Case o' The Week: Sinerius, Mand-Min Predicates in Child Porn cases, and Categorical Analysis

Ninth Circuit Split? Judge O'Scannlain, a vocal supporter, Judge Betty Fletcher, as publicly opposed. Last week, however, these two Ninth Circuit vets unfortunately found something they could agree upon -- denying a defense challenge to the use of a prior to trigger a fifteen-year mandatory minimum sentence in this child porn case. United States v. Sinerius, __ F.3d __, 2007 LEXIS 22424 (9th Cir. Sept. 20, 2007), decision available here.

Players: Hard-fought case by Montana FPD Senior Litigator Michael Donahoe.

Facts: Sinerius pled to receipt and possession of child porn. 2007 LEXIS 22424, *1-*2. Although the guideline range started at 97 months, the PSR found that a prior Montana sexual assault conviction triggered a fifteen year mandatory minimum. Id. at *2-*3. At sentencing, Sinerius argued that this prior “did not categorically qualify as a predicate offense for enhancement purposes.” Id. at *3-*4. The district court disagreed, used the prior to trigger the mandatory-minimum, and gave 180 months for the receipt of child porn (with ten years concurrent on the possession count). Id. at *5.

Issue(s): “We are called upon to determine whether a federal defendant’s prior conviction for ‘sexual assault’ under Montana state law triggers an enhanced penalty under the sentencing provisions applicable to his federal crimes.” Id. at *1. “. . . Sinerius maintains that the Montana statute is over-inclusive vis-a-vis the offenses described in § 2252A(b) [the federal child porn statute] and, as a consequence, that his conviction therefore cannot categorically qualify as a predicate offense.” Id. at *9.

Held: “Under the categorical approach, we look only to the fact of Sinerius’s prior conviction and the elements of the Montana offense to determine whether § 2252A(b)’s definition of ‘sexual abuse’ covers the full scope the conduct prohibited by the Montana sexual assault statute.” Id. at *8-*9. “The Montana statute undeniably proscribes acts that are ‘sexual’ in nature.” Id. at *9. “In addition, the range of conduct the Montana statute proscribes is ‘abusive’ because it necessarily involves physical ‘contact without consent.’” Id. at *9. “Under the categorical approach, even the least egregious conduct proscribed by the Montana statute must qualify as an offense ‘relating to . . . sexual abuse.’ . . . If such conduct does not qualify, the . . .statute is over-inclusive on its face.” Id. at *9-*10.

“[E]ven the least egregious conduct proscribed by the Montana statute, consensual sexual contact by a 16-year-old on a 13-year-old victim, categorically qualifies as ‘sexual abuse.’ Further, because the statute requires the victim to be under 14 years of age to render her consent ineffective, our conclusion is consistent with our decisions in Lopez-Solis and . . . Baza-Martinez, holding that more expansive state statutes were not predicate offenses within the definition of the term ‘sexual abuse of a minor.’” Id. at *11.

Of Note: Montana Senior Litigator Michael Donahoe raised an interesting and creative challenge in Sinerius. He argued that the Court shouldn’t look at generic language in the federal statutes of conviction (the child porn statutes) to determine whether the prior state conviction is a qualifying predicate. Instead, the Court should undertake the categorical analysis by looking at the definitions for the federal crime of “sexual abuse” (18 USC § 2242). Id. at *13. Makes intuitive sense – why look to Black’s for “generic” definitions, when Congress has actually defined “sexual abuse” in a federal statute? Judges O’Scannlain, B. Fletcher, and Tashima, unfortunately, don’t buy it. Id. at *19.

How to Use: As child-porn prosecutions rise, we’ll see more of these “predicate” cases. These are big-ticket issues: the prior in this case lumped roughly seven years on top of the guideline range. While Sinerius is a defense loss, it illustrates that whether a state prior counts as a mand-min predicate depends heavily on the particular state crime at issue. This particular Montana conviction qualified, but (Judge O’Scannlain concedes) both Lopez-Solis and Baza-Martinez held that other sex-with-minor crimes did not. Don’t cave to the PSR or be spooked by the generic title of a state conviction – these predicates can be fought and won, and the stakes are often huge.

For Further Reading: The complicated categorical/modified analysis got simpler this week (in a very good way). See Navarro-Lopez v. Gonzalez, __ F.3d. __, 2007 WL 2713211 (9th Cir. Sept. 10, 2007), en banc, decision available here. In the excellent Navarro-Lopez opinion, Judge Pregerson explains that when the categorical analysis reveals that the crime of conviction is missing an element of the generic crime altogether, the Court cannot then fall back on the modified categorical approach. Id. at *8. As Jon Sands notes below, Arizona AFPD Brian Rademacher caught, and touts, this clarification – an approach which brings the Ninth in line with the progressive Fifth Circuit (!) on the issue.

Navarro-Lopez gives us yet another reason to hope that Judge Pregerson holds off on senior status for another dozen years or so . . . .


Steven Kalar, Senior Litigator N.D. Cal. (and former Hon. Harry Pregerson law clerk).

Website at www.ndcalfpd.org

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