                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                May 26, 2016
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellant/
           Cross-Appellee,
 v.                                            Nos. 14-1384 and 14-1402
 CLIFTON BRETT BENNETT,

           Defendant-Appellee/
           Cross-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. NO. 1:13-CR-00395-CMA)


William A. Glaser, Appellate Section, Criminal Division (Leslie R. Caldwell,
Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney
General, Appellate Section, Criminal Division, United States Department of
Justice, and John F. Walsh, United States Attorney, and Robert M. Russel, Chief,
Appellate Section, United States Attorney’s Office, Denver, Colorado, with him
on the briefs), United States Department of Justice, Washington, DC, for
Appellant/Cross-Appellee.

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs) Office of the Federal Public Defender,
Denver, Colorado, for Appellee-Cross-Appellant.


Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.


TYMKOVICH, Chief Judge.
      Clifton Bennett pleaded guilty to federal child pornography charges and the

district court sentenced him to fifty-seven months of imprisonment to be followed

by several conditions of supervised release. Bennett and the United States each

contend the district court erred at sentencing.

      The government argues the court should have found Bennett had a prior

Colorado conviction relating to child pornography, which would trigger a ten-year

mandatory minimum sentence under 18 U.S.C. § 2252A(b)(2). We agree that

Bennett’s prior Colorado misdemeanor conviction for sexual exploitation of a

child “relates to” child pornography, and he is therefore eligible for the

mandatory minimum.

      Bennett also appeals, challenging the district court’s imposition of a special

condition of supervised release that requires he undergo mandatory testing for

sexual attraction to minors. But we are faced with too many speculative factors,

too far in the future, to make a decision sounding in constitutional principles, so

we dismiss Bennett’s cross-appeal without prejudice on ripeness grounds.

                                 I. Background

      The United States Postal Inspection Service searched Clifton Bennett’s

Colorado Springs apartment and discovered thousands of images of child

pornography and child erotica, featuring boys ranging from toddlers through




                                         -2-
young teenagers. Bennett pleaded guilty to knowingly possessing child

pornography under 18 U.S.C. § 2252A(a)(5)(B). 1

      This was not Bennett’s first conviction for sex-related conduct involving

children. In 1997, he pleaded guilty to sexual exploitation of a child, a

misdemeanor under Colorado law, and was sentenced to 140 days in jail.

      Based on this prior conviction, the parties disagreed whether federal law

required a ten-year mandatory minimum under 18 U.S.C. § 2252A(b)(2). Looking

at the Colorado statute, the district court concluded that because the Colorado law

punished a broader range of activities than the federal crime of possession of

child pornography, the prior conviction is not a child pornography offense for

statutory purposes. The court sentenced Bennett to fifty-seven months of

imprisonment and ten years of supervised release.



      1
          Subsection (a)(5)(B) provides:

              Any person who . . . knowingly possesses, or knowingly
              accesses with intent to view, any book, magazine, periodical,
              film, videotape, computer disk, or any other material that
              contains an image of child pornography that has been mailed,
              or shipped or transported using any means or facility of
              interstate or foreign commerce of in or affecting interstate or
              foreign commerce by any means, including by computer, or
              that was produced using materials that have been mailed, or
              shipped or transported in or affecting interstate or foreign
              commerce by any means, including by computer . . . shall be
              punished as provided in subsection (b).

          18 U.S.C. § 2252A(a)(5)(B) (emphasis added).

                                           -3-
       At sentencing, Bennett also objected to the condition of supervised release

that required him to undergo a test for sexual attraction to minors using a device

called a penile plethysmograph. 2 The district court rejected this challenge and

concluded:

              I have sufficient concern for the young men – the under-age men
              in the community, that I think that in this particular case, to
              effectively supervise and treat the defendant, and to protect the
              community; in particular, these young boys from additional
              crimes by the defendant, that both the computer internet access
              limitation and the proposed sex offender evaluation treatment
              condition of supervised release, which would include, if
              necessary, plethysmograph examination, does comport with the
              statutory requirements of 18 United States Code Section 3583(d)
              and are appropriate in this case.

R., Vol. III, at 27.

                                  II. Discussion

       We first discuss whether Bennett’s prior state misdemeanor conviction

triggers the mandatory minimum enhancement. We conclude it does. We then

turn to the special condition requiring plethysmograph testing, and conclude that

the imposition of testing is too speculative at this point for us to consider




       2
        “Penile plethysmograph testing is a procedure that ‘involves placing a
pressure-sensitive device around a man’s penis, presenting him with an array of
sexually stimulating images, and determining his level of sexual attraction by
measuring minute changes in his erectile responses.’” United States v. Weber,
451 F.3d 552, 554 (9th Cir. 2006) (quoting Jason R. Odeshoo, Of Penology and
Perversity: The Use of Penile Plethsmography on Convicted Child Sex Offenders,
14 Temp. Pol. & Civ. Rts. L. Rev. 1, 2 (2004)).

                                         -4-
Bennett’s due process challenge. He can challenge the testing if and when it is

actually imposed.

      A. Mandatory Minimum Enhancement

      Under 18 U.S.C. § 2252A(b)(2), the mandatory minimum applies if

Bennett’s prior conviction relates to a variety of state sexual abuse and child

pornography crimes:

             Whoever violates . . . subsection (a)(5) shall be fined under this
             title or imprisoned not more than 10 years, or both, but . . . if
             such person has a prior conviction . . . under the laws of any
             State relating to aggravated sexual abuse, sexual abuse, or
             abusive sexual conduct involving a minor or ward, or the
             production, possession, receipt, mailing, sale, distribution,
             shipment, or transportation of child pornography, such person
             shall be fined under this title and imprisoned for not less than 10
             years nor more than 20 years.

18 U.S.C. § 2252A(b)(2) (emphasis added). 3 The district court determined

whether the prior Colorado conviction counted for enhancement purposes using

the so-called categorical approach.

             1. Categorical Approach

      The government argues that under the categorical approach Bennett’s 1997

Colorado conviction for sexual exploitation of a child qualifies as a prior

conviction relating to the possession of child pornography. Under this

assessment, it contends the court may only consider whether the elements of the

      3
         The enhancement also applies if the defendant has a prior federal
conviction under “this chapter, chapter 71, chapter 109A, or chapter 117, or under
section 920 of title 10[.]” 18 U.S.C. § 2252A(b)(2).

                                         -5-
Colorado statute categorically relate to the possession of child pornography.

Bennett disagrees that the categorical approach applies. He contends that our

decision United States v. McCutchen, 419 F.3d 1122 (10th Cir. 2005), requires

that we must find his prior conduct actually relates to the possession of child

pornography. And because the limited record does not disclose his prior conduct,

we could not make that determination.

      But a careful reading of McCutchen confirms that the proper analytical

framework begins with the categorical approach. In McCutchen, the defendant

pleaded guilty to knowing possession of child pornography under 18 U.S.C.

§ 2252(a)(2) 4 and (1)(4)(B). 419 F.3d at 1123. McCutchen had a prior

conviction—a guilty plea for sexual battery under Kansas law. The question was

whether that prior conviction related to abusive sexual conduct involving a minor.

Although sexual battery could be committed against children or adults,

McCutchen had in fact abused an eight-year-old. Id. at 1124. The district court

found that where the statutory language of the prior conviction was broad enough

to encompass crimes that would trigger the enhancement and crimes that would

not, it was allowed to look beyond the elements of the offense. United States v.

McCutchen, No. 04-10140-01, at 4 (D. Kan. Dec. 15, 2004), aff’d, 419 F.3d 1122

(10th Cir. 2005).


      4
        The enhancement under 18 U.S.C. § 2252(a)(2) contains relevant
language identical to the language here.

                                         -6-
      We affirmed the district court. In doing so, we “reject[ed] the narrow

categorical approach to application of § 2252(b)(2) advocated by McCutchen.”

McCutchen, 419 F.3d at 1127 (emphasis added). But we did not upset the general

presumption that the categorical approach applies. 5 Rather, we merely rejected

the notion that courts must focus “exclusively” on the elements of the prior

conviction and are confined “solely” to the elements of the statute. Id. at

1126–27. We found “no basis” to require sentencing courts to “focus exclusively

on the elements of a defendant’s prior state conviction in determining whether

such conviction triggers application of the sentence enhancement provisions.” Id.

at 1126.

      Thus, in applying § 2252A(b)(2) we start with the categorical approach,

even if we do not end there. Consequently, we first ask whether the language of

the prior conviction categorically triggers the enhancement. If not, we may

proceed beyond the categorical approach if two pre-requisites are met. First, we

must have access to court documents such as those approved of in Shepard v.

United States, 544 U.S. 13 (2005), that demonstrate the elements of the crime the

defendant committed. Second, the statute of prior conviction must be divisible,


      5
          In McCutchen, the government and the defendant both agreed that “courts
generally appl[y] a categorical approach” in determining whether a defendant’s
prior conviction triggers the mandatory minimum. McCutchen, No. 04-10140-01,
at 3. The government merely argued that the court go beyond the statute “if the
statute or conviction is ambiguous or broader than the definitions in 2252(b)(2) . .
. .” Id. (emphasis added).

                                        -7-
Descamps v. United States, 133 S. Ct. 2276, 2282 (2013), meaning the statute

lists alternative ways it may be violated.

      Other circuits apply a similar approach. For example, in applying

§ 2252(b)(2), the Ninth Circuit explained that a court may apply a modified

categorical approach if (1) the statute of prior conviction criminalizes more

conduct than the federal triggering offense, and (2) the statute of prior conviction

is divisible. United States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015), petition

for cert. filed, (Jan. 26, 2016) (No. 15-7875)) (applying the categorical approach

in interpreting § 2252(b)(2) but clarifying that a modified categorical approach is

appropriate where the prior criminal conviction language is both broad and

divisible). Likewise, the Fourth Circuit starts with the categorical approach in

determining whether a prior conviction relates to sexual abuse or abusive sexual

conduct involving a minor. United States v. Colson, 683 F.3d 507, 509 (4th Cir.

2012) (applying the categorical approach in interpreting § 2252A(b)(1) because

no Shepard documents were available). While the Fourth Circuit allows the

sentencing court to consider Shepard documents to “reveal the facts on which the

conviction necessarily rested,” if no such documents are available, the sentencing

court may look only to the statutory language of the prior conviction to determine

whether that conviction was related to the triggering offenses. 6

      6
         See also United States v. Davis, 751 F.3d 769 (6th Cir. 2014) (applying
the categorical approach in interpreting § 2252A(b)(2) and explicitly rejecting a
                                                                     (continued...)

                                             -8-
      Similarly here, we have no facts beyond the guilty plea. As a result, we

apply the categorical approach.

             2. Relating To Child Pornography

      We next examine the statutory definition of Bennett’s 1997 Colorado

conviction to determine whether it categorically qualifies as an offense relating to

the possession of child pornography. The relevant Colorado statute provided:

             A person commits sexual exploitation of a child if, for any
             purpose, he knowingly . . . Possesses or controls any sexually
             exploitative material for any purpose . . . .” 7

Colo. Rev. Stat. § 18-6-403(3)(b.5) (1995) (footnote added). The statute thus

triggers the mandatory minimum if it is a statute “relating to . . . the production,




      6
        (...continued)
factual approach); United States v. Simard, 731 F.3d 156, 162 (2d Cir. 2013)
(applying the categorical approach in interpreting § 2252(b)(2) and clarifying that
the modified categorical approach would have been appropriate with a divisible
statute); United States v. Linngren, 652 F.3d 868 (8th Cir. 2011) (applying the
categorical approach in interpreting § 2252(b)(1) but using Shepard documents
because the statute of the prior conviction was broad); United States v. Galo, 239
F.3d 572 (3d Cir. 2001) (applying the categorical approach in interpreting
§ 2251(d)).

      7
         “Sexually exploitative material” is visual material that “depicts a child
engaged in, participating in, observing, or being used for explicit sexual conduct.”
Colo. Rev. Stat. § 18-6-403(2)(j). Explicit sexual conduct can be “sexual
intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, or
sexual excitement.” § 18-6-403(2)(e). Relevant here, erotic nudity can include
“the human breasts, or the undeveloped or developing breast area of the human
child, for the purpose of real or simulated overt sexual gratification[.]” § 18-6-
403(2)(d).

                                         -9-
possession, receipt, mailing, sale, distribution, shipment, or transportation of

child pornography.” 18 U.S.C. § 2252A(b)(2) (emphasis added).

      The Colorado child exploitation statute may punish the possession of visual

depictions that fall outside the federal definition of child pornography. 8 First, the

Colorado statute, unlike the federal law, may punish possession of an image of a

child whose breasts, but not genitals, are exposed. Second, the Colorado statute

may punish possession of an image of a child observing, but not engaged in,

sexually explicit conduct. In fact, the government concedes the statutes do not

completely overlap. Principal Br. for United States 29. But a conviction

qualifies as a predicate conviction if it relates to the possession of child

pornography.

      We have held, as have the other circuits, that “relating to” has a broadening

effect on § 2252A. Colson, 683 F.3d at 511–12 (“Numerous courts of appeals

agree that Congress chose the expansive term ‘relating to’ in § 2252A(b)(1) to

ensure that individuals with a prior conviction bearing some relation to sexual

abuse, abusive conduct involving a minor, or child pornography receive enhanced

minimum and maximum sentences.” (citations omitted)); McCutchen, 419 F.3d at

      8
        Federal law defines “Child pornography” as any visual depiction that:
was produced using a minor engaged in sexually explicit conduct, depicts a minor
engaged in sexually explicit conduct, or appears as though an identifiable minor is
engaged in sexually explicit conduct. 18 U.S.C. § 2256(8). “Sexually explicit
conduct” includes graphic sexual intercourse, graphic or lascivious simulated
masturbation, and graphic or simulated lascivious exhibition of the genitals or
pubic area. 18 U.S.C. § 2256(8).

                                         -10-
1126–27. 9 Therefore we have applied the Supreme Court’s ordinary interpretation

of “relating to” from Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383

(1992). See, e.g., United States v. Becker, 625 F.3d 1309, 1310 (10th Cir. 2010).

Under this interpretation, “the offense need only ‘stand in some relation to,’

‘pertain to,’ or ‘have a connection’ with” the possession of child pornography.

Becker, 625 F.3d at 1312 (10th Cir. 2010) (quoting McCutchen, 419 F.3d at

1127). Bennett’s Colorado conviction meets these standards, and therefore

“relates to” the possession of child pornography.

      To counter, Bennett argues that the recent Supreme Court case, Mellouli v.

Lynch, 135 S. Ct. 1980 (2015), has undermined our precedent and that of the

other circuits. In Mellouli, the Court held that a Tunisian citizen was not

removable for his state drug paraphernalia offense because the state offense

criminalized paraphernalia for substances beyond those contained on the federal

list of controlled substances. Bennett argues Mellouli mandates the enhancement

here can only be triggered by a state child pornography statute punishing images

that meet the federal definition of child pornography. Bennett Supp. Br. at 1.

This interpretation is incorrect for several reasons.




      9
        See also Sullivan, 797 F.3d at 637–38; United States v. Allen, 750 F.3d
209, 213 (2d Cir. 2014); United States v. Spence, 661 F.3d 194, 200 (4th Cir.
2011); United States v. Weis, 487 F.3d 1148, 1152 (8th Cir. 2007); United States
v. Hubbard, 480 F.3d 341, 347 (5th Cir. 2007).

                                         -11-
      First, Mellouli was decided, not on the definition of “relating to,” but on

the particular removal statute’s surrounding text and history. At issue in Mellouli

was whether an alien’s Kansas drug paraphernalia conviction triggered removal

under the immigration laws, 8 U.S.C. § 1227(a)(2)(B)(i). The removal statute in

question provided an alien can be removed if “convicted of a violation of . . . any

law or regulation of a State, the United States, or a foreign country relating to a

controlled substance (as defined in section 802 of Title 21).” Id. (emphasis

added). The Kansas definition of controlled substances included at least nine

substances that the federal list did not. 10 Id. The Supreme Court held that

§ 1227(a)(2)(B)(i) is limited to predicate convictions involving only those drugs

defined in 21 U.S.C. § 802. Id. at 1990–91. In doing so, the Court acknowledged

that “relating to” generally has a broadening effect. Id. at 1990. But, the Court

explained, “relating to” cannot skew a statute beyond its breaking point. Relying

on the “statute’s text and history,” it concluded that “relating to” should be read

narrowly in the removal context. Id.

      Here, neither the text nor the history of the enhancement statute, 18 U.S.C.

§ 2252A(b)(2), suggest Congress intended to reference only state child

pornography offenses that match the federal child pornography offense in the


      10
          The drug Mellouli was discovered with, Adderall, is a controlled
substance under both federal and Kansas law. But the criminal complaint did not
identify the substance, so the Supreme Court applied the categorical approach,
looking only to the elements of the prior conviction.

                                         -12-
same way Congress intended to reference only state drug offenses involving

substances defined in § 802.

      First, the enhancement statute does not limit “child pornography” by

linking it to the federal definition. In fact, Mellouli explicitly noted that a broad

reading of “relating to” would have made sense if Congress did not insert a

qualification limiting its application to federal controlled substances. Mellouli,

135 S. Ct. at 1988 n.9 (“[T]he dissent shrinks to the vanishing point the words ‘as

defined in [§ 802].’ If § 1227(a)(2)(B)(I) stopped with the words ‘relating to a

controlled substance,’ the dissent would make sense. But Congress did not stop

there. It qualified ‘relating to a controlled substance’ by adding the limitation ‘as

defined in [§ 802].’”).

      Additionally, a broad reading of the enhancement provision does not stretch

it “to the breaking point,” as it did to the removal statute in Mellouli. 135 S. Ct.

at 1990. The removal statute requires only that the state law relate to a controlled

substance, but mentions no actus reus. The Court took issue that a broad reading

would mean the removal statute could reach any crime “associated with the drug

trade in general.” Id. at 1988 (quoting In re Martinez Espinoza, 25 I. & N. Dec.

118 (BIA 2009)). This concern was especially present for Mellouli, where an

ordinary piece of clothing—a sock—qualified as drug paraphernalia, triggering

deportation under a broad reading. Id. at 1983. Section 2252A(b)(2), by contrast,

limits the triggering offenses through a universe of actions: “production,

                                         -13-
possession, receipt, mailing, sale, distribution, shipment, or transportation of

child pornography.” 18 U.S.C. § 2252A(b)(2). “Relating to” can therefore have

a broadening effect without criminalizing all acts associated with child

pornography in general.

      Third, the structure of the removal statute emphasizes the need for

complete overlap between state and federal predicate offenses in a way that

§ 2252A(b)(2) does not. The removal statute groups state and federal convictions

together: “any law or regulation of a State, the United States, or a foreign country

relating to a controlled substance (as defined in Section 802 of Title 21).” 8

U.S.C. § 1227(a)(2)(B)(i). Because federal law only reaches federally-defined

substances, a narrow reading of “relating to” is required, or else “relating to”

would have two meanings at once. In contrast, § 2252A(b)(2) does not group

state and federal convictions together:

             a prior conviction under this chapter, chapter 71, chapter 109A,
             or chapter 117, or under section 920 of title 10 (article 120 of the
             Uniform Code of Military Justice), or under the laws of any State
             relating to aggravated sexual abuse, sexual abuse, or abusive
             sexual conduct involving a minor or ward, or the production,
             possession, receipt, mailing, sale, distribution, shipment, or
             transportation of child pornography.

A narrow reading is therefore not required for coherence. In fact, the text points

the opposite direction. If Congress had intended to reference only those state

laws that punished federally-punishable conduct, it could have said so. See, e.g.,

18 U.S.C. § 3559(e)(2) (defining “state sex offense” as one that “consists of

                                          -14-
conduct that would be a Federal sex offense”); 18 U.S.C. § 2426(b)(1)(B)

(defining “prior sex offense conviction” as an offense “consisting of conduct that

would have been an offense under [this chapter, chapter 109A, chapter 110, or

section 1591]”). The text of § 2252A(b)(2) does not favor a narrow reading of

“relating to.” 11

       Our reading is further supported by the comparative historical backgrounds

of the statutes. Under the deportation statute, Congress and the BIA had “long

required a direct link” to an exact list of federally defined drugs. Mellouli, 135 S.

Ct. at 1990. Bennett points to no historical background in favor of a narrow

reading of § 2252A(b)(2), because none exists. We have already cited wide

agreement among the circuits that “relating to” is expansive in this context and

we see no reason to depart.

       The post-Mellouli decisions align with our interpretation. The Sixth,

Eighth, Ninth, and Eleventh Circuits have each affirmed that “relating to” remains


       11
          This reading is confirmed by Lockhart v. United States, 136 S. Ct. 958
(2016), where the Supreme Court found that state laws pertaining to sexual abuse
satisfied the § 2252(b)(2) enhancement even if they did not involve a minor. The
Court acknowledged that Congress did not require total parity between federal
and state predicate convictions. Justice Kagan in dissent urged an interpretation
that would have resulted in great disparity between federal and state triggering
offenses under § 2252(b)(2). Id. at 975 (Kagan, J., dissenting). The dissent
pointed out that many federal triggering offenses lacked state matches. The
majority responded that even though its reading yielded greater parity, its
“construction of § 2252(b)(2)’s sexual abuse predicates [did] not rely on a
general presumption that Congress sought full parity between all the federal and
state predicates in § 2252(b)(2).” Id. at 966.

                                        -15-
broad in this context. See United States v. Miller, ___ F.3d ___, No. 15-13555,

2016 WL 1658671, at *3 (11th Cir. Apr. 27, 2016); United States v. Sumner, ___

F.3d ___, No. 15-1509, 2016 WL 1085751, at *3 (8th Cir. Mar. 21, 2016)

(affirming the broad interpretation of “relating to” from United States v. Weis,

487 F.3d 1148, 1152 (8th Cir. 2007)); Sullivan, 797 F.3d at 638–40 (“Because

neither context nor history tugs “in favor of a narrower reading,” we define the

phrase “relating to” in § 2251(e) and § 2252(b)(2) broadly.” (quoting Mellouli,

135 S. Ct. at 1990)); United States v. Mateen, 806 F.3d 857, 860–61 (6th Cir.

2015), cert. denied, No. 15-8467, 2016 WL 900281 (Apr. 18, 2016) (“While

enhancing a sentence for a prior federal offense under section 2252(b)(2) requires

an offender to commit a specified crime, including crimes listed in chapter 109A,

a prior state conviction requires only that the defendant have been convicted of a

state offense “relating to . . . sexual abuse.” (quoting United States v. Barker, 723

F.3d 315, 322 (2d Cir. 2013)).

      Because neither the text nor the history of the enhancement statute limits

triggering offenses to those mirroring federally-defined offenses, we apply the

ordinary interpretation of “relating to.” We ask whether the statute of Bennett’s

1997 Colorado conviction stands in some relation to, pertains to, or has a

connection with the possession of child pornography. 12 See Becker, 625 F.3d at

      12
         Bennett more or less agrees “relating to” broadens the statute. Bennett
Supp. Br. at 9. But under his reading, the enhancement would be appropriately
                                                                      (continued...)

                                         -16-
1312. It undeniably does. The nature of sexual exploitation of a child, under

Colorado law, is the possession of visual material depicting a child participating

in explicit sexual conduct. We have little difficulty deciding that the statute

relates to the possession of child pornography. 13

        Because Bennett’s prior conviction categorically relates to the possession

of child pornography, we conclude that the district court should have applied the

ten-year mandatory minimum under 18 U.S.C. § 2252A(b)(2).

      B. Plethysmograph Testing

      Bennett also argues the district court erred by imposing penile

plethysmograph testing as a condition of his supervised release without sufficient

findings. We must examine whether this challenge is ripe for review. Friends of

Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1093 (10th Cir. 2004). The

parties conceded ripeness, but “[a]s a jurisdictional prerequisite, ripeness may be

examined by this court sua sponte.” Id. (quoting Keyes v. Sch. Dist. No. 1,

Denver, Colo., 119 F.3d 1437, 1444 (10th Cir. 1997)).



      12
        (...continued)
triggered by, for example, “advertising or promoting” federally-defined child
pornography. Id. There is no good reason why “relating to” would only expand
the explicit list of acts associated with child pornography.
      13
         This decision rests comfortably with other circuits’ interpretations. For
example, some courts have even found attempt crimes where the defendant
believed he was dealing with a minor, regardless of the age of the victim, related
to sexual abuse of a minor. See United States v. Stults, 575 F.3d 834, 845–46 (8th
Cir. 2009); United States v. Hubbard, 480 F.3d 341, 347 (5th Cir. 2007).

                                         -17-
      The government based its concession of ripeness on United States v. Mike,

632 F.3d 686 (10th Cir. 2011). In Mike, we said “supervised release terms are

directly appealable, despite the fact that they are subject to later modification,

because they ‘are part of the sentencing court’s final orders.’” Mike, 632 F.3d at

692–93 (quoting United States v. Smith, 606 F.3d 1270, 1283 n.4 (10th Cir.

2010)). But ripeness doctrine has both constitutional and prudential components.

United States v. Vaquera-Juanes, 638 F.3d 734, 735–36 (10th Cir. 2011). So

while an appeal regarding the conditions of supervised release may satisfy the

Article III component, that appeal may nonetheless be dismissed on prudential

ripeness grounds. 14 Id. at 738 (dismissing appeal regarding conditions of

supervised release on ripeness grounds because the defendant might be deported).

      We have acknowledged that plethysmograph testing presents different

considerations than other terms of supervised release. See United States v.

Dougan, 684 F.3d 1030, 1036 (10th Cir. 2012) (recognizing that plethysmograph

testing implicates significant liberty interests and requires a strong nexus to the

defendant’s history and characteristics before it can be imposed). So although

supervised release terms may generally be directly appealed, we must inquire

whether the prudential considerations here, especially related to plethysmograph

testing, counsel restraint. They do.

      14
         “[E]ven in a case raising only prudential concerns, the question of
ripeness may be considered on a court’s own motion.” Nat’l Park Hosp. Ass’n v.
Dept’t of Interior, 538 U.S. 803, 808 (2003).

                                         -18-
      The Fifth, Sixth, and Seventh Circuits have dismissed immediate challenges

to plethysmograph testing as unripe. United States v. Ortega, 485 F. App’x 656,

660 (5th Cir. 2012) (unpublished); United States v. Rhodes, 552 F.3d 624, 628

(7th Cir. 2009); United States v. Lee, 502 F.3d 447, 450 (6th Cir. 2007). The Lee

court, for example, while recognizing that generally, “conditions of supervised

release may be ripe for appellate review immediately following their imposition at

sentence,” still concluded the defendant’s challenge to plethysmograph testing

was not ripe because (1) the defendant would not be released for fourteen years,

(2) his treatment plan was indefinite, and (3) the court was unsure whether

plethysmograph testing would even be considered medically useful in 2021. Lee,

502 F.3d at 450. Similarly, the Seventh Circuit dismissed a challenge to

plethysmograph testing as unripe where the condition would not have been

imposed for at least eight and one-half years. Rhodes, 552 F.3d at 624. The court

gave weight to the difficulty in requiring the district court to state why

plethysmograph testing is appropriate for the particular defendant when the

question would be “full of contingency and abstraction.” Id. at 628.

      The First Circuit, however, rejected a ripeness challenge when it struck

down plethysmograph testing as a potential condition of supervised release in

United States v. Medina, 779 F.3d 55, 66-67 (1st Cir. 2015). As here, the

sentencing court in Medina approved sex offender treatment “including”

plethysmograph testing. Id. at 64 n.7. The First Circuit rejected a ripeness

                                         -19-
challenge because the condition would be imposed within the year, unlike the

fourteen-year gap in Lee. Id. at 67; Lee, 502 F.3d at 450. Additionally, Medina

did not challenge how the testing would be imposed, but rather that

plethysmograph testing was per se unlawful on the record before the district

court. Medina, 779 F.3d at 67.

      “A claim is not ripe for adjudication if it rests upon ‘contingent future

events that may not occur as anticipated or indeed may not occur at all.’” Texas

v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide

Agric. Prod. Co., 473 U.S. 568, 580–81 (1985) (internal quotations omitted)).

Our prudential ripeness doctrine requires us to balance the fitness of the issue for

judicial review with the hardship to the parties from withholding review. Awad v.

Ziriax, 670 F.3d 1111, 1124 (10th Cir. 2012) (citation omitted).

      Turning first to whether the issue is fit for judicial review, we focus on

“whether determination of the merits turns upon strictly legal issues or requires

facts that may not yet be sufficiently developed.” Kansas Judicial Review v.

Stout, 519 F.3d 1107, 1118 (10th Cir. 2008) (quoting New Mexicans for Bill

Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995)). Bennett is not

challenging the facial validity of penile plethysmograph testing, but rather its

application to him. He argues that the district court did not make sufficiently

particularized factual findings to impose testing. Even if we remanded, the

district court would be faced with the nearly impossible task of determining how

                                         -20-
effective plethysmograph testing might be for Bennett after completing his ten-

year sentence. This factor weighs against review.

       We next consider whether the parties face “a direct and immediate

dilemma.” Stout, 519 F.3d at 1118. Of course, this consideration would counsel

against adjudication for most conditions of supervised release where the

defendant has a lengthy sentence. But Bennett faces additional contingencies

before plethysmograph testing would be imposed. First, the treatment provider

must evaluate him and find that testing is appropriate. Second, plethysmograph

testing must be available as a treatment option, a destiny far from certain. See

United States v. Lee, 502 F.3d 447, 450 (1st Cir. 2007) (noting circuit agreement

that penile plethysmograph testing is deeply invasive and of questionable

reliability). And Bennett can challenge the condition when he is released from

his ten-year sentence if testing is still considered an appropriate treatment option

at that time.

       In sum, we find the challenge to plethysmograph testing as not yet ripe.

Bennett also raises issues of substantive due process, considering the invasive

nature of the testing, but we need not reach that issue. Because Bennett’s cross-

appeal is not yet sufficiently concrete, we dismiss without prejudice.




                                         -21-
                              III. Conclusion

      For the foregoing reasons, we REMAND with instructions to the district

court to VACATE the fifty-seven-month sentence and resentence Bennett to the

ten-year mandatory minimum sentence. We DISMISS Bennett’s cross-appeal on

ripeness grounds.




                                     -22-
       No. 14-1384, 14-1402, United States v. Bennett
       HARTZ, Circuit Judge, concurring and dissenting:
       I join the majority opinion except its holding that Bennett’s sentence could be

enhanced based on his conviction under Colorado’s child-exploitation statute. On the

application of the federal enhancement statute, I respectfully dissent because, as the

majority opinion sets forth, the definition of child pornography in the Colorado statute is

broader than the definition of the term in the federal enhancement statute. Following my

understanding of the Supreme Court’s decision in Mellouli v. Lynch, 135 S. Ct. 1980

(2015), I would hold that the Colorado statute is not a law “relating to… the production,

possession, receipt, mailing, sale, distribution, shipment, or transportation of child

pornography,” 18 U.S.C. § 2252A(b)(2).1

       I agree with the majority that the term related to is broad language. But its

interpretation must somehow be anchored to prevent it from drifting aimlessly. We

should try to identify some feature a statute must possess to qualify under § 2252A(b)(2).

In my view, Mellouli provides guidance on how to do that.

       Mellouli considered an alien-removal (deportation) statute, which, like the

enhancement statute here, referenced state laws “relating to” dealings with specifically

defined materials. Under § 2252A(b)(2) the materials are “child pornography,” which is

defined for purposes of that section by 18 U.S.C. § 2256(8). In Mellouli the materials

were specifically defined controlled substances. The federal statute made an alien

1
 I leave to another day whether we could apply the modified categorical approach to the
Colorado statute.
removable if he was “convicted of a violation of… any law or regulation of a State, the

United States, or a foreign country relating to a controlled substance (as defined in

section 802 of Title 21),” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). Mellouli did not

limit what activity relating to controlled substances would be covered by the removal

statute except that the activity could not relate to a substance other than a defined

controlled substance. The enhancement statute at issue on this appeal similarly can be

construed to include a great many activities relating to materials that are child

pornography; it just should not be construed to include activities relating to materials that

are not child pornography.

       In Mellouli the problem was that the Kansas list of controlled substances was

slightly larger than the federal list; it included at least nine substances that did not satisfy

the definition in 21 U.S.C. § 802. The Supreme Court rejected the argument that the state

list was so similar to the federal list that the state law was one “relating to a controlled

substance (as defined in section 802 of Title 21).” It said that “the Government’s

construction of the federal removal statute stretches to the breaking point, reaching state-

court convictions, like Mellouli’s in which ‘[no] controlled substance (as defined in [§

802])’ figures as an element of the offense.” Mellouli, 135 S. Ct. at 1990. “The

Government,” it said, “offers no cogent reason why its position is limited to state drug

schedules that have a ‘substantial overlap’ with the federal schedules. A statute with any

overlap would seem to be related to federally controlled drugs.” Id. (citation omitted).

Justice Thomas’s dissent observed, fairly I think, that “[t]he majority appears to conclude

that a statute ‘relates to’ a federally controlled substance if its definition of the offense of

                                               2
conviction necessarily includes as an element of that offense a federally controlled

substance.” Id. at 1993 (emphasis and additional internal quotation marks omitted).

       The parallel to the statute before us is obvious. Under the approach taken in

Mellouli, it would not be enough that almost everything defined as child pornography

under the Colorado statute is also child pornography under the federal statute; it would be

required that the state offense on which Bennett was convicted necessarily include as an

element some material that is child pornography under the federal definition.

       Unlike the majority opinion, I do not read the Court’s concern about stretching the

scope of the statute to the “breaking point” as relating to the various actions involving

controlled substances; its concern related solely to the substances involved. Also, I fail to

see how it makes any difference that in the removal statute considered in Mellouli the

relating-to provision explicitly cross-referenced a definition of controlled substance,

whereas there is no explicit cross reference to a definition of child pornography in the

enhancement statute before us. The explicit cross reference was necessary in the removal

statute because the referenced definition was in a separate title of the United States Code;

but there was no need for such a cross reference in the enhancement statute because the

definition in the nearby section of the same chapter of the same title explicitly stated that

it applied throughout the chapter. See 18 U.S.C. § 2256 (“For the purposes of this

chapter,” the listed terms are defined to have the following meanings). What was

important is that there was an explicit federal definition of the term.

       In addition, I am puzzled by the majority’s argument that one ground supporting

the Mellouli interpretation of relating to is that otherwise the reference in the removal

                                              3
statute to both federal and state law would mean that “’relating to’ would have two

meanings at once.” Maj. Op. at 14. The Supreme Court did not rely on such an

argument; and I do not think we would say that a term has two different meanings just

because its application leads to different results in different jurisdictions. There would be

nothing outrageous about more (and, perhaps, broader) state statutes “relating to”

controlled substances (whatever the definition of the term) than there are federal statutes

relating to them.

       I do recognize, however, that the Supreme Court in Mellouli relied on one feature

of the removal statute that does not apply to the child-pornography enhancement. It

noted “that Congress and the BIA [Board of Immigration Appeals] have long required a

direct link between an alien’s crime of conviction and a particular federally controlled

drug.” Mellouli, 135 S. Ct. at 1990. Perhaps this history was essential to the Court’s

holding in that case. But I am inclined to doubt that. The Court’s “stretches to the

breaking point” language was independent of the statutory history, and the vigor of the

Court’s language suggests that it alone would be a sufficient ground for decision.

       Moreover, there is a reason for a strict limitation to federally defined “child

pornography” that does not apply to a federally defined “controlled substance.” Congress

may have wished to be somewhat flexible with regard to state definitions of controlled

substance because creative “chemists” continually come up with new dangerous drugs.

The Mellouli dissent pointed out that under the majority’s construction of the removal

statute, “whenever a State moves first in subjecting some newly discovered drug to

regulation, every alien convicted during the lag between state and federal regulation

                                              4
would be immunized from the immigration consequences of his conduct.” Id. at 1994.

Apparently, two of the nine drugs that were controlled substances under Kansas law but

not under federal law at the time of Mellouli’s arrest were included in the federal

definition within a year of the arrest. See id. In contrast, Congress would have had no

doubt about alternative definitions of child pornography when it enacted its detailed

definition. For whatever reason, it chose a more restrictive definition than the one

enacted in Colorado.

       Finally, I do not think that reversal in this case would create a split with decisions

after Mellouli by other circuits interpreting the enhancement provision at issue in this

case. None of the four opinions cited by the majority opinion concerned state child-

pornography statutes. All addressed whether state statutes related to “sexual abuse” or

“abusive sexual conduct,” which are not terms defined by the federal statute.

       This is not an easy case. But in my view, fidelity to the approach in Mellouli

requires affirmance of the district court’s decision not to impose the enhancement.




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