United States v. Thomas Schopp ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30185
Plaintiff-Appellee,
D.C. No.
v. 1:15-cr-00001-
TMB-1
THOMAS SCHOPP, AKA Thomas
Hiser,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Argued and Submitted June 10, 2019
Anchorage, Alaska
Filed September 16, 2019
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 UNITED STATES V. SCHOPP
SUMMARY *
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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Myra Sun (argued), Los Angeles, California, for Defendant-
Appellant.
Allison Meredith O’Leary (argued) and Kyle Reardon,
Assistant United States Attorneys; Bryan Schroder, United
States Attorney; Office of the United States Attorney,
Anchorage, Alaska; for Plaintiff-Appellee.
4 UNITED STATES V. SCHOPP
OPINION
BERZON, Circuit Judge:
Thomas Schopp pleaded guilty to producing child
pornography in violation of 18 U.S.C. § 2251(a). Section
2251 is headed “[s]exual exploitation of children” and
describes several substantive offenses. The statute’s penalty
provision provides, among other things, that a defendant
with “2 or more prior convictions . . . under the laws of any
State relating to the sexual exploitation of children . . . shall
be . . . imprisoned not less than 35 years nor more than life.”
18 U.S.C. § 2251(e) (emphasis added). Our question is
whether the meaning of the term “relating to the sexual
exploitation of children” in § 2251’s enhancement provision
should reflect the elements of the substantive crimes
described in the same “[s]exual exploitation of children”
statute.
Schopp has several prior Alaska convictions relating to
the sexual assault and sexual abuse of minors, none
involving the production of child pornography. See Alaska
Stat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,
11.41.436, 11.41.434 (1993). The district court concluded
that Schopp’s prior Alaska convictions “relat[e] to the sexual
exploitation of children.” Applying the multiple-conviction
enhancement contained in § 2251(e), the district court
sentenced Schopp to life imprisonment, the maximum
sentence permitted under that enhancement. We hold that
Schopp’s prior Alaska convictions are not offenses “relating
to the sexual exploitation of children” under § 2251(e), so
the district court improperly applied the sentencing
enhancement.
UNITED STATES V. SCHOPP 5
I
In August 2014, Schopp met a fifteen-year-old boy at the
grocery store at which they both worked in Juneau, Alaska.
Months later, Schopp invited the boy to his apartment and
either recorded or photographed himself engaging in sexual
acts with the minor on his cellphone camera. Schopp was
charged with one count of production of child pornography,
in violation of 18 U.S.C. § 2251(a).
Schopp initially pleaded not guilty but later sought to
change his plea. At the change of plea hearing, the
government established that Schopp had a number of prior
state convictions for sexual assault and sexual abuse of
minors—specifically, convictions for: (1) six counts of
sexual assault in the first degree in violation of Alaska
Statutes § 11.41.410(a)(3), from 1988; and (2) two counts of
sexual abuse of a minor I in violation of Alaska Statutes
§ 11.41.434(a)(1), three counts of sexual abuse of minor II
in violation of Alaska Statutes § 11.41.436(a)(2), and one
count of attempted sexual abuse of a minor III in violation
of Alaska Statutes § 11.41.438(a)(1), from 1993.
18 U.S.C. § 2251(e) provides in full:
Any individual who violates, or attempts or
conspires to violate, this section shall be
fined under this title and imprisoned not less
than 15 years nor more than 30 years, but if
such person has one prior conviction under
this chapter, section 1591, chapter 71, chapter
109A, or chapter 117, or under section 920 of
title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any
State relating to aggravated sexual abuse,
sexual abuse, abusive sexual contact
6 UNITED STATES V. SCHOPP
involving a minor or ward, or sex trafficking
of children, or the production, possession,
receipt, mailing, sale, distribution, shipment,
or transportation of child pornography, such
person shall be fined under this title and
imprisoned for not less than 25 years nor
more than 50 years, but if such person has 2
or more prior convictions under this chapter,
chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of
the Uniform Code of Military Justice), or
under the laws of any State relating to the
sexual exploitation of children, such person
shall be fined under this title and imprisoned
not less than 35 years nor more than life. Any
organization that violates, or attempts or
conspires to violate, this section shall be
fined under this title. Whoever, in the course
of an offense under this section, engages in
conduct that results in the death of a person,
shall be punished by death or imprisoned for
not less than 30 years or for life.
(emphasis added). Taking the convictions recited by the
government into account and applying § 2251(e)’s multiple-
conviction enhancement (without specific reference to it),
the district court informed Schopp that he faced a mandatory
minimum of thirty-five years and a maximum sentence of
life imprisonment. At the end of the hearing, however, the
district court decided not to accept Schopp’s change of plea,
because Schopp had equivocated several times as to whether
he wished to plead guilty.
A month later, Schopp changed his mind again and
pleaded guilty, this time pursuant to a written plea
UNITED STATES V. SCHOPP 7
agreement. In the agreement, Schopp waived his right to
appeal on most grounds, reserving the right to appeal only
claims alleging ineffective assistance of counsel and
involuntariness of the guilty plea. He also stipulated to being
“previously convicted on two prior occasions of violations
of the laws of the State of Alaska relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor,” using the language of the single-
conviction portion of § 2251(e). (emphasis added). Despite
that stipulation, it is clear from the plea agreement’s repeated
reference to two or more prior state convictions, as well as
from the stipulated penalty range of thirty-five years to life,
that the agreement contemplated applying the multiple-
conviction, not the single-conviction, enhancement.
At the subsequent change of plea hearing, the district
court, using the single-conviction enhancement language
from the plea agreement, asked Schopp whether he had
stipulated to being “convicted on two prior occasions of
violations of Alaska law relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor.”
Schopp confirmed that he had. The district court again
informed Schopp that he was subject to a penalty range of
thirty-five years to life imprisonment, the sentencing range
for the multiple-conviction enhancement. This time, the
district court accepted Schopp’s plea.
At sentencing, both parties sought a thirty-five-year term
of imprisonment (which would have been available under
§ 2251(e)’s single-conviction enhancement). The district
court rejected the joint recommendation. It concluded that
several sentencing factors, particularly the seriousness of the
offense and the sentencing goals of deterrence and protecting
the public, warranted a harsher sentence. The district court
8 UNITED STATES V. SCHOPP
sentenced Schopp to life imprisonment. This appeal
followed.
Schopp argues on appeal that his prior Alaska
convictions do not “relat[e] to the sexual exploitation of
children,” so the district court erred by applying § 2251(e)’s
multiple-conviction enhancement. That issue triggers de
novo review. See United States v. Sullivan, 797 F.3d 623,
635 (9th Cir. 2015).
II
Before reaching the enhancement issue, we address
whether, given the appeal waiver, Schopp may pursue this
challenge to his life sentence. We have long “recognized that
the waiver of a right to appeal may be subject to certain
exceptions such as claims involving . . . an illegal sentence
imposed in excess of a maximum statutory penalty.” United
States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).
Had the multiple-conviction enhancement not been
applied, Schopp’s mandatory penalty range would have been
twenty-five to fifty years, the range applicable to persons
with a single prior conviction “relating to aggravated sexual
abuse, sexual abuse, [or] abusive sexual contact involving a
minor or ward.” See 18 U.S.C. § 2251(e). 1 If, as Schopp
argues, the district court erroneously applied § 2251(e)’s
multiple-conviction enhancement, the imposed life sentence
1
Schopp concedes that his prior state convictions “relat[e] to
aggravated sexual abuse, sexual abuse, [or] abusive sexual contact
involving a minor or ward.” See 18 U.S.C. § 2251(e). There is support in
the record for that conclusion. Schopp stipulated in his plea agreement
to being “previously convicted on two prior occasions of violations of
the laws of the State of Alaska relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor.”
UNITED STATES V. SCHOPP 9
was “in excess of [the] maximum statutory penalty.”
Baramdyka, 95 F.3d at 843. Because Schopp’s appeal goes
to the legality of his sentence, it is permitted despite his
appeal waiver.
III
We turn to whether Schopp’s prior state convictions are
predicate offenses for the multiple-conviction enhancement
under § 2251(e). The categorical approach set forth in Taylor
v. United States, 495 U.S. 575 (1990), guides this inquiry.
See also Descamps v. United States, 570 U.S. 254 (2013);
Mathis v. United States, 136 S. Ct. 2243 (2016).
Under the categorical approach, we first define the
federal generic offense. Id. at 2248. We then determine
“whether the elements of the [state] crime of conviction
sufficiently match the elements of [the generic federal
crime].” Id. In comparing the state and federal statutes, we
may “‘look only to the statutory definitions’—i.e., the
elements—of a defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’” Descamps,
570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). If the state
statute of conviction criminalizes the same or less conduct
than the federal generic definition of the offense, it is a
categorical match to the federal offense and qualifies as a
prior conviction for federal sentencing enhancement
purposes. Id.
Where the state statute of conviction criminalizes more
conduct than the federal generic definition of the offense, it
is not a categorical match. In that circumstance, we
determine the statute’s divisibility. Id at 262. A statute is
indivisible if it “sets out a single . . . set of elements to define
a single crime,” even if it provides for alternative means of
committing the offense. Mathis, 136 S. Ct. at 2248. A statute
10 UNITED STATES V. SCHOPP
is divisible if it “list[s] elements in the alternative, . . .
defin[ing] multiple crimes.” Id. at 2249. We apply the
modified categorical approach for divisible statutes, where
we “look[] to a limited class of documents . . . to determine
what crime, [and] with what elements, a defendant was
convicted of.” Id.
A
Under the Taylor categorical approach, we begin by
defining the generic federal offense—“sexual exploitation of
children.” We have yet to define the offense in a precedential
opinion, so this is a matter of first impression. 2
In defining a generic federal offense, we employ
ordinary principles of statutory interpretation to ascertain the
meaning of the relevant term, beginning with the text of the
statute. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,
1569 (2017). As additional evidence of the generic meaning
of the federal offense we may consider related federal
statutes, state criminal codes, the Model Penal Code, and the
ordinary meaning of the offense. Id. at 1569–71.
2
In two unpublished memorandum dispositions, we concluded that
“sexual exploitation of children” was not defined in 18 U.S.C. § 2251
and should therefore be defined according to its “ordinary,
contemporary, and common meaning of the statutory words.” See United
States v. Clark, 755 F. App’x 702 (9th Cir. 2019) (citations omitted);
United States v. Devore, No. 17-30205, 2019 WL 2333975, at *1 (9th
Cir. May 31, 2019). Neither case actually defined the substantive term,
each holding instead that the defendants’ prior convictions were for
offenses “relat[ing] to the sexual exploitation of children.” Clark, 755 F.
App’x at 702; Devore, 2019 WL 2333975 at *1 (emphasis added). Even
so, memorandum dispositions are nonbinding in subsequent
dispositions, as they are nonprecedential under our circuit rules. See 9th
Cir. R. 36-3(a).
UNITED STATES V. SCHOPP 11
Starting with the text of the statute: Section 2251 is titled
“[s]exual exploitation of children” and sets forth a series of
federal offenses, all related to the production of visual
depictions of minors engaging in sexually explicit conduct.
See 18 U.S.C. §§ 2251(a)–(d)(1). Specifically, § 2251
subjects to criminal conviction any person who:
employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a
minor assist any other person to engage in, or
who transports any minor in or affecting
interstate or foreign commerce . . . with the
intent that such minor engage in, any sexually
explicit conduct for the purpose of producing
any visual depiction of such conduct or for
the purpose of transmitting a live visual
depiction of such conduct.
Id. at § 2251(a); see also id. at § 2251(b) (concerning a
parent or legal guardian who knowingly permits a minor to
engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct); id.
at § 2251(c)(1) (pertaining to any person who transports
sexually explicit visual depictions of a minor); id.
at § 2251(d)(1) (concerning any person who knowingly
seeks or offers through advertisements sexually explicit
visual depictions of a minor). A “minor” is defined as a
person under the age of 18. 18 U.S.C. § 2256(1). “Sexually
explicit conduct” is defined for purposes of the section as
actual or simulated intercourse between persons; lascivious
exhibition of the genitals, breast, or pubic area; bestiality;
masturbation; or sadistic or masochistic abuse. Id.
at § 2256(2). Each enumerated § 2251 offense references
§ 2251(e), the provision that sets forth the multiple-
conviction enhancement, stating that the offender “shall be
12 UNITED STATES V. SCHOPP
punished as provided under subsection (e).” Id.
at §§ 2251(a)–(d)(1). 18 U.S.C. § 2251(e), in turn, provides,
as relevant:
[I]f such person has 2 or more prior
convictions under this chapter, chapter 71,
chapter 109A, or chapter 117, or under
section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under
the laws of any State relating to the sexual
exploitation of children, such person shall be
fined under this title and imprisoned not less
than 35 years nor more than life.
The statute’s section heading, when read in conjunction
with the statutory text, largely resolves our question
concerning the federal generic definition of “sexual
exploitation of children.” Congress titled § 2251 “[s]exual
exploitation of children.” By doing so, it signaled that the
enumerated federal offenses in § 2251 constitute the federal
understanding of the term “sexual exploitation of children,”
and that the term as subsequently used in § 2251(e) bears
that same meaning.
It is of no import that Congress did not set forth the
meaning of the statute’s heading with a definitional
provision (i.e., “sexual exploitation of children is defined
as”), although it did define terms used within the statute, in
18 U.S.C. § 2256. Congress frequently uses section headings
for the precise purpose of conveying the reach of the offense
a statute covers.
For example, the Supreme Court in Esquivel-Quintana
v. Sessions concluded that “[s]ection 2243, which
criminalizes ‘[s]exual abuse of a minor or ward,’ contains
the only definition of that phrase in the United States Code.”
UNITED STATES V. SCHOPP 13
137 S. Ct. at 1570. Like § 2251, 18 U.S.C. § 2243 does not
contain a definitional provision. Aside from two subsection
headings which read “[sexual abuse] of a minor” and
“[sexual abuse] of a ward,” the text contains no express
reference to the term. See 18 U.S.C. §§ 2243(a)–(b). By
concluding that § 2243 defines “sexual abuse of a minor or
ward,” the Court indicated that a section heading may serve
as the basis for establishing what offense is being defined in
the statutory text.
The import of section headings for defining federal
offenses applies with equal force here. 3 Because § 2251 is
titled “[s]exual exploitation of children,” the enumerated
elements of the offenses described in the statute constitute
the definition of the offense bearing that name. All of the
offenses described in § 2251 concern visual depictions of
children engaging in sexually explicit conduct, with
“sexually explicit conduct” defined in a separate statute. See
18 U.S.C. §§ 2256(1)–(2). We accordingly hold that the
federal generic definition of “sexual exploitation of
children” is defined within § 2251 as the production of visual
3
Concerns typically raised when a section heading is relied upon in
construing a statute are not here applicable. When section headings are
discounted, it is ordinarily because they are not part of the statute as
originally enacted and therefore have no bearing on statutory meaning or
congressional intent. See, e.g., United States v. Welden, 377 U.S. 95, 98
n.4 (1964) (“Certainly where, as here, the ‘change of arrangement’ was
made by a codifier without the approval of Congress, it should be given
no weight.”); Mangum v. Action Collection Serv., Inc., 575 F.3d 935,
939–40 (9th Cir. 2009) (“There can be little doubt that titles, in general,
are of some help, but the mere addition of a title by the Law Revision
Counsel cannot change the meaning or intent of a statutory provision.”).
Here, however, § 2251, as originally enacted, contained the section
heading “Sexual exploitation of children.” See Protection of Children
Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7
(1978).
14 UNITED STATES V. SCHOPP
depictions of children engaging in sexually explicit conduct,
or put simply, the production of child pornography.
Although the section heading is an independently
sufficient basis for our conclusion, it is not the only
indication that we have reached the proper definition of the
offense. Defining the federal generic definition of “sexual
exploitation of children” as the production of child
pornography comports with other federal statutory
definitions; the U.S. Sentencing Guidelines; state criminal
codes; and Black’s Law Dictionary.
For starters, 18 U.S.C. § 3509, which sets forth court
procedures for child victims, specifically defines “the term
‘exploitation’ [as] mean[ing] child pornography or child
prostitution.” 18 U.S.C. § 3509(a)(6). Not only does this
definition generally align with our definition of the offense,
it is illustrative of Congress’s understanding of exploitative
offenses. In defining “exploitation” as it pertains to child
victims of sexual crimes by specific reference to child
pornography and child prostitution, Congress illustrated that
“exploitation” necessarily requires some form of distinct
enrichment or benefit deriving from the sexual conduct,
other than sexual gratification from the conduct alone. 4
Furthermore, the Sentencing Guidelines use the term
“sexually exploiting a minor” to refer to the “production of
sexually explicit visual or printed material” involving
minors. See U.S.S.G. § 2G2.1. And twenty-three states
criminalize the “sexual exploitation of children” (or
similarly titled offenses, such as “sexual exploitation of a
4
Child prostitution is not covered under any of the federal offenses
described in § 2251. There are no child prostitution prior convictions,
however, at issue here.
UNITED STATES V. SCHOPP 15
minor” or “unlawful exploitation of a minor”), all defining
the offense as the production of child pornography. See
Alaska Stat. § 11.41.455; Ariz. Rev. Stat. § 13-3553; Cal.
Penal Code § 311.3; Colo. Rev. Stat. § 18-6-403(3); Del.
Code Ann. tit. 11, §1108; Ga. Code Ann. §16-12-100; Idaho
Code Ann. § 18-1507; Ind. Code § 35-42-4-4; Kan. Stat.
Ann. § 21-5510; Me. Stat., tit. 17-A, § 282; Miss. Code Ann.
§ 97-5-33; Mo. Rev. Stat. § 573.023; N.M. Stat. Ann. § 30-
6A-3; N.C. Gen. Stat. § 14-190.16; Okla. Stat. tit. 21,
§ 843.5; 18 Pa. Cons. Stat. § 6320; S.C. Code Ann. § 16-15-
395; S.D. Codified Laws § 22-22-24.3; Tenn. Code Ann.
§ 39-17-1005; Utah Code Ann. § 76-5b-201; Wash. Rev.
Code § 9.68A.040; Wis. Stat. § 948.05; Wyo. Stat. Ann. § 6-
4-303.
Finally, Black’s Law Dictionary’s definition comports
with our understanding of the term’s usage in § 2251. It
defines “sexual exploitation” as “the use of a person, esp. a
child, in prostitution, pornography, or other sexually
manipulative activity.” Black’s Law Dictionary (11th ed.
2019). Like the definition contained in 18 U.S.C. § 3509,
Black’s definition recognizes that “sexual exploitation”
includes some form of enrichment of or benefit to the
perpetrator beyond sexual gratification, as evidenced by its
reference to the same sexually exploitative crimes, child
pornography and child prostitution, covered in § 3509.
In short, all roads lead to the same conclusion: “sexual
exploitation of children” as contained in § 2551(e) means the
production of child pornography. 5
5
Our definition of “sexual exploitation of children” as contained in
§ 2251(e) conflicts with definitions adopted by two other federal
appellate courts. See United States v. Mills, 850 F.3d 693, 697 (4th Cir.
16 UNITED STATES V. SCHOPP
B
Having defined the generic federal offense, the Taylor
categorical approach dictates that we next compare the
federal generic offense to the state statutes of conviction. See
Mathis, 136 S. Ct. at 2248.
Schopp’s prior Alaska convictions consist of various
degrees of sexual assault and sexual abuse of minors. An
offender commits the offenses for which Schopp was
convicted previously if he or she satisfies the element of
either engaging or attempting to engage in sexual penetration
or sexual contact with a minor, or encouraging a minor to
engage in sexual contact with another person. See Alaska
Stat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,
11.41.436, 11.41.434 (1993). The federal generic definition
of “sexual exploitation of children,” on the other hand,
criminalizes the production of visual depictions of children
2017) (defining the term as “tak[ing] advantage of children for selfish
and sexual purposes”); United States v. Smith, 367 F.3d 748, 751 (8th
Cir. 2004) (defining “the term [as] unambiguously refer[ring] to any
criminal sexual conduct with a child”); see also United States v. Pavulak,
700 F.3d 651, 673–74 (3d Cir. 2012) (concluding that the relevant prior
state convictions “relat[e] to the sexual exploitation of children” but not
defining the substantive term); United States v. Randolph, 364 F.3d 118,
122 (3d Cir. 2004) (same). But the analysis in those decisions is
fundamentally flawed. Our sister courts failed to employ ordinary
principles of statutory interpretation: they did not read the section
heading in conjunction with the text of the statute; and they did not
consider other uses of the term in federal statutes, state criminal codes,
and the Guidelines. Moreover, their definitions obliterate the careful
lines Congress has drawn demarcating “sexual abuse” from “sexual
exploitation” by failing to grapple with the “exploitation” component of
the federal offense and focusing exclusively on the “sexual abuse”
aspect.
UNITED STATES V. SCHOPP 17
engaging in sexually explicit conduct, requiring in addition
to the underlying child sexual abuse, the creation of sexually
explicit depictions. 6 Looking at their diverse elements, it is
apparent that the state and federal statutes make criminal
different conduct. The state statutes of convictions
concerning sexual assault and sexual abuse are thus not a
categorical match to the federal definition of “sexual
exploitation of children.” 7
Accordingly, we hold that Schopp’s prior Alaska
convictions are not a categorical match to the generic federal
offense of “sexual exploitation of children” and cannot serve
6
Alaska Statutes § 11.41.436 incorporates the conduct aspects but
not the visual depiction elements of a separate Alaska statute,
§ 11.41.455. Section 11.41.436 provides that “an offender commits the
crime of sexual abuse of a minor in the second degree if . . . being
16 years of age or older, the offender aids, induces, causes, or encourages
a person who is under 16 years of age to engage in conduct described in
AS 11.41.455(a)(2)–(6).” Alaska Stat. § 11.41.436(a)(4) (1990)
(emphasis added). In turn, Alaska Statutes § 11.41.455, which sets forth
the offense of “unlawful exploitation of a minor,” lists in the subsections
incorporated in § 11.41.436 the “conduct” covered under the statute.
That “conduct” includes: “(1) sexual penetration; (2) the lewd touching
of another person’s genitals, anus, or breast; (3) the lewd touching by
another person of the child’s genitals, anus, or breast; (4) masturbation;
(5) bestiality; (6) the lewd exhibition of the child’s genitals; or (7) sexual
masochism or sadism.” Alaska Stat. § 11.41.455(a)(1)–(7) (1990).
Reading the statute in context, it is clear that Alaska Statutes
§ 11.41.436, Schopp’s statute of conviction for Sexual Abuse of a Minor
II, captures the “actual . . . conduct” listed in § 11.41.455(a)(2)–(6), but
does not incorporate the visual depiction aspect of that offense.
7
We need not determine whether the state statutes are divisible or
indivisible. The government does not argue that the modified categorical
approach applies or contend that the state statutes of conviction are
divisible for purposes of that approach. See Descamps, 570 U.S. at 261–
62.
18 UNITED STATES V. SCHOPP
as predicate offenses for purposes of the multiple-conviction
enhancement under § 2251(e).
C
Aside from arguing that “sexual exploitation of children”
is not defined in § 2251—the argument we have rejected—
the government offers two additional contentions
concerning the meaning of “sexual exploitation of children”
in § 2251(e).
First, espousing the reasoning in Mills, 850 F.3d at 693,
the government contends that because the single-and-
multiple-conviction enhancements in § 2251(e) once
contained the same predicate offenses, Congress’s 2006
amendment to the enhancement provision reflects a drafting
error. The government is suggesting that Congress meant to
replace “relating to sexual exploitation of children” in both
the single- and multiple-conviction enhancements with
“relating to aggravated sexual abuse, sexual abuse, abusive
sexual contact involving a minor or ward,” see 18 U.S.C.
§ 2251(e), but then did so only for the single-conviction
enhancement.
We “ha[ve] no free-floating power to rescue Congress
from its drafting errors.” King v. Burwell, 135 S. Ct. 2480,
2504 (2015) (citation and internal quotation marks omitted).
“Only when it is patently obvious to a reasonable reader that
a drafting mistake has occurred may a court correct the
mistake.” Id. at 2504–05. The rare drafting errors that are
corrected are “apparent from the face of the law,” such as the
drafting error in “the Affordable Care Act [which] creates
three separate Section 1563s.” Id. at 2505; see also Lamie v.
U.S. Tr., 540 U.S. 526, 542 (2004) (concluding that a
grammatical error in an amended provision in the
UNITED STATES V. SCHOPP 19
Bankruptcy Code was not ambiguous and declining to
correct Congress’s drafting error).
Here, it is far from apparent that there was a drafting
error. Congress quite reasonably could have included a
narrower set of offenses for the multiple-conviction
enhancement, which carries the hefty maximum penalty of
life imprisonment, than for the single-conviction
enhancement. Furthermore, the prosecution can obtain a
substantial term of imprisonment—between twenty-five and
fifty years—using the single-conviction enhancement statute
to capture the various “sexual abuse” state offenses not
captured under “sexual exploitation of children.” 8
Second, the government contends that Congress
intended parallelism between the enumerated federal crimes
and the qualifying state offenses in the multiple-conviction
enhancement. See 18 U.S.C. §§ 1460–1470 (concerning
federal obscenity offenses); 18 U.S.C. §§ 2241–2248
(concerning federal sexual abuse offenses); 18 U.S.C.
§§ 2421–2429 (concerning federal sex trafficking offenses);
10 U.S.C. § 920 (concerning federal sexual assault under the
Uniform Code of Military Justice). The government regards
it as “nonsensical” for Congress to enumerate a broad
category of qualifying federal offenses, including the various
sexual abuse crimes, while limiting qualifying state offenses
to the production of child pornography.
That argument falls of its own weight. The enumerated
federal offenses are not limited to crimes involving children.
8
Notably, the parties here did not address in the district court the
distinctions between the two enhancements, see supra, at 7, presumably
because they agreed on the imposition of a thirty-five-year sentence,
which would have been permissible under both enhancements.
20 UNITED STATES V. SCHOPP
See, e.g., 18 U.S.C. §§ 1460–1466, 1468 (concerning
obscenity offenses not specifically involving children);
18 U.S.C. § 2242 (concerning sexual abuse not specifically
involving children); 18 U.S.C. §§ 2421–2421A, 2424
(concerning sex trafficking offenses not specifically
involving children); 10 U.S.C. § 920 (concerning sexual
assault under the Uniform Code of Military Justice not
specifically involving children). Whatever else may be true
of the term “sexual exploitation of children,” the offenses
covered by it quite evidently must involve children.
Moreover, this disconnect between the qualifying prior
federal convictions and qualifying prior state convictions for
sentence enhancements under § 2251(e) is not limited to the
multiple-conviction enhancement. The single-conviction
enhancement exhibits the same lack of parallelism: Like the
multiple-conviction enhancement, the single-conviction
enhancement contains federal offenses not limited to crimes
involving children, yet limits the qualifying prior state
convictions to offenses that exclusively concern children
(e.g., the various sexual abuse offenses perpetuated against
children, sex trafficking of children, and possession of child
pornography). See 18 U.S.C. § 2251(e). So no possible
interpretation of § 2251(e) produces the parallelism between
the enumerated federal offenses and the state offenses the
government posits. We cannot say why Congress meant to
permit sentencing enhancement for a much broader swath of
federal offenses than of state crimes. But there is no
disputing that it did. The enumerated federal crimes are
therefore entirely uninformative as to the meaning of the
term “sexual exploitation of children” as it pertains to the
qualifying prior state offenses.
UNITED STATES V. SCHOPP 21
D
The government makes one final argument as to the
scope of the § 2251(e) multiple-conviction enhancement—
that the term “relating to,” which appears before “sexual
exploitation of children,” extends the reach of the
enhancement to a broader range of state criminal offenses
involving sexual abuse of children but lacking any visual
depiction component. We cannot agree.
Section 2251(e) does, of course, contain the phrase
“relating to sexual exploitation of children.” (emphasis
added). And Supreme Court and Ninth Circuit cases have
concluded that the phrase “relating to,” under certain
circumstances, warrants a broader comparison of state
offenses to the federal generic crime at issue than would
otherwise be the case. See Mellouli v. Lynch, 135 S. Ct.
1980, 1990 (2015); United States v. Reinhart, 893 F.3d 606,
610 (9th Cir. 2018). To determine the reach of the “relating
to” modifier here, we begin by examining each relevant
decision concerning the term “relating to,” beginning with
our decision in United States v. Sinerius, 504 F.3d 737 (9th
Cir. 2007).
1
This court considered in Sinerius whether the
defendant’s prior Montana conviction for sexual assault
under Montana Code Annotated § 45-5-502 was a predicate
offense for a sentencing enhancement under 18 U.S.C.
§§ 2252A(b)(1)–(2). Sections 2252(A)(b)(1)–(2) set forth a
mandatory minimum sentence for the possession of child
pornography 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.” 504 F.3d at 740. Sinerius defining “sexual abuse”
22 UNITED STATES V. SCHOPP
according to the “ordinary, contemporary, and common
meaning of the statutory words,” gave “sexual” its ordinary
meaning and defined “abuse” as meaning to “misuse . . . to
use or treat so as to injure, hurt, or damage . . . to commit
indecent assault on.” Id. (quoting United States v. Lopez-
Solis, 447 F.3d 1201, 1206–07 (9th Cir. 2006)).
Sinerius rejected the defendant’s argument that the
federal offense of “sexual abuse” as delineated in 18 U.S.C.
§ 2242 defines “sexual abuse” as used in § 2252A. Id.
at 742–43. 9 It concluded that § 2242’s use of the term was
9
Section 2242, which is titled “[s]exual abuse” but like § 2251 does
not include an express definition of the phrase used as the title, provides
in full:
Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant
to a contract or agreement with the head of any Federal
department or agency, knowingly–
(1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other
than by threatening or placing that other person in fear
that any person will be subjected to death, serious
bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that
other person is–
(A) incapable of appraising the nature of the conduct;
or
(B) physically incapable of declining participation in,
or communicating unwillingness to engage in, that
sexual act; or attempts to do so, shall be fined under
UNITED STATES V. SCHOPP 23
inapplicable because it is located in an entirely different
chapter. Id. The court then held that the prior Montana
conviction at the very least “relat[ed] to . . . sexual abuse,”
as the least egregious conduct under the Montana statute—
“consensual” sexual contact by a sixteen-year-old toward a
thirteen-year-old—categorically matched the generic federal
definition of “sexual abuse.” Id. at 741.
Years later, the Supreme Court in Mellouli v. Lynch,
135 S. Ct. at 1980, provided significant guidance as to the
reach of the phrase “relating to” in the categorical inquiry
context. Mellouli considered whether a Kansas misdemeanor
conviction for possessing drug paraphernalia triggered
8 U.S.C. § 1227, the federal immigration removal statute.
135 S. Ct. at 1984. Section 1227 applies to noncitizens
“convicted of a violation of . . . any law or regulation of a
State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of Title 21).”
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). The
government, relying on the federal removal statute’s
“relating to” language, argued that a substantial overlap in
the state and federal drug schedules permits “any drug
crime” to trigger the federal removal statute, regardless of
whether the state paraphernalia offense was limited to a
federally controlled substance. Id. at 1989–91.
Acknowledging that the “relating to” term broadened the
effect of the statutory provision to a degree, Mellouli
concluded that the phrase nonetheless has significant limits,
id. at 1990–91, as “[c]ontext . . . may tug . . . in favor of a
narrower reading.” Id. at 1990 (internal quotation marks,
citation, and alterations omitted). Upon reviewing § 1227’s
this title and imprisoned for any term of years or for
life.
24 UNITED STATES V. SCHOPP
context, specifically its text and history, the Court concluded
that Congress and the Board of Immigration Appeals
“required a direct link between [a noncitizen’s] crime of
conviction and a particular federally controlled drug.” Id.
The “relating to” phrase, that is, does not permit an
expansion beyond the substantive linchpin element of the
federal generic crime—there, federally controlled
substances—although it does permit inclusion of various
kinds of conduct involving that generic crime. Id. The Court
therefore held that the statute’s parenthetical reference to
21 U.S.C. § 802 narrowed its application to convictions
stemming from federally controlled substances specifically
defined in § 802. Id. at 1990. Because the Kansas
paraphernalia statute made criminal the act of using drug
paraphernalia to store or conceal any controlled substances,
not just those defined in § 802, the defendant’s prior state
conviction did not trigger the federal removal statute. Id.
at 1984, 1991.
We applied Mellouli’s interpretation of “relating to” in
United States v. Sullivan, 797 F.3d at 635. Sullivan
considered whether the defendant’s prior California
convictions for unlawful sexual intercourse and oral
copulation with a minor triggered federal sentencing
enhancements under the single prior conviction aspect of
18 U.S.C. §§ 2251(e) and 2252(b)(2). Id. at 635. Both
§§ 2251(e) and 2252(b)(2) enhancements apply when a
defendant has a “prior conviction . . . under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual contact involving a minor or ward,” but the
mandatory minimums differ. 10 Like Sinerius, Sullivan
10
Section 2252(b)(2) reads, in pertinent part:
UNITED STATES V. SCHOPP 25
defined “sexual” according to its ordinary meaning and
“abuse” as meaning to “misuse . . . to use or treat so as to
injure, hurt, or damage . . . to commit indecent assault on.”
Id. at 636. (quoting Sinerius, 504 F.3d at 740). In comparing
the federal and state statutes, the court concluded that the
prior state convictions were not a categorical match to the
federal generic definition because they did not contain a
mens rea requirement. Id. at 637. Sullivan concluded,
however, that the prior state convictions were still predicate
offenses because they “relat[e] to . . . sexual abuse.” Id. at
641. In so concluding, Sullivan reasoned that, unlike the
federal removal statute in Mellouli, the text and history of
the two federal enhancement statutes at issue neither
required a “direct link” between the federal and state statutes
of conviction nor contained a limiting parenthetical
narrowing the effect of the “relating to” language. Id. at 640.
The most recent decision from this court regarding the
phrase “relating to” in the categorical approach context,
United States v. Reinhart, 893 F.3d at 606, considered
whether the defendant’s prior California convictions for
possession of child pornography and sexual exploitation of
a child were convictions “relating to child pornography”
under § 2252(b)(2), one of the sentencing enhancement
Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under
this title or imprisoned not more than 10 years, or both,
. . . if such 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, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 10 years nor
more than 20 years.
26 UNITED STATES V. SCHOPP
provisions reviewed in Sullivan. 893 F.3d at 608. Unlike
the federal offenses at issue in Sinerius and Sullivan, the
generic federal offense Reinhart considered—“child
pornography”—and the related term “sexually explicit
conduct” are defined within the same chapter as the federal
enhancement. Id. at 613. Reinhart concluded that when there
are federal definitions of the relevant terms within the same
chapter as the federal statute, the court must apply those
definitions to enhancement provisions as well as to others.
Id. at 615. It likewise concluded that the presence of such
definitions serves as requisite context “tug[ging] . . . in favor
of a narrower reading” of “relating to.” Id. at 615 (citing
Mellouli, 135 S. Ct. at 1990). Reinhart expressly did not,
however, read the “relating to” language out of existence;
the court instead “anchored [it] to the federal definition of
child pornography.” Id. at 616.
Applying the traditional elements-based categorical
approach, Reinhart held that the defendant’s prior state
convictions in that case were not a categorical match to the
generic federal definition of “child pornography.” Id. at 621.
Both statutes, California Penal Code § 311.11(a) and
California Penal Code § 311.3(a), defined “sexual conduct”
more broadly than the federal definitions of “child
pornography” and “sexually explicit conduct.” Id. at 617–
19. Because both statutes were indivisible, the modified
categorical approach did not apply. Reinhart therefore held
that neither California statute triggered an enhancement
under § 2252(b)(2). Id. at 620–21.
2
Using these cases as guidance, we address how the
phrase “relating to” in § 2251(e) applies here. Under
Mellouli and Reinhart, a statute’s context, particularly its
text and history, determine the reach of the phrase. See
UNITED STATES V. SCHOPP 27
Mellouli, 135 S. Ct. at 1990; Reinhart, 893 F.3d at 614. The
language of § 2251(e) tugs in favor of reading “relating to”
as reaching various kinds of conduct involving the central
substantive concept, “sexual exploitation of children,” but
not activity that does not include the key visual depiction
aspect of that term.
For starters, the term “sexual exploitation of children”
heads all offenses included in § 2251, anchoring the
meaning of the “relating to” language to the definition of the
generic federal offense as the production of child
pornography. Reinhart, 893 F.3d at 614. Section 2251’s
subsections then establish that various sorts of conduct
“relating to the sexual exploitation of children” are
proscribed: Subsection (b) relates to parents and custodians,
who sexually exploit their children; subsection (c)(1) relates
to persons who transport child pornography through
interstate or foreign commerce; and subsection (d)(1) relates
to persons who publish any notice or advertisement that
seeks or offers to distribute or receive child pornography.
Accordingly, a state conviction “relat[es] to the sexual
exploitation of children” if it captures the conduct in those
subsections, which all contain an element of exploitation that
extends beyond unlawful sexual conduct with a minor. 11
Schopp’s various prior state convictions for the sexual
abuse and sexual assault of minors do not contain the
requisite element of “exploitation,” as no visual depiction of
sexually explicit conduct is required. His prior convictions
11
It may be that state offenses that have different conduct elements
from those covered in § 2251 but that also pertain to child pornography
are covered as well. As the issue is not raised, we do not decide it.
28 UNITED STATES V. SCHOPP
for sexual abuse thus do not “relat[e] to the sexual
exploitation of children” within the meaning of § 2251.
Despite the statutory evidence to the contrary, the
government contends that “relating to sexual exploitation of
children” includes all “sexual abuse” crimes involving
minors, observing that the production of child pornography
depicts such sexual abuse. In other words, although the
production of child pornography statute contains other
elements as well, the sexual abuse of a child is a necessary
component of the offense.
But the statutory materials leave no doubt that Congress
considers “sexual exploitation” and “sexual abuse” to be
distinct categories of offenses; “sexual exploitation,” if
anything, is a subset of “sexual abuse.” For example,
Chapter 110 of Title 18, which includes § 2251, is titled
“Sexual Exploitation and Other Abuse of Children,”
confirming that not all “[s]exual . . . abuse of children” is
“sexual exploitation of children.” Rather, “sexual
exploitation,” limited to the production of child
pornography, covers a narrower set of conduct than other
sexual abuse of children offenses.
Mellouli and Reinhart do not permit the government’s
attempt at so broadening the scope of the statute through the
“relating to” clause, as to obliterate the careful distinction
drawn in the statute between “sexual exploitation of
children” and other forms of child sexual abuse. Expanding
the statutorily delineated generic offenses through the phrase
“relating to” to include categories of federal offenses that
could have been included in the multiple-conviction
enhancement provision but were not impermissibly throws
overboard the overall statutory scheme.
UNITED STATES V. SCHOPP 29
We note, in particular, that the single-conviction
enhancement in § 2251(e) delineates in haec verba the very
sorts of state child sexual abuse offenses the government
maintains are secretly buried in the “relating to” phrase that
precedes “sexual exploitation of children” in the same
subsection. Why Congress would have expressly added the
child sex abuse crimes to the single-conviction enhancement
if they were already there in the earlier version of that
enhancement, see supra, 19–20, we are not told. Nor are we
told why the single and multiple conviction enhancements in
the same subsection read so differently if they mean the same
thing.
We therefore adhere to our conclusion 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 such pornography, that is, the conduct
enumerated in § 2251’s various subsections. It 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.
Because Schopp’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 district court therefore erred
in applying the enhancement and so in sentencing Schopp to
life imprisonment.
30 UNITED STATES V. SCHOPP
E
Because Schopp failed to object to the application of the
multiple-conviction enhancement below, we review for
plain error. See United States v. Olano, 507 U.S. 725, 731–
32 (1993). “Plain error is (1) error, (2) that is plain, and
(3) that affects substantial rights . . . [and] (4) seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Ameline, 409 F.3d 1073, 1078
(9th Cir. 2005) (en banc) (internal citation and alterations
omitted).
The district court’s imposition of the wrong sentencing
enhancement was both error and plain; it affected Schopp’s
substantial rights because it led to a sentence exceeding the
statutory maximum; and “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings”
because “it is a miscarriage of justice to give a person an
illegal sentence.” Id. at 1081. We therefore hold that the
district court committed plain error by applying § 2251(e)’s
multiple-conviction enhancement.
IV
In sum, “sexual exploitation of children” as contained in
18 U.S.C. § 2251 is defined within that statute as the
production of child pornography. Schopp’s prior Alaska
convictions for sexual abuse and sexual assault with minors
do not “relat[e] to the sexual exploitation of children” and so
cannot serve as predicate offenses under § 2251(e).
Accordingly, we REVERSE Schopp’s sentence and
REMAND for resentencing.