                    UNITED STATES COURT OF APPEALS                     FILED
                           FOR THE NINTH CIRCUIT                        APR 16 2020
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                      No.    17-30205

                Plaintiff-Appellee,            D.C. No.
                                               2:15-cr-00160-TSZ-1
 v.                                            Western District of Washington,
                                               Seattle
RAYMOND EARL DEVORE,
                                               ORDER
                Defendant-Appellant.

Before: GOULD and PAEZ, Circuit Judges, and JACK,* District Judge.

      The memorandum disposition filed on May 31, 2019, is withdrawn and a

new memorandum shall be filed concurrently with this order.

      The stay of the mandate [Docket #52] is lifted, and the mandate shall issue

in the ordinary course. No petitions for rehearing may be filed.




      *
            The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 16 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30205

                Plaintiff-Appellee,             D.C. No. 2:15-cr-00160-TSZ-1

 v.
                                                MEMORANDUM*
RAYMOND EARL DEVORE,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Thomas S. Zilly, District Judge, Presiding

                       Argued and Submitted March 8, 2019
                               Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and JACK,** District Judge.


      Raymond Earl Devore (“Devore”) was convicted of one count distribution

of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. §

2252(b)(1), one count receipt of child pornography, in violation of 18 U.S.C. §



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
2252(a)(2) and 18 U.S.C. § 2252(b)(1), two counts possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), one count production of

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

and one count enticement of a minor, in violation of 18 U.S.C. §2422(b). On

appeal, he challenges the sufficiency of the indictment with regard to the one count

production of child pornography, and the district court’s determination that his

prior convictions under Washington law for possession and distribution of

depictions of a minor engaged in sexually explicit conduct trigger the recidivist

sentencing enhancement of 18 U.S.C. § 2251(e). This court has jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      We hold that the indictment sufficiently stated the charge with regard to the

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

§ 2251(e) and reverse the district court’s application of the sentencing

enhancement pursuant to 18 U.S.C. § 2251(e).

      1. In order for an indictment to be sufficient and put the defendant on

adequate notice it must contain the necessary elements of the crime alleged.

United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995). When used in the

law, the word “attempt” connotes both action and intent. United States v.

Resendiz-Ponce, 549 U.S. 102, 107 (2007). The indictment included the phrase




                                          2
“attempt to” in the relevant charge. Thus, the indictment adequately put Devore on

notice of the intent component of the charge.

      2. The generic federal definition of “sexual exploitation of children” is “the

production of visual depictions of children engaging in sexually explicit conduct,

or . . . the production of child pornography.” United States v. Schopp, 938 F.3d

1053, 1061 (9th Cir. 2019). Devore’s Washington convictions under Wash. Rev.

Code §§ 9.68A.050, 9.68A.070, and 9.68A.090 do not include as an element the

production of child pornography. Therefore, Devore’s Washington convictions do

not “relat[e] to the sexual exploitation of children” and cannot serve as predicate

offenses under 18 U.S.C. § 2251(e).

      AFFIRMED IN PART AND REVERSED IN PART; SENTENCE

VACATED AND REMANDED FOR RESENTENCING.




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