F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

E D W A R D L E E S U L L I V

A N , Defendant-Appellant

. N o. 12-10196

D.C. No. 4:09-cr-00167- D L J -1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellant

,

v

.

E D W A R D L E E S U L L I V

A N , Defendant-Appellee

. N o. 12-10217

D.C. No. 4:09-cr-00167- D L J -1

ORDER AND OPI NI ON

A ppeal from the United States District Court for the Northern District of California D. L o well J ensen, Senior District J udg e, Presiding

Arg ued and Submitted J anuary 14, 2014—San F rancisco, California

F iled J uly 29, 2015U N I T E D S T A T E S V

. S U L L I V A N 2

B efore: Richard C. Tallman and Sandra S. I kuta, Circuit J udg e s, and B everly Reid O’Connell, District J udg e. *

Opinion by J udg e I k

uta

SUMMARY * *

Crim inal Law

T he p anel withdrew an o pinion filed on May 28, 2014, and filed a sup e r s e d ing opinion affirming in part a nd

r e v e rsing in part a criminal judg ment, and remanding

, in a

case in which the d efendant was convicted under 18 U .S.C. §§ 2251(a) and 2252(a)(4)(B ) for producing and pos sessing

a sex ually ex plicit video depicting a 14-y ear-old g irl.

The panel held t h at v e nue in the Northern District o f C alifornia f

or the production count was not improper, a n d that National Federation of Independent Business v. Sebelius

, 132 S. Ct. 2566 (2 012), does not undermine this court’s precedent that Cong r ess may r eg u late even pur ely intrastate production of c hild pornog r aphy and criminaliz e its intrastate possession.

The panel held that the d istrict co u r t d i d not err in de n y ing the defendant’s motion to suppress evidence

* T h e H o n o rab le B ev erly Reid O’ Co n n ell, Un ited States District Co u rt J u d g e f o r th e Cen tral District o f

Calif o rn ia, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. S U L L I V A N 3

obtained from his laptop computer. Ba lancing the nature o f the intrusion into the d efendant’s possessory interests ag ainst the g overnment’s interests justify ing the intrusion, the panel concluded that the g overnment’s seiz u re and retention of the laptop for 21 day s befor e o b t a i ning a search warrant was, under the totality o f the c i r c u mstances, not unreasonable under the F o urth Amendment.

The panel held that v iolations of Calif. Penal C o d e § 261.5(d) (unlawful sex ual intercourse with a m i nor under 16 y ears of ag e) and Calif. Pe n a l Code § 288a(b)(2) (oral copulation w ith a minor under 16 y e a r s o f ag e) a re categ orically offenses “relating to” a g g ravated sex ual abuse,

sex ual abuse or abusive sex ual conduct involving a minor o r 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 tog ether Morales v. Trans W orld Airlines, Inc.
, 504 U.S. 374 (1992), and Mellouli v. Lynch

, 135 S. C t

. 1980 ( 2015), the panel interpreted the phrase “relating to” broa d l y when apply ing the Taylor categ orical approach unless the tex t and history of the statute require a n a rrower construction, which it concluded is not the case with §§ 2251(e) or 2252(b)(2).

On the g overnment’s cross-appeal, the panel held that the d i s t r ict court erred in its leg al analy sis when sustaining the defendant’s objectio n to the inclusion o f a two-level enhancement for obstruction o f justice u nder U.S.S.G. § 3C1.1. The p a n e l remanded for resentencing b ecause it could not tell if the district court would impose the same sentence if it applied the correct leg al analy sis.U N I T E D S T A T E S V

. S U L L I V A N 4

COUNSEL

J ohn J

. J o rdan, San F r a n cisco, California, for D efendantAppellant/Cross-Appellee.

Anne Voig ts (arg

ued), A ssistant Un i t ed States Attorney ; Melinda Haag
, United States Attorney ; B arbara J

. V alliere, Assistant United States Attorney
, Chief, Appellate D ivision, San F ranc i sco, California, for Plaintiff-Appellee/CrossAppellant.

Sean Kennedy

, F ederal Public Defender; Koren B ell, Deputy F ederal Public De f

e n d e r , L o s Ang eles, California, for Amicus Curiae F ederal Public Defender f or the Centr a l D i s trict o f California.

ORDER

The o p inion filed on May 28, 2014, and appe a r i n g at 753 F .3d 845, is withdrawn. The superseding opinion will be filed concurrently with this order. The parties m ay file additional petitions for rehearing or rehearing

en banc.

OP INION

I KUTA, Circuit J udg e:

Edward Sullivan was c onvicted of v i o l ations under 18 U.S.C. §§ 2 251(a) and 2252(a)(4)(B ) for p r o d u c ing a nd
p ossessing a sex ually ex plicit video depicting a 14-y ear-ol d
g irl. He raises multiple challeng es to these convictions, a sU N I T E D S T A T E S V

. S U L L I V A N 5

well as to the mandatory minimum sentences imposed under 18 U.S.C. §§ 2251(e) and 2252(b)(2). The g overnment cross appeals, arg uing that the district court mi scalculated Sullivan’s Sentencing Guidelines r ang e

. We h a v e j u r i s d iction
pur s u a n t to 18 U.S.C. § 3 742 and 28 U.S.C. § 1 291, a nd affirm in part and reverse in part. 1

I

Sullivan’s use o f 14-y ear-old Erika Do e t o p roduce the

sex ually ex p licit video at issue in t h i s case was not the first time h e eng ag ed in s e x

- r e l ated conduct with a minor. I n 2001, Sulliv a n w a s c o nvicted in Nevada o f conspiracy to commit pandering involvi n g a 13-y ear-old g irl. I n 2002, Sullivan was convi c t e d in California of four o ffenses involving a 14-y ear-old female victim: (1) u nlawfu l s e x ual intercourse with a minor in violation o f California Penal Code § 261.5(d); (2) oral c opulation with a minor in violation o f California Penal Code § 2 88a(b)(2); (3) p imping in violation of California Penal Code § 266h(a); and (4 ) p andering in violation o f California Penal Code § 266i(a)(2). Sullivan was

se n t e n ced to 140 months imprisonment for the California convictions.

I n November 2007, Sullivan was released on parole. A s

a parolee, Sullivan was subject t o a r a n g e of standard a nd special parole c ondi t i o n s. Among the standard parole conditions was a consent to search, w hich stated: “You and
y our residence and a

ny property under y our c ontr ol may be searched w ithout a warrant by a n a g ent of the Department o f

1 We reso lv ed Su lliv an ’ s rem ain in g claim s in a p rev io u sly f iled

m em o ran d u m d i sp o sitio n

. U n i t e d S ta tes v. S

u lliva n , 5 7 5 F. A

p p ’ x 9 7 3 (9 th Cir. 2 01 4 ).U N I T E D S T A T E S V

. S U L L I V A N 6

C o r rections or any law enforcement officer.” I n addition

, Sullivan was subject to a number of special p arole conditions, which (among other thing s) prohibited him from having any contact with females be t w e e n the ag es of 14 and 18 y ears,

a n d p r o v i d e d t h a t “ [ a ] n y c o m p u t e r o r m o b i l e telecommunications d evice u nder y o ur control, or [to] which
y ou have access, is subject to search a nd seiz ure by y our Parole A g e nt.” The California Department of Corrections
g ave Sull i v an notice o f these conditions, which Sullivan acknowledg ed by sig ning the n otice form and initialing e ach of the special conditions.

Sulli v a n took up temporary residence at the B ay B reez e I nn located in Oakland, Californi a

. I n March 2 008, about four months after his release, Sullivan approached E r i k a, a 14-y ear-old g irl who w as standing o n a str eet in B erkeley

, California, with her friends after school. Afte r E r i k a a nd Sullivan talked, she left with Sullivan in his car. Erika stay ed with Sullivan for the nex t two weeks. On the first nig ht, Sullivan took E rika to the h ouse of Kimberlea Reed, a friend of his who lived in Vacaville, Califo r nia. Reed knew that Sullivan w as not allowed to have con t a c t with minor g irls, and when E rika failed to produce a l i ce n s e proving she was 18 y ears old, Reed told Sullivan n o t to bring Erika to her home. F or the nex t two weeks, Sullivan and Erika stay ed at the B ay B reez e I nn o r in Sullivan’s car, but returned at least

once to the h ouse in Vacaville. W hile at the B ay B reez e I nn, Sullivan had sex with Erika.

The district court found tha t during this period, Sullivan became the d ominating force in E rika’s life, and controlled all of her d aily activitie s

. Among other thing s, Sullivan

r e placed E rika’s clothing with more a dult and sophisticated outfits and paid to have h er hai r s t raig htened and a mplifiedU N I T E D S T A T E S V

. S U L L I V A N 7

with ex tensions. Erika testified that sh e w a s afraid o f Sullivan, a larg e man in his forties, a bout six feet five inches tall and 250 pounds.

Over the cour s e of the two weeks that Erika remained with Sullivan, he took numerous videos and still photog raphs of Erika in various poses. I n several o f the v i d e o s , Sullivan discussed prostitution with Erika. I n one video, S ullivan discussed a past incident where he had “ c hecked” or punished Erika because she had tried to leave him. Sullivan uploaded

one of the still photog raph s o f Erika o nto an adult website, “F ung irlsplay

, ” using his name and e-mail address.

On March 9
, 2008, Sullivan returned to the house in Vacaville where he made the sex v ideo at issue in this case using a dig ital camera that had been manuf a c t u r e d in China and ex p o rted to the United States. A ccording to the district court, the v ideo, 100_0064.mov, showed Erika p erforming

o ral sex on Sullivan. E rika’s face was clearly visible in the video, and a man’s voice could be hear d in the backg round, directing and describing the activities that were taking place. At trial, Erika testified that Sullivan h ad 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 p roduced, Sullivan recorded and narrated two other videos, one of which showed Erika naked from the waist up, and the other showed Sullivan questioning E r ik a r eg arding whether she wanted to be a porn star.

On March 17, 2008, an Oakland police o f ficer saw Erika standing o n the street in an area f requented by p r o s t itutes. Suspecting she was enga g ing in prostitution, the officer stopped her for questioning

. I n response to a question about Sullivan, who was standing nearby , Erika denied he was herU N I T E D S T A T E S V

. S U L L I V A N 8

pimp. Althoug h the Oakland police stopped and questioned Sullivan, they did not arrest him. The officer took Erika into custody

, and after lea rn i n g that she was the subject of a missing persons report, r e t u rned h er to her mother. Once Erika was home, her mother took her to the hospital, w here Erika made a statement to the police. B ecause the i n i t i al abduction occurred in B erkeley

, jurisdiction o ver the investig ation was transferred to the B erkeley Police Department.

About a week later, on March 2 4
, 20 0 8, Erika’s mother contacted Sullivan’s p arole officer and reported that Sullivan had kidnaped, raped, and pimped her daug hter. B ased on this report, Sullivan’s parole was revoked. On M a r c h 25, 2008, parole officers arrested Sullivan in his car outside of the B ay B reez e I nn. During a parole search of the c a r , the ag ents seiz ed several items, including the laptop computer, dig i t al
camera, a book about pimping

, a nd a cellular telephone. The parole officers took Sullivan into cust ody and charg ed him with eig ht parole v iolations, including th at Sullivan forced Erika to e ng ag e in intercourse a n d had kept p o rnog raphic imag es 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 B erkeley Police Department b e cause the California D epartment of Corrections did not have the technical ability to conduct a forensic search of the laptop.

On A pril 10, 2008, Detective Kaplan an d Serg e ant Ross of the B erkeley Police Department inte rviewed Sullivan a t the jail where h e was being held. Sullivan claimed that in one o f

2 On A p ril 1 4
, 2 0 0 8
, Su lliv an ag reed to a d isp o sitio n o f t h e v io latio n ch arg es.U N I T E D S T A T E S V

. S U L L I V A N 9

the videos on his laptop, Erika stated that she was 19 y ears old. Sullivan ag r eed that the police should view the video to corroborate his belief about Erika’s ag e. He stated, “L ook in the c omputer. I g ive y ou c o n sent.” Sullivan also sig n ed a

c o n sent form. 3 On April 15, 2008, Detective Kaplan a l s o obtained a search warr a n t to search the laptop. A forensic search of Sullivan’s laptop revealed the sex v ideo at issue in this case.

The fede ral g overnment filed a two-count indictment
ag ainst Sullivan in the Northern District of California on F ebruary 18, 2009. Count 1 char ge d Sullivan with production o f child pornog raphy pursuant to 18 U .S.C. § 2251(a). Count 2 charg ed Sullivan with possession of child
pornog raphy p ursuant to 1 8 U.S.C. § 2252(a)(4)(B ). Sullivan entered a p lea o f n o t gu ilty

, and later w aived his rig ht to a jury trial.

Be f ore trial, Sullivan moved to suppress the evidence obtained from his laptop computer. Relevant to this appeal, he arg ued that the 2 1-day delay b etween March 25, 2008, the

3 T h is co n sen t f

o rm stated :

I, Ed w ard Su l liv an , g iv e Of f i cer Kap lan

an d Sg t. Ro ss

o f th e B erk eley P o lice Dep artm en t p erm issio n to search th ro u g h all f

iles, h ard d riv es an d all in f o rm atio n

co n t ain ed o n m

y co m p u t e r t h at w as tak en f

ro m m e b y A g en t T ran [, a p aro le of f icer,] w h en I g ot arrest ed

. In clu din g all d r i v es, in tern al an d ex tern al sto rag e d ev i ces.

I g iv e th is p erm issio n an d co n sen t f reely

. I w as n o t

co erced

.

I also g i v e co n sen t to search m y cam era.U N I T E D S T A T E S V

. S U L L I V A N 10

date the parole officers seiz ed the laptop, and April 15, 2008, the d ate the p olice o btained a warrant, was unreasonable, a nd therefore the search and seiz ur e of the laptop violated his F ourth Amendment rig ht s

. T he district court denied the motion.

The bench trial comm en ced on December 14, 2010. At the close of the g overnment’s case-in-chief, Sullivan moved
to dismiss Count 2 (possessi on of child pornog r aphy under § 2252(a)( 4 ) ( B) ) because the sex video was not sufficiently connected to interstate c o mmerce, and moved t o dismiss Count 1 (production of child p o r n o g r aphy under § 2251(a)) for lack of v enue, because the video had been f ilmed in Vacaville (in the E a stern District of Califo r n i a )

, a nd the district court w as in the Northern District of California. The district court denied both motions.

At the conclusion o f the 13-day bench t r ial, the district
court found Sullivan g uilty on both counts. The district court found incredible Sullivan’s testimony that he did not know Erika w as a minor, g iven that Erika’s p h y s i c al appearance made it clear that she was an adolescent. 4

During the sentencing phase of the p roceeding

, 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 sex ual intercourse with a minor and oral copulation with a minor, see Cal. Penal Code §§ 261.5(d), 288a(b)(2). The district court also r uled on

4 Su lliv an f

iled s ev eral po st- v erd ict m o tio n s, o n e o f w h ich reiterated h is
arg u m en ts t

h at th e d i s t r ict co u rt lack ed j u risd ictio n an d v en u e. T h e d istrict co u rt co n clu d ed th ere w as n o b asis to rev isit its p rio r ru lin g s.U N I T E D S T A T E S V

. S U L L I V A N 11

Sullivan’s object i o n to the two-level G uidelines enhancement for obstruction of ju s t i ce recommended in the Presentence I nvestig ation Report (PSR). D espite having found Sullivan’s testimony “not credible” and “ n o t true,” the district court sustained the objection a n d declined to increase Sullivan’s offense level from 36 to 38.

The district court sente n ced Sullivan to the mandatory minimum 25 y ears imprisonment f or the conviction under § 2251(a ) and the mandatory minimum 10 y ears imprisonment for the conviction under § 2252(a)(4)(B ), to be served concurrently

, followed b y a lifetime of supervised relea s e. Sullivan timely appealed his convictions a nd
sentence. The g overnment cross appealed the district court’s ruling reg arding the obstruction enhancement.

I I

W e beg in by addressing Sullivan’s threshold arg uments that the district court erred in deny ing his motion to d i s miss Count 1 of the indictment (production o f child pornog raphy under 18 U.S.C

. § 2 2 5 1(a)) for improper venue, and his motion to d ismiss Count 2 of the in d i c tment (possession o f child p ornog raphy under 18 U .S.C. § 2 252(a)(4)(B )) for lack of federal jurisdiction.

A

Sullivan arg u es that the district c ou rt was required to dismiss the production of child pornog raphy count, 1 8 U .S.C. § 2251(a), for lack o f v e n u e in the Northern District o f Cal ifornia because Sullivan produced the sex video at issue in the Eastern Di s t r i c t of California. W e review the districtU N I T E D S T A T E S V

. S U L L I V A N 12

court’s venue determination d e n o v o

. United States v

. Gonzalez

, 683 F

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

T h e Constitution p rovides that the trial in a crim i n al
p r o s ecution shall be in the “ [ s] tate where the said [ c] ri m e s shall have been c ommitted.” U.S. Const. art. I I I
, § 2, c l

. 3;

see also F ed. R. Crim. P. 18 (“Unless a statute or these rules permit otherwise, the g o vernment must prosecute an offense in a dist r i c t where the offense w as committed.”). Under 18 U .S.C. § 3 2 3 7(a), offenses “beg un in one district a nd completed in another, or c ommitted in more than one district,
may be inquired of a

nd p rosecuted in a

ny d istr i c t i n which

s u ch offense was beg un, continued, or completed.” To determine w h e t her a crime is a continuing offense for
purposes of § 3237, “a cour t must initially identify the conduct constituting the offense (the nature o f the crime) a nd then discern the location of the c o mmission of t h e c r i m inal acts.” United States v. Stinson
, 647 F .3d 1196, 1204 (9th Cir. 2011) (quoting United S

tates 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 charg ing district.” Id. (quoting Rodriguez-Moreno

, 526 U.S. at 280–82).

Here, the conduct constituting the elements of a § 2251(a) offense include: (1) employ ing

, u sing

, persuading

, inducing

, enticing or coercing any minor to e ng a g e in “a n y s ex ually

ex p licit c onduct”; (2) “for the purpose of producing any

v isual depiction of such conduct”; (3) if the depiction “ w a s produced or tran s m itted using materials that have been mailed, shipped, or transported in or affecting interstate o r foreig n commerce.” 18 U.S.C. § 2251(a). Sullivan eng ag ed in conduct constituting the offense i n both the Northern a nd Eastern Districts of California. F irst, the district court f oundU N I T E D S T A T E S V

. S U L L I V A N 13

t h a t S u l l ivan “established and maintained phy sical and men t a l

c o n t r ol over the relationship between himself a nd the g i r l from the time she first entered his car” in B erkeley

, which is in the Northern District, and used th i s co ntrol to coerce her int o making a sex video. Second, the court found that Sullivan used his control over Erika to induce her to produce the sex video at is s u e ( t he second element of the § 2251(a) offens e ) i n V acaville, which is in the Eastern District. According ly

, Sullivan’s conduct c onstituting the § 2251(a) offense spanned more than o n e district. Sullivan arg ues that his interactions with Erika in the Northern District o f California were me r e l y preliminary

, or were for the sole
purpose of r e c ruiting Erika to become a prostitute, a nd therefore were not essential steps towards making the v ideo. This arg ument is meritless; the ev i d e n ce adduced at trial supports the district court’s finding s that the per s u asion, inducement, enticement a n d coercion that led to t he v ideo’s filming in V acaville had their g enesis i n the Northern District. See United States v

. Engle

, 676 F. 3d 405, 417–18 ( 4 t h Cir. 2012) (holding that venue for a violation of § 2251(a) is proper in the district wher e a d e f endant entices th e v i c tim to eng ag e in sex ual conduct, even thoug h the defendant created the v ideo a t i ssue in a different d istrict). Therefore, v en ue was p roper in the Northern District o f California under § 3237(a).

B

W e nex t address Sullivan’s arg ument that Cong ress lacks the authority to reg ulate pu r e l y intrastate production a nd possession of a sing le video, and therefore neither § 2251(a)U N I T E D S T A T E S V

. S U L L I V A N 14

nor § 2252(a)(4)(B ) can constitutionally be applied to him. 5 W e have previously rejected this arg ument, concluding th at Cong r ess could rationally “conclude that homeg r o w n child
pornog raphy affects in terstate commerce,” and therefore Cong r ess may reg u late even purely intrastate producti on o f child pornog raphy

, see Un ited S tates v. McCalla

, 545 F .3d 750, 755–56 (9th Ci r

. 2008), and criminaliz e its intrastate possession, United States v. Gallenardo

, 579 F .3d 1076, 1081 (9th Cir. 2 0 0 9). Nevertheless, Sullivan claims that the Supreme Court’s recent decisi on in National Federation of Independent B us i n ess v. Sebelius ( NFIB ), 132 S. Ct. 2566 (2012), requires us to overrule this prece d e nt. W e disag ree. Chief J ustice Roberts’s separate opinion in NFIB stated that the Commerce C l a u se did not g ive Cong ress authority to “compel[ ] individu a l s to become active in commerce b y purchasinga product.” I

d. at 2587 (emphasis omitted). The four dissenting justices ag reed that “one does not reg ulate

commerce that does not ex ist by compelli n g its ex istence.” Id. at 2 644 (Scalia, J

. , dissenting )

. According ly

, five justices
ag reed that the Commerce Clause g ives Congr e s s authority only to reg ulate commerce, n ot to compel it. This p recedent is not applicable here, however, bec a use § 2251 a nd § 2252 do not compel commerce, but merely reg ulate an activity that Cong r ess could rationally determine w ould affect interstate
commerce, taken in the ag g reg ate. See Gallenardo

, 579 F .3d
at 1081; McCalla

, 545 F .3d at 755–56. B ecause NFIB is not “clearly irreconcilable” with our p recedents, they remain

5 Fo llo w i n g th e g o v ern m en t’ s co m p letio n o f its case-i n -c hi e f i n th e b en ch t rial, Su lliv an m o v ed f

o r acq u ittal on Co u n t 1 o f th e in d ictm en t on th e g ro u n d th at it co u ld n o t b e co n stitu t io n ally ap p lied to h im

, b u t h e did

n o t ch allen g e C o u n t 2 o n t h is b asis. W e rev iew a su f f icien cy o f t h e

ev id en ce ch allen g e t

h at is f irst b ro u g h t o n ap p eal f

o r p l ain erro r. Un ited S ta tes v. Delg a d

o , 3 5 7 F.3 d 1 06 1 , 1 0 6 8 (9 th Cir. 2 0 0 4 ).U N I T E D S T A T E S V

. S U L L I V A N 15

binding

. Miller v. Gammie
, 335 F .3d 889, 900 (9th Cir. 2 003) (en banc); see also United States v. Sheldon , 755 F .3d 1047, 1050 (9th Cir. 2014) (concluding that because the recor d e r used to produce child por n og raphy was manufactured in Chi n a , there was “sufficient [ evidence] to satisfy the jurisdictional element of § 2251(a)”). According ly

, § 2251(a) and § 2252(a)(4)(B ) are c onstitutional as applied to Sullivan.

I I I

W e nex t consider Sullivan’s a r g u ment that the district
court e rred in deny ing his motion to suppress eviden c e obtained f rom his laptop computer. He c laims that under the reasoning in United States v. Dass
, 849 F .2d 4 1 4 (9th Cir. 1988), and the Eleventh Circuit’s decision in United States v

. Mitchell

, 565 F .3d 1347 (11th Cir. 2009) ( per curiam), the
g overnment’s unex plained 21-day d elay in obtaining a search
warrant was unreasonable, and therefore violated his F ourth A m e ndment rig h ts. 6 W e r eview de novo the denial o f Sullivan’s suppression motion. U nited States v. Hernandez

, 313 F

. 3d 1206, 1208 (9th Cir. 2002). W e review the district

6 S u l liv an ’ s su

p p ressio n m otio n in th e d istrict co u rt p ertain ed to

ev id en ce o b t a i n e d f

ro m h is lap to p co m

p u ter. T o t

h e ex ten t Su lliv an claim s o n ap p eal th at ev id en ce o btain ed f ro m h is d ig ital cam era sh ou ld h av e also b een su

p p ressed

, t

h is arg u m en t is w aiv ed

. S ee Fed

. R. Crim

. P

. 1 2 (b )(3 )(C), (e) (p ro v id in g th at a party w aiv es an y o b j ectio n t h at m u st b e

m ad e i n a p retrial m o tio n , in clu d i n g a m o tio n to su p p ress ev i d en ce, b y f ailin g t o raise it at th e p ro p er tim e); see a lso Un ited S t a t e s v. Da vis
, 6 6 3 F.2 d 8 2 4
, 8 3 1 (9 th Cir. 1 9 8 1 ) (m o tio n s to su p p ress ev id en ce m

u st b e raised p rio r to trial). “ A lth o u g h w e m ay g ran t relief

f ro m a w aiv er i f

th e d ef en d an t p resen t[s] a leg itim ate ex p lan atio n f o r h is f ailu r e t o r a i s e th e i s s u e in a tim ely m an n er,” U n ited S ta tes v. Ma u sa li

, 5 9 0 F.3 d 1 0 7 7
, 1 0 8 0

– 8 1 (9 th Cir. 2 0 1 0 ) (in t ern al q u o tatio n m ark s o m itted ), Su lliv an h as p resen t ed n o su ch

leg itim ate ex p lan atio n

h ere.U N I T E D S T A T E S V

. S U L L I V A N 16

court’s factual finding s for clear error. U nited States v. Gill

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

The F ourth Amendment protects the “rig ht o f the people
to be secure in their per s o n s , h ouses, papers, and effects,
ag ainst unreasonable sear c h es and seiz ures.” U.S. Const. amend I V. An unreasonable delay between the seiz ure of a packag e a

nd obtaining a s e a r ch warrant may violate the defendant’s F ourth A mendment r ig hts. The touch s tone is reasonableness. See United States v. Van Leeuwen
, 397 U.S. 249, 252–53 (19 7 0 )

. We “determine whether the delay was ‘reasonable’ under the totality o f the circumstances, not whether the Government pursued the least intrusive course o f action.” Hernandez

, 313 F .3d at 1213. Such determinations

are made on a case-by

- c a s e basis. See Van Leeuwen
, 397 U.S. at 253.

The Supreme Court has adopted a bala n c i n g test to determine whether a seiz ure is reasonable. We must balance “the nature and quality of the intrusion o n t h e i ndividual’s F ourth Amendment interests ag ainst the import a n c e of the
g overnmental interests alleg ed to justify the intrusion.” United S tates v. Place

, 462 U .S. 6 96, 7 03 (1983). I n balancing these interests, c o urts m a y consider whether the individual c onsented to a seiz ure and search

. See, e.g. , United States v. Stab i l e , 6 3 3 F .3d 2 19, 235 (3d Cir. 2011). “W h e re a person consents to search and seiz ure, no possessory interest has been infring ed because valid consent, by definition, r equires voluntary tender of property .” Id. ; see also United S

tates v. Christie

, 717 F .3d 1156, 1163 ( 10th Cir. 2013); U n ited States v. Laist
, 702 F .3d 608, 618 (11th Cir. 2012). Courts may also consider a defendant’s parolee status. See Samson v. Califor n ia
, 547 U.S. 843, 849–50 (2006) (parolee status sig nificantly diminishes privacy interests); seeU N I T E D S T A T E S V

. S U L L I V A N 17

also Soldal v. Cook Cnty., Ill.

, 506 U.S. 56, 68–69 (1992) (holding that intrusions into p ossessory and privacy interests resulting from a seiz u re must satisfy simil ar F ourth Amendment standards).

I n a pply ing this balancing test to the seiz ure of Sullivan’s laptop, we start by

considering the ex tent of the intrusion on Sullivan’s possessory inter e s ts g iven the totality of the circumstances. W e conclude they were minimal. During the entire time period when the laptop was r e t a i ned by the
g overnment, Sullivan w as in c ustody on eig ht parole violation charg es. He does not claim that he could have made use o f the laptop while incarcerated or th a t h e s o ug ht r eturn of his laptop to himself or a third party

. W h ere i n d i v i d uals a re incarcerated and cannot make use of seiz ed p ro p e r ty , their
po s s e s s o r y interest in that property is reduced. See United States v. Segura
, 468 U.S. 796, 813 (1984) (B urg er, C.J .) (plurality opinion) (holding that d e f en dants’ possessory interests in their apartment were “virtually nonex istent” when they “were under a

r rest and in the custody o f the police throug hout the entire period the a gents 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 o f the seiz ure of his computer, the seiz ure

“ d i d not meaning fully interfere with h is possessor y interests”). Moreover
, an individual who did “not even alleg e[ ]
, m u ch less prove[ ]
, that the delay in the search o f packag es adversely affected leg itimate interests protected b y the F ourth A mendment” a n d “never soug h t return of the property ” has not made a suf f i cient showing that the delay

was unreasonable. United States v. J ohns

, 469 U.S. 4 7 8, 487 (1985).U N I T E D S T A T E S V

. S U L L I V A N 18

F urther, several of the factors that r educe an individual’s
possessory

interest applied here. Some seventeen day s after his laptop was seiz ed, Sullivan gave his ex press consent to the search of his laptop, and indeed urg ed the police officers
to review videos stored on the laptop, claiming they contained

ex c u lpatory evidence. B ecause such consent “requires voluntary tender of p r o perty ,” Stabile

, 633 F .3d at 235, it further vitiates h is claim that a ny possessory interest was infring ed. Moreover, because Sullivan was a parolee subject
to a consent condition for seiz ure, his possessory interest in the laptop w as reduced. Cf. S amson , 547 U.S. at 850; United States v. Knight s, 534 U.S. 112
, 1 1 9 (2001). Under these circumstances, “[ t] he actual interference” with Sullivan’s
possessory interests was minimal. See Segur a , 4 6 8 U.S. at 813 (B urg er, C.J .) (plurality opinion).

W e nex t consider the deg ree to which the seiz ure a nd retention of the laptop was necessary fo r t h e promotion o f l e g itimate g overnmental interests. Place

, 462 U.S. at 703–04. T h e state “has an overwhelming interest in supervising parolees b ecause parolees

. . . are more likely to commit future criminal offenses.” Samson
, 547 U.S. at 853 (internal
q u o t at i o n m a r k s o m i t t e d )

. M o r eo v e r , u n d e r t h e circumstances of this case, the g overnment had a reasonable basis for retaining and searching the laptop b a s e d on the likelihood that it contained evidence of Sullivan’s parole violations, as well as child pornog raphy

. B e cause the parole officers w ho initially seiz ed the laptop from Sullivan’s vehicle did not have the capability to perform a f o rensic search, they tra n s fe r r e d it to the B erkeley police. The B erkeley police t

hen obtained Sullivan’s consent to the search of the laptop and also soug ht a search warrant.U N I T E D S T A T E S V

. S U L L I V A N 19

The g overnment’s course of conduct was re asonable under the totality of the circumstances g ive n Sullivan’s incarceration and the g overnment’s interest in retaining a nd searching the laptop fo r e v idence o f c rimes. Even if the
g overnment could have moved faster t o o btain a search warrant, the g overnment is not required to pursue “t he least intrusive course of action.” Hernandez

, 313 F .3d a t 1 2 1 3

. According ly

, we conclude that the g overnment’s seiz ure a nd

re t e n t ion of the laptop for 21 day s before obtaining a search
warrant was n o t a n unreasonable seiz ure under the F ourth Amendment.

Sullivan’s reliance on Dass and Mitchell is misplaced. I n Dass
, la w e nforcement o fficials collected suspicious packag es at post offices and allow e d police dog s to sniff them. 849 F .2d at 4 14. I f the dog alerted, sug g esting the
presence of marijuana, then the a g e n t s would retain the
p ackag e in order to obtain a search warrant. Id. I n holding that law en f

o r cement acted u nreasonably by detaining packag es for 7 to 23 day s before ex ecuting a search warrant, Dass implicitly determined that such a l eng thy retention o f mailed packag es constituted a su b stantial intrusion into the
possessory interests o f t h e individuals who placed the packag es in the mail. I d

. a t 4 15. Dass ’s conclusions
reg arding the interests o f a m e m ber of the public p utting a packag e in t h e mail a

re not applicable here, w here a parolee under a consent-to-s eiz ure condition was arrested for violation of other parole conditions.

Nor does Mitchell help Sullivan. I n Mitchell

, I CE ag ents went to the defendant’s res i d e n ce based on their suspicion that he was eng ag ed in distributing and receiving ch i ld
pornog raphy

. After the d e f e n d ant consented to a search o f his laptop, the ag ents r e m o v e d and retained the computer’sU N I T E D S T A T E S V

. S U L L I V A N 20

h a r d drive, but did not obtain a search warrant until 21 d a y s later. 565 F. 3 d a t 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 l i k ely to contain information “of

ex c e ptional value to its owner,” and the “detention of the hard drive for over th r e e w e e k s b efore a warrant was soug ht consti t u t e[ d] a sig nificant interference with Mitchell’s
po s s essory interest.” Id. a t 1351. On the other side o f the balance, the cou r t h el d that there was no compelling justification for the g o vernment’s delay

. Id.

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

on distinct charg es, does not arg ue h e made any r equest f o r the laptop’s r eturn, a

n d had a reduced possessory interest d ue to his status a s a p a

r olee. On the g o vernment-interest side o f the balance, the g overnment had a reasona b le basis f

or its delay

, including the need to transfe r t h e laptop b etween ag en ci e s

. Cf. id. at 1352–53 (apply ing a rule o f reasonableness “dependent on all o f the circumstances,” a nd indicating that “if the assistance of another law enforcement officer had been soug ht, we would have been sy mpathetic to

an arg ument that some delay in obtaining that assistance was reasonable”). B ecause this case pres e n ts different circumstances tha n D ass and Mitchell

, the district court did
not err in striking the balance between the intrusion into Sullivan’s interests a nd the o pposing law enforcement interests in favor of the g overnment.

I V

W e nex t turn to Sullivan’s arg uments that his prior state convictions for unlawful sex ual intercourse with a minor under 16 y ears of ag e, California Penal Code § 261.5(d), a ndU N I T E D S T A T E S V

. S U L L I V A N 21

oral copulation with a minor u nder 16 y ears of ag e, California Penal Code § 288a(b)(2), do not qualify as federal g ener ic offenses f or w hi c h the mandatory minimum enhancements under § 2251(e) and § 2 25 2 ( b ) (2) must be imposed. W e review de novo whether Sullivan’s prior convictions support the statutory mandatory minimum enhancement s

. United States v. S

tricklan d

, 6 0 1 F .3d 963, 967 (9th Cir. 2010) (en banc).

To d etermine whether a prior state conviction f alls into the specified c lass of federal offenses, we g enerally apply the categ orical approach set forth in Taylor v. United States
, 495 U .S. 575 (1990). See U nited States v. Sinerius
, 504 F .3d 737, 7 40 (9th Cir. 2007)

. Under Taylor

, the court first defines the federal ge n e r i c definition o f the crime, and then
compares the elements of the s t a t e offense with that definition. United States v. Gonzalez-Monterroso , 745 F .3d 1237, 1240 ( 9th Cir. 2014). I f the state offense criminaliz e s the same or less conduct than the federal g eneric definition o f the crime, then it is a categ o rical match to the federal g eneric offense. See id. B ut where a state s t a t u t e o f conviction criminaliz es more conduct than the federal g eneric offense, it does n ot q

ualify as a c a t e go r i ca l match. Id. Under these circumstance s , a court may apply a modified categ orical approach if the state criminal statute is di v i s i ble. See Descamps v. U

nited States
, 133 S. Ct. 2276, 2283–85 (2013). The Taylor categ or i c a l approach requires us to look only to th e s t a t u tory d efinition of the prior offense a nd not to the facts underly ing that conviction. See Mellouli v

. Lynch

,U N I T E D S T A T E S V

. S U L L I V A N 22

135 S. Ct. 1980, 1986

– 8 7 (2015); Taylor

, 4 95 U.S. at 600–01. 7

Apply ing the Taylor framework, we beg in by defining the
g eneric federal offense. Under § 2 251(e) ( mandatory minimum for production of child pornog raphy ), a defendant with a prior conviction “under the laws of any State relating
to a g g ravated sex ual abuse, sex ual abuse, [ or] abusive sex ual
contact involving a minor o r ward” is subject to a mandatory minimum sent e n c e of “not less than 25 y ears.” 18 U .S.C. § 2 2 5 1 (e). 8 Similarly

, under § 2252(b)(2) ( mandatory minimum f

or the possession of chil d p o rnog raphy ), a defendant with a prior c onviction “under the laws of any State

7 S u l liv an ’ s arg u m en t th at a j u ry m u st d ecid e w

h eth er a p rio r co n

v ictio n is an o f f en se “r elatin g to ag g rav ated s ex u al ab u se, s ex u al ab u se, or ab u siv e sex u al co n d u ct in v o lv in g a m in o r o r w ard ,” 1 8 U.S.C. § § 2 2 5 1 (e), 2 2 5 2 (b )(2 ), is f

o reclo sed b y Un i ted

S ta tes v. Bro wn , 4 1 7 F.3 d 10 7 7 (9 th C i r

. 2 0 0 5 ) (p er cu

riam ), w h ich h eld th at th e categ o rizatio n o f a p rio r

co n v ictio n u n d er Ta

ylo r “ is a l eg al q u estio n , n ot a f actu al q u estio n co m in g

w ith in th e p u rv iew of Ap

p ren d i [ v. New Jersey
, 5 3 0 U .S. 4 6 6 (2 0 0 0 )].” Id

. at 1 0 7 9

– 8 0

.

8 Sectio n 2 2 5 1 (e) states, in p ertin en t p art:

A n y i n d iv id u al w

h o v i o lates, o r attem

pts o r co n s p i res to v io l ate, t

h is sectio n s h all b e f

in ed u n d er th is title an d im p riso n ed n o t less th a n 1 5 y ears n o r m o re th an 3 0
y ears, b u t if su ch p erso n h a s o n e prio r co n v ictio n

. . . u n d er t h e law s o f an y State relatin g to ag g rav ated

sex u al ab u s e, s ex u al ab u se, ab u siv e sex u al co n t act in v o l v in g a m i n o r o r w ard

, o r sex traf f ick in g of ch ild ren , o r t

h e p r o d u c t i o n , p o s sessio n , receip t, m ailin g , sale, distrib u tio n , sh ip m en t, o r t ran sp o rtatio n o f ch ild
p o rn o g rap h y , su ch p erso n sh all b e f in ed u n d er th is title

an d im priso n ed f

o r n o t less th an 25 y ears n o r m o re th an 5 0 y ears . . . .U N I T E D S T A T E S V

. S U L L I V A N 23

relating to ag g ravated sex ual abuse, sex u al abuse, o r abusive

sex ual c onduct involv i n g a minor or ward” is subject to a mandatory minimum sentence of “not less than 10 y e ars.” Id. § 2252(b)(2). 9 Under this lang uag e, the federal g e n e ri c offense is a c lass of offenses “relating to” any of three ty pes of abusive sex u al conduct. W h en considering such a c lass o f offenses, we “‘compare the c rime of conviction with crimes

we have previously determined to’ fall into that particular classification of c rimes.” R o d r i guez-Castellon v

. Holder

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

, 512 F .3d 1163, 1166 (9th Cir. 2 008)) (considering “crimes o f viol ence”). “Under the categ orical approach, we f o llow our

common p ractice in cases involving non-traditional o ffenses by defining the offense based o n the ordinary

, contemporary , and common meaning of the statutory words.” Sinerius
, 504 F .3d at 740 (internal quotation marks omitted).

B e cause each of the three ty pes of offenses l isted in § 2251(e) and § 2252(b)(2) involve sex ual conduct and abuse,

we beg in by identify ing the federal g eneric meaning for these
t e rms. W e g ive “the term ‘sex ual’ its ordinary a n d

commonsense meaning .” S inerius
, 504 F .3d at 741. W e have

9 Sectio n 2 2 5 2 (b )(2 ) p ro v id es, in p ertin en t p art:

W h oev er v io lates, o r att e m p ts or co n sp ires to v io late,
p arag rap h (4 ) o f su

b sectio n (a) sh all b e f

in ed u n d er th is title or im p riso n ed n o t m o re th an 10 y ears, o r b o th

, b u t

. . . if su ch p erso n

h as a p rio r co n v ictio n

. . . u n d er th e law s of an y State relatin g to ag g rav ated sex u al ab u se,

sex u al ab u s e , or ab u siv e s ex u al co n du ct in v o lv in g a

m in o r o r w ard

, o r th e pro d u ctio n , p ossessio n , receip t,

m a i lin g , sale, d istrib u tio n , sh i p m en t , o r tran sp o rtatio n

o f ch ild p o rn o g rap h y , su ch p erso n sh all b e f in ed u n der th is t itle an d i m

p riso n ed f

o r n ot less th an 1 0 y ears n or

m o re th an

2 0 y ears.U N I T E D S T A T E S V

. S U L L I V A N 24

addressed the term “ a b use” in several different c ontex ts.

“ [ W ] e h a v e defined ‘abuse’ to mean ‘misuse

. . . to use o r treat so as to injure, hurt, o r damag e

. . . to commit indece n t assault o n.’” I

d. at 740 ( al t e r ations in orig inal) (quoting United States v. Lopez-So l i s , 4 47 F .3d 1201, 1207 (9th Cir. 2006)). This definition “encompass[ es] behavior that is har m f ul emotionally and phy sically .” Id. (alteration in orig inal) (quoting Lopez

- S o l i s , 447 F .3d at 1207). I n addition, w e have previously determined that a statutory rape offense constitutes “the g eneric offense o f ‘sex ual abuse of a minor’” if it includes the elements set forth i n 1 8 U .S.C. § 2243, specifically : “(1) a mens rea level of knowing ly ; (2)

a sex ual a ct; (3) with a minor between the ag es of 12 a nd 16; and (4) an a g e difference of at least four y ears between the defendant and the mino r .” Estrada-Espinoza v. Mukasey

, 546 F

. 3d 1147, 1152 (9th Cir. 2008) (en banc), overruled on other g rounds by United States v. Aguila-Montes de Oca
, 655 F .3d 915 (9th Cir. 2011) (en b anc) ( per curiam), abrogated by Descamps
, 133 S. Ct. 2276. This definition of “sex u al abuse of a minor” also “comports with ‘the ordinary

, contemporary , a n d common meaning of the words’” sex ual abuse of a minor. Id. (quoting United States v. Baron-Medina

, 187 F .3d 1144, 1 146 (9th Cir. 1999)). W h ile we have rejecte d t he

a r gu m ent that the term “sex ual abuse” must be defined b y

re f e r e n ce to the federal offenses listed in 18 U .S.C. §§ 2241–2248, see Sinerius
, 504 F .3d a t 742 (considering the
g eneric f ederal definition of “sex ual abuse” for purposes o f 18 U.S.C. § 2 252A(b)), and thus we are not limited “to looking to federal statutes to defi n e f e deral g eneric o ffenses where the f

ederal statute uses the same name as a federal
g eneric offense,” United States v. Farmer
, 627 F .3d 4 1 6, 421 (9th Cir. 2010), such federal statutes nevertheless are relevant
to our considerat i o n of whether a particular state statute is

one “relating to” abusive sex ual c onduct, se e Estrada-U N I T E D S T A T E S V

. S U L L I V A N 25

Espinoza
, 546 F .3d at 1152–53 (stating that “it is unnecessary to survey current criminal law to ascertain a federal [ g eneric definition o f ‘sex ual abuse of a minor’] because Cong ress has already supplied it”).

W e now turn to the California crimes of con v i c t i on at issue here in order to compare them with the federal g eneric offenses. Secti o n 261.5(d) p roscribes any person who is 21
y ears of ag e or older from e n ga gi ng in an act of unlawful

sex ual intercourse with a minor who is under 16 y e ars of a g e

. Cal. Penal Code § 261.5(d). Section 288a(b)(2) p roscribes
any p e r son over ag e 21 from participating in an act o f oral

c o p u lation with a person w ho is under 1 6 y ears of ag e

. Id. § 288a(b)(2). Neither of these offenses includes misusing o r treating another so a s to “to injure, hurt, o r d a mag e,” o r committing “indecent assault o n ” a nother, as an element, which w ould constitute abuse. See Sinerius
, 504 F

. 3d at 743. W e have previously determined that because section 261.5(d) criminaliz es sex ual relations with a p erson who is “a day shy of 16,” it is not n ecessarily abusive. Pe l a y o

- Garcia v

. Holder

, 589 F .3d 1010, 1015–16 (9th Cir. 2009 ) ; see also United S tates v. Medina-Villa

, 567 F. 3 d 507, 514 ( 9th Cir. 2009). The same reasoning applies to section 288a. F urther, the offenses described in se ction 2 61.5(d) and section 288a(b)(2) are not equivalent to the federal g eneric offense o f “sex ual abuse of a min o r ” d escribed in Estrada-Espinoza because one element of that o ffense requires the g overnment to prove that the d efendant e n ga ge d in the sex ual act “knowing ly ,” Pelayo-Garcia

, 549 F .3d at 1013, an d neither California statu t e includes this mens rea requirement. Therefore, the state offenses are not a categ orical match to the federal g eneric definitions w e have adopted for sex ual abuse of a minor.U N I T E D S T A T E S V

. S U L L I V A N 26

Unlike our usual categ orical a pproach, however, the federal statutes h ere do not r e q u i r e us to find that the state conviction is categ orically the same as any p a rticular federal offense, b ut only that the state c o n viction is one categ orically “relating to” such federa l offenses. W e have held that the phrase “relating to” g enerally h a s a broadening effect o n what follows. F or ex ample, in the contex t of simila r lang uag e in 18 U.S.C. § 2252A(b), 1 0 w e held that the phrase “relating to” “does not simply m a ndate a sentencing enhancement for individuals c onvicted of state o f fenses equivalent to sex ual abuse.” Sinerius
, 504 F

. 3d at 743. “ Rather, it mandates the enhancement for any state offense that stand s i n some relation, bears u

pon, o r i s associated with that g eneric offense.” Id. T his interpretation is c onsistent w ith Supreme Court precedent, which has broadly defined the term “relating to” as “ to stand in some relation; to h ave bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v

. Trans W orld Airlines, Inc ., 504 U.S. 374, 383 (1992) ( q u oting B lack’s L aw Dictionary 1158 (5th ed.1979)) (construing “relating to” in a d i f f e r e nt statutory contex t). According ly

, we reject Sul l i v a n ’s arg u ment that a prior conviction trig g e rs a sentencing enhancement under § 2251(e) or § 2252(b)(2) o n l y i f the statutory definition o f the prior offense is e q

uivalent to a federal g eneric definition. I ndeed, requiring such equivalence would r en d er the words “relating to” in § 2251(e) and § 2252(b)(2) meaning less.

I n c onside r i n g the application of the Taylor categ orical approach to a s t a t ute that used the term “relating to,” the

10 T h at o f f en se im po ses a m an d ato ry m in im u m en h an cem en t w

h ere th e d e f en d an t h as a p rio r co n v ictio n “ u n d er t h e law s o f an y State relatin g to ag g rav ated s ex u al ab u se, sex u al ab u se, o r ab u siv e sex u al co n d u c t in v o lv in g a m in or o r w ard .” 1 8 U.S.C. § 2 2 5 2A (b )(1 ), (2 ).U N I T E D S T A T E S V

. S U L L I V A N 27

Supreme Court recently a ffirmed that the words “relating to”

a re “broad” and “indeterminate,” but cautioned that cour t s may n o t ex tend these terms “ to the furthest stretch of [ their] indeterminacy

” where lang uag e and historical contex t tug “in favor of a narrower readi n g. ” M e llouli

, 135 S. Ct. at 1990 (alteration in orig inal) (internal quotation marks omitted). I n Mellouli

, a lawful permanent r e sident had been convicted of

a misdemeanor offense for storing Adderall tablets in his sock under a Ka n s a s l a w making it u nlawful “to use or possess

w i t h intent to use any drug paraphernalia” to concea l a controlled substance. Id. a t 1983–84 (quoting Kan. Stat. Ann. § 21-5709(b)). “ At the time o f Mellouli’s convictio n , Kansas’ sche d

ules included at least n ine substances not i n c l u ded in the federal lists.” Id. at 1 9 84. The B oard o f I mmig r a tion Appeals (B I A) determin e d Mellouli was deportable und e r an immig r ation provision that authoriz e s the removal of an alien “ c o n victed of a violation of

. . . any law

or reg u lation of a State, the United S t a t es , or a foreig n country relating to a controlled subst a nce (as defined in section 802 of Title 21).” I d. a t 1984

– 8 5 (alteration in orig inal) (quoting 8 U.S.C. § 1227(a)(2) ( B)(i)). The B I A reasoned that § 1227(a)(2)(B )(i) c overed Melloul i ’ s d rug paraphernalia offense b ecau s e it involved “the drug trade in
g eneral”; according ly

, there was no “need to show that the
t y p e o f controlled substance involved in a paraphernalia conviction is one def

i n e d i n § 8 02.” Id. a t 1988 (internal quotation marks omitted). The Eig hth Circuit u pheld this determinat i o n o n the g round that the offense was a crime “associated with the drug trade in g e neral” and because there

was “nearly a c omplete overlap between the d rug s controlled under state and federal law.” Id. at 1988–89 ( i n ternal quotation marks omitted).U N I T E D S T A T E S V

. S U L L I V A N 28

The Court reversed, concluding that both the B I A and the Eig hth C i r c u i t erred by failing to g ive effect to the parenthetical limiting controlled substances to those “defined in section 802 of Title 21.” Id. at 1 990–91. The Court based
t his determination on its a naly sis of the statutory lang u a ge and its historical cont e x t. Id. According to the Court, the Taylor categ orical approach had routinely b een appl i ed “to

assess whether a state drug conviction trig g ers removal under th e i m m i g ration statute.” I d. at 1 987. The Court noted that the removal statute a s orig inally enacted “specifically listed covered offense s an d covered substances.” Id. I n 1986, Congr e ss “replaced the increasing ly long list of controlled substances [ in § 1 2 2 7 ] with the now f a miliar reference to ‘a controlled s u b s t ance (as defined in [ § 802] ).’” Id. (second alteration in orig inal). I n determining whether a state statute of conviction r endered an alien removable, t h e B I A historically asked “whether the state statute under which the alien was convicted covered federally control l e d substances and not others.” I

d. This historical backg rou n d, the Court

ex p lained, “demonstrates that Cong r ess and the BI A have long required a direct link between an alien’s crime o f conviction and a particular federally controlled drug

. ” Id. at 1990. Therefore, the Court co ncluded that a state crime o f conviction does not “fall[ ] w ithin a c a t eg ory of r emovable offenses” defined b y § 1227(a)(2)(B )(i) unless it c overs the

same drug s as are lis t e d in § 802, which the Kansas statute did not. Id. at 1986, 1990–91.

Be c a u se Cong ress intended there to be a d irect link between the a lien’s crime of c o n viction and the controlled substances listed in § 802, the Court r ejected the
g overnment’s arg ument that state offenses that did not cover drug s listed in § 802 could be offenses “relating to ” t he substances controlled under § 802. I d. at 1990. I n doing so,U N I T E D S T A T E S V

. S U L L I V A N 29

the Court first acknowledg ed that the w ords “relating to” a re broad. 1 1 I

d. I n deed, the Court noted that “[ i] f § 1 227(a)(2)(B )(i) stopped with the words ‘relating to a controlled substance,’” it “would make sense” to interpret the K a n s a s o f

f e n s e a s m e e t i n g t h e r e q u i r e m e n t s o f § 1227(a)(2)(B )(i). I

d

. at 1 988 n.9. B ut because Cong ress “qualified ‘rela t ing to a controlled substance’ by a dding the limitation ‘as defined in [ § 802] ,’” it intended to include only those state offenses in which a controlled substance a s defined in § 802 figu red as an element of the offense. Id. at 1988 n.9, 1990–91 (alteration in orig inal).

I n sum, Mellouli cautions that while a federal statute’s use of the terms “ relating to” broadens its coverag e, that

ex tension is not limitless. A court must consider history a nd
contex t to determine if they “ t u g in f avor of a n arrower reading ” of the federal provision. See id. at 1 990 (alterations and internal quotation marks omitted). Speci f i c al ly

, where Cong r ess ex pressly narrows the definiti o n o f the federal offense (for ex ample, by referring to a sp e c i f i c list o f controlled substances), we must conclude that a state offense that ex c eeds that definition is n o t one “relating to” the federal offense. See id. a t 1990–91. Reading Morales and Mellouli tog ether, w e interpret the phrase “relating to” broadly when apply ing the Taylor c ateg orical approach unless the tex t and history o f the statute r equire a n arrower construction. See id. at 1988 n.9, 1990–91; Morales , 504 U.S. at 383.

1 1 In deed

, ev en th o u g h th e Kan sas of f en se “ w o u ld n o t h av e qu alif ied as

a d ru g

- p arap h ern alia o f

f en se” u n d er f

ed eral law b ecau se “ p o s sessio n alo n e” is n o t a f

ed eral crim e, id

. at 1 98 5
, th e Co u rt g av e n o w eig h t to th is d istin ctio n b ecau se “ [t]h e d ru g

- parap h ern alia p o ssessio n law u n d er w h ich h e w as co n v icted

, Kan

. Stat. A n n

. § 21 –5 7 0 9 (b ), b y d ef

in itio n , related to

a co n tro lled su

b stan ce.” Id

. at 1 9 8 4

.U N I T E D S T A T E S V

. S U L L I V A N 30

Apply ing this fra m ework, we first consider whether
any thing in the tex t or historical backg round of § 2251(e) or § 2252(b)(2) indicate t h at Cong r ess intended to limit the

sex ual abuse offenses l i s t e d in those statutes to c ertain

s p e c ific federally defined offenses or acts, in the same w a y that Cong ress intended to limit “controlled substance” to only those listed in § 802. See Mellouli

, 135 S. Ct

. a t 1 9 9 0–91. W e conclude they d o n o t. N either the tex t of § 2251(e) nor the tex t of § 2 2 5 2(b)(2) c ontains any lang uag e analog ous to the parenthetical considered in Mellouli

. I nstead, the t erms “sex ual abuse” and “abusive sex u a l conduct in v olving a minor or ward” are unqualified, just as the term “controlled substance” w o u ld have been without the limiting parenthetical. See id. at 1988 n.9. Other circuits ag ree that an enhancement f

or a prior c onviction “relatin g to” specified abusive sex ual acts “does not require that the predicate conviction amount to ‘ sex u al abus e ’ or ‘abusive sex ual conduct involving a minor.’” E.g.
, United Sta tes v. Colson

, 683 F .3d 50 7
, 511 & n.2 (4th Cir. 2012) (considering 18 U.S.C. § 2252A(b)(1 ) ). Turning to the historical backg round of § 2251(e) a nd § 2 252(b)( 2 ), w e have previously determined that Cong ress did not require a “ direct link,” M ellouli

, 135 S. Ct. at 1990, between the state crime o f conviction and a particular f ederal statute. See Sinerius
, 504 F .3d at 742 ( r e

j e cting the arg ument that the phrase “sex ual abuse” must b e defined b y reference to the federal offenses listed in 18 U.S

. C. § 2241–2248). Rather, “Cong ress’s use of [ the ‘relating to’] phrase in § 2 2 5 2 (b)(2) indicates its intent to allow a sentencing court to look bey ond the mere e lements of a prior state conviction in det e r m ining whether such c onviction is sufficient to trig g e r application o f the sentence e nhancement provisions.” United States v

. McCutchen

, 419 F .3d 1 122, 1127 (10th Cir. 2005). B ecause neither contex t nor history t u gs “ in favor of a n arrowerU N I T E D S T A T E S V

. S U L L I V A N 31

reading

, ” cf. Mellouli

, 135 S. Ct. a t 1990 (internal quotation marks o mitted), we define the phrase “relating to” in § 2251(e) and § 2252(b)(2) broadly

. See Morales

, 504 U

. S

. at 383.

W e now con s i d er whether the specific state offenses at issue here, sections 261.5(d) a n d 288a(b)(2) of the California Penal Code, are categ o rically offenses “ relati n g to ”
ag g r avated sex ual abuse, sex ual abuse or abusiv e sex ual conduct involving a minor or ward, 18 U.S.C. §§ 2251(e), 2252(b)(2) (emphasis a d d e d). Sections 261.5(d) a nd 288a(b)(2) are c ri m e s t h at r e late to the g eneric offense “sex ual a buse of a minor” as def

i n e d in Estrada-Espinoza

. Althoug h the state o ffenses lack the mens rea element noted in E strada-Espinoza

, 546 F .3d at 1158, this element relates to the culpability of the defendant, not to t h e i mpact o f the conduct on the minor. The elements relating to the effect of the offense on the minor indicate th at under our g eneric federal statutory rape definition, sex u al condu c t is abusive when the minor is u nder 1 6 and the d efendant is f our or more y ears o lder. Section 261.5(d) and section 288a(b)(2) include these elements, because they proscribe sex ual acts b etween a

m i n or under 16 and a defendant who is 21 y ears of a ge o r older. According ly

, the state cri m es n ecessarily involved “conduct that causes phy sical or psy cholog ical harm in lig ht of the ag e o f the victim in question,” Pelayo–Garcia

, 589 F .3d at 1014 ( i n t ernal quotation marks omitted), and a s such, are crimes “relating to

. . . sex ual a b u s e .” Therefore, they are c ateg o rically offenses “relating to” ag g ravated sex ual abuse, sex u a l abuse or abusive sex ual c onduct inv o l v i n g a minor or ward, 18 U.S.C. §§ 2251(e), 2252(b)(2).

I n reaching this conclusion, we join the Eig hth Circuit. I n

a similar contex t, the Eig hth Ci rcuit concluded that becauseU N I T E D S T A T E S V

. S U L L I V A N 32

the term “relatin g to” “ carries a broad ordinary meaning ,” a state c onviction for l a scivious acts w ith children w a s an offense “relating to” s e x u a l abuse, even thoug h the state offense d id not includ e the element of p hy sical contact required for the g eneric f e d e r a l offenses spelled out in 18 U.S.C. §§ 2241, 2 242, o r 2243. United S tates v. Sonnenberg

, 556 F. 3d 667, 670–71 (8th Cir. 2009) (internal quotation marks omitted); cf. United S tates v. McGarity
, 669 F .3d 1218, 1262– 6 3 (11th Cir. 2012) ( noting that “any p erceived difference” b etween “abusive sex ual contact” in § 2251(e)

an d t h e state offense of “ enticing a minor for indecent purposes,” which did not require touching or a ttempting to touch a minor, “ is ov e rc o m e by our interpretation of the phrase ‘relating

to’”).

Apply ing this approach, we con c l u de that the conduct proscribed by section 261.5(d) a n d section 288a(b)(2) is categ orically a c onviction “ u nder the l a w s of any State

r e l ating to

. . . sex ual abuse” for purposes of § 2251 ( e ) a n d § 2252(b)(2). B ecause Sullivan’s prior conviction

c ateg orically relates to sex ual a b use as that phrase i s ordinarily understood, w e conclude the district c ourt properly
app l ied the mandatory minimum enhancement provisions contained in both statutes of conviction. 1 2

12 B ecau s e w e d ecid e th e en h an cem en ts w ere p ro p er on th is g ro u n d

, w e

n eed n o t ad d ress Su l li v a n ’ s arg u m en t reg ard in g Desca m p s o r th e g o v ern m en t’ s arg u m en t th at th e sam e en h an cem en ts are also ap p ro p riate b ased on Su lliv an ’ s p im

p in g an d p an d erin g co n

v ictio n s, see Cal. P en al Co d e § § 2 6 6 h (a), 2 66 i(a)(2 ).U N I T E D S T A T E S V

. S U L L I V A N 33

V

F inally

, we address the g overnment’s arg u ment on cross appeal that the d istrict court erred by sustaining Sullivan’s objection to t h e i n clusion of a two-level Guidelines

e n hancement for obstruction of justice. “I n determining whether the d istrict court c o m m itted procedural error, we review the district court’s interpretation of the Sentencing Gu i d e lines de novo and its factual finding s for clear error.” United States v. S

mith

, 719 F

. 3d 1 120, 1123 (9th Cir. 2013). 1 3 “I t w ould be procedural error for a district cour t t o f ail to calculate—or to calcul a

t e i n c o r r e c t l y

— t he Guidelines rang e.” United States v. Carty
, 520 F .3d 984, 993 (9th Cir. 2008) (en banc).

Section 3 C1.1 of the Guidel i n e s is applicable if “the defendant willfully obstructed or impeded

, o r attempted to obstruct o r impede, the administration of justice” with respect to the prosecution of the offense of co n v i c t i o n. U.S.S.G. § 3C1.1. The enhancement applies when the district court finds that the defendant g a v e materi a l l y false testimony at trial with the w illful intent to provide false testimony

. United States v. Jimenez-Ortega
, 472 F .3d 1102, 1103 ( 9th Cir. 2007) (per curiam).

Althoug h th e d istrict c ourt did not credit Sullivan’s testimony

, and concluded that Sullivan had test i fi e d untruthfully d

u ring the trial, the district court determined that the two-leve l e nhancement for obstruction of justice should

13 A lth o u g h w e h av e y et to reso lv e t h e “ in tracircu it co n f lict as to

w h eth er t h e s tan d ard o f rev iew f

o r ap p licatio n o f t

h e Gu id elin es to th e f acts is d e n o v o o r ab u se o f d i scretio n ,” Un ited Sta tes v. S wa n k

, 67 6 F.3 d 9 1 9 , 9 2 1

– 2 2 (9 th

Cir. 2 0 12 ), th e stan d ard o f rev iew is n o t at issu e h ere.U N I T E D S T A T E S V

. S U L L I V A N 34

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

ex p lained its reasoning as f ol l ows. F irst, the district court indicated that the § 3 C 1 .1 enhancement was n ot applicable because the court was not a ct u ally misled. The court

ex p l a i n e d that “[ t] he question is whether or not I was obstructed as far as justice is concerned,” and concluded that it w as not, and that it “h a d the responsibility of making credibility determinations under any circumstance.” Second, the court noted that “the d efendant has the rig ht to testify

, a nd that there is a problem of w hen y ou punish, and y o u punish for that testimony y ou are in a sense punishe d t w ice.” F ina lly

, the district court remarked that apply ing the twolevel enhancement would result in a sentencing impact which was “far more than it should be.”

None of these concerns is a correct b asis for ex cluding the obstruction of

justice enhancement from the calculation of the base offense level. Fi r st, c onduct that “has the potential for obstructing ” the prosecution of the offense is s u fficient to warrant enhancement. U

nited S tates v. Draper
, 996 F .2d 982, 986 (9th Cir. 1993). I ndeed, an application n o t e to the Guidelines states that “providing materially false information
to a judg e” is conduct to which the enhancement app lies. U .S.S.G. § 3C1.1 cmt. n.4(F ). Second, the Supreme Cou r t has rejected the v i e w that imposing a penalty for p erjury at trial violates the privileg e of an a ccused to testify o n his o wn behalf. As the Supreme Court has ex p lained, “a defendant’s rig ht to testify does not include a rig h t to commit p erjury

, ” and thus the enhancement penaliz es the defendant for perjury

, not for testify ing

. U

nited States v. Dunnigan
, 5 0 7 U.S. 87, 96 (1993). F inally

, while the district court has d i scretion in pronouncing a sentence, i t m ust first correctly calculate the applicable G uidelines rang e. S e e Carty
, 520 F .3d at 993.

“ T he Supreme Court h as made clear that the district co u r tU N I T E D S T A T E S V

. S U L L I V A N 35

must correctly calculate the recommended Guidelines
sentence and use that r ecommendation as the starting poi nt and the initial benchmark.” United States v

. Mu n ozCamarena
, 631 F .3d 1028, 1030 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). According ly

, the district court erred in its leg al analy sis of Sullivan’s offense level.

Althoug h there are c ircumstances where an erroneous Guidelines calculation can be harmless, id. at 1030 & n .5, this is not one o f those cases. I f a two-l e v e l o bstruction enhancement were imposed, Sullivan’ s Guidelines r ang e would h av e been 324 to 405 months (as opposed to 262 to 327 months), requiring the district court to provide a g reater 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 d istrict court must ex plain its reasoning f or the

ex tent of a variance).

B e cause we cannot tell if the district court would impose the same sentence if it a

pplied the correct leg al analy sis, a remand for resentencing is required. Se e J i m enez-Ortega
, 472 F .3d at 1103–04 (ex plaining that finding s reg arding factual predicates of an obstruction enhancement mu s t be made by the district court in the first instance).

AF F IRMED IN P A RT, REVERSED IN P ART, AND REMANDED.