining what constitutes “possession . . . of child
pornography,” we must also consider whether the term is
17
Galo, 239 F.3d at 577, 581 (citing Taylor, 495 U.S. at
600–02).
18
Id. at 581; see Denis v. Attorney Gen. of the United
States, 633 F.3d 201, 210 (3d Cir. 2011) (“[I]n deciding
whether a conviction is ‘related to’ another offense, . . . crimes
of conviction can be ‘related to’ a listed offense without
containing what might be viewed as an essential element.”).
19
18 U.S.C. § 2252(b)(1).
20
Williams, 880 F.3d at 105 (quoting Flores v. Attorney
Gen. United States, 856 F.3d 280, 286 (3d Cir. 2017)).
21
Id.
22
Flores, 856 F.3d at 297 (Shwartz, J., concurring)
(quoting Denis, 633 F.3d at 209).
8
understood generically,23 or must be defined strictly in light of
its federal counterparts.24 Taking into account all of the
relevant words, and not just “child pornography,” we conclude
that “the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child
pornography,” like “aggravated sexual abuse,” “sexual abuse,”
and “abusive sexual conduct involving a minor or ward” is not
collectively a defined term and is best understood
generically.25 Under this generic treatment, the offense should
23
Mathis, 136 S. Ct. at 2247; see also United States v.
Sullivan, 797 F.3d 623, 636 (9th Cir. 2015) (defining offenses
“based on the ordinary, contemporary, and common meaning
of the statutory words”).
24
Reinhart, 893 F.3d at 611 (“To ascertain the generic
federal definition, we look to the federal definition of ‘child
pornography.’”). Lockhart v. United States outlines this
dichotomy. 136 S. Ct. 958, 968 (2016). As we explain in
Section II.A.2, infra, other circuits have split on the appropriate
treatment of individual terms in § 2252. Reinhart applied the
latter, statutory definition to “child pornography,” which is
defined within the same chapter and distinguished use of the
former, “common usage” definition of “aggravated sexual
abuse,” “sexual abuse,” and “abusive sexual conduct involving
a minor or ward” in Sullivan, 893 F.3d at 611.
25
Though Galo did not expressly indicate that it defined
“sexual exploitation of children” generically, it did just that,
declining to refer to any statutory definitions. 239 F.3d at 581.
There, we compared Galo’s state convictions to “sexual
exploitation of children,” without any reference to a federal
definition and concluded that none “establish a conviction
under ‘laws relating to the exploitation of children.” Id. at
9
be read as commonly understood and informed by its
constituent terms, but not strictly cabined by them as under the
formal categorical approach.26 Conversely, inclusion of these
actus rei prevents the application of a sentencing enhancement
founded upon mere association with child pornography in
general, no matter how attenuated.27
582–83. Each state law criminalized a broader range of
conduct, including “gambling, underage drinking or drug use[,
i.e.,] conduct of any nature that tends to corrupt children[;]
breach of duty of care[; and] indecent touching regardless of
the victim’s age.” Id. (emphasis added).
26
This approach is also consistent with our conclusions
in Pavulak, 700 F.3d at 671–73 (Delaware convictions for
unlawful sexual contact related to sexual exploitation of
children) and United States v. Randolph, 364 F.3d 118, 124 (3d
Cir. 2004) (Georgia convictions for child molestation related
to sexual exploitation of children). Other Circuits have also
treated these terms generically. United States v. Mayokok, 854
F.3d 987, 993 (8th Cir. 2017) (in review of § 2252(b)(1)
enhancement, surveying federal definition of “child
pornography” without requiring an exact match); United States
v. Bennett, 823 F.3d 1316, 1325 (10th Cir. 2016) (rejecting
narrow reading of equivalent “relating to” language in 18
U.S.C. § 2252A(b)(2)). This generic treatment is consistent
with the broader reading of “relating to.” See Williams, 880
F.3d at 105 (“[T]he definition of the term ‘forgery’ is not
enough, on its own, to answer the question of whether the [state
crime] is ‘an offense relating to forgery.’”).
27
See Bennett, 823 F.3d at 1323 (contrasting
§ 2252A(b)(2) with 8 U.S.C. § 1227(a)(2)(B)(i), lacking an
actus reus and potentially reaching “any crime ‘associated with
10
Nothing in the text of § 2252(b)(1) points to a different,
narrower result.28 Congress has demonstrated a command of
limiting language that strictly refers only to conduct
criminalized under federal law, and it could have employed it
here if it so intended.29
the drug trade in general’” under a broad reading) (quoting
Mellouli v. Lynch, 135 S. Ct. 1980, 1984 (2015)).
28
We note that this approach differs from the one we
employed in Salmoran, which involved superficially similar
language but which contained some important differences. 909
F.3d at 75, 77–82. In Salmoran, we employed the usual, formal
categorical approach and determined that a New Jersey child
pornography conviction under N.J. Stat. § 2C:24-4(b)(5)(b)
was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(I),
because it was not “an offense described in [18 U.S.C. § 2252]
. . . (relating to child pornography).” Id. There, the “relating
to” language is cabined by the explicit requirement that the
offense be described by 18 U.S.C. § 2252. Section
1101(a)(43)(I) is thus analogous to those that limit prior
offense predicates by strict reference to a federal statute.
29
For example, 18 U.S.C. § 3559(e)(2) defines “state
sex offense” as one that consists of conduct that “would be a
Federal sex offense.” See Bennett, 823 F.3d at 1324 (analyzing
§ 2252A(b)(2)); see also Pavulak, 700 F.3d at 671 (applying
the formal categorical approach to § 3559(e)(1) enhancement
inquiry). Similarly, 18 U.S.C. § 2426(b)(1)(B) defines “‘prior
sex offense conviction’ as an offense ‘consisting of conduct
that would have been an offense under [this chapter, chapter
109A, chapter 110, or section 1591].’” Bennett, 823 F.3d at
1324 (alteration in original); see also Dahl, 833 F.3d at 349
11
Accordingly, we join several of our sister circuits in
adopting a broader reading of “relating to” in the § 2252(b)(1)
context.30 Under our looser categorical approach, we examine
the statutory definitions of Portanova’s crime of conviction and
determine whether it is categorically a law “relating to . . . the
. . . possession . . . of child pornography,” as generically
understood under federal law.31
The Supreme Court has defined “relating to” as “to
stand in some relation; to have bearing or concern; to pertain;
refer; to bring into association with or connection with.”32
“[W]e ‘survey [the statutory provisions’] interrelationship’ and
consider whether there is ‘a logical or causal connection’
between them.”33 “We may conclude that the crimes are
(applying formal categorical approach to same). Conversely,
the text of § 2252(b)(1), like that of § 2252A(b)(2), lacking
such a narrow federal reference, does not support a more
limited reading of “relating to.”
30
Mayokok, 854 F.3d at 993; Bennett, 823 F.3d at
1324 (collecting cases).
31
See Galo, 239 F.3d at 582; see also Mayokok, 854
F.3d at 992–93 (“[T]he question . . . is not whether the
statutes criminalize exactly the same conduct, but whether the
full range of conduct proscribed under [the state law] relates
to the ‘possession . . . of child pornography’ as that term is
defined under federal law.”).
32
Denis, 633 F.3d at 209 (quoting Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992)).
33
Williams, 880 F.3d at 105 (quoting Flores, 856 F.3d
at 291).
12
logically connected if they both target the same, core criminal
conduct such that they are directly analogous.”34
2.
In arguing for the application of the formal categorical
approach to § 2252(b)(1)’s “relating to” language, Portanova
points to the Ninth Circuit’s reasoning in United States v.
Reinhart, which rejected a conclusion that equivalent “relating
to . . . child pornography” language in § 2252(b)(2) required “a
broader comparison between the state statutes and the federal
statutes.”35 For the additional reasons that follow, we decline
to adopt its rationale.
Reinhart’s application of “relating to” in § 2252(b)(2)
followed the Supreme Court’s approach in Mellouli v. Lynch.36
Mellouli considered the application of 8 U.S.C.
§ 1227(a)(2)(B)(i), which “authorizes the removal of an alien
‘convicted of a violation of . . . any law or regulation of a State
[or] the United States . . . relating to a controlled substance (as
defined in section 802 of Title 21).”37 There, the Supreme
Court applied the formal categorical approach, concluding that
a misdemeanor Kansas conviction for possession of drug
34
Id. (quoting Flores, 856 F.3d at 291) (internal
quotation marks omitted).
35
Reinhart, 893 F.3d at 609–10, 615.
36
135 S. Ct. at 1983.
37
Id. at 1984 (emphasis added).
13
paraphernalia to conceal a controlled substance,38 though “by
definition[] related to” controlled substances, was not limited
to those controlled substances defined in 21 U.S.C. § 802 and
was thus categorically overbroad.39 Mellouli relied on the
“historical background of § 1227(a)(2)(B)(i),” which
demonstrated a longstanding requirement for “a direct link
between an alien’s crime of conviction and a particular
federally controlled drug.”40 The government’s proposed
broader reading of “relating to” also failed to give meaning to
the statutory text, whose parenthetical “as defined in section
802 of Title 21” restricted the types of controlled substances
giving rise to removal.41
An earlier Ninth Circuit post-Mellouli decision, United
States v. Sullivan, had adopted a broader reading of “relating
to” in § 2251(e) and § 2252(b)(2).42 Applying Mellouli’s
framework, Sullivan concluded that § 2251(e) and §
2252(b)(2)’s historical backgrounds and unqualified texts “did
not require a ‘direct link’ between the state crime of conviction
38
Specifically, Mellouli, a Tunisian national, had used
his sock to conceal unidentified pills, acknowledged to be
Adderall. Id. at 1988.
39
Id. at 1984; see also Hillocks v. Attorney Gen. United
States, 934 F.3d 332, 345 (3d Cir. 2019).
40
Mellouli, 135 S. Ct. at 1990. There, the Supreme
Court also reasoned that the broader interpretation would have
the “incongruous upshot” of creating harsher immigration
consequences for drug paraphernalia possession offenses than
possession and distribution offenses. Id. at 1989.
41
Id. at 1988 n.9, 1990–91.
42
797 F.3d at 638.
14
and a particular federal statute.”43 Reinhart arrived at the
opposite result by concluding that, whereas the terms
“aggravated sexual abuse, sexual abuse, [or] abusive sexual
conduct involving a minor or ward” were not specifically
defined terms in the same statutory chapter and may be
considered “generic offenses,” the term “child pornography”
was specifically defined, thus forcing a narrow reading in
accordance with Mellouli.44 Reinhart inferred that the
“language of [the] statute,” by this link to an explicit federal
definition, triggered a “textual restriction[]” and favored a
“narrower reading of ‘relating to.’”45
In our view, this reliance on Mellouli is misplaced.
Unlike the object of “relating to” in Mellouli, “a controlled
substance (as defined in section 802 of Title 21),”46 the object
of § 2252(b)(1)’s “relating to” here is “the . . . possession . . .
of child pornography,” an offense containing a defined term.
Section 2252(b)(1) lacks the removal statute’s express limiting
parenthetical, which applies with equal force to both federal
and state convictions.47 And Reinhart’s narrow reading of
“child pornography” fails to give sufficient weight not only to
43
Sullivan, 797 F.3d at 640 (internal citation removed)
(quoting Mellouli, 135 S. Ct. at 1990).
44
Reinhart, 893 F.3d at 614–15.
45
Id. at 613.
46
8 U.S.C. § 1227(a)(2)(B)(i).
47
See Bennett, 823 F.3d at 1323. Section 2252(b)(1),
by contrast, separately and expressly identifies the federal
convictions triggering the statutory enhancement, while
reserving the application “relating to” language for state
convictions. See id.
15
the words “relating to”—an approach arguably countenanced
by Mellouli—but also to “the . . . possession . . . of” preceding
“child pornography,”—words absent from the statute at issue
in Mellouli—rendering them surplusage contrary to our usual
principles of statutory interpretation.48
Although we agree that the definitions of “child
pornography” and “sexually explicit conduct” in § 2256 are the
appropriate starting place for determining the generic federal
offense, § 2256’s definitions do not foreclose our use of the
looser categorical approach.49 Reinhart, in focusing on “child
pornography,” reads the statute too narrowly. Moreover,
“child pornography,” as defined in § 2256, is not itself a
“conviction,” and is thus an inequivalent object of comparison
under a categorical approach analysis of any stripe, better
directed to “elements” rather than “facts.”50 It is the entire
clause, and not just “child pornography,” that constitutes the
federal generic offense. As discussed, we also find it
significant that Congress, in employing broad “relating to”
48
See Duncan v. Walker, 533 U.S. 167, 167 (2001)
(“This Court’s duty to give effect, where possible, to every
word of a statute, makes the Court reluctant to treat statutory
terms as surplusage.”) (internal citation omitted).
49
See Mayokok, 854 F.3d at 992 (quoting United States
v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009) (taking
§ 2256 as point of departure, “relating to” nevertheless “carries
a broad ordinary meaning” and does not require congruence of
state and federal statutes).
50
Taylor, 495 U.S. at 600; Galo, 239 F.3d at 578.
16
language, chose not to cabin its meaning by explicit reference
to § 2252(a) or a definition in another federal section.51
Reinhart’s approach has the additional effect of creating
different applications to different predicate offenses in Section
2252(b), a result whose tension Reinhart acknowledges.52 This
is a “consequence[] Congress could not have intended” and
contrary to the usual interpretation of statutes “as a
symmetrical and coherent regulatory scheme.”53 Because
these predicates, taken as a whole, are undefined, the
incongruous treatment required by Reinhart becomes even less
tenable. Accordingly, § 2252(b)(1) does not require complete
congruence between federal and state predicates.54
51
See Bennett, 823 F.3d at 1323 (§ 2252A(b)(2)
enhancement “does not limit ‘child pornography’ by linking it
to the federal definition.”). Congress in other contexts has
demonstrated its intent to tether sentencing predicates with
statutory definitions elsewhere in the Code. See id. (citing 18
U.S.C. §§ 2426(b)(1)(B), 3559(e)(2)).
52
Reinhart, 893 F.3d at 616 n.5.
53
Mellouli, 135 S. Ct. at 1989 (first quoting Moncrieffe
v. Holder, 569 U.S. 184, 200 (2013), then quoting FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)).
54
See Lockhart v. United States, 136 S. Ct. 958, 966
(2016) (“[O]ur construction of § 2252(b)(2)’s sexual-abuse
predicates does not rely on a general assumption that Congress
sought full parity between all of the federal and state predicates
in § 2252(b)(2).”); Bennett, 823 F.3d at 1324 n.11.
17
Our approach also better matches Congress’ purpose of
ensuring that a wide range of state offenses would fall within
§ 2252’s enhancement provisions.55 As Reinhart recognized,
and unlike Mellouli, there is no extensive historical practice
favoring the formal categorical approach in the § 2252(b)
context.56
While we heed Mellouli’s admonition that the words
“relating to,” when “extended to the furthest stretch of their
indeterminacy, stop nowhere,” we find no contradiction in the
broader application of “relating to” under our “looser
categorical approach” or in our generic treatment of “the . . .
possession . . . of child pornography.”57
55
See, e.g., United States v. Hubbard, 480 F.3d 341, 350
(5th Cir. 2007) (“From the language Congress chose [in the
analogous 18 U.S.C. § 2252A(b)(1)], we can discern its intent:
a prior conviction for certain federal offenses warrants a
minimum sentence, and a prior conviction for a variety of
generic offenses under state law warrants a minimum sentence
as well.”) (analyzing aggravated sexual abuse and other terms).
56
Reinhart, 893 F.3d at 615 (“[U]nlike Mellouli, within
the § 2252 context, there is no historical requirement of a
‘direct link’ between the state crime of conviction and the
particular federal offense conduct.”) (citing Bennett, 823 F.3d
at 1329 (Hartz, J., dissenting)).
57
Flores, 856 F.3d at 290 n.49 (quoting Mellouli, 135
S. Ct. at 1990).
18
3.
Accordingly, applying our broader reading of “relating
to,” we turn our attention to the language of the statutes and
conclude that Portanova has a prior conviction “relating to” the
child pornography offenses described in § 2252(b)(1).
The Pennsylvania statute, 18 Pa. Con. Stat. § 6312(c)
and (d), under which Portanova was convicted, provides:
(c) Dissemination of photographs,
videotapes, computer depictions
and films.—Any person who
knowingly sells, distributes,
delivers, disseminates, transfers,
displays or exhibits to others, or
who possesses for the purpose of
sale, distribution, delivery,
dissemination, transfer, display or
exhibition to others, any book,
magazine, pamphlet, slide,
photograph, film, videotape,
computer depiction or other
material depicting a child under
the age of 18 years engaging in a
prohibited sexual act or in the
simulation of such act commits an
offense.
(d) Child pornography.—Any
person who intentionally views or
knowingly possesses or controls
any book, magazine, pamphlet,
slide, photograph, film, videotape,
19
computer depiction or other
material depicting a child under
the age of 18 years engaging in a
prohibited sexual act or in the
simulation of such act commits an
offense.58
A “[p]rohibited sexual act” is defined in the same
section as “[s]exual intercourse as defined in section 3101
(relating to definitions), masturbation, sadism, masochism,
bestiality, fellatio, cunnilingus, lewd exhibition of the genitals
or nudity if such nudity is depicted for the purpose of sexual
stimulation or gratification of any person who might view such
depiction.”59
In determining whether Portanova’s Pennsylvania
convictions relate to “the . . . possession . . . of child
pornography” under § 2252(b)(1), we must also determine
what constitutes the federal generic offense of “possession . . .
of child pornography.” As discussed, we read the term
generically, taking the federal statutory definition of “child
pornography” as our starting frame of reference, but we do not
confine ourselves to it.60
58
18 Pa. Con. Stat. § 6312(c)–(d).
59
Id. § 6312(g).
60
See Mayokok, 854 F.3d at 992–93; see also Burgess
v. United States, 553 U.S. 124, 129 (2008) (“Statutory
definitions control the meaning of statutory words . . . in the
usual case.”) (quoting Lawson v. Suwannee Fruit & S.S. Co.,
336 U.S. 198, 201 (1949)); cf. Reinhart, 893 F.3d at 613
(“[A]pplying well-established statutory principles, where there
20
Federal law defines “child pornography” as “any visual
depiction . . . of a minor engaging in sexually explicit
conduct.”61 In turn, at the time of the offense conduct,
“‘sexually explicit conduct’ means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same
or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic
or masochistic abuse; or (v) lascivious exhibition of the
genitals or pubic area of any person.”62
Parsing these statutes, Portanova argues that, since the
federal definition reaches only the “lascivious exhibition of the
genitals or pubic area”63 and does not encompass other “nudity
if such nudity is depicted for the purpose of sexual stimulation
or gratification of any person who might view such
depiction,”64 the state statute is overbroad. Not so.65 Under
is a federal definition of ‘child pornography’ in the same
statutory chapter as the sentencing enhancement provision at §
2252(b)(2), we apply that definition.”).
61
18 U.S.C. § 2256(8)(A).
62
Id. § 2256(2)(A), amended by Amy, Vicky, and Andy
Child Pornography Victim Assistance Act of 2018, Pub. L. No.
115-299, § 7(c)(1)(A), 132 Stat. 4383.
63
Id.
64
18 Pa. Con. Stat. § 6312(g).
65
We agree that, despite ample overlap, the statutes do
not criminalize precisely the same conduct. See Miller v.
Mitchell, 598 F.3d 139, 144–45, 153–54 n.16 (3d Cir. 2010)
(affirming preliminary injunction of child pornography
prosecution under 18 Pa. Cons. Stat. § 6312, without deciding
whether minor “wrapped in a white, opaque towel, just below
21
our looser categorical approach, we require no such direct
match to establish that Portanova’s conviction is one “relating
to . . . the . . . possession . . . of child pornography.”66
Applying this broader meaning of “relating to,”
Portanova’s prior Pennsylvania conviction stands in some
relation and pertains to “the . . . possession . . . of child
pornography,” and the § 2252(b) mandatory minimum applies.
Surveying the interrelationship between the statutes, it is
readily apparent that the crimes share a logical connection
between them. Both statutes focus on the same actus rei,
including possession and distribution, and, with narrow
exception, define nearly identical subject matter as child
pornography. In effect, they “target the same, core criminal
conduct such that they are ‘directly analogous.’”67 Portanova’s
her breasts” constituted “nudity . . . depicted for the purpose of
sexual stimulation or gratification.”); Commonwealth v.
Moyer, No. 742 MDA 2016, 2017 WL 809862, at *4 (Pa.
Super. Ct. Mar. 1, 2017) (evidence sufficient to support
conviction where nude minors were provocatively posed,
without reference to genital exposure); see also Salmoran, 909
F.3d at 79–80 (“The state statute, meanwhile, applies to any
nudity—and not necessarily that which shows genitals or the
pubic area—depicted for the purpose of sexual stimulation or
gratification.”) (concluding that nearly identical N.J. Stat.
§ 2C:24-4(b)(5)(b) criminalizing “[n]udity, if depicted for the
purpose of sexual stimulation or gratification of any person
who may view such depiction” is broader than § 2256(2)(A)).
66
18 U.S.C. § 2252(b)(1).
67
Williams, 880 F.3d at 105 (quoting Flores, 856 F.3d
at 291) (emphasis added).
22
reading of the Pennsylvania statute to cover additional types of
nudity is insufficient to disrupt the nexus between the
possession of “child pornography,” “prohibited sexual acts”
and their defined subject matter under Pennsylvania law and
the possession of child pornography, “sexually explicit
conduct,” and its subject matter under federal law.
Portanova’s prior Pennsylvania conviction, then, is one
“relating to . . . the . . . possession . . . of child pornography,”
and the sentencing enhancement provision applies.
B.
Portanova also argues that the breadth and
indeterminacy of § 2252(b)(1)’s “relating to” language is
unconstitutionally vague, failing to give fair warning or notice
and violating the Due Process Clause.68
“The void-for-vagueness doctrine reflects the
fundamental principle that, in order to comply with the
requirements of due process, a statute must give fair warning
of the conduct that it prohibits.”69 “[T]he Fifth Amendment’s
vagueness doctrine bars the Government from ‘taking away
someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
68
See United States v. Fontaine, 697 F.3d 221, 226 (3d
Cir. 2012).
69
Id. (citing Bouie, 378 U.S. at 351); see also United
States v. Davis, 139 S. Ct. 2319, 2325 (2019); Johnson, 135 S.
Ct. at 2556.
23
enforcement.’”70 “These principles apply to laws ‘defining
elements of crimes’ or ‘fixing sentences.’”71 “Because
vagueness challenges are evaluated ‘on a case by case basis[,]’
we must examine” the statute to determine if it “is vague as
applied” to Portanova.72
Applying a broad meaning of “relating to” adopted by
the Supreme Court and our Court, we examine the statutory
definitions of Portanova’s crime of conviction and determine
whether it is categorically a law “relating to . . . the . . .
possession . . . of child pornography,” as generically
understood under federal law. As we explained earlier, we find
that it does, and that the application of these principles in a
broader but straightforward reading of the text does not render
the statute unconstitutionally vague.
We find further support for this conclusion in Lockhart
v. United States, in which the Supreme Court examined another
part of § 2252(b)(2), addressing the issue of “whether the
70
United States v. Green, 898 F.3d 315, 319 (3d Cir.
2018), cert. denied, 139 S. Ct. 1590 (2019) (quoting Johnson,
135 S. Ct. at 2556).
71
Id. (quoting Johnson, 135 S. Ct. at 2556).
72
Moreno v. Attorney Gen. of United States, 887 F.3d
160, 165 (3d Cir. 2018) (quoting San Filippo v. Bongiovanni,
961 F.2d 1125, 1136 (3d Cir. 1992)). Similarly, the rule of
lenity operates “to resolve ambiguity in favor of the defendant
only ‘at the end of the process of construing what Congress has
expressed’ when the ordinary canons of statutory construction
have revealed no satisfactory construction.’” Lockhart, 136 S.
Ct. at 968.
24
phrase ‘involving a minor or ward’ modifies all items in the list
of predicate crimes . . . or only the one item that immediately
precedes it.”73 There, the Supreme Court interpreted
§ 2252(b)(2) based on “sensible grammatical principle
buttressed by the statute’s text and structure” and declined to
apply the rule of lenity.74 Though Lockhart did not reach the
issue of “[w]hether the terms in § 2252(b)(2) are given their
‘generic’ meaning . . . or are defined in light of their federal
counterparts,” or address unconstitutional vagueness, it
concluded that § 2252(b)(2)’s terms “are unlikely to sweep in
the bizarre or unexpected state offenses.”75
Accordingly, there is no question that a person of
ordinary intelligence would have fair warning that a conviction
pursuant to 18 U.S.C. § 2252 could expose him to greater
penalties if such a person has a prior state conviction “relating
to . . . the . . . possession . . . of child pornography.” As a
result, § 2252(b)(1)’s sentencing enhancement provision is not
unconstitutionally vague.76
73
Lockhart, 136 S. Ct. at 961.
74
Id. at 968.
75
Id.
76
This result is consistent with the conclusions of our
sister circuits in unpublished decisions. See United States v.
Geasland, 694 F. App’x 422, 439 n.8 (7th Cir. 2017) (mere
possibility of constitutional vagueness argument does not
render application of § 2252(b)(2)’s “relating to” language
plain error), cert. denied, 138 S. Ct. 699 (2018); United States
v. Caldwell, 655 F. App’x 730, 732–33 (11th Cir. 2016) (mere
breadth of § 2252(b)(1) is insufficient for unconstitutional
vagueness). Similarly, because the statute is not ambiguous,
25
III.
Because we conclude that Portanova’s prior conviction
is among those “relating to . . . the . . . possession . . . of child
pornography,” and that the provision is not unconstitutionally
vague, he is subject to the fifteen-year mandatory minimum
sentence imposed by the District Court under § 2252(b)(1), and
we will affirm.
the rule of lenity has no place. See Lockhart, 136 S. Ct. at 968
(“[T]he arguable availability of multiple, divergent principles
of statutory construction cannot automatically trigger the rule
of lenity.”).
26