                    UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                         MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                         No.   16-30301

                Plaintiff-Appellee,               D.C. No.
                                                  2:11-cr-00173-LRS-1
 v.                                               Eastern District of Washington,
                                                  Spokane
CAVON C. CLARK,
                                                  ORDER
                Defendant-Appellant.

Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,* District Judge.

      The petition for panel rehearing, Dkt. 35, is granted. The memorandum

disposition filed on March 1, 2019, is withdrawn and replaced by the memorandum

disposition filed concurrently with this order.




      *
             The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30301

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

CAVON C. CLARK,                                 MEMORANDUM*

                Defendant-Appellant.

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

                       Argued and Submitted May 17, 2018
                              Seattle, Washington

Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.

      Cavon C. Clark was convicted of one count of production of child

pornography, in violation of 18 U.S.C. § 2251(b), and one count of transportation of

child pornography, in violation of 18 U.S.C.§ 2252A(a)(1).           On appeal, he

challenges the district court’s determination that his prior convictions under


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
Washington law for possession of depictions of a minor engaged in sexually explicit

conduct support imposition of the 18 U.S.C. § 2251(e) recidivist sentencing

enhancement on the production count. Clark also challenges the district court’s

imposition of a single-conviction enhancement under 18 U.S.C. § 2252A(b)(1) on

the transportation count.    Finally, Clark contests the inclusion in the written

judgment of a lifetime term of supervised release that the district court failed to

pronounce orally at sentencing.

      We reverse the district court’s application of the sentencing enhancements,

vacate the portion of the written judgment imposing a lifetime term of supervised

release, and remand for resentencing.

      1.     After Clark was sentenced, this Court held that the term “sexual

exploitation of children” in 18 U.S.C. § 2251(e) is defined within § 2251 as “the

production of child pornography,” and that the “relating to” language in the

enhancement does not expand its reach beyond offenses that “contain the requisite

element of ‘exploitation.’” United States v. Schopp, 938 F.3d 1053, 1061, 1067 (9th

Cir. 2019). Because Clark’s convictions under Wash. Rev. Code 9.68A.070 for

possession of depictions of a minor engaged in sexually explicit conduct do not

include as an element the production of child pornography, the district court erred in

finding that they triggered the two-or-more-convictions enhancement of 18 U.S.C.




                                          2
§ 2251(e).1

      2.      The district court also erred in applying the single-conviction

enhancement of 18 U.S.C. § 2252A(b)(1) in arriving at the sentence on the

transportation conviction. As the government concedes, the Washington offense of

possession of depictions of a minor engaged in sexually explicit conduct, Wash. Rev.

Code 9.68A.070, is not a categorical match to the federal crime of “possession” of

“child pornography,” 18 U.S.C. § 2252A(a)(5)(B). Like the California statute in

United States v. Reinhart, 893 F.3d 606, 617-21 (9th Cir. 2018), the Washington

statute defines “sexually explicit conduct” more expansively than the federal one, as

it includes conduct such as clothed touching of a person’s genitals. Compare Wash.

Rev. Code § 9.68A.011(4), with 18 U.S.C. § 2256(2)(A), (8).

      3. “The only sentence that is legally cognizable is the actual oral

pronouncement in the presence of the defendant.” United States v. Hicks, 997 F.2d

594, 597 (9th Cir. 1993) (internal citation and quotation omitted). The inclusion of

a lifetime term of supervised release in the written judgment does not remedy the

omission of an oral pronouncement. We therefore vacate the supervised release

portion of Clark’s sentence and remand to afford the district court the opportunity to



1
          Because we find that Clark’s Washington convictions do not trigger the
two-or-more-convictions enhancement of 18 U.S.C. § 2251(e), we do not address
his alternative argument that the two convictions should not count as separate
qualifying predicate offenses for the purposes of that enhancement.

                                          3
impose the intended term. See id.

      REVERSED IN PART, VACATED IN PART, AND REMANDED.




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