Tuesday, August 11, 2020

US v. Jaycox, No. 19-10077 (6-16-20)(Restani w/Hawkins & Paez). The 9th reverses a sentencing enhancement in a receipt of child porn conviction. The defendant has a California prior sex offense of sex with a minor (under 18) with an individual at least three years older. The district court found that this prior conviction fit an enhancement for abusive sexual conduct and so increased the mandatory minimum and maximum.  The court did depart downward from the guidelines to a 240 month sentence.

The 9th held that this prior conviction was not a categorical match with the federal sexual abuse statutes as the sex with a minor could be consensual. The 9th distinguishes US v. Sullivan, 797 F.3d 623 (9th Cir. 2015), where the conduct was with a minor under 16, and the perpetrator 21 or older. In this instance, the conduct could involve a minor just shy of 18 and a perpetrator just over 21. This is not a categorical match; nor does it fall under the “relating to” languages which broadens the approach beyond the element to element match. The conduct is still possibly nonabusive as the courts have analyzed it.

The error results in a resentencing. Although the court did depart, it departed from a higher stat min and state max, and the consideration in sentencing may be different.

Congrats to Carolyn Wiggins, AFPD, Cal E. (Sacramento).

The decision is here:



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