FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD LEE SULLIVAN,

Defendant-Appellant.

No. 12-10196

D.C. No.

4:09-cr-00167-

DLJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

EDWARD LEE SULLIVAN,

Defendant-Appellee.

No. 12-10217

D.C. No.

4:09-cr-00167-

DLJ-1

ORDER AND

OPINION

Appeal from the United States District Court

for the Northern District of California

D. Lowell Jensen, Senior District Judge, Presiding

Argued and Submitted

January 14, 2014—San Francisco, California

Filed July 29, 2015
2 UNITED STATES V. SULLIVAN

Before: Richard C. Tallman and Sandra S. Ikuta, Circuit

Judges, and Beverly Reid O’Connell, District Judge.*

Opinion by Judge Ikuta

SUMMARY**

Criminal Law

The panel withdrew an opinion filed on May 28, 2014,

and filed a superseding opinion affirming in part and

reversing in part a criminal judgment, and remanding, in a

case in which the defendant was convicted under 18 U.S.C.

§§ 2251(a) and 2252(a)(4)(B) for producing and possessing

a sexually explicit video depicting a 14-year-old girl.

The panel held that venue in the Northern District of

California for the production count was not improper, and

that National Federation of Independent Business v. Sebelius,

132 S. Ct. 2566 (2012), does not undermine this court’s

precedent that Congress may regulate even purely intrastate

production of child pornography and criminalize its intrastate

possession.

The panel held that the district court did not err in

denying the defendant’s motion to suppress evidence

 

* The Honorable Beverly Reid O’Connell, United States District Court

Judge for the Central District of California, sitting by designation.

** 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. SULLIVAN 3

obtained from his laptop computer. Balancing the nature of

the intrusion into the defendant’s possessory interests against

the government’s interests justifying the intrusion, the panel

concluded that the government’s seizure and retention of the

laptop for 21 days before obtaining a search warrant was,

under the totality of the circumstances, not unreasonable

under the Fourth Amendment.

The panel held that violations of Calif. Penal Code

§ 261.5(d) (unlawful sexual intercourse with a minor under

16 years of age) and Calif. Penal Code § 288a(b)(2) (oral

copulation with a minor under 16 years of age) are

categorically offenses “relating to” aggravated sexual abuse,

sexual abuse or abusive sexual conduct involving a minor or

ward, and that the district court therefore properly applied the

mandatory minimum sentence enhancement provisions

contained in 28 U.S.C. §§ 2251(e) and § 2252(b)(2). Reading

together Morales v. Trans World Airlines, Inc., 504 U.S. 374

(1992), and Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the

panel interpreted the phrase “relating to” broadly when

applying the Taylor categorical approach unless the text and

history of the statute require a narrower construction, which

it concluded is not the case with §§ 2251(e) or 2252(b)(2).

On the government’s cross-appeal, the panel held that the

district court erred in its legal analysis when sustaining the

defendant’s objection to the inclusion of a two-level

enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1. The panel remanded for resentencing because it

could not tell if the district court would impose the same

sentence if it applied the correct legal analysis.
4 UNITED STATES V. SULLIVAN

COUNSEL

John J. Jordan, San Francisco, California, for DefendantAppellant/Cross-Appellee.

Anne Voigts (argued), Assistant United States Attorney;

Melinda Haag, United States Attorney; Barbara J. Valliere,

Assistant United States Attorney, Chief, Appellate Division,

San Francisco, California, for Plaintiff-Appellee/CrossAppellant.

Sean Kennedy, Federal Public Defender; Koren Bell, Deputy

Federal Public Defender,Los Angeles, California, for Amicus

Curiae Federal Public Defender for the Central District of

California.

ORDER

The opinion filed on May 28, 2014, and appearing at

753 F.3d 845, is withdrawn. The superseding opinion will be

filed concurrently with this order. The parties may file

additional petitions for rehearing or rehearing en banc.

OPINION

IKUTA, Circuit Judge:

Edward Sullivan was convicted of violations under

18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and

possessing a sexually explicit video depicting a 14-year-old

girl. He raises multiple challenges to these convictions, as
UNITED STATES V. SULLIVAN 5

well as to the mandatory minimum sentences imposed under

18 U.S.C. §§ 2251(e) and 2252(b)(2). The government cross

appeals, arguing that the district court miscalculated

Sullivan’s SentencingGuidelines range. We have jurisdiction

pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and

affirm in part and reverse in part.1

I

Sullivan’s use of 14-year-old Erika Doe to produce the

sexually explicit video at issue in this case was not the first

time he engaged in sex-related conduct with a minor. In

2001, Sullivan was convicted in Nevada of conspiracy to

commit pandering involving a 13-year-old girl. In 2002,

Sullivan was convicted in California of four offenses

involving a 14-year-old female victim: (1) unlawful sexual

intercourse with aminor in violation of California Penal Code

§ 261.5(d); (2) oral copulation with a minor in violation of

California Penal Code § 288a(b)(2); (3) pimping in violation

of California Penal Code § 266h(a); and (4) pandering in

violation of California Penal Code § 266i(a)(2). Sullivan was

sentenced to 140 months imprisonment for the California

convictions.

In November 2007, Sullivan was released on parole. As

a parolee, Sullivan was subject to a range of standard and

special parole conditions. Among the standard parole

conditions was a consent to search, which stated: “You and

your residence and any property under your control may be

searched without a warrant by an agent of the Department of

1 We resolved Sullivan’s remaining claims in a previously filed

memorandum disposition. United States v. Sullivan, 575 F. App’x 973

(9th Cir. 2014).
6 UNITED STATES V. SULLIVAN

Corrections or any law enforcement officer.” In addition,

Sullivan was subject to a number of special parole conditions,

which (among other things) prohibited him from having any

contact with females between the ages of 14 and 18 years,

and provided that “[a]ny computer or mobile

telecommunications device under your control, or [to] which

you have access, is subject to search and seizure by your

Parole Agent.” The California Department of Corrections

gave Sullivan notice of these conditions, which Sullivan

acknowledged by signing the notice form and initialing each

of the special conditions.

Sullivan took up temporary residence at the Bay Breeze

Inn located in Oakland, California. In March 2008, about

four months after his release, Sullivan approached Erika, a

14-year-old girl who was standing on a street in Berkeley,

California, with her friends after school. After Erika and

Sullivan talked, she left with Sullivan in his car. Erika stayed

with Sullivan for the next two weeks. On the first night,

Sullivan took Erika to the house of Kimberlea Reed, a friend

of his who lived in Vacaville, California. Reed knew that

Sullivan was not allowed to have contact with minor girls,

and when Erika failed to produce a license proving she was

18 years old, Reed told Sullivan not to bring Erika to her

home. For the next two weeks, Sullivan and Erika stayed at

the Bay Breeze Inn or in Sullivan’s car, but returned at least

once to the house in Vacaville. While at the Bay Breeze Inn,

Sullivan had sex with Erika.

The district court found that during this period, Sullivan

became the dominating force in Erika’s life, and controlled

all of her daily activities. Among other things, Sullivan

replaced Erika’s clothing with more adult and sophisticated

outfits and paid to have her hair straightened and amplified
UNITED STATES V. SULLIVAN 7

with extensions. Erika testified that she was afraid of

Sullivan, a large man in his forties, about six feet five inches

tall and 250 pounds.

Over the course of the two weeks that Erika remained

with Sullivan, he took numerous videos and still photographs

of Erika in various poses. In several of the videos, Sullivan

discussed prostitution with Erika. In one video, Sullivan

discussed a past incident where he had “checked” or punished

Erika because she had tried to leave him. Sullivan uploaded

one of the still photographs of Erika onto an adult website,

“Fungirlsplay,” using his name and e-mail address.

On March 9, 2008, Sullivan returned to the house in

Vacaville where he made the sex video at issue in this case

using a digital camera that had been manufactured in China

and exported to the United States. According to the district

court, the video, 100_0064.mov, showed Erika performing

oral sex on Sullivan. Erika’s face was clearly visible in the

video, and a man’s voice could be heard in the background,

directing and describing the activities that were taking place. 

At trial, Erika testified that Sullivan had shot and narrated the

video, and is also the man seen in the video. This sex video

was later uploaded to Sullivan’s laptop computer. After the

video was produced, Sullivan recorded and narrated two other

videos, one of which showed Erika naked from the waist up,

and the other showed Sullivan questioning Erika regarding

whether she wanted to be a porn star.

On March 17, 2008, an Oakland police officer saw Erika

standing on the street in an area frequented by prostitutes. 

Suspecting she was engaging in prostitution, the officer

stopped her for questioning. In response to a question about

Sullivan, who was standing nearby, Erika denied he was her
8 UNITED STATES V. SULLIVAN

pimp. Although the Oakland police stopped and questioned

Sullivan, they did not arrest him. The officer took Erika into

custody, and after learning that she was the subject of a

missing persons report, returned her to her mother. Once

Erika was home, her mother took her to the hospital, where

Erika made a statement to the police. Because the initial

abduction occurred in Berkeley, jurisdiction over the

investigation was transferred to the Berkeley Police

Department.

About a week later, on March 24, 2008, Erika’s mother

contacted Sullivan’s parole officer and reported that Sullivan

had kidnaped, raped, and pimped her daughter. Based on this

report, Sullivan’s parole was revoked. On March 25, 2008,

parole officers arrested Sullivan in his car outside of the Bay

Breeze Inn. During a parole search of the car, the agents

seized several items, including the laptop computer, digital

camera, a book about pimping, and a cellular telephone. The

parole officers took Sullivan into custody and charged him

with eight parole violations, including that Sullivan forced

Erika to engage in intercourse and had kept pornographic

images on his cellular telephone, in violation of his parole

conditions.2 On April 2, 2008, the parole officers transferred

custody of the evidence to the Berkeley Police Department

because the California Department of Corrections did not

have the technical ability to conduct a forensic search of the

laptop.

On April 10, 2008, Detective Kaplan and Sergeant Ross

of the BerkeleyPolice Department interviewed Sullivan at the

jail where he was being held. Sullivan claimed that in one of

2 On April 14, 2008, Sullivan agreed to a disposition of the violation

charges.
UNITED STATES V. SULLIVAN 9

the videos on his laptop, Erika stated that she was 19 years

old. Sullivan agreed that the police should view the video to

corroborate his belief about Erika’s age. He stated, “Look in

the computer. I give you consent.” Sullivan also signed a

consent form.3 On April 15, 2008, Detective Kaplan also

obtained a search warrant to search the laptop. A forensic

search of Sullivan’s laptop revealed the sex video at issue in

this case.

The federal government filed a two-count indictment

against Sullivan in the Northern District of California on

February 18, 2009. Count 1 charged Sullivan with

production of child pornography pursuant to 18 U.S.C.

§ 2251(a). Count 2 charged Sullivan with possession of child

pornography pursuant to 18 U.S.C. § 2252(a)(4)(B). Sullivan

entered a plea of not guilty, and later waived his right to a

jury trial.

Before trial, Sullivan moved to suppress the evidence

obtained from his laptop computer. Relevant to this appeal,

he argued that the 21-day delay between March 25, 2008, the

 

3

 This consent form stated:

I, Edward Sullivan, give Officer Kaplan and Sgt. Ross

ofthe Berkeley Police Department permission to search

through all files, hard drives and all information

contained on my computer that was taken from me by

Agent Tran [, a parole officer,] when I got arrested. 

Including all drives, internal and external storage

devices.

I give this permission and consent freely. I was not

coerced.

I also give consent to search my camera.
10 UNITED STATES V. SULLIVAN

date the parole officers seized the laptop, and April 15, 2008,

the date the police obtained a warrant, was unreasonable, and

therefore the search and seizure of the laptop violated his

Fourth Amendment rights. The district court denied the

motion.

The bench trial commenced on December 14, 2010. At

the close of the government’s case-in-chief, Sullivan moved

to dismiss Count 2 (possession of child pornography under

§ 2252(a)(4)(B)) because the sex video was not sufficiently

connected to interstate commerce, and moved to dismiss

Count 1 (production of child pornography under § 2251(a))

for lack of venue, because the video had been filmed in

Vacaville (in the Eastern District of California), and the

district court was in the Northern District of California. The

district court denied both motions.

At the conclusion of the 13-day bench trial, the district

court found Sullivan guilty on both counts. The district court

found incredible Sullivan’s testimony that he did not know

Erika was a minor, given that Erika’s physical appearance

made it clear that she was an adolescent.4

During the sentencing phase of the proceeding, the district

court determined that the mandatory minimum enhancement

provisions contained in the two statutes of conviction, see

18 U.S.C. §§ 2251(e), 2252(b)(2), applied to Sullivan based

on his California convictions for unlawful sexual intercourse

with a minor and oral copulation with a minor, see Cal. Penal

Code §§ 261.5(d), 288a(b)(2). The district court also ruled on

4 Sullivan filed several post-verdict motions, one of which reiterated his

arguments that the district court lacked jurisdiction and venue. The

district court concluded there was no basis to revisit its prior rulings.
UNITED STATES V. SULLIVAN 11

Sullivan’s objection to the two-level Guidelines enhancement

for obstruction of justice recommended in the Presentence

Investigation Report (PSR). Despite having found Sullivan’s

testimony “not credible” and “not true,” the district court

sustained the objection and declined to increase Sullivan’s

offense level from 36 to 38.

The district court sentenced Sullivan to the mandatory

minimum 25 years imprisonment for the conviction under

§ 2251(a) and the mandatory minimum 10 years

imprisonment for the conviction under § 2252(a)(4)(B), to be

served concurrently, followed by a lifetime of supervised

release. Sullivan timely appealed his convictions and

sentence. The government cross appealed the district court’s

ruling regarding the obstruction enhancement.

II

We begin by addressing Sullivan’s threshold arguments

that the district court erred in denying his motion to dismiss

Count 1 of the indictment (production of child pornography

under 18 U.S.C. § 2251(a)) for improper venue, and his

motion to dismiss Count 2 of the indictment (possession of

child pornography under 18 U.S.C. § 2252(a)(4)(B)) for lack

of federal jurisdiction.

A

Sullivan argues that the district court was required to

dismiss the production of child pornography count, 18 U.S.C.

§ 2251(a), for lack of venue in the Northern District of

California because Sullivan produced the sex video at issue

in the Eastern District of California. We review the district
12 UNITED STATES V. SULLIVAN

court’s venue determination de novo. United States v.

Gonzalez, 683 F.3d 1221, 1224 (9th Cir. 2012).

The Constitution provides that the trial in a criminal

prosecution shall be in the “[s]tate where the said [c]rimes

shall have been committed.” U.S. Const. art. III, § 2, cl. 3;

see also Fed. R. Crim. P. 18 (“Unless a statute or these rules

permit otherwise, the government must prosecute an offense

in a district where the offense was committed.”). Under

18 U.S.C. § 3237(a), offenses “begun in one district and

completed in another, or committed in more than one district,

may be inquired of and prosecuted in any district in which

such offense was begun, continued, or completed.” To

determine whether a crime is a continuing offense for

purposes of § 3237, “a court must initially identify the

conduct constituting the offense (the nature of the crime) and

then discern the location of the commission of the criminal

acts.” United States v. Stinson, 647 F.3d 1196, 1204 (9th Cir.

2011) (quoting United States v. Rodriguez-Moreno, 526 U.S.

275, 279 (1999)). “Venue is proper under § 3237 when an

‘essential conduct element’ of the offense continues into the

charging district.” Id. (quoting Rodriguez-Moreno, 526 U.S.

at 280–82).

Here, the conduct constituting the elements of a § 2251(a)

offense include: (1) employing, using, persuading, inducing,

enticing or coercing any minor to engage in “any sexually

explicit conduct”; (2) “for the purpose of producing any

visual depiction of such conduct”; (3) if the depiction “was

produced or transmitted using materials that have been

mailed, shipped, or transported in or affecting interstate or

foreign commerce.” 18 U.S.C. § 2251(a). Sullivan engaged

in conduct constituting the offense in both the Northern and

Eastern Districts of California. First, the district court found
UNITED STATES V. SULLIVAN 13

that Sullivan “established and maintained physical and mental

control over the relationship between himself and the girl

from the time she first entered his car” in Berkeley, which is

in the Northern District, and used this control to coerce her

into making a sex video. Second, the court found that

Sullivan used his control over Erika to induce her to produce

the sex video at issue (the second element of the § 2251(a)

offense) in Vacaville, which is in the Eastern District. 

Accordingly, Sullivan’s conduct constituting the § 2251(a)

offense spanned more than one district. Sullivan argues that

his interactions with Erika in the Northern District of

California were merely preliminary, or were for the sole

purpose of recruiting Erika to become a prostitute, and

therefore were not essential steps towards making the video. 

This argument is meritless; the evidence adduced at trial

supports the district court’s findings that the persuasion,

inducement, enticement and coercion that led to the video’s

filming in Vacaville had their genesis in the Northern

District. See United States v. Engle, 676 F.3d 405, 417–18

(4th Cir. 2012) (holding that venue for a violation of

§ 2251(a) is proper in the district where a defendant entices

the victim to engage in sexual conduct, even though the

defendant created the video at issue in a different district). 

Therefore, venue was proper in the Northern District of

California under § 3237(a).

B

We next address Sullivan’s argument that Congress lacks

the authority to regulate purely intrastate production and

possession of a single video, and therefore neither § 2251(a)
14 UNITED STATES V. SULLIVAN

nor § 2252(a)(4)(B) can constitutionally be applied to him.5

We have previously rejected this argument, concluding that

Congress could rationally “conclude that homegrown child

pornography affects interstate commerce,” and therefore

Congress may regulate even purely intrastate production of

child pornography, see United States v. McCalla, 545 F.3d

750, 755–56 (9th Cir. 2008), and criminalize its intrastate

possession, United States v. Gallenardo, 579 F.3d 1076, 1081

(9th Cir. 2009). Nevertheless, Sullivan claims that the

Supreme Court’s recent decision in National Federation of

Independent Business v. Sebelius (NFIB), 132 S. Ct. 2566

(2012), requires us to overrule this precedent. We disagree. 

Chief Justice Roberts’s separate opinion in NFIB stated that

the Commerce Clause did not give Congress authority to

“compel[] individuals to become active in commerce by

purchasing a product.” Id. at 2587 (emphasis omitted). The

four dissenting justices agreed that “one does not regulate

commerce that does not exist by compelling its existence.”

Id. at 2644 (Scalia, J., dissenting). Accordingly, five justices

agreed that the Commerce Clause gives Congress authority

only to regulate commerce, not to compel it. This precedent

is not applicable here, however, because § 2251 and § 2252

do not compel commerce, but merely regulate an activity that

Congress could rationally determine would affect interstate

commerce, taken in the aggregate. See Gallenardo, 579 F.3d

at 1081; McCalla, 545 F.3d at 755–56. Because NFIB is not

“clearly irreconcilable” with our precedents, they remain

5 Following the government’s completion of its case-in-chief in the

bench trial, Sullivan moved for acquittal on Count 1 of the indictment on

the ground that it could not be constitutionally applied to him, but he did

not challenge Count 2 on this basis. We review a sufficiency of the

evidence challenge that is first brought on appeal for plain error. United

States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
UNITED STATES V. SULLIVAN 15

binding. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)

(en banc); see also United States v. Sheldon, 755 F.3d 1047,

1050 (9th Cir. 2014) (concluding that because the recorder

used to produce child pornography was manufactured in

China, there was “sufficient [evidence] to satisfy the

jurisdictional element of § 2251(a)”). Accordingly, § 2251(a)

and § 2252(a)(4)(B) are constitutional as applied to Sullivan.

III

We next consider Sullivan’s argument that the district

court erred in denying his motion to suppress evidence

obtained from his laptop computer. He claims that under the

reasoning in United States v. Dass, 849 F.2d 414 (9th Cir.

1988), and the Eleventh Circuit’s decision in United States v.

Mitchell, 565 F.3d 1347 (11th Cir. 2009) (per curiam), the

government’s unexplained 21-day delay in obtaining a search

warrant was unreasonable, and therefore violated his Fourth

Amendment rights.6 We review de novo the denial of

Sullivan’s suppression motion. United States v. Hernandez,

313 F.3d 1206, 1208 (9th Cir. 2002). We review the district

6 Sullivan’s suppression motion in the district court pertained to

evidence obtained from his laptop computer. To the extent Sullivan

claims on appeal that evidence obtained from his digital camera should

have also been suppressed, this argument is waived. See Fed. R. Crim. P.

12(b)(3)(C), (e) (providing that a party waives any objection that must be

made in a pretrial motion, including a motion to suppress evidence, by

failing to raise it at the proper time); see also United States v. Davis,

663 F.2d 824, 831 (9th Cir. 1981) (motions to suppress evidence must be

raised prior to trial). “Although we may grant relief from a waiver if the

defendant present[s] a legitimate explanation for his failure to raise the

issue in a timely manner,” United States v. Mausali, 590 F.3d 1077,

1080–81 (9th Cir. 2010) (internal quotation marks omitted), Sullivan has

presented no such legitimate explanation here.
16 UNITED STATES V. SULLIVAN

court’s factual findings for clear error. United States v. Gill,

280 F.3d 923, 928 (9th Cir. 2002).

The Fourth Amendment protects the “right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const.

amend IV. An unreasonable delay between the seizure of a

package and obtaining a search warrant may violate the

defendant’s Fourth Amendment rights. The touchstone is

reasonableness. See United States v. Van Leeuwen, 397 U.S.

249, 252–53 (1970). We “determine whether the delay was

‘reasonable’ under the totality of the circumstances, not

whether the Government pursued the least intrusive course of

action.” Hernandez, 313 F.3d at 1213. Such determinations

are made on a case-by-case basis. See Van Leeuwen,

397 U.S. at 253.

The Supreme Court has adopted a balancing test to

determine whether a seizure is reasonable. We must balance

“the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” 

United States v. Place, 462 U.S. 696, 703 (1983). In

balancing these interests, courts may consider whether the

individual consented to a seizure and search. See, e.g.,

United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011). 

“Where a person consents to search and seizure, no

possessory interest has been infringed because valid consent,

by definition, requires voluntary tender of property.” Id.; see

also United States v. Christie, 717 F.3d 1156, 1163 (10th Cir.

2013); United States v. Laist, 702 F.3d 608, 618 (11th Cir.

2012). Courts may also consider a defendant’s parolee status. 

See Samson v. California, 547 U.S. 843, 849–50 (2006)

(parolee status significantly diminishes privacy interests); see
UNITED STATES V. SULLIVAN 17

also Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68–69 (1992)

(holding that intrusions into possessory and privacy interests

resulting from a seizure must satisfy similar Fourth

Amendment standards).

In applying this balancing test to the seizure of Sullivan’s

laptop, we start by considering the extent of the intrusion on

Sullivan’s possessory interests given the totality of the

circumstances. We conclude they were minimal. During the

entire time period when the laptop was retained by the

government, Sullivan was in custodyon eight parole violation

charges. He does not claim that he could have made use of

the laptop while incarcerated or that he sought return of his

laptop to himself or a third party. Where individuals are

incarcerated and cannot make use of seized property, their

possessory interest in that property is reduced. See United

States v. Segura, 468 U.S. 796, 813 (1984) (Burger, C.J.)

(plurality opinion) (holding that defendants’ possessory

interests in their apartment were “virtually nonexistent” when

they “were under arrest and in the custody of the police

throughout the entire period the agents occupied the

apartment”); see also United States v. Clutter, 674 F.3d 980,

984–85 (8th Cir. 2012) (determining that when defendant was

in jail at the time of the seizure of his computer, the seizure

“did not meaningfully interfere with his possessory

interests”). Moreover, an individual who did “not even

allege[], much less prove[], that the delay in the search of

packages adversely affected legitimate interests protected by

the Fourth Amendment” and “never sought return of the

property” has not made a sufficient showing that the delay

was unreasonable. United States v. Johns, 469 U.S. 478, 487

(1985).
18 UNITED STATES V. SULLIVAN

Further, several of the factors that reduce an individual’s

possessory interest applied here. Some seventeen days after

his laptop was seized, Sullivan gave his express consent to

the search of his laptop, and indeed urged the police officers

to review videos stored on the laptop, claiming they contained

exculpatory evidence. Because such consent “requires

voluntary tender of property,” Stabile, 633 F.3d at 235, it

further vitiates his claim that any possessory interest was

infringed. Moreover, because Sullivan was a parolee subject

to a consent condition for seizure, his possessory interest in

the laptop was reduced. Cf. Samson, 547 U.S. at 850; United

States v. Knights, 534 U.S. 112, 119 (2001). Under these

circumstances, “[t]he actual interference” with Sullivan’s

possessory interests was minimal. See Segura, 468 U.S. at

813 (Burger, C.J.) (plurality opinion).

We next consider the degree to which the seizure and

retention of the laptop was necessary for the promotion of

legitimate governmental interests. Place, 462 U.S. at 703–04. 

The state “has an overwhelming interest in supervising

parolees because parolees . . . are more likely to commit

future criminal offenses.” Samson, 547 U.S. at 853 (internal

quotation marks omitted). Moreover, under the

circumstances of this case, the government had a reasonable

basis for retaining and searching the laptop based on the

likelihood that it contained evidence of Sullivan’s parole

violations, as well as child pornography. Because the parole

officers who initially seized the laptop from Sullivan’s

vehicle did not have the capability to perform a forensic

search, they transferred it to the Berkeley police. The

Berkeleypolice then obtained Sullivan’s consent to the search

of the laptop and also sought a search warrant.
UNITED STATES V. SULLIVAN 19

The government’s course of conduct was reasonable

under the totality of the circumstances given Sullivan’s

incarceration and the government’s interest in retaining and

searching the laptop for evidence of crimes. Even if the

government could have moved faster to obtain a search

warrant, the government is not required to pursue “the least

intrusive course of action.” Hernandez, 313 F.3d at 1213. 

Accordingly, we conclude that the government’s seizure and

retention of the laptop for 21 days before obtaining a search

warrant was not an unreasonable seizure under the Fourth

Amendment.

Sullivan’s reliance on Dass and Mitchell is misplaced. In

Dass, law enforcement officials collected suspicious

packages at post offices and allowed police dogs to sniff

them. 849 F.2d at 414. If the dog alerted, suggesting the

presence of marijuana, then the agents would retain the

package in order to obtain a search warrant. Id. In holding

that law enforcement acted unreasonably by detaining

packages for 7 to 23 days before executing a search warrant,

Dass implicitly determined that such a lengthy retention of

mailed packages constituted a substantial intrusion into the

possessory interests of the individuals who placed the

packages in the mail. Id. at 415. Dass’s conclusions

regarding the interests of a member of the public putting a

package in the mail are not applicable here, where a parolee

under a consent-to-seizure condition was arrested for

violation of other parole conditions.

Nor does Mitchell help Sullivan. In Mitchell, ICE agents

went to the defendant’s residence based on their suspicion

that he was engaged in distributing and receiving child

pornography. After the defendant consented to a search of

his laptop, the agents removed and retained the computer’s
20 UNITED STATES V. SULLIVAN

hard drive, but did not obtain a search warrant until 21 days

later. 565 F.3d at 1350–51. On the facts of that case, the

Eleventh Circuit held that the delay was unreasonable

because the defendant had a substantial possessory interest in

the hard drive, which was likely to contain information “of

exceptional value to its owner,” and the “detention of the hard

drive for over three weeks before a warrant was sought

constitute[d] a significant interference with Mitchell’s

possessory interest.” Id. at 1351. On the other side of the

balance, the court held that there was no compelling

justification for the government’s delay. Id.

Here, by contrast, Sullivan was in custody the entire time

on distinct charges, does not argue he made any request for

the laptop’s return, and had a reduced possessory interest due

to his status as a parolee. On the government-interest side of

the balance, the government had a reasonable basis for its

delay, including the need to transfer the laptop between

agencies. Cf. id. at 1352–53 (applying a rule of

reasonableness “dependent on all of the circumstances,” and

indicating that “if the assistance of another law enforcement

officer had been sought, we would have been sympathetic to

an argument that some delay in obtaining that assistance was

reasonable”). Because this case presents different

circumstances than Dass and Mitchell, the district court did

not err in striking the balance between the intrusion into

Sullivan’s interests and the opposing law enforcement

interests in favor of the government.

IV

We next turn to Sullivan’s arguments that his prior state

convictions for unlawful sexual intercourse with a minor

under 16 years of age, California Penal Code § 261.5(d), and
UNITED STATES V. SULLIVAN 21

oral copulation with a minor under 16 years of age, California

Penal Code § 288a(b)(2), do not qualify as federal generic

offenses for which the mandatory minimum enhancements

under § 2251(e) and § 2252(b)(2) must be imposed. We

review de novo whether Sullivan’s prior convictions support

the statutory mandatory minimum enhancements. United

States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en

banc).

To determine whether a prior state conviction falls into

the specified class of federal offenses, we generally apply the

categorical approach set forth in Taylor v. United States,

495 U.S. 575 (1990). See United States v. Sinerius, 504 F.3d

737, 740 (9th Cir. 2007). Under Taylor, the court first

defines the federal generic definition of the crime, and then

compares the elements of the state offense with that

definition. United States v. Gonzalez-Monterroso, 745 F.3d

1237, 1240 (9th Cir. 2014). 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. See id. But where a state statute of conviction

criminalizes more conduct than the federal generic offense,

it does not qualify as a categorical match. Id. Under these

circumstances, a court may apply a modified categorical

approach if the state criminal statute is divisible. See

Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013). 

The Taylor categorical approach requires us to look only to

the statutory definition of the prior offense and not to the

facts underlying that conviction. See Mellouli v. Lynch,
22 UNITED STATES V. SULLIVAN

135 S. Ct. 1980, 1986–87 (2015); Taylor, 495 U.S. at

600–01.7

Applying the Taylorframework, we begin by defining the

generic federal offense. Under § 2251(e) (mandatory

minimum for production of child pornography), a defendant

with a prior conviction “under the laws of any State relating

to aggravated sexual abuse, sexual abuse, [or] abusive sexual

contact involving a minor or ward” is subject to a mandatory

minimum sentence of “not less than 25 years.” 18 U.S.C.

§ 2251(e).8 Similarly, under § 2252(b)(2) (mandatory

minimum for the possession of child pornography), a

defendant with a prior conviction “under the laws of anyState

7 Sullivan’s argument that a jury must decide whether a prior conviction

is an offense “relating to aggravated sexual abuse, sexual abuse, or

abusive sexual conduct involving a minor or ward,” 18 U.S.C. §§ 2251(e),

2252(b)(2), is foreclosed by United States v. Brown, 417 F.3d 1077 (9th

Cir. 2005) (per curiam), which held that the categorization of a prior

conviction under Taylor “is a legal question, not a factual question coming

within the purview of Apprendi [v. New Jersey, 530 U.S. 466 (2000)].” 

Id. at 1079–80.

 

8

 Section 2251(e) states, in pertinent part:

Any individual who violates, or attempts or conspires

to violate, this section shall be fined under this title and

imprisoned not less than 15 years nor more than 30

years, but if such person has one prior conviction . . .

under the laws of any State relating to aggravated

sexual abuse, sexual abuse, abusive sexual contact

involving a minor or ward, or sex trafficking of

children, 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 25 years nor more than

50 years . . . .
UNITED STATES V. SULLIVAN 23

relating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor or ward” is subject to a

mandatoryminimum sentence of “not less than 10 years.” Id.

§ 2252(b)(2).9 Under this language, the federal generic

offense is a class of offenses “relating to” any of three types

of abusive sexual conduct. When considering such a class of

offenses, we “‘compare the crime of conviction with crimes

we have previously determined to’ fall into that particular

classification of crimes.” Rodriguez-Castellon v. Holder, 733

F.3d 847, 853 (9th Cir. 2013) (quoting Cerezo v. Mukasey,

512 F.3d 1163, 1166 (9th Cir. 2008)) (considering “crimes of

violence”). “Under the categorical approach, we follow our

common practice in cases involving non-traditional offenses

by defining the offense based on the ordinary, contemporary,

and common meaning of the statutory words.” Sinerius, 504

F.3d at 740 (internal quotation marks omitted).

Because each of the three types of offenses listed in

§ 2251(e) and § 2252(b)(2) involve sexual conduct and abuse,

we begin by identifying the federal generic meaning for these

terms. We give “the term ‘sexual’ its ordinary and

commonsense meaning.” Sinerius, 504 F.3d at 741. We have

 

9

 Section 2252(b)(2) provides, in pertinent part:

Whoever violates, or attempts or conspires to violate,

paragraph (4) ofsubsection (a) shall be fined under this

title or imprisoned not more than 10 years, or both, but

. . . if such person 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.
24 UNITED STATES V. SULLIVAN

addressed the term “abuse” in several different contexts.

“[W]e have defined ‘abuse’ to mean ‘misuse . . . to use or

treat so as to injure, hurt, or damage . . . to commit indecent

assault on.’” Id. at 740 (alterations in original) (quoting

United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.

2006)). This definition “encompass[es] behavior that is

harmful emotionally and physically.” Id. (alteration in

original) (quoting Lopez-Solis, 447 F.3d at 1207). In

addition, we have previously determined that a statutory rape

offense constitutes “the generic offense of ‘sexual abuse of a

minor’” if it includes the elements set forth in 18 U.S.C.

§ 2243, specifically: “(1) a mens rea level of knowingly; (2)

a sexual act; (3) with a minor between the ages of 12 and 16;

and (4) an age difference of at least four years between the

defendant and the minor.” Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), overruled on

other grounds by United States v. Aguila-Montes de Oca, 655

F.3d 915 (9th Cir. 2011) (en banc) (per curiam), abrogated by

Descamps, 133 S. Ct. 2276. This definition of “sexual abuse

of a minor” also “comports with ‘the ordinary, contemporary,

and common meaning of the words’” sexual abuse of a

minor. Id. (quoting United States v. Baron-Medina, 187 F.3d

1144, 1146 (9th Cir. 1999)). While we have rejected the

argument that the term “sexual abuse” must be defined by

reference to the federal offenses listed in 18 U.S.C.

§§ 2241–2248, see Sinerius, 504 F.3d at 742 (considering the

generic federal definition of “sexual abuse” for purposes of

18 U.S.C. § 2252A(b)), and thus we are not limited “to

looking to federal statutes to define federal generic offenses

where the federal statute uses the same name as a federal

generic offense,” United States v. Farmer, 627 F.3d 416, 421

(9th Cir. 2010), such federal statutes nevertheless are relevant

to our consideration of whether a particular state statute is

one “relating to” abusive sexual conduct, see Estrada-
UNITED STATES V. SULLIVAN 25

Espinoza, 546 F.3d at 1152–53 (stating that “it is unnecessary

to survey current criminal law to ascertain a federal [generic

definition of ‘sexual abuse of a minor’] because Congress has

already supplied it”).

We now turn to the California crimes of conviction at

issue here in order to compare them with the federal generic

offenses. Section 261.5(d) proscribes any person who is 21

years of age or older from engaging in an act of unlawful

sexual intercourse with a minor who is under 16 years of age. 

Cal. Penal Code § 261.5(d). Section 288a(b)(2) proscribes

any person over age 21 from participating in an act of oral

copulation with a person who is under 16 years of age. Id.

§ 288a(b)(2). Neither of these offenses includes misusing or

treating another so as to “to injure, hurt, or damage,” or

committing “indecent assault on” another, as an element,

which would constitute abuse. See Sinerius, 504 F.3d at 743. 

We have previously determined that because section 261.5(d)

criminalizes sexual relations with a person who is “a day shy

of 16,” it is not necessarily abusive. Pelayo-Garcia v.

Holder, 589 F.3d 1010, 1015–16 (9th Cir. 2009); see also

United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.

2009). The same reasoning applies to section 288a. Further,

the offenses described in section 261.5(d) and section

288a(b)(2) are not equivalent to the federal generic offense of

“sexual abuse of a minor” described in Estrada-Espinoza

because one element of that offense requires the government

to prove that the defendant engaged in the sexual act

“knowingly,” Pelayo-Garcia, 549 F.3d at 1013, and neither

California statute includes this mens rea requirement. 

Therefore, the state offenses are not a categorical match to the

federal generic definitions we have adopted for sexual abuse

of a minor.
26 UNITED STATES V. SULLIVAN

Unlike our usual categorical approach, however, the

federal statutes here do not require us to find that the state

conviction is categorically the same as any particular federal

offense, but only that the state conviction is one categorically

“relating to” such federal offenses. We have held that the

phrase “relating to” generally has a broadening effect on what

follows. For example, in the context of similar language in

18 U.S.C. § 2252A(b),10 we held that the phrase “relating to”

“does not simply mandate a sentencing enhancement for

individuals convicted of state offenses equivalent to sexual

abuse.” Sinerius, 504 F.3d at 743. “Rather, it mandates the

enhancement for any state offense that stands in some

relation, bears upon, or is associated with that generic

offense.” Id. This interpretation is consistent with Supreme

Court precedent, which has broadlydefined the term “relating

to” as “to stand in some relation; to have bearing or concern;

to pertain; refer; to bring into association with or connection

with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374,

383 (1992) (quoting Black’s Law Dictionary 1158 (5th

ed.1979)) (construing “relating to” in a different statutory

context). Accordingly, we reject Sullivan’s argument that a

prior conviction triggers a sentencing enhancement under

§ 2251(e) or § 2252(b)(2) only if the statutory definition of

the prior offense is equivalent to a federal generic definition. 

Indeed, requiring such equivalence would render the words

“relating to” in § 2251(e) and § 2252(b)(2) meaningless.

In considering the application of the Taylor categorical

approach to a statute that used the term “relating to,” the

10 That offense imposes a mandatory minimum enhancement where the

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.” 18 U.S.C. § 2252A(b)(1), (2). 
UNITED STATES V. SULLIVAN 27

Supreme Court recently affirmed that the words “relating to”

are “broad” and “indeterminate,” but cautioned that courts

may not extend these terms “to the furthest stretch of [their]

indeterminacy” where language and historical context tug “in

favor of a narrower reading.” Mellouli, 135 S. Ct. at 1990

(alteration in original) (internal quotation marks omitted). In

Mellouli, a lawful permanent resident had been convicted of

a misdemeanor offense for storing Adderall tablets in his sock

under a Kansas law making it unlawful “to use or possess

with intent to use any drug paraphernalia” to conceal a

controlled substance. Id. at 1983–84 (quoting Kan. Stat. Ann.

§ 21-5709(b)). “At the time of Mellouli’s conviction,

Kansas’ schedules included at least nine substances not

included in the federal lists.” Id. at 1984. The Board of

Immigration Appeals (BIA) determined Mellouli was

deportable under an immigration provision that authorizes the

removal of an alien “convicted of a violation of . . . any law

or regulation of a State, the United States, or a foreign

country relating to a controlled substance (as defined in

section 802 of Title 21).” Id. at 1984–85 (alteration in

original) (quoting 8 U.S.C. § 1227(a)(2)(B)(i)). The BIA

reasoned that § 1227(a)(2)(B)(i) covered Mellouli’s drug

paraphernalia offense because it involved “the drug trade in

general”; accordingly, there was no “need to show that the

type of controlled substance involved in a paraphernalia

conviction is one defined in § 802.” Id. at 1988 (internal

quotation marks omitted). The Eighth Circuit upheld this

determination on the ground that the offense was a crime

“associated with the drug trade in general” and because there

was “nearly a complete overlap between the drugs controlled

under state and federal law.” Id. at 1988–89 (internal

quotation marks omitted).
28 UNITED STATES V. SULLIVAN

The Court reversed, concluding that both the BIA and the

Eighth Circuit erred by failing to give effect to the

parenthetical limiting controlled substances to those “defined

in section 802 of Title 21.” Id. at 1990–91. The Court based

this determination on its analysis of the statutory language

and its historical context. Id. According to the Court, the

Taylor categorical approach had routinely been applied “to

assess whether a state drug conviction triggers removal under

the immigration statute.” Id. at 1987. The Court noted that

the removal statute as originally enacted “specifically listed

covered offenses and covered substances.” Id. In 1986,

Congress “replaced the increasingly long list of controlled

substances [in § 1227] with the now familiar reference to ‘a

controlled substance (as defined in [§ 802]).’” Id. (second

alteration in original). In determining whether a state statute

of conviction rendered an alien removable, the BIA

historically asked “whether the state statute under which the

alien was convicted covered federally controlled substances

and not others.” Id. This historical background, the Court

explained, “demonstrates that Congress and the BIA have

long required a direct link between an alien’s crime of

conviction and a particular federally controlled drug.” Id. at

1990. Therefore, the Court concluded that a state crime of

conviction does not “fall[] within a category of removable

offenses” defined by § 1227(a)(2)(B)(i) unless it covers the

same drugs as are listed in § 802, which the Kansas statute

did not. Id. at 1986, 1990–91.

Because Congress intended there to be a direct link

between the alien’s crime of conviction and the controlled

substances listed in § 802, the Court rejected the

government’s argument that state offenses that did not cover

drugs listed in § 802 could be offenses “relating to” the

substances controlled under § 802. Id. at 1990. In doing so,
UNITED STATES V. SULLIVAN 29

the Court first acknowledged that the words “relating to” are

broad.11Id. Indeed, the Court noted that “[i]f

§ 1227(a)(2)(B)(i) stopped with the words ‘relating to a

controlled substance,’” it “would make sense” to interpret the

Kansas offense as meeting the requirements of

§ 1227(a)(2)(B)(i). Id. at 1988 n.9. But because Congress

“qualified ‘relating to a controlled substance’ by adding the

limitation ‘as defined in [§ 802],’” it intended to include only

those state offenses in which a controlled substance as

defined in § 802 figured as an element of the offense. Id. at

1988 n.9, 1990–91 (alteration in original).

In sum, Mellouli cautions that while a federal statute’s use

of the terms “relating to” broadens its coverage, that

extension is not limitless. A court must consider history and

context to determine if they “tug in favor of a narrower

reading” of the federal provision. See id. at 1990 (alterations

and internal quotation marks omitted). Specifically, where

Congress expressly narrows the definition of the federal

offense (for example, by referring to a specific list of

controlled substances), we must conclude that a state offense

that exceeds that definition is not one “relating to” the federal

offense. See id. at 1990–91. Reading Morales and Mellouli

together, we interpret the phrase “relating to” broadly when

applying the Taylor categorical approach unless the text and

history of the statute require a narrower construction. See id.

at 1988 n.9, 1990–91; Morales, 504 U.S. at 383.

11

Indeed, even though the Kansas offense “would not have qualified as

a drug-paraphernalia offense” under federal law because “possession

alone” is not a federal crime, id. at 1985, the Court gave no weight to this

distinction because “[t]he drug-paraphernalia possession law under which

he was convicted, Kan. Stat. Ann. § 21–5709(b), by definition, related to

a controlled substance.” Id. at 1984.
30 UNITED STATES V. SULLIVAN

Applying this framework, we first consider whether

anything in the text or historical background of § 2251(e) or

§ 2252(b)(2) indicate that Congress intended to limit the

sexual abuse offenses listed in those statutes to certain

specific federally defined offenses or acts, in the same way

that Congress intended to limit “controlled substance” to only

those listed in § 802. See Mellouli, 135 S. Ct. at 1990–91. 

We conclude they do not. Neither the text of § 2251(e) nor

the text of § 2252(b)(2) contains any language analogous to

the parenthetical considered in Mellouli. Instead, the terms

“sexual abuse” and “abusive sexual conduct involving a

minor or ward” are unqualified, just as the term “controlled

substance” would have been without the limiting

parenthetical. See id. at 1988 n.9. Other circuits agree that an

enhancement for a prior conviction “relating to” specified

abusive sexual acts “does not require that the predicate

conviction amount to ‘sexual abuse’ or ‘abusive sexual

conduct involving a minor.’” E.g., United States v. Colson,

683 F.3d 507, 511 & n.2 (4th Cir. 2012) (considering

18 U.S.C. § 2252A(b)(1)). Turning to the historical

background of § 2251(e) and § 2252(b)(2), we have

previously determined that Congress did not require a “direct

link,” Mellouli, 135 S. Ct. at 1990, between the state crime of

conviction and a particular federal statute. See Sinerius,

504 F.3d at 742 (rejecting the argument that the phrase

“sexual abuse” must be defined by reference to the federal

offenses listed in 18 U.S.C. § 2241–2248). Rather,

“Congress’s use of [the ‘relating to’] phrase in § 2252(b)(2)

indicates its intent to allow a sentencing court to look beyond

the mere elements of a prior state conviction in determining

whether such conviction is sufficient to trigger application of

the sentence enhancement provisions.” United States v.

McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005). Because

neither context nor history tugs “in favor of a narrower
UNITED STATES V. SULLIVAN 31

reading,” cf. Mellouli, 135 S. Ct. at 1990 (internal quotation

marks omitted), we define the phrase “relating to” in

§ 2251(e) and § 2252(b)(2) broadly. See Morales, 504 U.S.

at 383.

We now consider whether the specific state offenses at

issue here, sections 261.5(d) and 288a(b)(2) of the California

Penal Code, are categorically offenses “relating to”

aggravated sexual abuse, sexual abuse or abusive sexual

conduct involving a minor or ward, 18 U.S.C. §§ 2251(e),

2252(b)(2) (emphasis added). Sections 261.5(d) and

288a(b)(2) are crimes that relate to the generic offense

“sexual abuse of a minor” as defined in Estrada-Espinoza. 

Although the state offenses lack the mens rea element noted

in Estrada-Espinoza, 546 F.3d at 1158, this element relates to

the culpability of the defendant, not to the impact of the

conduct on the minor. The elements relating to the effect of

the offense on the minor indicate that under our generic

federal statutory rape definition, sexual conduct is abusive

when the minor is under 16 and the defendant is four or more

years older. Section 261.5(d) and section 288a(b)(2) include

these elements, because they proscribe sexual acts between a

minor under 16 and a defendant who is 21 years of age or

older. Accordingly, the state crimes necessarily involved

“conduct that causes physical or psychological harm in light

of the age of the victim in question,” Pelayo–Garcia,

589 F.3d at 1014 (internal quotation marks omitted), and as

such, are crimes “relating to . . . sexual abuse.” Therefore,

theyare categoricallyoffenses “relating to” aggravated sexual

abuse, sexual abuse or abusive sexual conduct involving a

minor or ward, 18 U.S.C. §§ 2251(e), 2252(b)(2).

In reaching this conclusion, we join the Eighth Circuit. In

a similar context, the Eighth Circuit concluded that because
32 UNITED STATES V. SULLIVAN

the term “relating to” “carries a broad ordinary meaning,” a

state conviction for lascivious acts with children was an

offense “relating to” sexual abuse, even though the state

offense did not include the element of physical contact

required for the generic federal offenses spelled out in 18

U.S.C. §§ 2241, 2242, or 2243. United States v. Sonnenberg,

556 F.3d 667, 670–71 (8th Cir. 2009) (internal quotation

marks omitted); cf. United States v. McGarity, 669 F.3d 1218,

1262–63 (11th Cir. 2012) (noting that “any perceived

difference” between “abusive sexual contact” in § 2251(e)

and the state offense of “enticing a minor for indecent

purposes,” which did not require touching or attempting to

touch a minor, “is overcome by our interpretation of the

phrase ‘relating to’”).

Applying this approach, we conclude that the conduct

proscribed by section 261.5(d) and section 288a(b)(2) is

categorically a conviction “under the laws of any State

relating to . . . sexual abuse” for purposes of § 2251(e) and

§ 2252(b)(2). Because Sullivan’s prior conviction

categorically relates to sexual abuse as that phrase is

ordinarily understood, we conclude the district court properly

applied the mandatory minimum enhancement provisions

contained in both statutes of conviction.12

12 Because we decide the enhancements were proper on this ground, we

need not address Sullivan’s argument regarding Descamps or the

government’s argument that the same enhancements are also appropriate

based on Sullivan’s pimping and pandering convictions, see Cal. Penal

Code §§ 266h(a), 266i(a)(2).
UNITED STATES V. SULLIVAN 33

V

Finally, we address the government’s argument on cross

appeal that the district court erred by sustaining Sullivan’s

objection to the inclusion of a two-level Guidelines

enhancement for obstruction of justice. “In determining

whether the district court committed procedural error, we

review the district court’s interpretation of the Sentencing

Guidelines de novo and its factual findings for clear error.” 

United States v. Smith, 719 F.3d 1120, 1123 (9th Cir. 2013).13

“It would be procedural error for a district court to fail to

calculate—or to calculate incorrectly—the Guidelines range.” 

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc).

Section 3C1.1 of the Guidelines is applicable if “the

defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice” with respect

to the prosecution of the offense of conviction. U.S.S.G.

§ 3C1.1. The enhancement applies when the district court

finds that the defendant gave materially false testimony at

trial with the willful intent to provide false testimony. United

States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir.

2007) (per curiam).

Although the district court did not credit Sullivan’s

testimony, and concluded that Sullivan had testified

untruthfully during the trial, the district court determined that

the two-level enhancement for obstruction of justice should

13 Although we have yet to resolve the “intracircuit conflict as to

whether the standard of review for application of the Guidelines to the

facts is de novo or abuse of discretion,” United States v. Swank, 676 F.3d

919, 921–22 (9th Cir. 2012), the standard of review is not at issue here.
34 UNITED STATES V. SULLIVAN

not be included in Sullivan’s offense level. The district court

explained its reasoning as follows. First, the district court

indicated that the § 3C1.1 enhancement was not applicable

because the court was not actually misled. The court

explained that “[t]he question is whether or not I was

obstructed as far as justice is concerned,” and concluded that

it was not, and that it “had the responsibility of making

credibility determinations under any circumstance.” Second,

the court noted that “the defendant has the right to testify, and

that there is a problem of when you punish, and you punish

for that testimony you are in a sense punished twice.” 

Finally, the district court remarked that applying the twolevel enhancement would result in a sentencing impact which

was “far more than it should be.”

None of these concerns is a correct basis for excluding the

obstruction of justice enhancement from the calculation of the

base offense level. First, conduct that “has the potential for

obstructing” the prosecution of the offense is sufficient to

warrant enhancement. United States v. Draper, 996 F.2d 982,

986 (9th Cir. 1993). Indeed, an application note to the

Guidelines states that “providing materially false information

to a judge” is conduct to which the enhancement applies. 

U.S.S.G. § 3C1.1 cmt. n.4(F). Second, the Supreme Court

has rejected the view that imposing a penalty for perjury at

trial violates the privilege of an accused to testify on his own

behalf. As the Supreme Court has explained, “a defendant’s

right to testify does not include a right to commit perjury,”

and thus the enhancement penalizes the defendant for perjury,

not for testifying. United States v. Dunnigan, 507 U.S. 87, 96

(1993). Finally, while the district court has discretion in

pronouncing a sentence, it must first correctly calculate the

applicable Guidelines range. See Carty, 520 F.3d at 993. 

“The Supreme Court has made clear that the district court
UNITED STATES V. SULLIVAN 35

must correctly calculate the recommended Guidelines

sentence and use that recommendation as the starting point

and the initial benchmark.” United States v. MunozCamarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam)

(internal quotation marks omitted). Accordingly, the district

court erred in its legal analysis of Sullivan’s offense level.

Although there are circumstances where an erroneous

Guidelines calculation can be harmless, id. at 1030 & n.5, this

is not one of those cases. If a two-level obstruction

enhancement were imposed, Sullivan’s Guidelines range

would have been 324 to 405 months (as opposed to 262 to

327 months), requiring the district court to provide a greater

justification for imposing a below-Guidelines sentence of 300

months. See id. at 1031; see also Carty, 520 F.3d at 991–92

(noting the district court must explain its reasoning for the

extent of a variance).

Because we cannot tell if the district court would impose

the same sentence if it applied the correct legal analysis, a

remand for resentencing is required. See Jimenez-Ortega,

472 F.3d at 1103–04 (explaining that findings regarding

factual predicates of an obstruction enhancement must be

made by the district court in the first instance).

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.