                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 19-10077
           Plaintiff-Appellee,
                                                 D.C. No.
                  v.                       2:14-cr-00010-GEB-1

 CHAD CARL JAYCOX,
        Defendant-Appellant.                      OPINION

         Appeal from the United States District Court
             for the Eastern District of California
        Garland E. Burrell, Jr., District Judge, Presiding

                    Submitted April 17, 2020*
                    San Francisco, California

                        Filed June 16, 2020

   Before: Michael Daly Hawkins and Richard A. Paez,
       Circuit Judges, and Jane A. Restani, ** Judge.

                    Opinion by Judge Restani



    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
     **
        The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2                  UNITED STATES V. JAYCOX

                          SUMMARY ***


                          Criminal Law

    The panel reversed the district court’s application of a
sentencing enhancement in a case in which the defendant
pleaded guilty to receipt of child pornography in violation of
18 U.S.C. § 2252(a)(2), and remanded for resentencing.

    Based on the defendant’s prior conviction under
California Penal Code § 261.5(c), which criminalizes
“unlawful sexual intercourse with a minor who is more than
three years younger than the perpetrator,” the district court
applied 18 U.S.C. § 2252(b)(1), which increases the
mandatory minimum sentence from five to fifteen years if a
defendant 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.”

    The panel wrote that because the minimum conduct
required for a conviction includes consensual sexual
intercourse between an individual a day shy of eighteen and
an individual who is 21 years of age, § 261.5(c) is not a
categorical match to the general federal definition of sexual
abuse of a minor. And although the “relating to” language
in § 2252(b)(1) has a broadening effect and will allow certain
flexibility at the margins, the panel could not say that the
minimum conduct criminalized under § 261.5(c) relates to
abusive sexual conduct involving a minor, where the
California statute criminalizes conduct that is not necessarily

    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                UNITED STATES V. JAYCOX                    3

abusive or against those ordinarily considered minors for age
of consent purposes.

    The panel held that in evaluating the need to avoid
unwarranted sentencing disparities under 18 U.S.C.
§ 3553(a), the district court did not abuse its discretion by
focusing on national parity rather than giving definitive
weight to the defendant’s proffered regional data.

    Because the district court determined the sentence in
view of the incorrect statutory and Guidelines ranges, the
panel concluded that the district court’s weighing of the
§ 3553(a) factors was potentially affected and must be
redone.


                        COUNSEL

Heather E. Williams, Federal Defender; Carolyn M. Wiggin,
Assistant Federal Defender; Office of the Federal Defender,
Sacramento, California; for Defendant-Appellant.

McGregor W. Scott, United States Attorney; Camil A.
Skipper, Appellate Chief; Matthew G. Morris, Assistant
United States Attorney; United States Attorney’s Office,
Sacramento, California; for Plaintiff-Appellee.
4                   UNITED STATES V. JAYCOX

                             OPINION

RESTANI, Judge:

    Chad Carl Jaycox appeals the district court’s imposition
of a 240-month sentence following his conviction for receipt
of child pornography in violation of 18 U.S.C. § 2252(a)(2).
If a defendant 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,” then the
statutory minimum sentence is increased from five to fifteen
years. Id. § 2252(b)(1). Because Jaycox was previously
convicted under California Penal Code § 261.5(c), which
criminalizes “unlawful sexual intercourse with a minor who
is more than three years younger than the perpetrator,” the
district court applied the enhancement. We hold that this
decision was in error. Accordingly, we reverse and remand
for resentencing.

                          I. Background

    In 2018, Jaycox pleaded guilty to receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2). A
conviction under that section has a mandatory minimum of
five years and maximum of twenty years. Id. § 2252(b)(1).
The presentence investigation report (“PSR”) advised that
Jaycox’s prior conviction under California Penal Code
§ 261.5(c) 1 triggered the sentencing enhancement under
18 U.S.C. § 2252(b)(1).      With the enhancement, the

    1
      Jaycox was convicted of this offense in 2010. The next year, that
section of the code was updated to its current version. See Cal. Penal
Code § 261.5(c) (2000). The changes concerned imprisonment details
for those convicted of the crime and did not alter the conduct
criminalized, and so are not material to our analysis. Compare Cal. Penal
Code § 261.5(c) (2000) with Cal. Penal Code § 261.5(c) (2011).
                 UNITED STATES V. JAYCOX                     5

statutory range increased to a mandatory minimum of fifteen
years and a maximum of forty years. Id. § 2252(b)(1). The
PSR advised that the applicable United States Sentencing
Guidelines (“Guidelines”) range was 262 to 327 months, but
recommended a below-Guidelines sentence of 240 months.

    Jaycox objected to the enhancement, arguing, in part,
that a conviction under California Penal Code § 261.5(c) was
not a predicate crime under 18 U.S.C. § 2252(b)(1). Citing
our decision in United States v. Sullivan, 797 F.3d 623 (9th
Cir. 2015), which held that a conviction under California
Penal Code § 261.5(d) triggered the enhancement, the
district court overruled Jaycox’s objection and sentenced
him to 240 months, a downward departure.

        II. Jurisdiction and Standard of Review

    We have jurisdiction under 28 U.S.C. § 1291. We
review de novo whether a conviction supports a statutory
mandatory minimum enhancement.             United States v.
Reinhart, 893 F.3d 606, 610 (9th Cir. 2018). Sentencing
decisions are reviewed for abuse of discretion, unless a
defendant failed to object, in which case we review for plain
error. United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010).

                       III. Discussion

   A. Whether Jaycox’s prior conviction supports a
      sentencing enhancement under 18 U.S.C.
      § 2252(b)(1)

    Jaycox argues that the district court erred in finding that
his prior state law conviction justified a sentencing
enhancement under 18 U.S.C. § 2252(b)(1). He contends
that although the Sullivan court held that a conviction under
6                  UNITED STATES V. JAYCOX

California Penal Code § 261.5(d) supported the
enhancement, his prior conviction is an offense that
criminalizes less culpable conduct, including consensual
intercourse between a twenty-one-year-old and someone
nearly eighteen. See Cal. Penal Code § 261.5(c). 2 Unlike
subsection (d) of § 261.5, at issue in Sullivan, which applies
when a minor is under sixteen and a perpetrator is twenty-
one years of age or older, Jaycox argues his offense under
subsection (c) is not necessarily an abusive one and thus is
not one relating to “aggravated sexual abuse, sexual abuse or
abusive sexual conduct involving a minor or ward,” as
required for the enhancement. The government responds
that, although Jaycox’s conviction may not be an “element-
for-element match to th[e] generic federal crime,” it
nonetheless is “relating to” the relevant federal corollaries
because of the “psychological harm in light of the age of the
victim.”

    As noted in Sullivan, we begin our inquiry into whether
a state conviction “falls into the specified class of federal
offenses,” by applying the categorical approach set forth in
Taylor v. United States, 495 U.S. 575 (1990). See Sullivan,
797 F.3d at 635. The underlying facts that gave rise to the
conviction are not considered under the strict categorical
approach. See Moncrieffe v. Holder, 569 U.S. 184, 190
(2013). Instead, we identify the federal generic definition of
the crime and then assess whether the elements of the state
crime match that definition. Sullivan, 797 F.3d at 635. If
the state crime criminalizes more conduct than does the


    2
       Specifically, the state statute criminalizes “unlawful sexual
intercourse” defined as sexual intercourse between an adult and minor
under the age of eighteen who is not the spouse of the adult. See Cal.
Penal Code § 261.5(a).
                  UNITED STATES V. JAYCOX                         7

federal crime, then the state crime is not a categorical match.
Id.

    But when a federal statute includes the phrase “relating
to,” our inquiry does not end even if a state offense is not a
categorical match. The Supreme Court has held that this
“key phrase” has a broadening effect. See Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383–84 (1992).
Accordingly, for a state conviction to support a sentencing
enhancement under 18 U.S.C. § 2252(b)(1), it is enough if
the conviction “stands in some relation, bears upon, or is
associated with th[e] the generic offense.” United States v.
Sinerius, 504 F.3d 737, 743 (9th Cir. 2007).

    In Sullivan, we analyzed a similar California statute,
California Penal Code § 261.5(d). We concluded that
although not a categorical match to the generic federal
offense, the conduct criminalized was still “categorically a
conviction under the laws of any state relating to . . . sexual
abuse for purposes of” § 2252(b)(2) 3 because it related to
“sexual abuse as that phrase is ordinarily understood.”
Sullivan, 797 F.3d at 641 (internal quotations and citations
omitted). Noting that each of the offenses listed in
§ 2252(b)(2) “involve sexual conduct and abuse,” we set out
to define those terms. Id. at 636–37. We gave ‘sexual’ “its
ordinary and commonsense meaning” and noted that the
definition of ‘abuse’ varies depending on the context but
“encompasses behavior that is harmful emotionally and

    3
       This statutory enhancement provision applies to a different
subsection of 18 U.S.C. § 2252 than subsection (b)(1) but contains
identical language regarding what prior offenses qualify for the
enhancement. 18 U.S.C. § 2252(b)(2) (applying the enhancement to
various federal convictions as well as “under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward”).
8                   UNITED STATES V. JAYCOX

physically.” Id. (citing United States v. Lopez-Solis,
447 F.3d 1201, 1207 (9th Cir. 2006) (alterations accepted).

    We also considered the federal generic offense of
“sexual abuse of a minor” as relevant in deciding what types
of conduct relate to abusive sexual conduct. Id. at 637.
Although we did not have the benefit of the Supreme Court’s
explication of the federal generic definition of sexual abuse
of a minor in Esquivel-Quintana v. Sessions, we correctly
determined that sexual abuse of a minor requires the age of
the victim to be less than sixteen. Sullivan, 797 F.3d at 637
(defining sexual abuse of a minor based on the elements of
18 U.S.C. § 2243, which includes that a victim must be
younger than sixteen); see also Esquivel-Quintana, 137 S.
Ct. 1562, 1572–73 (2017). 4 We ultimately concluded that
California Penal Code § 261.5(d) was not a categorical
match for the federal definition. Sullivan, 797 F.3d at 637.
But because “sexual conduct is abusive when the minor is
under 16,” we held that conduct criminalized by § 261.5(d)
necessarily “causes physical or psychological harm in light
of the age of the victim,” and so was a crime “relating to . . .
sexual abuse,” such that the application of the sentencing
enhancement under 18 U.S.C. § 2252(b)(2) was appropriate.
Id. at 640–41.




    4
      In Esquivel-Quintana, the Court “le[ft] for another day whether the
generic offense requires a particular age differential between the victim
and the perpetrator, and whether the generic offense encompasses sexual
intercourse involving victims over the age of 16 that is abusive because
of the nature of the relationship between the participants.” Esquivel-
Quintana, 137 S. Ct. at 1572.
                   UNITED STATES V. JAYCOX                          9

    The issue here is whether the holding in Sullivan
regarding § 261.5(d) applies with equal force to § 261.5(c). 5
As in Sullivan, we must assess whether that prior conviction
is a conviction “under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward.” We start with the
federal generic definition of “abusive” or “abuse” as that is
required under any of the three offenses.

    As the Supreme Court recently noted, the age of legal
competence and age of legal consent are not necessarily the
same and most state criminal codes require that when
“sexual intercourse is abusive solely because of the ages of
the participants, the victim must be younger than 16.”
Esquivel-Quintana v. Sessions, 137 S. Ct. at 1572. We have
consistently recognized that consensual sexual intercourse
with individuals over the age of sixteen is “not necessarily
physically or psychologically abusive.” United States v.
Lopez-Solis, 447 F.3d 1201, 1209 (9th Cir. 2006); United
States v. Medina-Villa, 567 F.3d 507, 515 (9th Cir. 2009)
(reasoning that the “vast majority of states do not forbid
consensual sexual intercourse with a 17-year old . . .
indicates that such conduct is not necessarily abusive”)
(quoting Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1153
(9th Cir. 2008)). In doing so, we have recognized that “prior
case law—as well as common sense—suggest that, while
consensual underage sex may be harmful to a young teen, it
may not be harmful to an older one.” Sinerius, 504 F.3d
at 742 (quoting Lopez-Solis, 447 F.3d at 1208). Ultimately,
although we have recognized that sexual intercourse with a

    5
      The district court adopted the findings of the PSR insofar as it
advised that Jaycox’s previous conviction supported an increased
mandatory minimum under 18 U.S.C. § 2252(b)(1). No specific
reasoning was set forth.
10               UNITED STATES V. JAYCOX

younger minor is per se abusive because it is at minimum
“undoubtedly psychologically harmful,” the same is not
necessarily true for those older than sixteen. Medina-Villa,
567 F.3d at 513 (citation omitted).

    The California statute at issue here criminalizes sexual
conduct between a minor, defined as an individual under the
age of eighteen, and an individual at least three years older.
Cal. Penal Code § 261.5(c). Thus, the minimum conduct
required for a conviction includes consensual sexual
intercourse between an individual a day shy of eighteen and
an individual who is twenty-one years of age. See id.
Consequently, like the subsection at issue in Sullivan, there
is no question that § 261.5(c) is not a categorical match to
the generic federal definition of sexual abuse of a minor. See
Esquivel-Quintana, 137 S. Ct. at 1573 (holding that
§ 261.5(c) was not categorically sexual abuse of a minor
because it criminalized consensual sex with individuals over
sixteen years of age).

    Although the “relating to” language in § 2252(b)(1) has
a broadening effect and will allow certain flexibility at the
margins, we cannot say that the minimum conduct
criminalized under Cal. Penal Code § 261.5(c) relates to
abusive sexual conduct involving a minor. Indeed, unlike
the subsection at issue in Sullivan, which criminalizes
conduct against individuals under the age of sixteen by
adults twenty-one years of age or older, § 261.5(c)
criminalizes conduct not necessarily abusive, see Lopez-
Solis, 447 F.3d at 1208, nor against those ordinarily
considered minors for age of consent purposes, see Medina-
Villa, 567 F.3d at 515. A core substantive element of the
state crime—the age of the participants—is too far removed
from the relevant federal generic definitions to be “related
to” them. See United States v. Schopp, 938 F.3d 1053, 1066
                 UNITED STATES V. JAYCOX                    11

(9th Cir. 2019) (noting that the “relating to” phrase “does not
permit an expansion beyond the substantive linchpin
element of the federal generic crime”); Reinhart, 893 F.3d
at 616 (9th Cir. 2018) (interpreting the “relating to” phrase
and explaining that “interpretation must somehow be
anchored to prevent it from drifting aimlessly”); Sullivan,
797 F.3d at 641 (justifying the enhancement because the
state statute “relate[d] to sexual abuse as that phrase is
ordinarily understood”).

    Although the 240-month sentence imposed by the
district court is the upper statutory and Guidelines limit for
Jaycox’s crime without the enhancement, we remand for
resentencing as the district court’s error may have affected
the final sentence. See Molina-Martinez v. United States,
136 S. Ct. 1338, 1345 (2016) (concluding that it is typically
sufficient “to show a reasonable probability of a different
outcome” when a defendant is sentenced under the incorrect
Guidelines range, even if the “ultimate sentence falls within
the correct range”); see also Schopp, 938 F.3d at 1069
(reversing and remanding as plain error when the district
court incorrectly imposed a sentencing enhancement).
Without the enhancement, the proper sentencing range was
five to twenty years, rather than fifteen to forty years.
18 U.S.C. § 2252(b)(1). The district court may well have
considered a lighter sentence in view of the altered range of
sentencing options, see 18 U.S.C. § 3553(a), especially
considering that the district judge downwardly departed
from the Guidelines range in this case. Accordingly, remand
is appropriate.

   B. The District Court’s Consideration of the
      Sentencing Factors

   Jaycox raises an additional challenge to his sentence.
Jaycox argues that the district court erred by failing to
12              UNITED STATES V. JAYCOX

consider his proffered regional data regarding similarly-
situated defendants, and instead focusing on “national
parity,” when evaluating the need to avoid unwarranted
sentencing disparities under 18 U.S.C. § 3553(a)(6).

    The district court did not abuse its discretion in not
giving definitive weight to Jaycox’s regional data in
determining the appropriate sentence. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (requiring
the court determine whether there is “significant procedural
error” and then whether a sentence is substantively
reasonable). First, we have recognized that “Congress’s
primary goal in enacting [18 U.S.C.] § 3553(a)(6) was to
promote national uniformity in sentencing.” United States
v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007) (quoting
United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006)).
Second, and contrary to Jaycox’s contention, the record
appears to show that the district court considered Jaycox’s
sentencing arguments but ultimately determined they did not
warrant a lower sentence in the light of other sentencing
factors. Because the district court determined Jaycox’s
sentence in view of the incorrect statutory and Guidelines
ranges, however, the district court’s weighing of the
18 U.S.C. § 3553(a) factors was potentially affected and
must be redone.

                      IV. Conclusion

    For the foregoing reasons, we reverse the decision of the
district court and remand for resentencing consistent with
this opinion.

     REVERSED AND REMANDED.
