FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30327 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00024-CCL

ARTHUR EMIL SINERIUS, JR., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

March 9, 2007—Seattle, Washington

Filed September 20, 2007

Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge O’Scannlain

12779
COUNSEL

Michael Donahoe, Senior Litigator, Federal Defenders of

Montana, argued the cause for the defendant-appellant, and

filed briefs; Anthony R. Gallagher, Federal Defender, was on

the briefs. 

Marcia Hurd, Assistant U.S. Attorney, Billings, Montana,

argued the cause for the plaintiff-appellee and filed a brief;

William W. Mercer, U.S. Attorney, District of Montana, and

Eric B. Wolf, Assistant U.S. Attorney, Billings, Montana,

were on the brief. 

UNITED STATES v. SINERIUS 12781
OPINION

O’SCANNLAIN, Circuit Judge: 

We are called upon to determine whether a federal defendant’s prior conviction for “sexual assault” under Montana

state law triggers an enhanced penalty under the sentencing

provisions applicable to his federal crimes. 

I

In 2005, Arthur Emil Sinerius, Jr. was indicted by a federal

grand jury for receipt of child pornography (“Count I”) and

possession of child pornography (“Count II”), in violation of

18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B) respectively.

Sinerius subsequently pled guilty to both counts, and also

agreed to forfeiture of his computer pursuant to 18 U.S.C.

§ 2253. The government agreed, pending the determinations

of the presentence investigation report (“PSR”), to recommend a sentence at the low end of the advisory guideline

range. 

The PSR determined that Sinerius’s base offense level was

22 and then added two levels because the material involved

a prepubescent minor or a minor under the age of 12,

U.S.S.G. § 2G2.2(b)(2); four levels because the offense

involved material that portrays sadistic or masochistic conduct or other depictions of violence, U.S.S.G. § 2G2.2(b)(4);

two levels because the offense involved the use of a computer, U.S.S.G. § 2G2.2(b)(6); and four levels because the

offense involved between 300 and 600 images, U.S.S.G.

§ 2G2.2(b)(7)(C). The PSR then subtracted two levels

because Sinerius’s conduct was limited to the receipt of child

pornography and he did not traffic in such material, U.S.S.G.

§ 2G2.2(b)(1); and three levels for acceptance of responsibility, U.S.S.G. § 3E1.1. Accordingly, based on Sinerius’s total

offense level of 29 and Criminal History Category of II, the

PSR calculated an advisory Guidelines range of 97 to 121

12782 UNITED STATES v. SINERIUS
months. However, the PSR also determined that Sinerius’s’

prior conviction for sexual assault, in violation of Mont. Code

Ann. § 45-5-502 (the “Montana sexual assault statute”), was

a predicate offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or

ward,” as defined by § 2252A(b). 18 U.S.C.

§§ 2252A(b)(1),(2). The PSR thus concluded that § 2252A(b)

required enhanced mandatory minimum sentences of 15 years

for Count I and 10 years for Count II.1

At his change of plea hearing, Sinerius admitted to his prior

conviction and indicated that he agreed with the government’s

summary of the facts, including that “Sinerius is a registered

sexual offender, having been convicted in Montana state court

in 1994 of sexually abusing a minor female child.”

2

 Sinerius

1Section 2252A(b)(1) sets forth the mandatory minimum sentence for

Count I (receipt of child pornography under § 2252A(a)(2)(B)), among

other offenses. Section 2252(A)(b)(2) sets forth the mandatory minimum

sentence for Count II (possession of child pornography under

§ 2252A(a)(5)(B)). Both provisions require an enhanced sentence when

the defendant has been convicted of a state offense “relating to aggravated

sexual abuse, sexual abuse, or abusive conduct involving a minor or

ward.” §§ 2252A(b)(1),(2). Because the relevant text of both

§§ 2252A(b)(1) and 2252A(b)(2) is identical, we treat the two provisions

together for purposes of the issue raised by this appeal. 

2Sinerius was originally charged with “sexual intercourse without consent,” in violation of Mont. Code Ann. § 45-5-503. The information states

that Sinerius, then thirty-one years old, “knowingly had sexual intercourse

without consent with another person, to-wit: the defendant fondled the

vaginal area of R.D., d/o/b 4-23-81, and inserted his fingers and his penis

into her vagina when she was incapable of consent due to her age.” Subsequently, however, the Montana trial judge granted the state’s motion in

open court to amend the charge against Sinerius from “sexual intercourse

without consent (felony)” to “sexual assault (felony),” in violation of

Mont.Code Ann. § 45-5-502. The amendment was made by a handwritten

interlineation on the information, striking out the former charge and

replacing it with the latter. At Sinerius’s federal sentencing hearing, the

federal prosecutor, who, coincidentally, had also served as the state district

attorney in the Montana court proceedings, stated that this amendment

only changed the charged offense, not the underlying facts. No transcript

of the state trial proceedings is available. 

UNITED STATES v. SINERIUS 12783
objected to the PSR, however, arguing that his prior Montana

conviction did not categorically qualify as a predicate offense

for enhancement purposes. 

At the sentencing hearing, the district court ruled that

Sinerius’s Montana conviction was a predicate offense that

required the enhanced mandatory minimum sentences provided by § 2252A(b) because it was an offense “relating to

. . . sexual abuse, or abusive sexual conduct involving a minor

or ward.” Relying on the prior conviction, the court sentenced

Sinerius to imprisonment of 180 months for receipt of child

pornography (under § 2252A(b)(1)), and 120 months for possession of child pornography (under § 2252A(b)(2)), to run

concurrently. The court also sentenced Sinerius to supervised

release for a term of life, and ordered him to participate in

treatment and to pay an assessment. 

Sinerius appeals the sentence. 

II

To determine whether Sinerius’s conviction under the

Montana sexual assault statute meets the definition of a predicate sex offense under § 2252A(b), we rely on the familiar

two-step test set forth in Taylor v. United States, 495 U.S. 575

(1990). See United States v. Baron-Medina, 187 F.3d 1144,

1147 (9th Cir. 1999) (employing Taylor’s categorical

approach to interpret the phrase “sexual abuse of a minor” in

8 U.S.C. § 1101(a)(43)); see also United States v. Romm, 455

F.3d 990, 1005 (9th Cir. 2006) (recognizing the parties’

agreement that Taylor’s categorical approach applies to a sentence enhancement under § 2252A(b)). 

After Sinerius pled guilty to “sexual assault (felony),” the Montana trial

judge sentenced him to ten years imprisonment, all but 30 days suspended,

placed him on probation for ten years, and ordered him to pay a fine, register as a sex offender, and undergo treatment. 

12784 UNITED STATES v. SINERIUS
First, we examine the definition of the predicate offense in

the federal statute. See United States v. Lopez-Solis, 447 F.3d

1201, 1206 (9th Cir. 2006). Section 2252A(b) imposes an

enhanced sentence on a defendant “if such person has a prior

conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor or ward.” 18 U.S.C. § 2252A(b)(1),(2)

(emphasis added). Thus, the relevant offenses under

§ 2252A(b) are those “relating to . . . aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor or

ward.” See Lopez-Solis, 447 F.3d at 1206. 

Next, we look to the Montana sexual assault statute and

compare its elements to the definition of the terms “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct involving a minor” under § 2252A(b). Lopez-Solis, 447

F.3d at 1206. Under this categorical approach, Sinerius’s

Montana conviction will qualify as a predicate sex offense

only if the full range of conduct covered by the Montana statute falls within the meaning of those terms. Id. 

A

[1] Section 2252A(b) requires an enhanced sentence if

Sinerius’s Montana conviction is as an offense “relating to”

either “aggravated sexual abuse,” “sexual abuse,” or “abusive

sexual conduct involving a minor.” We first consider whether

Sinerius’s conviction is an offense “relating to . . . sexual

abuse.” 

Under the categorical approach, we follow our common

practice in cases involving non-traditional offenses by defining the offense based on the “ordinary, contemporary, and

common meaning” of the statutory words.” See Lopez-Solis,

447 F.3d at 1206-07 (citation omitted) (defining “sexual

abuse of a minor” for purposes of the predicate offense under

U.S.S.G. § 2L1.2). 

UNITED STATES v. SINERIUS 12785
[2] We define the term “sexual abuse” by coupling the dictionary definition of “abuse” with the common understanding

of “sexual.” See id. at 1207; Baron-Medina, 187 F.3d 1146.

First, in the context of the Sentencing Guidelines, we have

defined “abuse” to mean “misuse . . . to use or treat so as to

injure, hurt, or damage . . . to commit indecent assault on.” Id.

at 1207; United States v. Pallares-Galan, 359 F.3d 1088,

1100 (9th Cir. 2004) (quoting Webster’s Third New Int’l Dictionary 8 (3d ed. 1981)). We have explained that this definition “encompass[es] behavior that is harmful emotionally and

physically.” Lopez-Solis, 447 F.3d at 1207. Second, we have

given the term “sexual” its ordinary and commonsense meaning. See id. Equipped with this understanding of § 2252A(b)’s

definition of a predicate offense, we next consider the Montana statute under which Sinerius was convicted. 

B

Under the categorical approach, we look only to the fact of

Sinerius’s prior conviction and the elements of the Montana

offense to determine whether § 2252A(b)’s definition of “sexual abuse” covers the full scope the conduct prohibited by the

Montana sexual assault statute. Id. at 1206. 

1

[3] The Montana statute undeniably proscribes acts that are

“sexual” in nature. Mont. Code Ann. § 45-5-502. The statute

prohibits knowingly subjecting “another person to any sexual

contact without consent.” Id. § 45-5-502(1). The relevant definitional provision describes “sexual contact” as “any touching of the sexual or other intimate parts of the person of

another for the purpose of arousing or gratifying the sexual

desire of either party.” Id. § 45-2-101(60). In addition, the

range of conduct the Montana statute proscribes is “abusive”

because it necessarily involves physical “contact without consent.” Id. § 45-5-502(1) (emphasis added). The physical

touching of another person’s sexual or intimate parts, for the

12786 UNITED STATES v. SINERIUS
purposes of sexual arousal or gratification and without consent, amounts to an “indecent assault on” that person. LopezSolis, 447 F.3d at 1207. 

Nevertheless, Sinerius maintains that the Montana statute is

over-inclusive vis-a-vis the offenses described in § 2252A(b)

and, as a consequence, that his conviction therefore cannot

categorically qualify as a predicate offense. 

Under the categorical approach, even the least egregious

conduct proscribed by the Montana statute must qualify as an

offense “relating to . . . sexual abuse.” See id. at 1206-07;

Valencia v. Gonzales, 439 F.3d 1046, 1052 & n.3 (9th Cir.

2006). If such conduct does not qualify, the Montana statute

is over-inclusive on its face. 

The Montana statute provides that a victim less than 14

years old cannot consent to sexual contact if the offender’s

age exceeds his or her own by three or more years. Mont.

Code Ann. § 45-5-502(5). Thus, one might consider the least

egregious conduct proscribed by the Montana statute to

involve ostensibly “consensual” sexual contact between a 16-

year-old offender and a 13-year-old victim, but for the fact

that the statute negates the victim’s ability to consent. Even

so, we have previously concluded this precise conduct constitutes sexual abuse. In Baron-Medina, we held that touching

the body of a child under 14 years old with sexual intent, even

when it is “innocently and warmly received . . . indisputably

falls within the common, everyday meaning of the words

‘sexual’ and ‘minor’ ” and that such “use of young children

for the gratification of sexual desires constitutes an abuse.”

187 F.3d at 1147 (emphasis added); see also id. (“The use of

young children as objects of sexual gratification is corrupt,

improper, and contrary to good order. It constitutes maltreatment, no matter its form.” (citations omitted) (internal quotation marks omitted)). 

[4] As a consequence, even the least egregious conduct proscribed by the Montana statute, consensual sexual contact by

UNITED STATES v. SINERIUS 12787
a 16-year-old on a 13-year-old victim, categorically qualifies

as “sexual abuse.” Further, because the statute requires the

victim to be under 14 years of age to render her consent ineffective, our conclusion is consistent with our decisions in

Lopez-Solis and United States v. Baza-Martinez, 464 F.3d

1010 (9th Cir. 2006), holding that more expansive state statutes were not predicate offenses within the definition of the

term “sexual abuse of a minor.” 

In Lopez-Solis, we held that a conviction under a state statutory rape statute did not qualify as “sexual abuse of a minor”

because the statute prohibited “consensual penetration of a

victim just under 18 years of age by a 22-year-old perpetrator.” 447 F.3d at 1207. We concluded that this conduct did not

categorically include the necessary physical or psychological

injury required by the term “abuse,” indicating that “prior

case law—as well as common sense—suggest that, while consensual underage sex may be harmful to a young teen, it may

not be harmful to an older one.” Id. at 1208 (citing United

States v. Melton, 344 F.3d 1021, 1028-29 (9th Cir. 2003)

(suggesting that only in the presence of certain aggravating

factors, such as incest, will a sexual encounter between a 17

year old and an adult necessarily create a “situation of [psychological] dominance and control”). Similarly, in BazaMartinez, we concluded that a state statute prohibiting “indecent liberties with a child” did not qualify as “sexual abuse of

a minor,” because it prohibited a very broad range of conduct,

including “mere words.” 464 F.3d at 1016-17 (“All that is

required is that at the time of the immoral, improper, or indecent liberty, the defendant must be in either the actual or constructive presence of the child.” (internal quotation marks and

citations omitted)). 

In contrast to the statutes at issue in Lopez-Solis and BazaMartinez, the Montana sexual assault statute proscribes a narrower range of conduct, all of which necessarily involves

“sexual abuse” under its ordinary and common meaning.

12788 UNITED STATES v. SINERIUS
2

[5] Sinerius argues, however, that § 2252A(b) requires us

to define the term “sexual abuse” by cross-reference to the

federal offense of “sexual abuse” under 18 U.S.C. § 2242

rather than by the ordinary and common meaning of that phrase.3

Section 2242 proscribes a narrower range of conduct than the

Montana sexual assault statute. Specifically, Sinerius argues

that “sexual abuse” under § 2242 requires skin-to-skin contact, whereas “sexual assault” under the Montana statute only

requires “offensive touching of a intimate body part,” which

could include touching through clothing. Mont. Code Ann.

§ 45-2-101. Consequently, Sinerius contends that his conviction under the Montana statute cannot qualify, categorically,

as a predicate offense “relating to . . . sexual abuse” under

§ 2252A(b). We disagree. 

[6] We have never defined predicate sex offenses under

§ 2252A by cross reference to the federal provisions Sinerius

cites, nor has any other court of appeals. See United States v.

Hubbard, 480 F.3d 341, 348 (5th Cir. 2007) (construing “aggravated sexual abuse, sexual abuse, [and] abusive sexual

conduct involving a minor” under § 2252A(b)(1) as “generic

offenses”); Rezin, 322 F.3d at 447-48 (reaching the same conclusion in construing materially indistinguisable language in

§ 2252). Our reasons for declining to do so derive from wellestablished principles of statutory interpretation. First, the

federal crime of “sexual abuse” under § 2242 is not a definitional provision applicable to § 2252A. Section 2252A is cod3Sinerius offers an identical argument with respect to the other terms in

§ 2252A(b). He asks us to define “aggravated sexual abuse” by crossreference to the federal offense of “aggravated sexual abuse” under 18

U.S.C. § 2241, and “abusive sexual conduct involving a minor or ward”

by cross-reference to the federal offenses of “sexual abuse of a minor or

ward” under 18 U.S.C. § 2243 and “abusive sexual contact” under 18

U.S.C. § 2244. We decline to interpret these terms by cross-reference to

the cited federal crimes for the same reasons we decline to interpret the

term “sexual abuse” in such manner. 

UNITED STATES v. SINERIUS 12789
ified in title 18, chapter 110. The definitions applicable to

chapter 110 are located in 18 U.S.C. § 2256. Section 2242, on

the other hand, is located in chapter 109A. 

[7] While Congress did not provide a specific definition of

“sexual abuse” in § 2256, we believe its decision not to do so

reflects Congress’s intent to define “sexual abuse” as a

generic offense, understood by its ordinary and common

meaning, see Lopez-Solis, 447 F.3d at 1206-07, rather than to

import the elements of offenses delineated elsewhere in the

U.S. Code. See Hubbard, 480 F.3d at 348. 

Our conclusion is strengthened by the plain language of

§ 2252A. That section specifically accounts for the federal

crime of “sexual abuse” under § 2242 in a separate category

of predicate offenses. Section 2252A(b) requires an enhanced

sentence if the defendant “has a prior conviction under . . .

chapter 109A . . . or under the laws of any State relating to

aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U.S.C. § 2252A(b)(1),(2)

(emphasis added). Thus, § 2252A(b) treats federal offenses

located in chapter 109A (which includes sexual abuse under

§ 2242) as a separate category of predicate offenses, independent from its treatment of state law convictions like the one

at issue here. 

[8] Further, § 2252A employs broader language when

defining state convictions that qualify as a predicate sex

offenses than it does when defining predicate federal offenses,

such as those located in chapter 109A. An individual must be

convicted of the specific federal offense listed to be subject to

an enhanced sentence. However, such individual need only be

convicted of a state offense “relating to . . . sexual abuse” to

have the same penalty imposed. 18 U.S.C. § 2252A(b)(1),(2)

(emphasis added). The phrase “relating to,” as defined by the

Supreme Court, means “to stand in some relation to; to have

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

with or connection with.” Morales v. Trans World Airlines,

12790 UNITED STATES v. SINERIUS
504 U.S. 374, 383 (1992) (quoting Black’s Law Dictionary1128 (5th ed. 1979)) (construing “relating to” in a different statutory context). We have construed “relating to”

language broadly in the past, see Luu-Lee v. INS, 224 F.3d

911, 915-16 (interpreting the phrase “relating to a controlled

substance” in section 241(a)(2)(B)(i) of the Immigration and

Nationality Act), and the Fifth, Eighth, and Tenth Circuits

have done the same when interpreting this provision and the

materially indistinguishable text of § 2252, see Hubbard, 480

F.3d at 347 (“We must assume that Congress chose the words

‘relating to’ [in § 2252A(b)(1)] for a purpose.”); United States

v. Weis, 487 F.3d 1148, 1152 (8th Cir. 2007) (construing “relating to” broadly in § 2252); United States v. McCutchen,

419 F.3d 1122, 1127 (10th Cir. 2005) (same). In short,

§ 2252A does not simply mandate a sentencing enhancement

for individuals convicted of state offenses equivalent to sexual

abuse. Rather, it mandates the enhancement for any state

offense that stands in some relation, bears upon, or is associated with that generic offense. 

3

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).4

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

4The phrase “either such provision” refers to 18 U.S.C. §§ 2241(c)

and 2243(a). United States v. Etimani, 328 F.3d 493, 503 (9th Cir. 2003).

UNITED STATES v. SINERIUS 12791
prison and consists of conduct that would be a federal sex

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

Sinerius cites both § 2241(c) and § 3559(e)(2)(B) as evidence that his Montana conviction is not a predicate offense

“relating to . . . sexual abuse” under § 2252A(b), relying on

our decision in Etimani v. United States, 328 F.3d 493 (9th

Cir. 2003), as support. Given the material differences in the

statutory language, however, Sinerius’s reliance on Etimani is

misplaced. In Etimani, we refused to qualify categorically a

conviction under a state statute prohibiting “sexual contact” as

a predicate offense under § 2241(c). The state statute defined

“sexual contact” to include touching through clothing, while

§ 2241(c) required “skin-to-skin contact.” Etimani, 328 F.3d

at 503. 

But as discussed previously, § 2241(c) expressly requires

that a state predicate offense include all the elements of a corresponding federal crime; § 2252A(b) imposes no such limitation. For that reason, Etimani not only fails to support

Sinerius’s interpretation, it provides reliable evidence that

Congress’s failure to include an equivalency requirement in

§ 2252A(b) manifested its intent that no such requirement

exist. See Hubbard, 480 F.3d at 348 (concluding that the

terms “aggravated sexual abuse,” “sexual abuse,” and “abusive conduct involving a minor” in § 2252A(b)(1) are “generic terms, describing generic offenses” without reference to

federal offenses defined elsewhere in the Code). 

[9] Accordingly, we interpret § 2252A(b) in light of its

plain text and reject Sinerius’s argument that a state conviction “relating to . . . sexual abuse” must meet the federal definition of sexual abuse under § 2242 in order to qualify as a

predicate offense for purposes of § 2252A. We therefore conclude that Sinerius’s conviction under the Montana sexual

assault statute categorically qualifies as a predicate offense

triggering the sentencing enhancement under § 2252A(b). 

12792 UNITED STATES v. SINERIUS
C

Since we conclude that Sinerius’s prior Montana conviction

categorically qualifies as “sexual abuse” for purposes of

§ 2252A(b), we need not consider whether the conviction

would also qualify as “aggravated sexual abuse” or “abusive

sexual conduct involving a minor” under the same provision,

nor is it necessary that we examine Sinerius’s conviction

under the “modified” categorical approach. 

III

For the foregoing reasons, we agree with the district court’s

determination that Sinerius’s prior conviction under the Montana sexual assault statute qualifies as a predicate offense

under §§ 2252A(b)(1) & (2). Therefore, we conclude that the

district court did not err in imposing an enhanced mandatory

minimum sentence of 15 years for Sinerius’s conviction under

§ 2252A(a)(2) and an enhanced mandatory minimum sentence of 10 years for Sinerius’s conviction under

§ 2252A(a)(5)(B). The decision of the district court is 

AFFIRMED. 

UNITED STATES v. SINERIUS 12793