Sunday, January 31, 2021

Case o' the Week: "Awkward" but not "Vague" - Hudson and Facial Vagueness Challenge to Section 2252(b)(2)

 Vagueness challenge doesn’t fly for Hudson's Hawk[ins]. 

United States v. Hudson, 2021 WL 299301 (9th Cir. Jan. 29, 2021), decision available here.

Players: Decision by Judge Hawkins, joined by Judges N. Randy Smith and R. Nelson.

 Hard-fought appeal by ND Cal AFPD Hanni Fakhoury.

Facts: Hudson was charged with possession of child porn. The government gave notice that a prior conviction for Cal. Penal Code § 288(a) triggered a ten-year mand-min, under 18 U.S.C. § 2252(b)(2). Id. at *1. (CPC § 288 prohibited any person from willfully committing a lewd or lascivious act, upon any part of a body of a child under 14, for sexual arousal). Id. at *1 & n.1.

  Hudson pleaded guilty in federal court. At sentencing, he argued that the federal statute, Section 2252(b)(2), was unconstitutionally vague. Accordingly, Hudson argued, he should not be subject to the ten-year mandatory minimum. Id. at *2.

  N.D. Cal Judge Jon Tigar observed that if he had discretion he would have imposed the 87-month term urged by the defense. Ultimately, however, Judge Tigar rejected the challenge and (reluctantly?) sentenced Hudson to ten years. Id.

Issue(s): “On appeal, Hudson contends that his sentence must be vacated because the statutory provision ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’ is unconstitutionally vague.” Id. at *1.

   “Hudson's arguments center on two lines of precedent: (1) our case law interpreting the phrase ‘abusive sexual conduct involving a minor or ward,’ and (2) our case law determining how the phrase ‘relating to’ affects our application of the categorical approach.” Id. at *3.

Held: “We hold that it is not [unconstitutionally vague] and affirm the sentence.” Id.

 “Section 2252(b)(2)’s application to state crimes ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’ neither fails to give ordinary people notice of its scope nor poses a risk of arbitrary enforcement. We, therefore, reject Hudson's constitutional challenge and affirm his sentence.” Id. at *7.

Of Note: Much of this case hinges on United States v. Farmer, 627 F.3d 416, 418 (9th Cir. 2010), and Farmer’s holding that CPC § 288(a) is a conviction that categorically related to aggravated sexual abuse (in the context of another federal sex statute). Id. at *3-*4, & n.2. Interestingly, Judge Hawkins spends a fair amount of time discussing Judge Bybee’s special concurrence in Farmer. Judge Bybee criticized the Ninth’s line of authority that lead to Farmer’s “awkward result” of defining terms through both their “ordinary meaning” and by reference to a federal statue. Id. at *4.

  There’s a lot of ink spilled over a Farmer criticism that obviously doesn’t control in the Hudson analysis. Does Judge Bybee’s valid criticism have a sympathetic audience with Judge Hawkins or others on this panel – is this an en banc opportunity? But see id. at *6 (describing the Hudson’s panel’s view that Judge Bybee’s position does “not reveal a constitutional infirmity.”) 

How to Use: Can a defendant bring a facial vagueness challenge to a criminal statute (as opposed to “as applied?”) The government doesn’t think so, and argued as much in Hudson. Judge Hawkins explains the Court didn’t need to reach that issue to resolve Hudson, id. at *5 & n3, so facial challenges are still viable in the Ninth.                                               

For Further Reading: Acting A.G. Wilkinson just pulled a reviled charging memo by A.G. Sessions, that had mandated that federal prosecutors pursue the harshest charges and stiffest penalties. SeeDOJ Pulls Trump Administration’s Harsh Charging and Sentencing Policy, available here

The new controlling policy is former A.G. Holder’s 2010 charging memo, that instructs federal prosecutors to focus on “individualized justice” and decision-making based on “the merits of each case.” Id. 

Hopefully when Judge Garland clears the Senate, drug mand-mins will also get the DOJ boot (see A.G. Holder's 2013 charging memo). Until then, federal cases should be subject to immediate re-negotiation: cases should now be re-evaluated under A.G. Holder’s 2010 charging memo.



Poster image of “Hudston Hawk” from


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




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