PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

v.

DAVID HAROLD MORSE,

Defendant.

Case No. 3:15-cr-67-SI

OPINION AND ORDER

Billy J. Williams, United States Attorney, and Jane H. Shoemaker, Assistant United States 

Attorney, UNITED STATES ATTORNEY’S OFFICE, DISTRICT OF OREGON, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204. Of Attorneys for the United States of America.

Alison M. Clark, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

101 S.W. Main Street, Suite 1700, Portland, OR 97204. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

The principal issue before the Court is whether Defendant’s prior conviction under 

Oregon state law for Encouraging Child Sex Abuse in the First and Second Degree triggers the

enhanced penalty of a ten-year mandatory minimum under 18 U.S.C. § 2252A(b)(2) for the 

crime of possession of child pornography. Defendant has entered a plea of guilty pursuant to a 

plea agreement with the Government and is about to be sentenced. For the reasons stated below, 

the Court finds that under Ninth Circuit precedent the ten-year mandatory minimum applies.

Because this precedent appears to conflict with Sixth Circuit authority, however, a secondary 

issue is raised concerning the basic fairness of the Government’s asymmetrical appellate waiver 

contained in the Defendant’s plea agreement under the circumstances of this case.

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PAGE 2 – OPINION AND ORDER

This Court is bound by Ninth Circuit precedent, which appears to conflict with the law in 

the Sixth Circuit. Normally, one would expect that a defendant sentenced in accordance with 

precedent that conflicts with the law from another circuit would have the opportunity to appeal 

the district court’s decision, at least to ask the appellate court to hear the matter en banc or even 

to ask the United States Supreme Court to grant certiorari. Unfortunately, that may not be 

possible in this case because the Government has conditioned its plea agreement on Defendant 

waiving his right to appeal the district court’s decision on the legal question at issue, if the 

decision goes against Defendant. The Government, however, preserved its own right to appeal, if 

the district court had sided with Defendant on this issue.1

This asymmetrical appellate waiver contained in Defendant’s plea agreement strikes this

Court as both unfair and capable of undermining public confidence in the rule of law, at least 

under the circumstances presented here where the Defendant has a non-frivolous argument that 

binding Ninth Circuit precedent conflicts with the law of another circuit. When a district court is 

presented with an important and serious legal question, such as whether a ten-year mandatory 

minimum sentence of imprisonment must be applied, especially in circumstances where different 

circuits appear to have reached contrary conclusions, both fairness and the rule of law support 

the conclusion that either party should have the right to appeal a district judge’s decision to a 

higher court. Requiring a Defendant either to waive his right to appeal under these circumstances 

or else risk facing a potentially higher mandatory minimum sentence simply is not right.

 

1 As explained by the Government, it informed Defendant during plea negotiations that if 

he were to reject the plea agreement that included the asymmetrical waiver of appeal and simply 

plead guilty to the offense charged, the Government would consider presenting a superseding 

indictment to the Grand Jury that contained a charge carrying a longer mandatory minimum 

sentence. No matter how delivered, that is a threat intended to induce Defendant to abandon his 

right to present a non-frivolous appeal where the lower court was bound by existing precedent.

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PAGE 3 – OPINION AND ORDER

BACKGROUND

In 2006, Defendant was convicted in Oregon state court of one count of Encouraging 

Child Sex Abuse in the First Degree and two counts of Encouraging Child Sex Abuse in the 

Second Degree, in violation of Or. Rev. Stat. §§ 163.684 and 163.686, respectively. In 2015, 

Defendant was indicted by a federal grand jury for one count of possession of child pornography, 

including images involving prepubescent minors, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) 

and (b)(2). The indictment further alleges that Defendant previously had been “convicted of a 

sex offense involving a minor, namely, Encouraging Child Sex Abuse in the First Degree, and

Encouraging Child Sex Abuse in the Second Degree.” ECF 1.

The maximum sentence of imprisonment that may be imposed for violating 18 U.S.C. 

§ 2252A(a)(5) is ten years, unless any image of child pornography involved in the offense 

depicted a prepubescent minor, in which case the maximum term of imprisonment increases 

to 20 years. 18 U.S.C. § 2252A(b)(2). In addition, if a person charged under § 2252A(a)(5) “has 

a prior conviction under this chapter . . . or 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 . . . imprisoned for not less than 10 years nor more than 20 

years.” Id. (emphasis added).

In this case, Defendant and the Government entered in a plea agreement, under which 

Defendant agreed to plead guilty to the charge of “Possession of Child Pornography involving 

prepubescent minors, having previously been convicted of a sex offense involving a minor, 

namely Encouraging Child Sex Abuse in the First and Second Degree.” ECF. 30 at ¶ 2. The plea 

agreement also expressly provided:

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PAGE 4 – OPINION AND ORDER

Because defendant's prior convictions for Encouraging Child Sex 

Abuse in the First and Second Degree relate to the possession of 

child pornography, the government maintains defendant is subject 

to the ten (10) year mandatory minimum. Defendant may 

challenge the applicability of the mandatory minimum at 

sentencing. The government will oppose any such challenge. 

Defendant understands that if the Court agrees with the 

government, he will not be permitted to withdraw his plea and will 

be subject to the ten (10) year mandatory minimum term of 

imprisonment.

Id. at ¶ 3 (emphasis added). 

The parties further agreed that the Government will recommend a sentence of 10 years in 

prison, regardless of the outcome of the Defendant’s challenge before the district court to the 

applicability of the statutory mandatory minimum and that Defendant will “join in that 

recommendation if the Court rejects his arguments concerning the mandatory minimum.” Id.

at ¶ 9. The parties also agreed that Defendant, but not the Government, waives his right to appeal 

from any aspect of the conviction and sentence, except on specifically identified grounds not 

relevant here. Id. at ¶ 11. Although the Court expressed concern over this asymmetrical appellate 

waiver under the circumstances presented in this case, the Court accepted the Defendant’s plea 

of guilty after holding a plea colloquy with Defendant.2ECF 28 and ECF 38 (transcript).

DISCUSSION

The parties agree that Defendant previously was convicted in Oregon state court of 

Encouraging Child Sex Abuse in the First and Second Degree in violation of Or. Rev. Stat. 

§§ 163.684 and 163.686, respectively. They disagree over whether this earlier state court 

 

2 During the sentencing hearing held on June 30, 2016, the Government stated that during 

the plea negotiations with Defendant the Government took the position that if Defendant 

accepted the plea offer, including its asymmetrical appellate waiver, then the Government would 

not seek from the Grand Jury a superseding indictment on an additional charge of receipt of child 

pornography, which carries a 15-year mandatory minimum. Defendant accepted the plea 

agreement under those terms. As requested by defense counsel in order to avoid further prejudice 

to Defendant, the Court accepted Defendant’s plea.

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PAGE 5 – OPINION AND ORDER

conviction is a qualifying conviction that triggers the ten-year mandatory minimum sentence 

under 18 U.S.C. § 2252A(b)(2). Defendant makes three arguments. First, Defendant contends

that because the indictment and plea colloquy did not expressly include in the charge or 

admission that the prior state conviction was “relating to” the type of qualifying offense required 

under § 2252A(b)(2), the Court may not even consider the applicability of the ten-year 

mandatory minimum sentence. Second, Defendant argues that because his prior state conviction 

was for offenses that do not “categorically align” with the federal offense for which he is now 

being sentenced, those earlier offenses are not “qualifying offenses” sufficient to trigger the 

mandatory minimum. Third, Defendant maintains that, if his second argument is rejected, the 

term “relating to” in the enhancement statute is unconstitutionally vague and overbroad and, 

thus, cannot be used to trigger the mandatory minimum sentence.

A. Whether the “Relating to” Conclusion Must Be Expressly Pleaded and Proven

Defendant begins by asserting that any element other than the “fact” of a previous 

conviction must be pleaded and, if not admitted, proven beyond a reasonable doubt. U.S. v. 

Cotton, 535 U.S. 625, 627 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000). From this 

proposition, Defendant concludes that because the fact of a previous conviction alone is 

insufficient to trigger the mandatory minimum under 18 U.S.C. § 2252A(b)(2), but instead the 

previous conviction also must be shown to be “related to” certain offenses, the fact of whether 

the conviction is sufficiently “related to” the required type of offense is an element that must be 

pleaded and proven, which was not done here.

A virtually identical argument already has been rejected by the Ninth Circuit. See United 

States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015), cert. denied, 2016 WL 361643 (June 6, 

2016). In Sullivan, the Ninth Circuit interpreted 28 U.S.C. § 2252(b)(2), which has a clause that 

is identical to a clause in § 2252A(b)(2), the provision at issue here. That clause imposes a 

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PAGE 6 – OPINION AND ORDER

ten-year mandatory minimum sentence if a defendant has a prior conviction “under the laws of 

any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving 

a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or 

transportation of child pornography . . . .” 18 U.S.C. § 2252(b)(2) (emphasis added); see also 18 

U.S.C. § 2252A(b)(2) (including an identical provision regarding qualifying prior state 

convictions).

In Sullivan, the Ninth Circuit held that the defendant’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 [v. United States, 

495 U.S. 575 (1990)] “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.

Sullivan, 797 F.3d at 635 n.7 (alterations in original).

Similarly, in an earlier decision, the Ninth Circuit provided an even more detailed 

explanation for why the appropriate classification of a prior conviction does not need to be 

pleaded in an indictment or proven (or admitted). In that case, the Ninth Circuit expressly ruled 

that this is a legal question for the court and not a factual matter.

Defendant’s second argument is that, even if the fact of a prior 

conviction need not be proved to a jury beyond a reasonable doubt, 

a jury must decide whether a prior conviction should be classified 

as a “crime of violence” for the purpose of determining careeroffender status under U.S.S.G. § 4B1.1. We rejected a nearly 

identical argument in Smith, 390 F.3d at 666-67. There, we held 

that the district court determined no more than the “fact of a prior 

conviction” when it characterized the defendant’s prior convictions 

as “violent felonies” for purposes of the Armed Career Criminal 

Act, 18 U.S.C. § 924(c). We reasoned that the categorical and 

modified categorical analyses conducted pursuant to Taylor v. 

United States, 495 U.S. 575 (1990), and employed in Smith, 

prohibit inquiry into the facts underlying a prior conviction. Smith, 

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390 F.3d at 664-66. We see no principled basis for a different rule 

under the career-offender provisions of the Sentencing Guidelines. 

See United States v. Riley, 183 F.3d 1155, 1158 (9th Cir. 1999) 

(applying the Taylor categorical approach to a “crime of violence” 

determination under the career-offender provisions of the 

Sentencing Guidelines).

When the Taylor approach is followed, the categorization of a 

prior conviction as a “violent felony” or a “crime of violence” is a 

legal question, not a factual question coming within the purview of 

Apprendi, Blakely, and Booker. See, e.g., United States v. Lewis, 

405 F.3d 511, 514 (7th Cir. 2005) (“That legal criteria (‘what kind 

of crime is this?’) rather than factual inquiries (‘what did this 

person do when violating that statute?’) identify a ‘crime of 

violence’ is the principal reason why the [prior convictions] 

proviso to Booker exists[.]”); United States v. McGuire, 389 F.3d 

225, 231 (1st Cir. 2004) (noting that “whether a prior conviction 

qualifies as a predicate offense under [U.S.S.G.] section 4B1.1 is a 

question of law” and holding that the defendant’s sentencing as a 

career offender did not violate Blakely) (internal quotation marks 

and alterations omitted); United States v. Trala, 386 F.3d 536, 547 

n. 15 (3d Cir. 2004) (holding, under U.S.S.G. § 4B1.1, that 

“whether an offense is a ‘crime of violence or a controlled 

substance offense’ is a legal determination, which does not raise an 

issue of fact under Blakely or Apprendi”). Accordingly, 

Defendant’s sentence was not based on an impermissible finding 

of fact, but only on the fact of his prior convictions. Therefore, 

there is no Sixth Amendment violation.

United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005); see also United States v. 

Jennings, 515 F.3d 980, 988 (9th Cir. 2008) (holding, in response to an argument that the 

Government must plead and prove that prior convictions qualified under the ACCA, that “[t]his 

contention is squarely foreclosed by Supreme Court and Ninth Circuit precedent, which rejects 

Sixth Amendment challenges to the judicial categorization of prior convictions under the 

ACCA.” (citing cases, including James v. United States, 550 U.S. 192 (2007) (holding that 

application of the Taylor categorical approach to determine whether an offense presents a serious 

potential risk of physical injury to others ‘raises no Sixth Amendment issue’); United States v. 

Von Brown, 417 F.3d 1077, 1079 (9th Cir. 2005) (per curiam) (“When the Taylor approach is 

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PAGE 8 – OPINION AND ORDER

followed, the categorization of a prior conviction as a ‘violent felony’ or a ‘crime of violence’ is 

a legal question, not a factual question coming within the purview of Apprendi, Blakely, and 

Booker.”)).

Based on this long line of precedent, the Court rejects Defendant’s argument that because 

the Government failed expressly to plead and prove that Defendant’s prior conviction “related 

to” child pornography, his prior state court conviction may not be considered in deciding 

whether the mandatory minimum has been triggered. This is a legal issue for the Court, not a 

factual question that must be pleaded and proven. The Court now turns to that legal question.

B. Whether Defendant’s Prior State Conviction Is a “Qualifying Offense” for Purposes of 

Sentence Enhancement

As recently explained by the Ninth Circuit:

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, –––U.S.–––, 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, –––U.S.–––, 135 S.Ct. 1980, 

1986–87 (2015); Taylor, 495 U.S. at 600–01.

Sullivan, 797 F.3d at 635.

Defendant argues that the Oregon statutes of the prior conviction in this case criminalize 

more conduct than the federal offense of possession of child pornography, using the federal 

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statutory definitions. Defendant admits that in 2006 he was convicted of both Encouraging Child 

Sex Abuse in the First Degree, in violation of Or. Rev. Stat. § 163.6843and Encouraging Child 

Sex Abuse in the Second Degree, in violation of Or. Rev. Stat. § 163.686.4For purposes of both 

 

3 Under the version of this statute applicable to Defendant’s conviction in 2006, 

(1) A person commits the crime of encouraging child sexual abuse 

in the first degree if the person:

 (a)(A) Knowingly develops, duplicates, publishes, prints, 

disseminates, exchanges, displays, finances, attempts to finance or 

sells any photograph, motion picture, videotape or other visual 

recording of sexually explicit conduct involving a child or 

possesses such matter with the intent to develop, duplicate, 

publish, print, disseminate, exchange, display or sell it; or

 (B) Knowingly brings into this state, or causes to be brought or 

sent into this state, for sale or distribution, any photograph, motion 

picture, videotape or other visual recording of sexually explicit 

“conduct involving a child; and

 (b) Knows or is aware of and consciously disregards the fact that 

creation of the visual recording of sexually explicit conduct 

involved child abuse.

4 Under the version of this statute applicable to Defendant’s conviction in 2006,

(1) A person commits the crime of encouraging child sexual abuse 

in the second degree if the person:

 (a)(A)(i) Knowingly possesses or controls any photograph, 

motion picture, videotape or other visual recording of sexually 

explicit conduct involving a child for the purpose of arousing or 

satisfying the sexual desires of the person or another person; or

 (ii) Knowingly pays, exchanges or gives anything of value 

to obtain or view a photograph, motion picture, videotape or other 

visual recording of sexually explicit conduct involving a child for 

the purpose of arousing or satisfying the sexual desires of the 

person or another person; and

 (B) Knows or is aware of and consciously disregards the fact 

that creation of the visual recording of sexually explicit conduct 

involved child abuse; or

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PAGE 10 – OPINION AND ORDER

statutes, “sexually explicit conduct” is defined under Oregon law as actual or simulated sexual 

intercourse; genital contact; penetration; masturbation; sadistic or masochistic abuse; or lewd 

exhibition of sexual or other intimate parts. ORS § 163.665(3) (emphasis added).

Defendant correctly states that the Oregon Supreme Court has interpreted the phrase 

“other intimate parts” in these statutes to apply to “more than ‘sexual parts[.]’” State v. Woodley, 

306 Or. 458, 461, 760 P.2d 884, 886 (1988). “[T]he part must be subjectively intimate to the 

person touched, and either known by the accused to be so or to be an area of the anatomy that 

would be objectively known to be intimate by any reasonable person. . . . [T]he court may not, in 

a criminal case, instruct the jury that any part is objectively ‘intimate,’ other than breasts.” 306 

Or. at 463. The Oregon Court of Appeals similarly held that a victim’s neck could be construed 

as an “intimate.” State v. Meyrovich, 129 P.3d 729, 733 (Or. Ct. App. 2006).

Defendant also correctly states that the federal statutory definition of “sexually explicit 

conduct” in 18 U.S.C. § 2256, for purposes of federal child pornography offenses in Chapter 110

of Title 18, is narrower than the Oregon definition of that phrase. For purposes of the federal 

definition, “sexually explicit conduct” is limited to specified acts (actual or simulated) and 

“lascivious exhibition of the genitals or pubic area of a person.” 18 U.S.C. § 2256(2)(A)(v).5

Based on this distinction between Oregon law and federal law, Defendant argues that because his 

 

 (b)(A) Knowingly pays, exchanges or gives anything of value to 

observe sexually explicit conduct by a child or knowingly 

observes, for the purpose of arousing or gratifying the sexual 

desire of the person, sexually explicit conduct by a child; and

 (B) Knows or is aware of and consciously disregards the fact 

that the conduct constitutes child abuse.

5 Defendant does not argue that there is any material difference between the meanings of 

“lewd” and “lascivious.”

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“prior Oregon convictions fall under laws that define ‘sexually explicit conduct’ more broadly than 

federal law and include conduct not punishable under federal law, his convictions are not a suitable 

predicate to trigger the mandatory minimum sentence provided by § 2252A(b)(2).” ECF 37 at 11.

The Government responds that the Oregon offenses of conviction need not mirror the 

federal offense in order to trigger the sentence enhancement because of the phrase “relating to” 

contained in § 2252(A)(b)(2). ECF 46 at 5-6. In support, the Government relies on both Sullivan

and United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007). In Sullivan, the Ninth Circuit held:

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), 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 broadly defined 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.

* * *

[W]e . . . 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 . . . . We 

conclude they do not.

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Sullivan, 797 F.3d at 637-38, 640 (emphasis added) (citation omitted) (footnote omitted).6

There is no doubt that the federal offense of possession of child pornography is “related 

to” the Oregon child pornography offenses. Oregon courts have interpreted the state offense of 

Encouraging Child Sexual Abuse in the First Degree as prohibiting producing child pornography 

and distributing child pornography. See State v. Bray, 342 Or. 711, 718 (2007); State v. Pugh, 

255 Or. App. 357 (2013). Similarly, the state offense of Encouraging Child Sexual Abuse in the 

Second Degree “prohibits various types of possession or purchase of recorded images of sexually 

explicit conduct involving a child, as well as paying to observe, or observing, sexually explicit 

conduct by a child, ‘for the purpose of arousing or gratifying the sexual desires of the person or 

another person,’ knowing that the use of the child in a sexual display constituted child abuse.” 

State v. Porter, 241 Or. App. 26, 33 (2011).

Defendant, however, attempts to distinguish both Sullivan and Sinerius on the grounds 

that in those cases the elements of the state offense were compared to a “generic” federal offense 

of “sexual abuse” based on the “ordinary and commonsense meaning” of the term “sexual 

abuse.” See Sullivan, 797 F.3d at 636; Sinerius, 504 F.3d at 742-43 (“the federal crime of ‘sexual 

abuse’ under § 2242 is not a definitional provision applicable to § 2252A”).7 Here, however, 

argues Defendant, the term “sexually explicit conduct” is defined in Chapter 110, at 

 

6

The “usual” categorical approach can be traced to the Supreme Court’s decision in 

Taylor v. United States, 495 U.S. 575 (1990). That case, however, did not involve an 

enhancement statute that contained any “relating to” text like what is found in both § 2252(b)(2) 

and § 2252A(b)(2), which are the relevant statutes for Sullivan, Sinerius, and this case. 

Defendant also invokes the Ninth Circuit’s recent decision in Chavez-Solis v. Lynch, 803 F.3d 

1004 (9th Cir. 2015). That case, too, is distinguishable because it did not involve a sentence 

enhancement provision that used words like “relating to,” as are found in § 2252A(b)(2).

7

In Sinerius, the Ninth Circuit explained that it is using the ordinary and common 

meaning of “sexual abuse” because Congress did not provide a specific definition in § 2256. 

Sinerius, 504 F.3d at 743.

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§ 2256(2)(A), which is the same chapter in which the federal offense under § 2252A(a)(5) and 

the sentencing enhancement under § 2252A(b)(2) are located.8Thus, argues Defendant, the 

Court must look to the specific federal definition when performing the Taylor “categorical 

approach” in evaluating the elements of the prior state conviction.9 Although Defendant’s 

distinction is factually accurate, it is not a meaningful distinction because of the words “relating 

to” in § 2252A(b)(2). See Sullivan, 797 F.3d at 637-38 (addressing § 2252(b)(2) and holding, 

“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.”).

No Ninth Circuit decision has been located that directly addresses this point in the 

context of § 2252A(b)(2), but the operative clause is the same as what appears in § 2252(b)(2). 

In addition, the Court has located a district court decision that considered the very same Oregon 

and federal statutes that are at issue here. In United States v. Haddock, 2013 WL 6670559 (D. 

Nev. Dec. 17, 2013), aff’d on other grounds, 594 F. App’x 436 (9th Cir. 2015), U.S. District 

Judge Larry R. Hicks held that Oregon’s offense of Encouraging Child Sex Abuse in the First 

Degree in violation of Or. Rev. Stat. § 163.684 constituted a prior qualifying conviction under 18 

U.S.C. § 2252A(b)(1). In explaining that conclusion, Judge Hicks stated:

 

8 Defendant is correct that here the relevant federal statute here provides applicable 

definitions, making it unnecessary to use “ordinary and common” meanings. See 18 U.S.C. 

§ 2256 (definitions for chapter). For the reasons discussed below, however, that does not change 

the result.

9

The Government focuses its arguments on how the prior state crimes “relate to” child 

pornography, but notes in footnote 1 of its memorandum (ECF 46 at 4) that these crimes also 

“relate to” sexual abuse and abusive sexual conduct involving a minor, citing U.S. v. Colson, 683 

F.3d 507 (4th Cir. 2012). Because the Government focuses its argument on child pornography, 

the Court limits its analysis to whether Defendant’s state convictions “related to” child 

pornography.

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Haddock’s argument is based on the faulty assumption that both 

the federal and state statute must be identical for the court to 

perform the categorical approach under Taylor. However, the 

Ninth Circuit has expressly rejected Haddock’s contention that a 

state conviction must match or be identical to the corresponding 

federal crime in order to be categorically deemed a qualifying 

predicate conviction. See United States v. Farmer, 627 F.3d 416, 

420–22 (9th Cir.2010). Instead, the court must use the ordinary and 

common meaning of the statutory terms when conducting the 

analysis. Sinerius, 504 F.3d at 743. The ordinary and common 

meaning of the term “child pornography” is simply “[m]aterial 

depicting a person under the age of 18 engaged in sexual activity.” 

BLACK'S LAW DICTIONARY (9th Ed.2009). This is the same type of 

material the Oregon statute prohibits from development, 

duplication, etc. See O.R.S. § 163.684.

More importantly, however, is the fact that Haddock’s argument 

completely ignores the “relating to” language within the federal 

statute which means “to stand in some relation to; to have bearing 

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

connection with.” Sinerius, 504 F.3d at 743. As such, the court 

finds that the sentencing enhancement under § 2252A(b)(1) applies 

not only to state convictions that are the equivalent of the federal 

offense, but also to those state convictions that relate to, bear upon, 

or are associated with the underlying generic offense. Haddock's 

prior conviction for knowingly developing, duplicating, 

publishing, printing, disseminating, exchanging, displaying, 

financing, attempting to finance, and/or selling sexually explicit 

conduct involving a child “relates to” the production, possession, 

receipt, mailing, sale, distribution, shipment, or transportation of 

child pornography as defined under the federal statute. Therefore, 

the court finds that Haddock’s prior conviction under Oregon law 

constitutes a prior predicate conviction under the federal statute for 

purposes of the sentencing enhancement.

Haddock, 2013 WL 6670559, at *3. The Court finds Judge Hicks’s reasoning persuasive. The 

Oregon offenses have some relation, bear upon, or are associated with child pornography, even 

as that term is defined under federal law. See Cf. Sinerius, 504 F.3d at 743 (Section 2252A(b) 

“mandates the enhancement for any state offense that stands in some relation, bears upon, or is 

associated with that generic [federal] offense”). Further, any other interpretation would ignore 

the phrase “relating to” in § 2252A(b)(2).

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Defendant, however, identifies a case from the Sixth Circuit that appears to do precisely 

that. According to Defendant:

For example, in United States v. McGrattan, 504 F.3d 608, 610 

(6th Cir. 2007), the defendant pled guilty to § 2252A(a)(2) for 

knowingly receiving and distributing child pornography. The 

district court found that his prior conviction under the Ohio statute 

titled “Illegal Use of Minor in Nudity-Oriented Material or 

Performance” qualified as a predicate for the (b)(1) sentence 

enhancement. Id. at 609-10. The Ohio statute made it a crime to 

possess material depicting a minor “in a state of nudity.” Id. at 610. 

The Sixth Circuit reversed the district court and held that because 

Ohio’s definition of nudity “clearly covers representations which 

include the breast or the buttocks, but which do not focus on or 

even include the genitals or pubic area,” there was a realistic 

probability that someone could be prosecuted and convicted under 

the Ohio law for conduct outside the federal definition of child 

pornography and therefore did “not categorically fall within the 

definition of a prior offenses under 18 U.S.C. § 2252A(b)(l).” Id. 

The court rejected the abandonment of the Taylor-Shepard

analytical framework in cases arising under § 2252A(b)(1) citing 

an “underlying concern is the protection of the defendant’s jury 

trial right under the Sixth and Fourteenth Amendments”

ECF 37 at 12; see also ECF 37 at 12-13 (“Similarly, the Fourth Circuit ‘[does] not view 

Congress’ use of the phrase “relating to” in the sexual abuse enhancement as a mandate to 

broaden the field of defendants subject to the enhancement by eliminating use of the categorical 

approach.’ United States v. Spence, 661 F.3d at 199.”); but see United States v. Mateen, 806 

F.3d 857, 860 (6th Cir. 2015) (“Because the government’s sole argument is that the section 2252 

enhancement for state convictions relating to sexual abuse applies, we need only analyze 

whether Ohio’s gross sexual imposition statute ‘relat[es] to . . . sexual abuse.’”) (emphasis 

added) (ellipsis in original).

In response, the Government states:

The Sixth Circuit is the only Circuit to interpret the statute as 

narrowly as defendant advances, and it did so without considering 

the impact of the phrase “relating to”; it simply assumed that 

§ 2252A(b) requires exact correlation between the definitions in 

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the state statute and those in § 2256. See United States v. Davis, 

751 F.3d 769, 771 (6th Cir. 2014); United States v. McGrattan, 

504 F.3d 608 (6th Cir. 2007). In doing so, the Sixth Circuit 

effectively read the phrase “relating to” right out of the statute.

ECF 46 at 12.

The Government may be right that the Sixth Circuit’s analysis is incorrect because it is 

effectively reading the phrase “relating to” out of the statute. Alternatively, the Sixth Circuit may 

be correct in doing so in order to apply the Taylor categorical approach directed by the Supreme 

Court, thereby making the Sullivan and Sinerius decisions from the Ninth Circuit inconsistent 

with Supreme Court precedent. (This Court is skeptical about the soundness of Sixth Circuit’s 

approach, at least as it is described by Defendant, because when interpreting a statute one should 

not ignore the words of a law passed by Congress.) In any event, this Court is directed by Ninth 

Circuit precedent not to ignore the words “relating to” as they are found in § 2252A(b)(2). The 

fact that the phrase “sexually explicit conduct” is defined in Chapter 110 does not change this 

result.10

In addition, the Ninth Circuit in Sinerius explained

Finally, experience indicates that when Congress intends to require 

a state offense to be congruent to a corresponding federal offense 

for sentencing enhancement purposes, it will draft such a 

requirement expressly. For example, 18 U.S.C. § 2241(c) requires 

a life sentence where the defendant “has previously been convicted 

of another Federal offense under this subsection, or of a State 

offense that would have been an offense under either such 

provision had the offense occurred in a federal prison.” 18 U.S.C. 

§ 2241(c) (emphasis added). Similarly, 18 U.S.C. § 3559(e)(2)(B) 

defines a “State sex offense” for purposes of that subsection to 

mean “an offense under State law that is punishable by more than 

one year in prison and consists of conduct that would be a federal 

sex offense.” 18 U.S.C. § 3559(e)(2)(B) (emphasis added).

 

10 Defendant makes a similar argument based on the fact that the Oregon statutes prohibit 

financing or attempting to finance sexually explicit material. ECF 37 at 10. Given the presence 

of the “relating to” text in § 2252A(b)(2), the result is the same under this argument.

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Sinerius, 504 F.3d at 743-44 (footnote omitted) (emphasis in original).

Finally, the Defendant invokes the “rule of lenity,” urging that in a criminal case any

ambiguity must be resolved in favor of Defendant. According to the Supreme Court, however, 

“[w]e have used the lenity principle to resolve ambiguity in favor of the defendant only ‘at the 

end of the process of construing what Congress has expressed’ when the ordinary canons of 

statutory construction have revealed no satisfactory construction.” Lockhart v. U.S., 136 S.Ct. 

958, 968 (2016), citing Callanan v. United States, 364 U.S. 587, 596 (1961). As in Lockhart, 

“[t]hat is not the case here.” Following the approach directed by the Ninth Circuit, the phrase 

“relating to” in § 2252A(b)(2) is not ambiguous. See Sullivan, 797 F.3d at 638.

C. Whether “Relating to” Is Unconstitutionally Vague

Defendant also argues that, if the term “relating to” under § 2252A(b)(2) is interpreted 

sufficiently broadly to apply in this case to trigger the mandatory minimum, then that term is 

unconstitutionally vague. Defendant relies upon Mellouli v. Lynch, 135 S.Ct. 1980 (2015). This 

argument by Defendant, however, also appears to be foreclosed by the Ninth Circuit’s decision 

in Sullivan.

In considering the application of the Taylor categorical approach to 

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

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PAGE 18 – OPINION AND ORDER

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.

* * *

Because neither context nor history tugs “in favor of a narrower 

reading,” we define the phrase “relating to” in § 2251(e) and 

§ 2252(b)(2) broadly.

Sullivan, 797 F.3d at 638-40 (citation omitted).

CONCLUSION

The question of whether the Oregon offenses of Encouraging Child Sex Abuse in the 

First and Second Degree are “related to” child pornography, as that phrase is defined under 

federal law, is a question of law for the Court, not a factual element that must be pleaded and 

proven. The Court also answers that question in the affirmative: the state offenses are related to 

the federal offense. The Court further determines that the phrase “relating to” in this context is 

not unconstitutionally vague. Accordingly, the ten-year mandatory minimum sentence specified 

in 18 U.S.C. § 2252A(b)(2) applies to Defendant’s federal conviction. The Court, however, 

continues to express serious concern about the basic fairness under the facts of this case 

involving the plea agreement’s asymmetrical waiver of Defendant’s right to appeal this Court’s 

decision on these important questions. Such an appeal would not be frivolous or in bad faith, and 

such a waiver is especially disturbing in light of the apparent conflict between the Ninth Circuit 

and the Sixth Circuit. Defendant should be afforded an opportunity to appeal this decision, and 

the Government should not have conditioned any promise not to seek additional charges that 

carry a longer mandatory minimum sentence on Defendant’s waiver of his right to bring a 

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PAGE 19 – OPINION AND ORDER

non-frivolous appeal seeking either en banc review by the Ninth Circuit or a writ of certiorari by 

the U. S. Supreme Court.

IT IS SO ORDERED.

DATED this 29th day of June, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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