FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DAVID WESLEY REINHART,

Defendant-Appellee.

No. 16-10409

D.C. No.

4:15-cr-00330-JSW-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 16, 2017

San Francisco, California

Filed June 18, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit 

Judges, and Nancy Freudenthal,* Chief District Judge.

Opinion by Judge Murguia

 * The Honorable Nancy Freudenthal, Chief United States District 

Judge for the District of Wyoming, sitting by designation.
2 UNITED STATES V. REINHART

SUMMARY**

Criminal Law

The panel affirmed the district court’s imposition of a 

78-month sentence for two counts of possession of child 

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

The government argued that based on the defendants’ 

prior convictions for possession of child pornography (Calif. 

Penal Code § 311.11(a)) and sexual exploitation of child 

(Calif. Penal Code § 311.3(a)), he was subject to the ten-year 

mandatory minimum set forth in 18 U.S.C. § 2252(b)(2) for 

having had a prior state conviction “relating to” the 

production, possession, receipt, mailing, sale, distribution, 

shipment, or transportation of child pornography. The 

government also argued that in determining whether the 

prior convictions trigger the § 2252(b)(2) enhancement, the 

usual Taylor categorical approach does not apply, because 

the words “relating to” in § 2252(b)(2) mandate a broader 

comparison of the offenses in the federal and state statutes 

than the usual comparison between the elements of the state 

and federal statutes. 

Because the terms “child pornography” and “sexually 

explicit conduct” are explicitly defined in the same statutory 

chapter as the sentencing enhancement provision at 

§ 2252(b)(2), the panel did not depart from the usual, 

elements-based, categorical approach to determine whether 

 ** 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. REINHART 3

the defendant’s prior California statutes of conviction trigger 

the mandatory minimum provision in § 2252(b)(2).

Following United States v. Chavez-Solis, 803 F.3d 1004 

(9th Cir. 2015), the panel held that § 311.11(a) is 

categorically overbroad because it sweeps in depictions of a 

broader range of “sexual conduct” than the federal child 

pornography statute; and that the statute is not divisible. The 

panel likewise held that § 311.3(a) is categorically overbroad 

as compared to the federal definition of “sexually explicit 

conduct,” and that it is not divisible. The panel therefore did 

not look to any fact-specific documents to determine 

whether either of the defendant’s prior convictions was an 

offense “relating to” the production, possession, receipt, 

mailing, sale, distribution, shipment, or transportation of 

child pornography under § 2252(b)(2), and concluded that 

neither of the prior convictions triggers the mandatory 

minimum sentence.

COUNSEL

Jonas Lerman (argued), Assistant United States Attorney; J. 

Douglas Wilson, Chief, Appellate Division; United States 

Attorney’s Office, San Francisco, California; for PlaintiffAppellant.

Ned Smock (argued), Assistant Federal Public Defender; 

Steven G. Kalar, Federal Public Defender; Office of the 

Federal Public Defender, Oakland, California; for 

Defendant-Appellee.
4 UNITED STATES V. REINHART

OPINION

MURGUIA, Circuit Judge:

David Reinhart was convicted of two counts of 

possession of child pornography, in violation of 18 U.S.C. 

§ 2252(a)(4)(B). A defendant convicted of this offense who 

has “a prior conviction . . . under the laws of any State 

relating to . . . the production, possession, receipt, mailing, 

sale, distribution, shipment, or transportation of child 

pornography” is subject to a ten-year mandatory minimum 

sentence. 18 U.S.C. § 2252(b)(2) (emphasis added). 

Reinhart was previously convicted of possession of child 

pornography and sexual exploitation of child, in violation of 

California Penal Code §§ 311.11(a) and 311.3(a), 

respectively. We decide whether Reinhart’s prior California 

convictions constitute offenses “relating to” child 

pornography under 18 U.S.C. § 2252(b)(2), which imposes 

a ten-year mandatory minimum sentence. The district court 

found neither of Reinhart’s prior convictions constituted 

prior convictions under 18 U.S.C. § 2252(b)(2). We affirm.

I. Background

In June 2015, the government charged Reinhart with two 

counts of possession of child pornography in violation of 

18 U.S.C. § 2252(a)(4)(B). The charges were based on 

images of child pornography discovered during an 

undercover online investigation and execution of a search 

warrant on Reinhart’s residence. Reinhart pleaded guilty to 

both counts without a plea agreement. At sentencing, the 

parties disputed whether Reinhart’s prior California 

convictions constituted prior convictions under 18 U.S.C. 

§ 2252(b)(2) and whether Reinhart should be sentenced 

pursuant to § 2252(b)(2)’s ten-year mandatory minimum. 

Prior to sentencing, both the government and Reinhart 
UNITED STATES V. REINHART 5

submitted sentencing memoranda arguing their respective 

positions on the issue.

Previously, in 2002, Reinhart was convicted of two 

misdemeanor counts of violating California Penal Code 

§ 311.11(a), possession of child pornography, and one 

misdemeanor count of violating California Penal Code 

§ 311.3(a), sexual exploitation of child. The convictions 

arose from police officers’ search of Reinhart’s apartment 

where the officers found printed images of children that 

qualified as child pornography under California law. At 

sentencing in the present case, the district court considered 

whether these prior California convictions triggered the 

federal sentencing enhancement, § 2252(b)(2), which would 

require the court to impose a ten-year mandatory minimum 

sentence. Section 2252(b)(2) is a recidivist penalty and 

sentencing enhancement for those, such as Reinhart, 

convicted federally of possession of child pornography 

under § 2252(a)(4), and who have certain prior offenses. It 

provides:

if such person [convicted under § 2252(a)(4)] 

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.

§ 2252(b)(2) (emphasis added).

At sentencing before the district court, the government 

argued that the words “relating to” in § 2252(b)(2) should be 
6 UNITED STATES V. REINHART

read broadly to encompass state statutes even if the state 

statutes of conviction do not categorically match the 

definition of federal child pornography offenses. Reinhart 

contended that the usual categorical approach should apply, 

and under that analysis, Reinhart’s prior California 

convictions were not a categorical match and were 

overbroad as compared to the federal definition of child 

pornography offenses in § 2252(b)(2).

The district court agreed with Reinhart and concluded 

that Reinhart’s prior California convictions were not 

predicate offenses constituting convictions “relating to . . .

child pornography” under § 2252(b)(2). The district court 

relied on the United States Supreme Court’s decision in 

Mellouli v. Lynch, 135 S. Ct. 1980 (2015), and found that 

because “child pornography” was a federally-defined term, 

the district court had to apply a narrower reading of “relating 

to” in § 2252(b)(2) under the categorical approach. Applying 

the categorical approach, the district court compared the 

elements of Reinhart’s California statutes of conviction, 

§ 311.11(a), possession of child pornography, and 

§ 311.3(a), sexual exploitation of child, to the federal 

definition of “child pornography.” This required the district 

court to look at the federal definition of “sexually explicit 

conduct,” a defined term within the definition of “child 

pornography” at 18 U.S.C. § 2256(8).1 Relying on this 

 1 [C]hild pornography is defined as “any visual depiction, including 

any photograph, film, video, picture, or computer or computer-generated 

image or picture, whether made or produced by electronic, mechanical, 

or other means, of sexually explicit conduct, where--(A) the production 

of such visual depiction involves the use of a minor engaging in sexually 

explicit conduct; (B) such visual depiction is a digital image, computer 

image, or computer-generated image that is, or is indistinguishable from, 

that of a minor engaging in sexually explicit conduct; or (C) such visual 

depiction has been created, adapted, or modified to appear that an 
UNITED STATES V. REINHART 7

district court’s prior case law, the court held that California 

Penal Code § 311.11(a) was categorically broader than any 

offense described in the federal counterparts 18 U.S.C. 

§§ 2251, 2251A, or 2252. See Chavez-Solis v. Lynch, 

803 F.3d 1004 (9th Cir. 2015). The district court also found 

that § 311.11(a) was indivisible. The district court found 

California Penal Code § 311.3(a), sexual exploitation of a 

child, was overbroad because it included broader conduct 

than under the federal statutes, and that it was also 

indivisible. Because neither of Reinhart’s prior California 

convictions was a categorical match to the federal definition 

of child pornography, the offenses did not constitute 

predicate offenses under § 2252(b)(2), and the ten-year 

mandatory minimum sentence did not apply.

Without the mandatory minimum, Reinhart’s sentencing 

guideline range was 78 to 97 months imprisonment. The 

district court sentenced Reinhart to 78 months imprisonment 

with a ten-year supervised release term to follow. The 

government appeals the district court’s determination that 

§ 2252(b)(2)’s sentencing enhancement did not apply.

II. Discussion

On appeal, we must determine whether the words 

“relating to” in the ten-year mandatory minimum statutory 

sentencing provision at § 2252(b)(2) require us to break 

from our usual, elements-based categorical approach for 

determining when state statutes of conviction trigger a 

federal sentencing enhancement and instead, apply a broader 

comparison between the state statutes and the federal 

statutes. Here, we consider whether Reinhart’s prior 

 

identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. 

§ 2256(8).
8 UNITED STATES V. REINHART

California statutes of conviction fall under the federal 

definition of “child pornography” offenses as used in 

§ 2252(b)(2). We review de novo whether prior convictions 

support statutory mandatory-minimum enhancements. 

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

(citing United States v. Strickland, 601 F.3d 963, 967 (9th 

Cir. 2010) (en banc)).

A. “Relating to” and the Categorical Approach

This court applies the Taylor categorical approach to 

determine whether a state statute of conviction falls within a 

specified class of federal offenses. See Sullivan, 797 F.3d at 

635–37 (citing this court’s “usual categorical approach”); 

United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007) 

(citing Taylor v. United States, 495 U.S. 575 (1990)). Under

Taylor’s familiar two-step test, “the court first defines the 

federal generic definition of the crime, and then compares 

the elements of the state offense with that definition” to 

determine whether there is a “categorical match.” Sullivan, 

797 F.3d at 635 (citation omitted). “If the state offense 

criminalizes the same or less conduct than the federal 

generic definition of the crime, then it is a categorical match 

to the federal generic offense. But where a state statute of 

conviction criminalizes more conduct than the federal 

generic offense, it does not qualify as a categorical match” 

and is considered overbroad. Id. (internal citations omitted).

When a statute is overbroad, the categorical inquiry does 

not end. Descamps v. United States, 133 S. Ct. 2276, 2283–

84 (2013). Instead, we inquire whether the statute, though 

overbroad, is nevertheless divisible. Id. A statute is divisible 

when it lists potential offense elements, some of which 

would fall under the generic federal definition and some that 

would not. Id. at 2284. The government must prove elements 

of an offense beyond a reasonable doubt. Id. Elements are 
UNITED STATES V. REINHART 9

not merely means of committing the offense listed in the 

alternative. Id. If the statute is divisible, the court applies the 

modified categorical approach in which it may look at 

certain documents that illuminate the underlying facts of the 

state conviction. Id. With those additional facts, the court 

may then be able to determine whether the particular state 

offense falls under the relevant federal statute.

Here, the portion of the federal sentencing statute at issue 

applies when an individual has a prior state conviction 

“relating to . . . the . . . possession . . . of child pornography.” 

18 U.S.C. § 2252(b)(2). To ascertain the generic federal 

definition, we look to the federal definition of “child 

pornography.” See 18 U.S.C. § 2256(8). That federal 

definition is compared to the elements in Reinhart’s two 

state statutes of conviction—California Penal Code 

§ 311.11(a), possession of child pornography, and 

§ 311.3(a), sexual exploitation of child.

The government argues the usual Taylor categorical 

approach does not apply. Relying on our decision in 

Sullivan, it contends that the words “relating to” in 

§ 2252(b)(2) mandate a broader comparison of the offenses 

in the federal and state statutes rather than the usual 

comparison between the elements of the state and federal 

statutes. See Sullivan, 797 F.3d at 638. In Sullivan, the 

defendant was in part convicted under the same federal 

provision as Reinhart, 18 U.S.C. § 2252(a)(4)(B). Id. at 627. 

Sullivan, however, had produced and possessed a sexually 

explicit video depicting a 14-year-old girl with whom he had 

a sexual relationship. Id. at 627–28, 630. Unlike Reinhart, 

Sullivan’s prior state convictions were not possession of 
10 UNITED STATES V. REINHART

child pornography offenses, but sexual abuse offenses.2 Id. 

at 627–28, 636.

The Sullivan court began by recognizing that this court 

would “generally apply the categorical approach set forth in 

Taylor.” Id. at 635. Sullivan’s prior state convictions 

correlated with the “aggravated sexual abuse, sexual abuse, 

or abusive sexual conduct involving a minor or ward” clause 

in § 2252(b)(2). Id. at 636. The Sullivan court determined the 

commonality between the three types of offenses listed in the 

federal statute § 2252(b)(2) involve “sexual conduct and 

abuse,” and therefore, the court first had to identify the 

generic meaning of those terms. Id. There is no federal 

definition of “aggravated sexual abuse,” “sexual abuse,” or 

“abusive sexual conduct” in the same statutory chapter as 

§ 2252(b)(2), chapter 110, sexual exploitation and other 

abuse of children. Without a specific definition, the court 

considered the definition of the offenses “based on the 

ordinary, contemporary, and common meaning of the 

statutory words.” Sullivan, 797 F.3d at 636 (quoting 

Sinerius, 504 F.3d at 740 (holding that in cases involving 

“non-traditional offenses” the court employs the categorical 

approach by defining the offenses based on the common 

meaning of the statutory words)). The Sullivan court 

undertook the categorical approach and concluded 

Sullivan’s priors were not a categorical match to the federal 

generic definitions for sexual abuse of a minor. Id. at 637.

 2 Specifically, Sullivan had been convicted of: unlawful sexual 

intercourse in violation of California Penal Code § 261.5(d); oral 

copulation with a minor in violation of California Penal Code 

§ 288a(b)(2); pimping in violation of California Penal Code § 266h(a); 

and pandering in violation of California Penal Code § 266i(a)(2). Id. at 

627–28.
UNITED STATES V. REINHART 11

The court, however, did not stop there. It went on to hold 

that the words “relating to” in the federal sentencing 

enhancement at § 2252(b)(2) mandated a different method 

than the usual elements-based categorical approach. Id. at 

637–38. The court held that as to the sexual conduct and 

abuse clause in § 2252(b)(2), because of the words “relating 

to,” the court need only find that the state statute of 

conviction “is one categorically ‘relating to’ such federal 

offenses.” Id. The court cited to Sinerius, which considered 

similar “relating to” language in 18 U.S.C. § 2252A(b).3 Id. 

Sinerius, like Sullivan, addressed sexual conduct and abuse 

convictions, and Sinerius held that use of the phrase “relating 

to” in that context mandated a federal enhancement for a 

state offense “that stands in some relation, bears upon, or is 

associated with th[e] generic offense.” 504 F.3d at 743. The 

Sullivan court, following Sinerius, rejected the argument that 

the strict categorical approach applied. It held that a prior 

conviction could trigger a sentencing enhancement under 

§ 2252(b)(2) even when the statutory definition of the prior 

offense was not equivalent to a federal generic definition. 

Sullivan, 797 F.3d at 638.

Sullivan distinguished its holding from Mellouli, in 

which the Supreme Court held the usual categorical 

approach applied to a federal statute despite that statute’s use 

of the words “relating to.” Id. at 638–39; Mellouli, 135 S. Ct. 

at 1984. The question presented in Mellouli was whether a 

Kansas conviction for using drug paraphernalia triggered the 

federal immigration statute that makes an alien subject to 

deportation if he is “convicted of a violation of [a state law] 

relating to a controlled substance (as defined in section 802 

 3 18 U.S.C. § 2252A is a statutory sentencing enhancement entitled, 

“Certain activities relating to material constituting or containing child 

pornography.”
12 UNITED STATES V. REINHART

of Title 21).” Id.; see 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis 

added). The Supreme Court rejected the government’s 

argument that “nearly a complete overlap” between the 

conduct punished under the state and federal statutes was 

sufficient for the state drug paraphernalia offense to trigger 

the federal controlled substance statute. Mellouli, 135 S. Ct. 

at 1989–91. Mellouli, citing the historical use of the 

categorical approach to determine whether a state conviction 

renders an alien removable, applied the usual categorical 

approach. Id. at 1985–87. Mellouli highlighted that in 

drafting the immigration statute, Congress predicated 

deportation “on convictions, not conduct,” and accordingly, 

the proper approach was to look to statutory definitions, not 

underlying conduct. Id. at 1986. Mellouli cautioned that 

although the words “relating to” are “broad” and 

“indeterminate,” “those words, ‘extend[ed] to the furthest 

stretch of [their] indeterminacy, . . . stop nowhere.’” Id. at 

1990. Mellouli held that “[c]ontext, therefore, may tug . . . in 

favor of a narrower reading.” Id. (internal quotation marks, 

citation, and alterations omitted).

From Mellouli, the Sullivan court drew the principle that 

“where language and historical context tug ‘in favor of a 

narrower reading,’” “relating to” may still allow for the 

categorical approach. Sullivan, 797 F.3d at 638 (quoting 

Mellouli, 135 S. Ct. at 1990). The Sullivan court, however,

held that neither the language nor history of § 2252(b)(2), as 

to the sexual conduct and abuse clause, required that narrow 

reading. Id. at 640. The court held there was no textual 

restriction to the words “sexual abuse” or “abusive sexual 

conduct involving a minor or ward.” Id. Unlike the statute in 

Mellouli that included a limiting parenthetical referencing 

the federal statutory definition for “controlled substance,” 

there was no reference to a federal statutory definition of 

“sexual abuse” and “abusive sexual conduct.” See id. 
UNITED STATES V. REINHART 13

Sullivan also noted that there was no historical background 

of a requirement of a “direct link” between the state crime of 

conviction and federal statute as had been required in the 

immigration context. Id.

The government urges that Sullivan determines the 

outcome in this case. We disagree. At the outset, we 

recognize that Sullivan examined the same federal 

sentencing enhancement statute at issue here, § 2252(b)(2). 

But § 2252(b)(2) describes a number of prior types of state 

offenses, some of which include federally-defined terms, 

and some of which do not. As Sullivan directs, the language 

of a statute and any related textual restrictions may favor a 

narrower reading. See Sullivan, 797 F.3d at 638. 

Accordingly, we look at the different types of offenses listed 

in separate clauses in § 2252(b)(2) to determine whether a 

narrower reading of “relating to” and the categorical 

approach should apply. Here, it does.

The case at bar is distinguishable from Sullivan and 

Sinerius because in those cases, the applicable terms were 

not defined within the same chapter that the terms appeared. 

Here, we conclude that, applying well-established statutory 

principles, where there is a federal definition of “child 

pornography” in the same statutory chapter as the sentencing 

enhancement provision at § 2252(b)(2), we apply that 

definition. See Sinerius, 504 F.3d at 742–43. In both Sullivan 

and Sinerius, the court analyzed the terms “sexual abuse” 

and “abusive sexual conduct.” Those terms are undefined in 

the relevant title 18, chapter 110, sexual exploitation and 

other abuse of children. In contrast to Sullivan and Sinerius, 

Reinhart’s prior statutes of convictions correlate to the 

possession of child pornography clause in § 2252(b)(2), and 

“child pornography,” is explicitly defined in chapter 110’s 

§ 2256 definitional provision. See 18 U.S.C. § 2256(8).
14 UNITED STATES V. REINHART

That the overall statutory scheme in chapter 110 defines 

“child pornography” matters. Sinerius relied on “wellestablished principles of statutory interpretation,” in holding 

that predicate sex offenses under § 2252A, a statutory 

sentence enhancement provision, were not defined by crossreference to the federal offense of “sexual abuse” under 

18 U.S.C. § 2242. See Sinerius, 504 F.3d at 742–43. The 

court reasoned that § 2242, sexual abuse, is not a definitional 

provision applicable to § 2252A, which is codified in title 

18, crimes and criminal procedure, chapter 110, sexual 

exploitation and other abuse of children. Id. at 743. Rather, 

“[t]he definitions applicable to chapter 110 [regarding sexual 

exploitation and other abuse of children] are located in 

18 U.S.C. § 2256,” whereas the relevant provision in 

Sinerius was § 2242, located in a different chapter, 109A, 

sexual abuse. Id. at 743. In short, Sinerius rejected the 

argument that the definition of § 2252A(b)’s term “sexual 

abuse” was limited to the term as defined in § 2242, because 

those two provisions were in different chapters, chapter 110, 

sexual exploitation and other abuse of children, and chapter 

109A, sexual abuse, respectively. See id. at 742–43. The 

court held that an out-of-chapter definition could not control 

the definition of the term in a separate chapter. Moreover, 

the court stated that it inferred from Congress’s decision to 

not provide a specific definition of “sexual abuse” in the 

chapter 110 definitional provision that it was “Congress’s 

intent to define ‘sexual abuse’ as a generic offense, 

understood by its ordinary and common meaning.” Id. at 

743.

Sullivan dealt with the same statutory sentencing 

enhancement provision at issue here, § 2252(b)(2), but 

addressed the same types of offenses as in Sinerius—those 

involving “aggravated sexual abuse, sexual abuse, [or] 

abusive sexual conduct involving a minor or ward.” Sullivan, 
UNITED STATES V. REINHART 15

797 F.3d at 636 (alteration in original). As Sinerius provided, 

the terms of those offenses are not specifically defined and 

may be considered generic offenses. Sinerius, 504 F.3d at 

743. Therefore, Sinerius’s reasoning that those terms and 

offenses should be generally defined by their ordinary and 

common meaning also applied in Sullivan. See Sullivan, 

797 F.3d at 636–37. That reasoning, however, does not 

apply to Reinhart’s case.

Here, the applicable clause in § 2252(b)(2) is “child 

pornography.” Unlike the terms in Sinerius and Sullivan, 

there is a federal definition of “child pornography” in the 

same chapter as § 2252(b)(2), chapter 110. The definition of 

“child pornography,” includes the term “sexually explicit 

conduct,” which in turn, is also defined in chapter 110’s 

definitional provision, § 2256. 18 U.S.C. § 2256(2)(A). 

Accordingly, applying well-established statutory principles, 

where there are federal definitions in chapter 110 that apply 

to the relevant “child pornography” clause in § 2252(b)(2), 

we apply those definitions. See Sinerius, 504 F.3d at 742–

43. These definitions provide a basis in the statutory text that 

requires a narrower reading of “relating to.” See Sullivan, 

797 F.3d at 639 (holding statutory text may favor a narrower 

reading of “relating to”).

Because of the applicable definitional provisions, the 

present case is akin to Mellouli where, because of the 

statutory text and historical context, “relating to” was given 

a narrower reading and the Supreme Court applied the usual 

categorical approach. Mellouli, 135 S. Ct. at 1990–91. In 

Mellouli, the federal immigration statute, 8 U.S.C. 

§ 1227(a)(2)(B)(i), used “relating to” referring “to a 

controlled substance,” and the statute included a 

parenthetical to clarify that “controlled substance” was 

defined as in § 802 of title 21, a federal drug schedule. Id. at 
16 UNITED STATES V. REINHART

1984 (citing 8 U.S.C. § 1227(a)(2)(B)(i)). Accordingly, the 

Court held that the immigration provision, 8 U.S.C. 

§ 1227(a)(2)(B)(i), limited the meaning of “controlled 

substance” to the referenced federal definition. Id. at 1990–

91. Despite the words “relating to” in the federal 

immigration provision, the usual categorical approach 

applied. See id.

We are not convinced by the government’s attempt to 

distinguish this case from Mellouli. The governments argues

that Mellouli required a narrow approach because of the 

immigration statute’s use of a parenthetical to specifically 

reference the federal definition of “controlled substance.” 

The statute in Mellouli was an immigration removal statute, 

title 8 U.S.C. § 1227, deportable aliens. Within that removal 

statute the definition of “controlled substance” referenced 

was title 21 U.S.C. § 802. The immigration statute 

specifically provided a cross-reference to the drug schedule 

definition because the two statutes were in completely 

different titles of the federal statutes. The reader needed 

guidance to the location of the federal drug schedule.

The federal statute at issue here—the mandatory 

minimum sentencing provision—is at 18 U.S.C. § 2252 

within chapter 110, sexual exploitation and other abuse of 

children. The relevant definitions for “child pornography” 

and “sexually explicit conduct,” also are in title 18 and 

chapter 110 at § 2256, entitled “definitions for chapter.” 

Section 2256 states that the definitions of the terms therein 

apply “[f]or purpose of this chapter.” Unlike Mellouli, the 

reader of § 2252 need not venture out to a different federal 

statutory title or chapter. The reader need only look within 

the same chapter, 110, to the marked definitional section that 

applies to the entire chapter. Because the link to § 2256’s 

definitions for chapter 110 is clear from the statutory 
UNITED STATES V. REINHART 17

structure, we do not read the absence of a specific 

parenthetical referring to a definitional provision to be a 

significant distinction from Mellouli.

In sum, we hold that the because the terms “child 

pornography” and “sexually explicit conduct,” are explicitly 

defined in chapter 110, the statutory text “tug[s] . . . in favor 

of a narrower reading” of “relating to.” See Mellouli, 135 

S. Ct. at 1990 (internal quotation marks and citation 

omitted); Sullivan, 797 F.3d at 638. Therefore, we do not 

depart from the usual, elements-based, categorical approach 

to determine whether Reinhart’s prior state statutes of 

conviction trigger the federal mandatory minimum provision 

in § 2252(b)(2) for individuals with prior offenses “relating 

to” child pornography.

In so holding, we note that we are at odds with the Tenth 

Circuit. See United States v. Bennett, 823 F.3d 1316 (10th 

Cir. 2016) (holding defendant’s prior Colorado conviction 

for sexual exploitation of a child related to child 

pornography triggering the mandatory minimum ten-year 

sentence under § 2252A(b)(2)).4 The dissent in Bennett, 

 4 The Eighth Circuit has also addressed how to determine what state 

convictions trigger § 2252(b)(1)’s mandatory minimum sentence. United 

States v. Mayokok, 854 F.3d 987 (8th Cir. 2017). Mayokok stated it 

employed the categorical approach to determine whether a prior 

conviction triggers a mandatory minimum sentence under § 2252(b)(1). 

Id. at 991. The Mayokok court determined that the state statute at issue 

punished more conduct than would be punishable under federal law, 

which would render it overbroad. See id. at 991–93. The court, however, 

then dismissed the categorical approach and reframed the inquiry as 

whether the “full range of conduct” under the state statute of conviction 

“relates to the ‘possession . . . of child pornography’ as that term is 

defined under federal law.” Id. at 993 (emphasis in original). Mayokok 

also references Morales v. Trans. World Airlines, Inc., 504 U.S. 374, 383 

(1992), in a footnote. Id. at 993 n.2. In Morales, the Supreme Court noted 
18 UNITED STATES V. REINHART

however, persuasively counters several of the government’s 

arguments in the present appeal. See Bennett, 823 F.3d at 

1327 (Hartz, J., dissenting). The dissent in Bennett 

recognizes, and Reinhart concedes, that unlike Mellouli, 

within the § 2252 context, there is no historical requirement 

of a “direct link” between the state crime of conviction and 

the particular federal offense conduct. Id. at 1329 (citing 

Mellouli, 135 S. Ct. at 1990). However, we agree with the 

dissent in Bennett that it is not clear from Mellouli that the 

history of such a direct link is a requirement for a narrower 

reading of “relating to,” or that such a link was essential to 

Mellouli’s holding. See id. Rather, the Supreme Court 

concluded its analysis in Mellouli with its concern about how 

the government’s proposed “sweeping interpretation departs 

so sharply from the statute’s text and history that it [could 

not] be considered a permissible reading.” Mellouli, 135 

S. Ct. at 1990.

We also recognize the government’s argument that in 

enacting § 2252(b)(2)’s mandatory-minimum enhancement 

for recidivists, Congress intended to broaden the scope of 

what prior crimes might trigger the enhancement. Despite 

this, as Mellouli cautioned and as the Bennett dissent 

reiterated, “[the ‘relating to’ language’s] interpretation must 

somehow be anchored to prevent it from drifting aimlessly.” 

Bennett. at 1327 (Hartz, J., dissenting). Here, that anchor is 

the federal definition of child pornography defined in the 

same chapter as § 2252(b)(2).

 

the broad interpretation of the phrase “relating to.” Id. Although we 

assume that Congress used the phrase “relating to” for a purpose, 

Mellouli and Sullivan also counsel that we must look at the statutory 

scheme and text, which here, include a specific federal definitional 

provision, § 2256. Mayokok did not address this definitional provision, 

and we do not find Mayokok persuasive.
UNITED STATES V. REINHART 19

The government argues that applying the usual 

categorical approach will have the effect of making 

§ 2252(b)(2) inapplicable in numerous states that define 

child pornography more broadly than the federal definition. 

Indeed, this may be true. Because of the way Congress has 

drafted the federal definition of child pornography, in some 

cases the federal definition is more restrictive than state 

definitions. In those cases, the ten-year mandatory minimum 

sentence may not apply to defendants. However, that the 

mandatory minimum may not apply does not mean that 

overly lenient sentences will be imposed. District courts still 

use the sentencing guidelines to guide their decisions. 

Moreover, “[b]y focusing on the legal question of what a 

conviction necessarily established, the categorical approach 

ordinarily works to promote efficiency, fairness, and 

predictability . . . .” Mellouli, 135 S. Ct. at 1987 (emphasis 

in original).

Finally, in support of its interpretation of “relating to,” 

the government argues that a narrower interpretation of the 

phrase would render the words meaningless, contrary to the 

principles of statutory interpretation. Mellouli rejected this 

argument when it applied the strict, usual categorical 

approach. See Mellouli, 135 S. Ct. at 1990–91. “Relating to” 

still has meaning, but here, its meaning is anchored to the 

federal definition of “child pornography.”5

We conclude that the statutory scheme and text, 

including the applicable federal definitions of “child 

 5 We acknowledge that our holding, in conjunction with Sullivan, 

results in reading the “relating to” phrase differently as to different 

provisions of § 2252(b)(2). However, this is the appropriate reading in 

light of Mellouli and the fact that § 2252(b)(2) contains some clauses of 

defined terms that require a narrow reading of “relating to,” and some of 

undefined terms that require a broad reading.
20 UNITED STATES V. REINHART

pornography” and “sexually explicit conduct” weigh in 

favor of reading narrowly “relating to” in § 2252(b)(2).

Accordingly, we apply the categorical approach.

B. Applying the Categorical Approach

Under the Taylor categorical approach, we make a 

categorical comparison of the elements of the state statute of 

conviction and the federal generic definition. Chavez-Solis 

v. Lynch, 803 F.3d 1004, 1006 (9th Cir. 2015). Here, we 

compare the elements of California Penal Code § 311.11(a), 

possession of child pornography, and California Penal Code 

§ 311.3(a), sexual exploitation of a child under 18 years old, 

with those of 18 U.S.C. §§ 2252(b)(2) and 2252(a)(4)(B).

The federal possession of child pornography statute, 

18 U.S.C. § 2252(a)(4)(B), which Reinhart was convicted 

under, punishes a person who:

knowingly possesses, or knowingly accesses 

with intent to view, 1 or more books, 

magazines, periodicals, films, video tapes, or 

other matter which contain any visual 

depiction . . . if—(i) the producing of such 

visual depiction involves the use of a minor 

engaging in sexually explicit conduct; and 

(ii) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B)). The definitional provision in the 

same chapter, chapter 110, defines “child pornography” as 

“any visual depiction . . . of sexually explicit conduct, 

where—(A) the production of such visual depiction involves 
UNITED STATES V. REINHART 21

the use of a minor engaging in sexually explicit conduct.”6

18 U.S.C. § 2256(8). In turn, § 2256 defines “sexually 

explicit conduct” as actual or simulated:

(i) sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oralanal, whether between persons of the same or 

opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or 

pubic area of any person;

18 U.S.C. § 2256(2)(A).7 These definitions constitute the 

generic federal definition. See Chavez-Solis, 803 F.3d at 

1006–07. We compare the elements of the generic federal 

 6 The remainder of the statute reads: “(B) such visual depiction is a 

digital image, computer image, or computer-generated image that is, or 

is indistinguishable from, that of a minor engaging in sexually explicit 

conduct; or (C) such visual depiction has been created, adapted, or 

modified to appear that an identifiable minor is engaging in sexually 

explicit conduct.” 18 U.S.C. § 2256(8).

7 Within § 2256 there are two definitions for “sexually explicit 

conduct.” The definition in § 2256(2)(B) applies only to one part of the 

definition of “child pornography” in subsection (8)(B) of § 2256, that 

addresses digital, computer, or computer-generated images. That there 

are two definitions is not meaningful in this case as both the definitions 

for § 2256(2)(A) and (2)(B) list the same underlying conduct.
22 UNITED STATES V. REINHART

definition to Reinhart’s two prior convictions under 

California Penal Code §§ 311.11(a) and 311.3.

1. California Penal Code § 311.11(a)

Reinhart was previously convicted under California 

Penal Code § 311.11(a), possession or control of matter 

depicting minor engaging in or simulating sexual conduct. 

The statute punishes a person who “knowingly possesses or 

controls any matter, representation of information, data, or 

image, . . . the production of which involves the use of a 

person under 18 years of age, knowing that the matter 

depicts a person under 18 years of age personally engaging 

in or simulating sexual conduct.” Cal. Penal Code 

§ 311.11(a). In turn, “sexual conduct” is defined as actual or 

simulated:

sexual intercourse, oral copulation, anal 

intercourse, anal oral copulation, 

masturbation, bestiality, sexual sadism, 

sexual masochism, penetration of the vagina 

or rectum by any object in a lewd or 

lascivious manner, exhibition of the genitals 

or pubic or rectal area for the purpose of 

sexual stimulation of the viewer, any lewd or 

lascivious sexual act as defined in Section 

288, or excretory functions performed in a 

lewd or lascivious manner.

Cal. Penal Code § 311.4(d)(1).

Our court has previously conducted the categorical 

analysis of California Penal Code § 311.11(a) and the federal 

definition of “child pornography” and “sexually explicit 

conduct,” and held that the California statute of conviction 

is overbroad compared to the federal definition. Chavez-
UNITED STATES V. REINHART 23

Solis, 803 F.3d at 1006–08.8 In Chavez-Solis, the court held 

that because of California’s definition of “sexual conduct,” 

the California statute was overbroad. Id. at 1008. The 

California definition of sexual conduct, “unlike the federal 

statute, . . . include[s] ‘any lewd or lascivious sexual act as 

defined in [California Penal Code] Section 288,’” which is 

entitled, “Lewd or lascivious acts; penalties; psychological 

harm to victim.” Id. at 1008. “Section 288 prohibits ‘any 

lewd or lascivious act . . . upon or with the body, or any part 

or member thereof, of a child who is under the age of 

14 years, with the intent of arousing, appealing to, or 

gratifying the lust, passions, or sexual desires of that person 

or the child.’” Id. at 1008–09; Cal. Penal Code § 288(a). 

“Section 288 is quite broad.” Id. at 1009. It encompasses any 

contact without a requirement that a specific or intimate 

body part be touched, so long as the touching of an underage 

child was for the purpose of sexual arousal. Id. Because 

California’s definition of “sexual conduct” as used in 

§ 311.11(a) encompasses the full range of conduct 

proscribed by § 288, the definition is overbroad compared to 

the federal statute’s definition of “sexually explicit conduct” 

in § 2256. Id. Nothing in the federal statute would include 

the broader conduct of “any touching” on “any part” of a 

child’s body with the intent of arousing sexual desires. Id. 

We must follow Chavez-Solis’s holding that California’s 

possession of child pornography statute under § 311.11(a) 

“sweeps in depictions of a broader range of ‘sexual conduct’ 

 8 In Chavez-Solis, we considered whether a California Penal Code 

§ 311.11(a) conviction was an aggravated felony, as defined in 8 U.S.C. 

§ 1101(a)(43)(I), for immigration removal purposes. In conducting that 

inquiry the court looked at the same federal child pornography statute 

here, and therefore, our previous analysis applies here.
24 UNITED STATES V. REINHART

than the federal child pornography statute,” and therefore is 

categorically overbroad. Id.

As stated, that a state statute of conviction is not a 

categorical match to the federal definition does not end the 

inquiry. If a statute is divisible, we apply a “modified 

categorical approach” that “allows us to look beyond the 

statutory text to a limited set of documents to determine 

whether the petitioner was necessarily convicted of all the 

elements of the federal generic offense.” Id. at 1012 (citation 

omitted). We only employ the modified categorical approach 

where the state statute of conviction is divisible, meaning it 

“lists multiple, alternative elements, and so effectively 

creates several different . . . crimes.” Id. (quoting Rendon v. 

Holder, 764 F.3d 1077, 1083 (9th Cir. 2014)). Chavez-Solis 

held that § 311.11(a) is not divisible and, therefore, our 

categorical inquiry need not go further. Id. at 1012–13.

In sum, as the district court concluded, Reinhart’s 

California Penal Code § 311.11(a) conviction does not 

trigger the federal § 2252(b)(2)’s mandatory minimum 

because there is not a categorical match and the California 

statute is indivisible.

2. California Penal Code § 311.3(a)

Reinhart also was previously convicted under California 

Penal Code § 311.3(a), sexual exploitation of child. Section 

311.3(a) punishes anyone who “knowingly develops, 

duplicates, prints, or exchanges any representation of 

information, data, or image . . . that contains or incorporates 

in any manner, any film or filmstrip that depicts a person 

under the age of 18 years engaged in an act of sexual 

conduct.” Cal. Penal Code § 311.3(a). Section 311.3 defines 

“sexual conduct” within that provision as:
UNITED STATES V. REINHART 25

(1) Sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oralanal, whether between persons of the same or 

opposite sex or between humans and animals.

(2) Penetration of the vagina or rectum by any 

object.

(3) Masturbation for the purpose of sexual 

stimulation of the viewer.

(4) Sadomasochistic abuse for the purpose of 

sexual stimulation of the viewer.

(5) Exhibition of the genitals or the pubic or 

rectal area of any person for the purpose of 

sexual stimulation of the viewer.

(6) Defecation or urination for the purpose of 

sexual stimulation of the viewer.

Cal. Penal Code § 311.3(b).9

We agree with the district court’s conclusion below and 

hold that § 311.3 is overbroad as compared to the federal 

definition of “sexually explicit conduct.” The federal statute 

defining “sexually explicit conduct” covers “(i) sexual 

intercourse, . . . ; (ii) bestiality; (iii) masturbation; 

 9 Unlike the definition that applies in California Penal Code 

§ 311.11, the definition of “sexual conduct” in California Penal Code 

§ 311.3 does not incorporate California Penal Code § 288. Accordingly, 

Chavez-Solis’s reasoning regarding § 311.11’s overbreadth due to the 

broad scope of conduct under § 288 does not apply to California Penal 

Code § 311.3.
26 UNITED STATES V. REINHART

(iv) sadistic or masochistic abuse; or (v) lascivious 

exhibition of the genitals or pubic area of any person.” 

18 U.S.C. § 2256(2)(A). There is overlap between the first 

five types of conduct listed in California Penal Code 

§ 311.3(b) and the conduct listed in the federal statute. 

However, California Penal Code § 311.3(b) includes a sixth 

type of conduct, “[d]efecation or urination for the purpose of 

sexual stimulation of the viewer.” For there to be a 

categorical match, anyone convicted under the state statute 

of conviction must necessarily be guilty of all the federal 

statute’s elements. See Moncrieffe v. Holder, 569 U.S. 184, 

190–91 (2013) (stating courts “examine what the state 

conviction necessarily involved, not the facts underlying the 

case”). Here, California Penal Code § 311.3(b)’s sixth type 

of conduct is not necessarily covered under the federal 

statute, and therefore the California statute is overbroad. See 

id.

That the California statute lists “defecation or urination” 

for sexual stimulation of the viewer separately from 

“exhibition of the genitals or the pubic or rectal area of any 

person” for the purpose of sexual stimulation of the viewer 

confirms that depictions of the former are not necessarily 

encompassed within the latter. The difference between the 

conduct of “lascivious exhibition of the genitals or pubic 

area,” in the federal statute at 18 U.S.C. § 2256(2)(A) and 

the California statute’s listing of “[d]efecation or urination 

for the purpose of sexual stimulation of the viewer” may 

seem to be a fine line. It is conceivable that in many cases 

when an individual is involved in defecation or urination for 

purposes of sexual stimulation of the viewer, there will be 

exhibition of the genital, pubic, or rectal area of that 

individual. This is not necessarily so, however. It is also 

conceivable, that in some instances, there may be a depiction 

of a minor that does not involve exhibition of the genitals or 
UNITED STATES V. REINHART 27

pubic or rectal area, but the minor is engaged in defecation 

or urination created for the purpose of sexual stimulation of 

the viewer. That depiction would fall under California Penal 

Code § 311.3(b)’s sixth type of conduct, but would not fall 

under any prong of the federal statute at 18 U.S.C. 

§ 2256(2)(A) defining “sexually explicit conduct.” In sum, 

because broader conduct is encompassed in § 311.3(a), it is 

categorically overbroad as compared to the federal statute.

California Penal Code § 311.3(a) also is not divisible. 

Like Reinhart’s conviction under California Penal Code 

§ 311.11(a), his conviction under § 311.3(a) refers to “sexual 

conduct,” albeit with a different definition of “sexual 

conduct.”10 Both statutes punish offenses dealing with 

depictions of minors and list the ways in which depictions 

might constitute minors engaged in acts of sexual conduct. 

See California Penal Code §§ 311.3, 311(a). Analyzing 

§ 311.11(a), we held the statute’s reference to “‘sexual 

conduct’ does not create different crimes, each one 

depending on the particular sexual conduct depicted in an 

alleged image of child pornography.” Chavez-Solis, 

803 F.3d 1012. “Rather, th[e] definition simply lists 

numerous ways in which an image may be considered to 

depict ‘sexual conduct’ and thus qualify for the single crime 

. . . .” Id. at 1012–13. The same rationale applies to 

§ 311.3(a), sexual exploitation of child, which also lists ways 

in which a depiction might show a minor engaged in sexual 

conduct.

 10 As stated, California Penal Code § 311.11(a) refers to “sexual 

conduct” as defined in § 311.4(d), whereas § 311.3 defines “sexual 

conduct” within the same provision as the list of six types of conduct 

noted above at § 311.3(b).
28 UNITED STATES V. REINHART

Although § 311.3’s definition of “sexual conduct” is 

worded in the disjunctive, as we held with regard to 

§ 311.11, this does not mean the jury is required to find “that 

the pornographic materials portray any particular type of 

sexual conduct—only that the materials portray sexual 

conduct.” 11 See id. at 1013 (citing California cases in which 

jury instructions involving “sexual conduct” listed the 

various types of sexual conduct without requiring the jury to 

determine the particular sexual conduct depicted). Because 

the jury need not unanimously decide what particular sexual 

conduct is depicted, the listed types of sexual conduct are 

only means, not elements of the crime. See Rendon, 764 F.3d 

at 1085–86 (holding that a statute is divisible “[o]nly when 

state law requires that in order to convict the defendant the 

jury must unanimously agree that he committed a particular 

substantive offense contained within the disjunctively 

worded statute”). Finally, although § 311.3 and § 311.11 

definitions’ of “sexual conduct” are different, the structure 

of both definitions parallel each other and Chavez-Solisleads 

us to the conclusion that § 311.3 is also not divisible.

In sum, because California Penal Code § 311.3 is

indivisible, the modified categorical approach does not 

 11 Although the parties did not provide a model jury instruction for 

California Penal Code § 311.3 and the court did not locate one, it appears 

California courts list the various types of sexual conduct in jury 

instructions, without requiring that the jury agree on which type of sexual 

conduct occurred. See, e.g., People v. Spurlock, 114 Cal. App. 4th 1122, 

1130–31 (2003) (holding trial court was not required to instruct sua 

sponte on the meaning of “exhibition of the genitals” or “for the purpose 

of sexual stimulation of the viewer” and upholding a jury instruction for 

charges under § 311.3 that stated “[s]exual conduct means any of the 

following, whether actual or simulated: . . . exhibition of genitals, pubic 

or rectal area for the purposes of sexual stimulation of the viewer . . . .” 

citing to §§ 311.3, 311.4).
UNITED STATES V. REINHART 29

apply, and therefore, we do not look to any fact-specific 

documents to determine whether Reinhart’s offense triggers 

the federal statute. See Descamps, 570 U.S. at 257, 263–65. 

Reinhart’s prior conviction under § 311.3(a) does not 

constitute an offense “relating to . . . the production, 

possession, receipt, mailing, sale, distribution, shipment, or 

transportation of child pornography” under 18 U.S.C. 

§ 2252(b)(2) and does not trigger the sentencing 

enhancement.

Neither of Reinhart’s two prior California statutes of 

convictions triggers the mandatory minimum sentence under 

18 U.S.C. § 2252(b)(2). We affirm the district court’s 

sentencing determination that the ten-year mandatory 

minimum did not apply.12

III. Conclusion

We hold that 18 U.S.C. § 2252(b)(2)’s reference to 

offenses “relating to” child pornography must be read more 

narrowly due to the statutory text that limits the meaning of 

“child pornography” and “sexually explicit conduct.” See 

18 U.S.C. § 2256(2)(A), (8). In accordance with this more 

narrowed reading of “relating to,” we apply the categorical 

approach in determining whether Reinhart’s prior California 

statutes of conviction trigger the federal sentencing 

enhancement provision at 18 U.S.C. § 2252(b)(2). Under the 

categorical approach, we conclude that both California Penal 

Code § 311.11 and § 311.3 are overbroad compared to the 

federal statute and indivisible. Accordingly, neither of 

 12 The court need not reach Reinhart’s argument that the 

government’s interpretation of § 2252(b)(2)’s “relating to” clause is 

unconstitutionally vague under Johnson v. United States, 135 S. Ct. 

2551, 2556–57 (2015).
30 UNITED STATES V. REINHART

Reinhart’s prior California statutes of conviction triggers 

18 U.S.C.§ 2252(b)(2)’s ten-year mandatory minimums 

sentencing enhancement.

We AFFIRM.