Monday, February 01, 2021

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 9th determines it “relates to,” is not vague, and affirms the sentence. The 9th 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 (9th Cir. 2010)(Cal Penal Code 288(a) relates to abusive sexual conduct with a minor).  The 9th 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 9th various interpretations look at the “relates to” to see if it sweeps too arbitrarily to take in the state prior conviction. The 9th 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:


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