FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHAD CARL JAYCOX,

Defendant-Appellant.

No. 19-10077

D.C. No.

2:14-cr-00010-GEB-1

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 twentyone 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 “elementfor-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.” EsquivelQuintana, 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 LopezSolis, 447 F.3d at 1208, nor against those ordinarily 

considered minors for age of consent purposes, see MedinaVilla, 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 similarlysituated 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.