United States v. Schopp, No. 16-30185 (9th Cir. 2019)
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The Ninth Circuit vacated defendant's life sentence imposed after he pleaded guilty to producing child pornography in violation of 18 U.S.C. 2251(a). Defendant had several prior Alaska convictions relating to the sexual assault and sexual abuse of minors, none involving the production of child pornography.
After determining that the appeal waiver did not bar defendant's appeal, the panel held that his prior Alaska convictions were not offenses "relating to the sexual exploitation of children" under section 2251(e), and thus the district court improperly applied the multiple conviction enhancement contained in section 2251(e). The court explained that the term "relating to" in section 2251(e) encompasses state offenses that are a categorical match to the federal offense of production of child pornography and state offenses involving the production of such pornography. However, the term does not include offenses that entirely lack the visual depictions element that separates "sexual exploitation of children" from other forms of child abuse in the federal criminal offense panoply. The panel remanded for resentencing.
Court Description: Criminal Law. The panel vacated a life sentence imposed following the defendant’s guilty plea to producing child pornography in violation of 18 U.S.C. § 2251(a), and remanded for resentencing, in a case in which the district court, applying the multiple-conviction enhancement contained in 18 U.S.C. § 2251(e), concluded that the defendant’s prior Alaska convictions “relat[e] to the sexual exploitation of children.” The panel held that the appeal is permitted despite the defendant’s appeal waiver because the appeal goes to the legality of the sentence in that the defendant argues that the imposed life sentence was in excess of the maximum statutory penalty. Applying the categorical approach, the panel held that the federal generic definition of “sexual exploitation of children” is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct. The panel explained that the “relating to” term in § 2251(e) encompasses state offenses that are a categorical match to the federal offense of production of child pornography and state offenses involving the production of child pornography (that is, the conduct enumerated in § 2251’s various subsections), and does not include offenses that entirely lack the visual depictions element that separates “sexual UNITED STATES V. SCHOPP 3 exploitation of children” from other forms of child abuse in the federal criminal offense panoply. The panel held that because the defendant’s prior Alaska convictions concerning the sexual abuse and sexual assault of minors do not require a visual depiction element, they do not “relat[e] to the sexual exploitation of children” and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement in § 2251(e). The panel concluded that the district court therefore erred in applying the enhancement and sentencing the defendant to life imprisonment. The panel held that the district court’s imposition of the wrong sentencing enhancement was plain error that affected the defendant’s substantial rights.
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