by Douglas Ankney

The United States Court of Appeals for the Tenth Circuit vacated a defendant’s 10-year mandatory minimum sentence, holding that his prior conviction under California Penal Code § 311.11 did not qualify as a predicate offense under 18 U.S.C. § 2252A(b)(2). Applying the categorical approach, the Court concluded that California’s statute criminalizes possession of images depicting conduct far broader than the federal definition of child pornography. Because California law, through its incorporation of Penal Code § 288, encompasses depictions of any physical contact between an adult and child where the adult harbors sexual intent, even images showing fully clothed individuals with no focus on intimate body parts fall within the statute’s sweep. The Court’s holding aligns with Ninth Circuit precedent reaching a similar conclusion.

Background

Gregory Griffin pleaded guilty to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the parties disputed whether Griffin was subject to the mandatory minimum sentence prescribed by § 2252A(b)(2), which requires at least 10 years’ imprisonment for defendants with a prior conviction under state law “relating to … possession … of child pornography.” Griffin stipulated that he had a previous conviction under California Penal Code § 311.11, which prohibits possession of images depicting a minor “personally engaging in or simulating sexual conduct.” Griffin argued that his California conviction did not trigger the mandatory minimum because the state offense sweeps more broadly than the generic federal offense. The U.S. District Court for the District of Wyoming rejected this argument, applied the 10-year mandatory minimum, and Griffin timely appealed.

Analysis

The Court reviewed the imposition of the mandatory minimum de novo. To determine whether a prior state conviction qualifies as a predicate offense under a federal sentencing enhancement, courts apply the categorical approach established in Taylor v. United States, 495 U.S. 575 (1990). Under this method, the court looks “only at the fact of the defendant’s conviction alone – and not at the defendant’s underlying conduct – to determine whether the prior conviction qualifies.” Descamps v. United States, 570 U.S. 254 (2013). A state conviction serves as a predicate only if its elements categorically fall within the elements of the generic federal offense. United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017).

The Court articulated three analytical steps. First, it discerns the scope of the generic offense defined by federal statute. United States v. Hebert, 888 F.3d 470 (10th Cir. 2018). Second, it ascertains the scope of the state statute by examining its text and interpretations by the state’s highest court. Johnson v. United States, 559 U.S. 133 (2010). Third, it asks whether the state statute sweeps more broadly than the generic offense, focusing on “the ‘least of the acts criminalized’ under the state statute.” Mellouli v. Lynch, 575 U.S. 798 (2015). When a state statute encompasses conduct beyond the generic offense, no conviction under that statute can qualify as a predicate. The Court explained that “[t]he test is all or nothing. Either any conviction under the statute will qualify, or none will.” United States v. Withrow, 49 F.4th 1372 (10th Cir. 2022).

The Court cautioned, however, that this analysis must rest on a realistic interpretation rather than creative hypothesizing. A defendant must demonstrate “a realistic probability … that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Moncrieffe v. Holder, 569 U.S. 184 (2013). This showing may be established through “the statute’s plain language and the state’s interpretive caselaw.” United States v. Campbell, 156 F.4th 1019 (10th Cir. 2025).

The Generic Federal Offense

The Court first examined the federal generic offense. Section 2252A(b)(2) covers offenses “relating to … possession … of child pornography.” Under Tenth Circuit precedent, the phrase “relating to” expands the generic offense beyond conduct precisely matching the federal definition. United States v. Bennett, 823 F.3d 1316 (10th Cir. 2016). Nevertheless, state-prohibited conduct must still bear a close resemblance to federally prohibited conduct. The Court concluded that California Penal Code § 311.11, through its incorporation of § 288 as construed in People v. Martinez, 903 P.2d 1037 (Cal. 1995), reaches depictions so attenuated from the federal child-pornography concept that it falls outside even § 2252A(b)(2)’s broadened “relating to” scope.

Federal law defines “child pornography” under 18 U.S.C. § 2256(8) as a visual depiction of a minor “engaging in sexually explicit conduct.” Section 2256(2)(A) defines “sexually explicit conduct” to include sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the anus, genitals, or pubic area.” Courts evaluate what constitutes “lascivious exhibition” through the Dost factors, which consider whether the image’s focal point is the child’s intimate areas, whether the image is sexually suggestive, whether the child appears in an unnatural pose, whether the child is nude, whether the image suggests sexual coyness, and whether the image is designed to elicit a sexual response. United States v. Wells, 843 F.3d 1251 (10th Cir. 2016) (discussing factors from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986)).

The California Statute

California Penal Code § 311.11 criminalizes possessing an image with knowledge that it depicts a minor “personally engaging in or simulating sexual conduct.” The term “sexual conduct” incorporates § 311.4’s reference to “any lewd or lascivious sexual act,” which is further defined by § 288 as “any lewd or lascivious act … upon or with the body … of a child … with the intent of arousing … [the] sexual desires of that person or child.”

The California Supreme Court has interpreted § 288 expansively. In Martinez, that court held that the provision encompasses “‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child.” The contact need not be “inherently lewd” or involve any “specific or intimate body part.” Martinez affirmed a conviction where the defendant merely wrapped his arms around a girl and attempted to kiss her.

Application

Comparing the two statutes, the Court concluded that California’s law criminalizes possession of images depicting conduct far broader than what federal law prohibits. When § 288’s expansive definition is imported into § 311.11, the California statute covers images depicting “any touching” between an adult and child where the adult harbors sexual intent. Such images might depict fully clothed individuals engaged in apparently innocent contact such as an adult simply placing an arm around a child’s shoulder. The Court reasoned that such nonexplicit images, lacking any focus on intimate areas, are “far from a ‘lascivious exhibition of the anus, genitals, or pubic area’ required by federal law.”

The Court rejected the Government’s counterarguments. First, the scienter requirement, that the defendant knows the image depicts a child engaging in or simulating sexual conduct, does not sufficiently narrow the statute. Even incorporating scienter, the criminalized images may still depict nonexplicit content with no focus on intimate areas. Second, the Court clarified the realistic-probability requirement, explaining that it does not demand evidence that the state would actually prosecute possession of innocuous images. Citing United States v. Taylor, 596 U.S. 845 (2022), the Court noted that a defendant need not prove the Government’s “prosecutorial habits.” Instead, realistic probability may be established through the statute’s language and judicial interpretations. The Court concluded that Griffin satisfied this standard by pointing to Martinez, which approved application of § 288 to facially innocuous conduct, including one case where the defendant merely “pinch[ed] [a] girl’s leg.” Third, while the Dost factors may reach certain nonexplicit images, even under those factors the focus must remain on intimate areas, a limitation California’s statute does not impose, the Court observed.

The Court noted that its holding aligns with Ninth Circuit precedent. United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018); Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015).

Conclusion

Thus, the Court held that because California Penal Code § 311.11 encompasses conduct broader than the generic federal offense under § 2252A(b)(2), a conviction under the California statute does not categorically qualify as a predicate offense. Griffin’s prior state conviction therefore did not trigger the 10-year mandatory minimum.

Accordingly, the Court vacated Griffin’s sentence and remanded for resentencing. See: United States v. Griffin, 164 F.4th 782 (10th Cir. 2026). 

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