                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 21 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30377

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00173-LRS-1

 v.
                                                 MEMORANDUM*
CAVON C. CLARK,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Lonny R. Suko, Senior District Judge, Presiding

                        Argued and Submitted April 8, 2014
                       Submission Vacated February 9, 2015
                            Resubmitted July 20, 2016
                               Seattle, Washington

Before:       KOZINSKI, RAWLINSON and BEA, Circuit Judges.

      The district court erred in determining whether Clark’s convictions under

Washington law “relat[ed] to the sexual exploitation of children.” 18 U.S.C. §

2251(e). The government argues that the court used the categorical approach to


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                 page 2
find that Clark’s convictions under a Washington statute qualified as predicate

offenses under § 2251(e). But the court didn’t restrict its analysis to the elements

of the crime, as required by the categorical approach. It specifically looked to the

“conduct that occurred” in the case as well as statements contained in the judgment

and sentence. And the government concedes that any use of the modified

categorical approach was error because the Washington statute is not divisible.

      Further, the district court did not have the benefit of recent decisions

analyzing whether convictions under state law “relat[e] to” a federal offense. 18

U.S.C. § 2251(e); see Mellouli v. Lynch, 135 S. Ct. 1980, 1990–91 (2015)

(interpreting “relating to” language in 8 U.S.C. § 1227(a)(2)(B)(i)); United States

v. Sullivan, 797 F.3d 623, 640–41 (9th Cir. 2015) (interpreting “relating to”

language for the single prior conviction enhancement in § 2251(e)).

      Accordingly, we VACATE Clark’s sentence and REMAND so that the

district court may apply the teachings of Mellouli and Sullivan in the first instance.
United States v. Clark, No. 12-30377
                                                               FILED
BEA, Circuit Judge, dissenting:
                                                                 JUL 21 2016
                                                            MOLLY C. DWYER, CLERK
                                                              U.S. COURT OF APPEALS

      Cavon Clark pleaded guilty to producing child pornography, in violation of

18 U.S.C. § 2251(b), and transporting child pornography, in violation of 18 U.S.C.

§ 2252A(a)(1). At sentencing, the district court found that Clark had two prior

state-law convictions “relating to the sexual exploitation of children,” because, in

2005, he had pleaded guilty to two counts of “knowingly possess[ing] visual or

printed matter depicting a minor engaged in sexually explicit conduct.” Wash. Rev.

Code § 9.68A.070 (2005). The district court thus ruled that the multiple-conviction

sentence enhancement in 18 U.S.C. § 2251(e) applied and that § 2251(e) mandated

a minimum sentence of 35 years’ imprisonment.

      I agree with the majority that the district court misapplied the categorical

approach when it determined that Clark’s prior convictions1 “relat[e] to the sexual

exploitation of children” for the reasons stated in the majority’s decision. However,

      1
        Clark pleaded guilty to a two-count information; the counts charged Clark
with violating Wash. Rev. Code § 9.68A.070 (2005) on two dates eight months
apart. He argues that the two counts should collectively constitute a single
conviction for purposes of 18 U.S.C. § 2251(e). I agree with the district court that
each count qualifies as a separate conviction, because each count arose from a
separate “criminal episode.” See United States v. Maxey, 989 F.2d 303, 306 (9th
Cir. 1993); see also Deal v. United States, 508 U.S. 129, 131–34 (1993).

                                          1
we are perfectly capable of rectifying this error,2 because Wash. Rev. Code

§ 9.68A.070 (2005) does categorically “relat[e] to the sexual exploitation of

children.” See United States v. Quintero–Junco, 754 F.3d 746, 752–53 (9th Cir.

2014).

      We have not yet defined the federal generic crime of “sexual exploitation of

children,” but, at a minimum, it must mean using a minor in a pornographic photo,

video, or live performance. For example, Black’s Law Dictionary defines “sexual

exploitation” as “[t]he use of a person, esp. a child, in prostitution, pornography, or

other sexually manipulative activity.” Washington state law defines the crime

“sexual exploitation of a minor” to include “compel[ling] a minor . . . to engage in

sexually explicit conduct, knowing that such conduct will be photographed or part

of a live performance.” Wash. Rev. Code § 9.68A.040(1)(a). The federal statute

titled “sexual exploitation of children” criminalizes, among other things,

“us[ing] . . . any minor to engage in . . . sexually explicit conduct for the purpose of




      2
         The only question that we have to answer is whether Wash. Rev. Code
§ 9.68A.070 (2005) is categorically a state law “relating to the sexual exploitation
of children.” This is a legal question that we can answer without further input from
the district court. See, e.g., United States v. Dixon, 805 F.3d 1193, 1195 (9th Cir.
2015). Were further factfinding required, I would agree with the majority that we
should remand this case to the district court.

                                           2
producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a).3

      Although possession of child pornography may not itself be a categorical

match to the federal generic crime of sexual exploitation of children, the multiple-

conviction sentence enhancement applies when a defendant has two prior

convictions “relating to the sexual exploitation of children.” 18 U.S.C. § 2251(e)

(emphasis added). “[T]he phrase ‘relating to’ does not simply mandate a

sentencing enhancement for individuals convicted of state offenses equivalent to

[sexual exploitation of children]. Rather, it mandates the enhancement for any state

offense that stands in some relation, bears upon, or is associated with that generic

offense.” United States v. Sullivan, 797 F.3d 623, 638 (9th Cir. 2015) (internal

quotation marks and citation omitted), cert. denied, 136 S. Ct. 2408 (2016). In my

view, possession of child pornography “stands in some relation, bears upon, or is

associated with” using children in pornography. See Osborne v. Ohio, 495 U.S.

103, 110–11 (1990) (permitting states to “proscribe the possession and viewing of

child pornography” in part because “it is now difficult, if not impossible, to solve

the child pornography problem by only attacking production and distribution”;

“encouraging the destruction of these materials is . . . desirable because evidence


      3
       See also United States v. Pavulak, 700 F.3d 651, 673–75 (3d Cir. 2012);
United States v. Sanchez, 440 F. App’x 436, 440 (6th Cir. 2011) (citing cases).

                                          3
suggests that pedophiles use child pornography to seduce other children into sexual

activity”); United States v. Adams, 343 F.3d 1024, 1032–34 (9th Cir. 2003)

(upholding the federal ban on possessing child pornography because even wholly

intrastate possession of child pornography affects the national market for such

pornography, and a ban on possession attacks the production and distribution of

child pornography).4

      I would thus hold that Clark’s prior possession-of-child-pornography

convictions categorically “relat[e] to the sexual exploitation of children” and would

affirm the district court’s decision. I therefore respectfully dissent.




      4
        I recognize that the Supreme Court has “cautioned that courts may not
extend these terms [‘relating to’] ‘to the furthest stretch of [their] indeterminacy’
where language and historical context tug ‘in favor of a narrower reading.’”
Sullivan, 797 F.3d at 638 (second alteration in original) (quoting Mellouli v. Lynch,
135 S. Ct. 1980, 1990 (2015)). However, I see nothing in the “language and
historical context” of 18 U.S.C. § 2251(e) that would give me pause in finding that
possession of child pornography “relat[es] to the sexual exploitation of children.”

                                            4
