US v. Hudson, No. 19-10227 (1-29-21)(Hawkins w/N. Smith & Nelson).  This is a possession of child pornography appeal. The issue is whether the 10-year mandatory minimum for a prior agg sex abuse, sex abuse, or abusive sexual conduct with a minor or ward is unconstitutionally vague. The defendant has a prior conviction for engaging in a lewd and lascivious act with a minor under the age of 14. Does this conviction “relate to” abuse sexual conduct of a minor and is it too vague. The 9^th determines it “relates to,” is not vague, and affirms the sentence. The 9^th takes a categorical approach, shies away from using the federal definitions for sex abuse, and uses an ordinary meaning of the phrase. See US v Farmer, 627 F.3d 416 (9^th Cir. 2010)(Cal Penal Code 288(a) relates to abusive sexual conduct with a minor).  The 9^th agrees that the phrase “relating to” such a prior conviction broadens the reach. This is not fatal if its core substantive element stands in “some relation, bears upon, or is associated” the generic offense.  (11). The 9^th various interpretations look at the “relates to” to see if it sweeps too arbitrarily to take in the state prior conviction. The 9^th finds it does not here. The federal statute gives notice to ordinary individuals nor poses an arbitrary risk.

Valiant statutory effort on appeal by Hanni Fakhoury, AFPD, Cal N (Oakland).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/29/19-10227.pdf