US v. Schopp, No. 16-30185 (9-16-19)(Berzon w/Tashima & Fletcher).  In a production of child porn case, 18 USC 2251(a), the 9^th reverses defendant’s sentence and remands for resentencing. Applying a categorical approach, the 9^th concludes that the defendant’s prior state convictions (Alaska) for sexual abuse and sexual assault with minors do not “relat[e] to the sexual exploitation of children.” The “exploitation” has to do with visual depictions of children engaging in sexual explicit conduct and does not include conduct that lack visual depictions. As such, the prior convictions cannot serve as predicate offenses under 2251. The defendant avoided the bar of an appellate waiver because the sentence was illegal: the multiple-convictions enhancement was illegal.  The error was plain.

Congrats to Myra Sun for the win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/16/16-30185.pdf