Sunday, June 24, 2018

Case o' The Week: Big To Do, "Related To" - Reinhart and Categorical Analysis of Child Porn Priors

  Ninth delivers a “narrow” defense win.
United States v. Reinhart, 2018 WL 3016942 (9th Cir. June 18, 2018), decision available here.

The Hon. Judge Mary Murguia
Players: Decision by Judge Murguia, joined by Judge Gould and D. Wyoming Chief District Judge Freudenthal.
  Big win for (former, and sorely-missed) ND Cal AFPD Ned Smock (Oakland), (soon to be D. Md. AFPD Ned Smock).  

Facts: Reinhart plead guilty to possession of child porn. Id. at *1. Under 18 USC § 2252(a)(4)(B), a defendant convicted of this offense, who has two priors “relating to” the production, possession, etc. of child porn faces a ten year mandatory minimum sentence. Id.  Reinhardt had been convicted of possession of child porn, Cal. Penal Code § 311.11(a), and sexual exploitation of a child, in violation of Cal. Penal Code § 311.3(a). Id.
  “At sentencing . . . the government argued that the words ‘relating to’ in § 2252(b)(2) should be read broadly to encompass state statutes even if the state statutes of conviction do not categorically match the definition of federal child pornography offenses. Reinhart contended that the usual categorical approach should apply, and under that analysis, Reinhart’s prior California convictions were not a categorical match and were overbroad as compared to the federal definition of child pornography offenses in § 2252(b)(2).” Id. at *2.
  The Honorable ND Cal District Judge Jeffrey White found neither prior qualified as a conviction that triggered the ten-year mand-min. Id. at *1.

Issue(s): “We decide whether Reinhart’s prior California convictions constitute offenses ‘relating to’ child pornography under . . . 2252(b)(2 . . . .” Id. at *1.
  “[W]e must determine whether the words ‘relating to’ in the ten-year mandatory minimum statutory sentencing provision at § 2252(b)(2) require us to break from our usual, elements-based categorical approach for determining when state statutes of conviction trigger a federal sentencing enhancement and instead, apply a broader comparison between the state statutes and the federal statutes. Here, we consider whether Reinhart's prior . . . statutes of conviction fall under the federal definition of ‘child pornography offenses’ as used in § 2252(b)(2).” Id. at *3.

Held: “We affirm.” Id. at *1.
  “The government urges that Sullivan determines the outcome in this case. We disagree. At the outset, we recognize that Sullivan examined the same federal sentencing enhancement statute at issue here, § 2252(b) (2). But § 2252(b)(2) describes a number of prior types of state offenses, some of which include federally-defined terms, and some of which do not. As Sullivan directs, the language of a statute and any related textual restrictions may favor a narrower reading . . . . Accordingly, we look at the different types of offenses listed in separate clauses in § 2252(b)(2) to determine whether a narrower reading of ‘relating to’ and the categorical approach should apply. Here, it does.” Id. at *5.
  “In sum, we hold that [  ] because the terms ‘child pornography’ and ‘sexually explicit conduct,’ are explicitly defined in chapter 110, the statutory text ‘tug[s] ... in favor of a narrower reading’ of ‘relating to.’ . . . . Therefore, we do not depart from the usual, elements-based, categorical approach to determine whether Reinhart's prior state statutes of conviction trigger the federal mandatory minimum provision in § 2252(b)(2) for individuals with prior offenses ‘relating to’ child pornography.” Id. at *7 (emphasis added).

Of Note: This is a terrific decision: a thoughtful analysis untangling the subsections of the relevant statutes, and an intellectually honest approach to emotionally-charged offenses. Judge Murguia notes that in Reinhart the Ninth splits with the Tenth on the reading of “relating to.” Id. at *7.
  This is an interesting twist for the visiting Chief DJ, from Wyoming (which is in the Tenth Circuit). Back home on her own bench, DJ Freudenthal will now have to apply incorrect Tenth Circuit law in her own cases, despite joining the correct outcome here in Reinhart!

How to Use: This holding is a very important limitation on child porn mand-mins. Reinhart merits a careful read for anyone fighting child porn charges, when the client is bringing state priors into federal court.
For Further Reading: Have you noticed a local increase in child porn prosecutions? Brace yourself: more to come. See Justice Task Forces Arrest 2,300 Online Child Sex Suspects, available here

Image of the Honorable Judge Mary Murguia from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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