1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0205p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellant ,

v

.

C HRISTOPHER J. M ATEEN , Defendant-Appellee

. ┐ │ │ │ │ │ │ ┘ No. 12-4481

Appeal from the United St ates District Court for the Southern District of Ohio at Columbus No. 2:12-cr-00041-1—Edmund A. Sargus, Jr., District Judge. Argued: June 18, 2014 Decided and Filed: August 26, 2014 Before: COLE, Chief Judge; BOGGS, BA TCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE , GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

_________________ COUNSEL

ARGUED: Benjamin C. Glassman, UNITED STA TES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant. Kevin M. Schad, O FFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellee. ON BRIEF: Benjamin C. Glassman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for A ppellant. Kevin M. Sc had, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cinc innati, Ohio, for Appellee.
The court delivered a PER CURIAM opi nion, in which COLE, C.J., and BOGGS, BATCHELDER, MOORE, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, JJ., joined, and CLAY, J. joined in the result. CLAY, J. (pp. 9–12), delivered a se parate opinion concurring in the judgment. 

### >No. 12-4481 United States v. Mateen Page 2

_________________ OPINION

_________________ PER CURIAM. The federal st atutes prohibiting the sale, distribution, and possession of child pornography include sentencing-enhancement pr ovisions that apply to recidivist offenders
who have also been convicted of certain predicate state and federal offenses. Christopher Mateen pleaded guilty to possessi ng “visual depiction[s] involv[ing] the use of a minor engaging in sexually explicit conduct,” in violation of 18 U.S.C. § 2252(a)(4 )(B). He had previously been convicted of Gross Sexual Imposition, in violatio n of Ohio Revised Code § 2907.05. The district judge determined that the statut ory sentencing enhancement was not triggered by Mateen’s prior state conviction, and sentenced him to the statut ory maximum ten-year term of imprisonment.
At issue in this appeal is the proper construction of the sentencing-enhancement provision, which provides that an individual with a prior conviction “under the laws of any State relating to aggravated sexual abus e, sexual abuse, or abusive sexua l conduct involving a minor or ward” will be subject to the en hancement. 18 U.S.C. § 2252(b)(2). We must decide whether the phrase “involving a minor or wa rd” modifies only its direct antecedent, “abusive sexual conduct,” or whether it modifies all three list ed categories of conduct: “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual c onduct.” We conclude that the limiting phrase modifies only “abusive sexual c onduct” and, accordingly, only st ate crimes relating to abusive
sexual conduct need involve a minor or ward in order to trigger enhan cement under § 2252(b)(2). Accordingly, we VACATE the judgment and REMAND to the district c ourt for resentencing
and reconsideration of whether Mateen’s Gr oss Sexual Imposition conviction triggers the statutory sentencing enhancemen t, as properly construed.

I. BACKGROUND
In 2012, an officer with a Franklin County task force targeting internet crimes against
children detected an IP address that hosted an d shared several images and movies of minors engaging in sexual acts. The o fficer traced the IP address to the residence of Christopher Mateen. Investigators executed a search warrant at the residence and recovered a computer,No. 12-4481 United States v. Mateen Page 3

which held over 300 images and movies of ch ild pornography. R. 43 (Plea Hr’g Tr. at 20–21) (Page ID #195–96). Mateen pleaded guilty to knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). R. 18 (Guilty Plea at 1) (Page ID #31).

Mateen’s 2012 conviction was not his firs t conviction involving sexual misconduct. Several years earlier, he pleaded guilty to Gross Sexual Imposition in violation of Ohio Revised Code § 2907.05, which provides:
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. (2) For the purpose of preven ting resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by ad ministering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. (3) The offender knows that the judg ment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other pers on’s consent for the purpose of any kind of medical or dental examin ation, treatment, or surgery. (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. (5) The ability of the other person to resist or consent or the ability of one of the other persons to re sist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the ot her person or of one of the other persons is subs tantially impaired because of a mental or physical condition or because of advanced age. (B) No person shall knowingly touch the ge nitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touchi ng is done with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. Violation of the Gross Sexual Impos ition statute may constitute a fel ony of either the third or the fourth degree. Id. at § 2907.05(C)(1). Although the stat e-court judgment of conviction does notNo. 12-4481 United States v. Mateen Page 4

specify the subsection on which Mateen’s guilty pl ea rested, it does indicat e that Mateen pleaded guilty to a fourth-degree felony. R. 30-1 (Com . Pleas J. Entry at 1) (Page ID #77). The prosecutor stated at the state-court plea hearing th at Mateen’s victim was an eight-year-old girl. R. 33-1 (Com. Pleas Plea Coll oquy Tr. at 2–4) (Page ID #89–91).
In the federal plea agreement, the government indicated that it w ould seek to apply a statutory sentencing enhancement on the basis of Mateen’s state Gross Sexual Imposition conviction. R. 12 (Plea Agreement ¶ 2) (Page ID #18–19). For first-time of fenders, violation of 18 U.S.C. § 2252(a)(4) carries a maximum term of imprisonment of ten years. 18 U.S.C. § 2252(b)(2). For recidivist offenders, however, a sentencing enhancement ap plies. In relevant part, the statute provides that an individual with a prior conviction “under the laws of any State relating to aggravated sexual abus e, sexual abuse, or abusive sexua l conduct involving a minor or ward . . . shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.” Id. Mateen reserved the right to contes t whether his state Gross Sexual Imposition conviction qualified him for the enhancement. R. 12 (Plea Agreement ¶ 2) (Page ID #19).

The district court concluded that the sent encing enhancement did not apply to Mateen because his prior conviction for Gross Sexual Im position did not necessari ly “involv[e] a minor or ward.” 18 U.S.C. § 2252(b)(2). In cons truing the sentencing-enhancement provision, the district court determined that the phrase “i nvolving a minor or ward ” modifies all three categories of listed conduct: aggr avated sexual abuse, sexual abus e, and abusive sexual conduct. R. 36 (D. Ct. Op. at 6) (Page ID #117). The distri ct court then applied the modified-categorical approach articulated in Taylor v. United States , 495 U.S. 575 (1990), and Shepard v. United
States , 544 U.S. 13 (2005), and determined that Ma teen’s prior conviction for fourth-degree felony Gross Sexual Imposition did not neces sarily involve a minor or ward. Id. at 6–7 (Page ID #117–18). Therefore, the district court held, “[w]ith some relu ctance,” that the sentencing enhancement did not apply to Mateen’s conduct. R. 39 (Sentencing Hr’g Tr. at 21) (Page ID #154); R. 36 (D. Ct. Op. at 10) (P age ID #121). The district court sentenced Mateen to ten years of imprisonment, which it believed to be the ma ximum possible term under the statute. R. 39 (Sentencing Hr’g Tr. at 26–29) (Page ID #159–62).No. 12-4481 United States v. Mateen Page 5

On appeal, the government argues that the district court miscons trued the sentencingenhancement provision.

II. STATUTORY CONSTRUCTION
We review de novo the district court’s lega l conclusions, including its “determinations regarding statutory construction,” United States v. Felts , 674 F.3d 599, 602 (6th Cir. 2012), and its “conclusion that a prio r conviction triggers a mandatory minimum sentence,” United States v.
Gardner , 649 F.3d 437, 442 (6th Cir. 2011). The government c ontends that the phrase “involving a minor or ward” modifies only “abusiv e sexual conduct,” and that a prior conviction for a state offense that relates to aggravated sexual abuse or sexual abuse triggers the sentencing
enhancement even if the crime did not involve a mi nor victim. As always, we begin our exercise in statutory interpretation “by examining the langua ge of the statute itself to determine if its meaning is plain. Plain meaning is examined by looking at the language a nd design of the statute
as a whole.” United States v. Parrett , 530 F.3d 422, 429 (6th Cir. 2008) (internal quotation marks and citations omitted).
The grammatical structure of the statutory la nguage favors the interp retation advanced by the government. According to “the grammatical ‘rule of the last antecedent,’ . . . a limiting clause or phrase . . . should ordinarily be r ead as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas , 540 U.S. 20, 26 (2003). The statute provides that, if a person who violates 18 U.S.C. § 2252(a)(4) “has a prior conviction under [certain enumerated federal statutes] or under the laws of any State relating to aggravat ed sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward . . . 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. § 2252(b)(2). According to the last-antecedent rule, we should interpret the limiting phrase “involving a minor or ward” as modifying only the last of the thr ee listed conduct categories, unless there are “other indicia of meaning” to overcome the grammatical presumption. Barnhart , 540 U.S. at 26

.
The district court concluded th at the titles of the federal statutory section (18 U.S.C. § 2252) under which Mateen pleaded guilty and the chapter (chapter 110) in which it is
indexed—“Certain activities rela ting to material involving the se xual exploitation of minors” and “Sexual Exploitation and Other Abuse of Childr en,” respectively—were “significant indicia”No. 12-4481 United States v. Mateen Page 6

that the phrase “i nvolving a minor or ward” modifies all three conduct categorie s. R. 36 (D. Ct. Op. at 6) (Page ID #117). We are not persuade d. The section and chap ter titles indicate the nature of the conduct proscribed by the statut e, but it does not follo w that they provide convincing evidence that all fact ors contributing to the sentenci ng-enhancement decision will relate to the same subject matter.

Moreover, were we to override the rule of the last antecedent in the instant case, we would run the danger of rendering some of the statutory language supe rfluous. “‘[A]busive sexual conduct involving a minor’ seemingly would encompass anything that constitutes ‘sexual abuse involving a minor,’ as well as, for example, other sexual conduct that may be criminalized only when the victim is a child.” United States v. Lockhart , 749 F.3d 148, 153 (2d Cir. 2014). Thus, application of the phrase “involving a mi nor or ward” to each of the three conduct categories renders the categories re dundant. Such a reading violates the principle that we assume “each term [in a statute has] a pa rticular, nonsuperfluous meaning.” Bailey v. United States , 516 U.S. 137, 146 (1995). Therefore, the canon ag ainst surplusage also counsels that we construe the phrase “involving a minor or ward” as applying onl y to the conduct category that immediately precedes it, “abusive sexual conduct.”
Two aspects of the statutory structure le nd further support to the grammar-based interpretation of the la nguage at issue. First, § 2252(b) id entifies federal offenses “under this chapter [110], chapter 71, chapte r 109A, or chapter 117, or under section 920 of Title 10” as qualifying predicates for the sentencing enhancemen t. 18 U.S.C. § 2252(b)(2). Many of these chapters contain sections pr ohibiting sexual conduct that does not involve minor victims. See,

e.g. , 18 U.S.C. §§ 2241, 2242 (chapter 109A); 18 U.S. C. §§ 2421, 2422 (chapter 117). We can think of no logical reas on that Congress would have identifi ed federal offenses not involving minor victims as qualifying predicates while excl uding state offenses that criminalize identical
conduct. See Lockhart , 749 F.3d at 154; United States v. Spence , 661 F.3d 194, 197 (4th Cir. 2011); United States v. Hubbard , 480 F.3d 341, 350 (5th Cir. 2007); United States v. Rezin , 322 F.3d 443, 448 (7th Cir. 2003). To the contrar y, we may reasonably assume “that Congress would intend for courts to treat prior sexual ab use convictions similarly, regardless of whether
the conviction was under federal or state law.” Lockhart , 749 F.3d at 156.No. 12-4481 United States v. Mateen Page 7

Second, the three categories of state predicat e offenses parallel three federal crimes identified in the statute as predicate offenses. Chapter 109A, one of the chapters that contain qualifying federal offenses, see 18 U.S.C. § 2252(b)(2), cont ains three sections labeled aggravated sexual abuse ( id. at § 2241), sexual abuse ( id. at § 2242), and sexual abuse of a minor or ward ( id. at § 2243). The parallel between these thr ee federal offenses and the three listed categories of state offenses—aggr avated sexual abuse, sexual a buse, and abusive sexual conduct involving a minor or ward—is inescapable. 1 Upon careful review of the statutory language and structure, we agree with the government that the sentencing-enhancement provision requires a predicate state offense to involve a minor or ward only if that offense relates to abusive sexual
conduct. 2

Our construction of the statutory language aligns with that of each of our sister circuits which have carefully considered the issue. See Lockhart , 749 F.3d at 151–56; Spence , 661 F.3d at 197; Hubbard , 480 F.3d at 350; Rezin , 322 F.3d at 447–48; cf. United States v. Hunter , 505 F.3d 829, 831 (8th Cir. 2007) (assuming without disc ussion that a prior stat e conviction requires a minor victim to trigger the sentencing enhancement); United States v. McCutchen , 419 F.3d 1122, 1125 (10th Cir. 2005) (same). Accordingly, we now hold that a prior state conviction triggers the sentencing enhancement under 18 U.S. C. § 2252(b)(2) if the offender was previously convicted of a state crime relating to (1) a ggravated sexual abuse, (2) sexual abuse, or (3) abusive sexual conduct i nvolving a minor or ward.

After the district court misint erpreted the statute as triggering enhancement only if the prior state conviction involved a minor victim, it concluded that the sentencing enhancement did

1 Although we note the parallel structure between the th ree categories of state predicate offenses and the parallel federal crimes in §§ 2241

̶ 43, this should not be construed as implying that the state predicate offenses are to be defined with reference to these sections. The parallel structure is here significant only in that it informs our analysis of what “involving a minor” modifies. We do no t decide whether the state predicate offenses should be defined according to their generic, contemporary meaning or with reference to the Chapter 109(A) offenses or by some other means. Compare United States v. Osborne , 551 F.3d 718, 720 (7th Cir. 2009) (defining the state predicate offenses with reference to the Chapter 109(A) offenses), with United States v. Sinerius , 504 F.3d 738, 740 (9th Cir. 2007) (defining the state predicate offenses using the “ordinary, contemporary, and common meaning of the statutory words”).
2 Mateen’s argument that the rule of lenity requires us to interpret the statute in his favor is unpersuasive because we “apply the rule of lenity to resolve ambiguities in favor of a defend ant [only] when a criminal statutory term is ambiguous and cannot be clarified by the statute’s history or structure.” United States v. Booth , 551 F.3d 535, 541 (6th Cir. 2009) (emphasis omitted). The language and structure of § 2252(b)(2) dictate a clear result, and thus the rule of lenity has no purchase in the present case.No. 12-4481 United States v. Mateen Page 8

not apply. The district court sentenced Mateen to a ten-year term of imprisonment, believing that to be the statutory maximum. R. 39 (S entencing Hr’g Tr. at 21, 29) (Page ID #154, 162).
Under the correct construction of the statute, however, Mateen’s prior conviction could trigger the sentencing enhancement even if his victim in the prior state convic tion was not a minor or ward. No court has yet considered whethe r Mateen’s fourth-degree felony Gross Sexual Imposition conviction “relat[es] to aggravated sexual abuse [or] sexual abuse” involving either an adult or a minor victim. 18 U.S.C. § 2252(b)(2). Accordingly, it is appropriate to remand this
case to the district court with instructions to determine whether Mateen’s prior conviction relates to “aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduc t involving a minor or
ward.”

III. CONCLUSION

We VACATE the judgment of sentence and REMAND to the district court for resentencing with instructions to reconsider in the first instance whether Mateen’s conviction for Gross Sexual Imposition triggers application of the statutory sentencing enhancement, consistent with this opinion.No. 12-4481 United States v. Mateen Page 9

______________________________________

CONCURRENCE IN THE JUDGMENT

______________________________________ CLAY, Circuit Judge, conc urring in the judgment. I concur in the judgment but write separately to express my concern with this Court’s analysis of th e underlying issue in this case. The conclusion reached in the majority opinion—that “involving a minor or ward” modifies only
the last of the three fo rms of conduct listed in 18 U.S.C. § 22 52(b)(2)—is not fore told by logic or supported by any empirical basis. Instead, the ar guments asserted as su pport for the majority’s interpretation of the statutory language are speculative and conclu sory, based in large part on our sister circuits’ analysis of the issue and the majority’s ow n unsupported conjecture as to Congress’ intent. Resolution of the underlying issue in this case is therefore no t as clear or persuasive as the majority would have us believe.
To begin, the majority opinion pl aces great weight in the last antecedent rule as a method for resolving this dispute. However, the majority fails to grapple with a c ontrary rule of statutory construction, one which was cons idered by the Second Circuit in United States v. Lockhart , 749 F.3d 148 (2d Cir. 2014). In Lockhart , the Court acknowledged th e possible application of two competing rules of statutory construction—the last antecedent rule and the series qualifier

canon 1 . 749 F.3d at 152. Ultimately, the Lockhart Court was “not fully persuaded that either canon applie[d] unambiguously based on the language and structure of th [e] statutory phrase
alone.” Id . While I do not express a definitive point of view as to which of the two canons is more persuasive, I believe the majority should have followed the lead of the Second Circuit by considering both canons, and should have conceded that an interpretation under either would be virtually equally plausible. Instead, the majority opinion is written to imply that the rule of the last antecedent is the only rule of statutory construc tion that might apply in these circumstances.

Next, this Court dismisses the district court’s primary conclusion in two sentences. In its opinion, the district court ignored the rule of the last anteced ent, finding that the title of

1 The “series-qualifier” canon of statutory construction “provides that a modifier at the beginning or end of a series of terms modifies all the terms [in that series].” United States v. Laraneta , 700 F.3d 983, 989 (7th Cir. 2012).No. 12-4481 United States v. Mateen Page 10

18 U.S.C. § 2252 (“Certain activit ies relating to material invol ving the sexual exploitation of minors”) and the title of Chapter 110, under whic h the statute is found (“Sexual Exploitation and Other Abuse of Children”), provide “significant indicia” that the phras e “involving a minor or
ward” modifies all three forms of conduct. (R. 36, D. Ct. Op. at 6.) Each of these titles concerns activity involving children and seems to imply that the activity following those titles would also involve children. However, without any reasoned an alysis of this argument, the majority simply states that “[t]he section and chapter titles indicate the nature of the conduct proscribed by the statute, but it does not follow th at they provide convincing eviden ce that all factors contributing to the sentencing-enhancement decision will relate to the same subject matter.” Maj. Op. at 6. Why not? I do not know whether the chapter titles provide significant indicia regarding the proper interpretation of the statutory language, but it also app ears that the major ity of this Court cannot definitively answer that question. And becau se this Court reverses the district court on this ground, among others, one would expect an e xplanation for rejecting the district court’s analysis, not just a blanket, conclusory statement.
Reflecting the opinions of a numb er of our sister circuits, th e majority goes on to find that
“were we to override the rule of the last antece dent in the instant case, we would run the danger of rendering some of the statut ory language superfluous.” Maj. Op. at 6. Quoting the Second Circuit’s analysis in Lockhart , the majority explains that if “i nvolving a minor or ward” were to modify each of the categories of conduct listed in § 2252(b)(2 ), “abusive sexual conduct involving a minor or ward” would likely encomp ass “sexual abuse involving a minor or ward,” rendering the latter category superfluous. However, it is not clear from th e statutory language or the opinion of this Court which c onduct Congress intended to fit with in each of these categories. This very issue was extensively deba ted during oral argument before the en banc Court. In fact, it is difficult to say that any particular category would be rende red superfluous if “involving a minor or ward” were to modify all three ca tegories of conduct. This would be the case regardless of whether similar or parallel phrases were us ed or repeated for emphasis, or for the purpose of showing inclusiveness, or simply as a result of awkwardness in statutory construction.
Next, the majority finds that Congress mu st have intended the qualifying conduct under state law to include acts against adults and children because the federal predicate offenses listedNo. 12-4481 United States v. Mateen Page 11

in § 2252(b)(2) include conduct against both adults and children. The majority states that “we may reasonably assume” Congress intended the fede ral and state predicate offenses to mirror each other. Maj. Op. at 6. However, the opinion fails to consider some of the legislative history of this provision, which, even if not definitive, provides some indication of Congress’ intent in this matter. Congress’ overarc hing concern in en acting and amending the Child Pornography Prevention Act was to protect chil d victims from the “vicious cycle of child sexual abuse and exploitation,” in which “[c]hild pornography pl ays a critical role.” S. Rep. No. 104–358, 104th Cong., 1996 WL 506545, at *12 (1996). Most importan tly, the legislative history demonstrates Congress’ intent regard ing the enhancement set forth in § 2252:
Section 2252A mirrors with respect to “ch ild pornography” . . . the prohibitions . . . contained in 18 U.S.C. 2252. Th e penalties in sections 2252 and 2252A would be identical. Violation of paragra phs (1), (2), or (3 ) of section 2252A(a) pertaining to the distributi on, reproduction, receipt, sale or transportation of child pornography would be fined or imprisoned for not less than 15 years, or both; a repeat offender with a prior conviction under chapter 109A or 110 of title 18, or under any State child abuse law or law relating to th e production, receipt or distribution of child pornography would be fined and imprisoned for not less than 5 years nor more than 30 years.

Id . at *9 (emphasis added). 2 Even if Congress’ intent regarding application of this enhancement is less than clear, this language from the legislativ e history is relevant for determining that intent. The Senate report clearly indicates that the enha ncement applies to repeat offenders whose prior convictions fall “under any State child abuse law” and does not mention state law crimes against adults. It would seem that the majority should ha ve considered this lan guage before speculating as to Congress’ intent.
The majority opinion also emphasizes a para llel between three of the federal crimes identified as predicate offenses under Chapte r 109A (“aggravated sexual abuse” at § 2241, “sexual abuse” at § 2242, and “sexual abuse of a minor or ward” at § 2243) and the three categories of conduct that qualify as state predic ate offenses (“aggravated sexual abuse, sexual

2 Although this section of the report specifically deals w ith 18 U.S.C. § 2252A, it also indicates that the penalties in §§ 2252 and 2252A would be identical. See id .; Lockhart , 749 F.3d at 156 (internal quotation marks omitted) (“[T]he penalties under §§ 2252 and 2252A would provide for a mandatory minimum sentence for a repeat offender with a prior conviction under chapter 109A or 11 0 of title 18, or under any State child abuse law or law relating to the production, receipt or distribution of child pornography.”).No. 12-4481 United States v. Mateen Page 12

abuse, or abusive sexual conduct involving a minor or ward”). The majority asserts that this parallel provides definitive s upport for its conclusion that “invol ving a minor or ward” modifies only “abusive sexual conduct,” th e last category of conduct.
This argument is troubling in two respects. The majority has clea rly chosen only those arguments that help reach its conclusion and ignored others that are contrary to, or complicate, that conclusion. In a footnote, the majority cautions th e reader that
[a]lthough we note the parallel structure between the three categories of state predicate offenses and the parallel federal crimes in §§ 2241–43, this should not be construed as implying that the state predicate offenses are to be defined with reference to these sections. The parallel structure is here significant only in that it informs our analysis of what “involving a minor” modifies.
Maj. Op. at 7 n.1. There is no reason provided to explain w hy this parallel structure only provides assistance with our analysis of this particular issue, ye t does not provide definitions for the state predicate offenses.
Additionally, the language and structure of Ch apter 109A do not para llel § 2252(b)(2) as closely as the majority would have us believe. The majority ignores the fact that Chapter 109A includes four sexual abuse crimes, while § 22 52(b)(2) only lists thr ee categories of conduct qualifying for the enhancement. Furthermore, the sexual abuse crimes listed in Chapter 109A are phrased differently from th e three categories of conduct in cluded in § 2252(b)(2). As a result, this purported parallel would appear to ca rry very little weight fo r purposes of resolving the underlying issue in this case.
Finally, the majority seems to take great solace in the fact that “[o] ur construction of the statutory language aligns with that of each of our sister circuits which have carefully considered the issue.” Maj. Op. at 7. However, while th is Court may be guided by the opinions of other circuits, we review our cases independent of thei r holdings and analyses. We should not rely on other courts’ opinions when they are similarl y speculative and supported by much of the same weak analysis as provided by th is Court’s majority opinion.
For the foregoing reasons, I c oncur only in the judgment.