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Ninth Circuit: California Conviction Under § 261.5(c) Not Predicate Offense For § 2252(b)(1) Enhancement

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s conviction under California Penal Code § 261.5(c) is not a predicate offense triggering a higher mandatory sentencing range under 18 U.S.C. § 2252(b)(1) because the state statute of conviction is not a categorical match to the general federal definition of sexual abuse of a minor.

Chad Carl Jaycox pleaded guilty in 2018 to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Upon issuance of the PSR, the court decided that his prior conviction for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” under § 261.5(c) qualified him for an enhanced sentencing range of 15 to 40 years, up from 5 to 20 without a qualifying prior.

Jaycox objected to the enhancement, but the district court upheld the enhancement, citing United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015) (holding that a conviction under Section 261.5(d) triggered the enhancement). Though his Guidelines range was 262 to 327 months, the court sentenced him to 240. He timely filed a direct appeal.

The Ninth Circuit had to determine whether § 261.5(c) is sufficiently different from § 261.5(d) to result in a ruling opposite its determination in Sullivan.

This analysis is known as the “categorical approach” and was set forth in Taylor v. United States, 495 U.S. 575 (1990). This approach involves “identify[ing] the generic federal definition of the crime and assess[ing] whether the elements of the state crime match[es] the definition.” Sullivan. If the state crime criminalizes more conduct than the federal crime does, then the state crime is not a categorical match. Id.

Section 2252(b)(2) states that if a 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” then the higher sentencing range applies.

The Sullivan Court found that the enumerated portions of § 2252(b)(2) all “involve sexual conduct and abuse.” While “sexual” is given “its ordinary and commonsense meaning,” “abuse” varies but generally “encompasses behavior that is harmful emotionally and physically.” Quoting United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. 2006). Further, under Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), “sexual abuse of a minor” is based on the elements of 18 U.S.C. § 2243 and requires that a victim must be younger than 16 years old.

Section 261.5(d) criminalized sexual contact between a victim under age 16 and a perpetrator who is 21 years or older. Because the victim was under 16, the Sullivan Court found such “sexual conduct abusive” due to the likelihood of “physical or psychological harm.”

However, under § 261.5(c), the Court found “the minimum conduct required for a conviction includes consensual sexual intercourse between an individual a day shy of eighteen and an individual who is twenty-one years of age.” Because the statute encompasses consensual behavior, it is broader than the required element of abuse. And, because it encompasses conduct with teens 16 and older, the age of the theoretical victim alone does not support a finding of abuse. United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007) (“prior case law – as well as common sense – suggests that, while consensual underage sex may be harmful to a young teen, it may not be harmful to an older one”). 

The Court explained that the phrase “relating to” in § 2252(b)(2) allows a “broadening effect” and “[c]ertain flexibility at the margins,” meaning “it is enough if the conviction ‘stands in some relation, bears upon, or is associated with the generic offense.’” Quoting United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007).

But in this case, the Court ruled that “[a] core substantive element of the state crime – the age of participants – is too far removed from the relevant federal generic definitions to be related to them.” Quoting United States v. Schopp, 938 F.3d 1053 (9th Cir. 2019). 

In sum, the conduct described in § 261.5(c) is so broad that it does not sufficiently relate to the conduct described in § 2252(b)(1) to trigger the statutory range enhancement, the Court concluded. Therefore, the district court erred in applying this enhancement to Jaycox. And while his eventual sentence was within the adjusted statutory range, the district court departed below the advisory Guidelines at sentencing and may have gone further had it properly considered his applicable statutory range, the Court stated. 

Accordingly, the Court vacated Jaycox’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Jaycox, 962 F.3d 1066 (9th Cir. 2020). 

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United States v. Jaycox



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