We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

9TH CIRCUIT FINDS STATE SEX OFFENSE PRIORS OVERBROAD FOR 2252 SENTENCE ENHANCEMENT

People convicted of receiving child porn can receive a 10-year mandatory minimum under 18 U.S.C. 2252(b)(2) if they have a prior state conviction “relating to” possession of such porn. Last week, the 9th Circuit applied a Taylor-type analysis to California’s child porn possession law and child sexual exploitation law, ruling that both statutes were overbroad and thus could not be used to increase Melvin “Buck” Reinhart’s Sec. 2252 minimum sentence to 10 years.

The Circuit said Cal. Penal Code Sec. 311.11(a) sweeps in “depictions of a broader range of sexual conduct than the federal statute and is not divisible. The panel likewise held that Sec. 311.3(a) is categorically overbroad as compared to the federal definition of “sexually explicit conduct,” and that it is not divisible.

Because the terms “child pornography” and “sexually explicit conduct,” are explicitly defined in California law, the statutory text “tug[s]… in favor of a narrower reading” of the phrase “relating to.” The holding is at odds with 8th and 10th Circuit decisions, and may “have the effect of making Sec. 2252(b)(2) inapplicable in numerous states that define child pornography more broadly than the federal definition.”

United States v. Reinhart, Case No. 16-10409 (June 18, 2018)

– Thomas L. Root