FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS SCHOPP, AKA Thomas 

Hiser,

Defendant-Appellant.

No. 16-30185

D.C. No.

1:15-cr-00001-

TMB-1

OPINION

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief District Judge, Presiding

Argued and Submitted June 10, 2019

Anchorage, Alaska

Filed September 16, 2019

Before: A. Wallace Tashima, William A. Fletcher,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon
2 UNITED STATES V. SCHOPP

SUMMARY*

Criminal Law

The panel vacated a life sentence imposed following the 

defendant’s guilty plea to producing child pornography in 

violation of 18 U.S.C. § 2251(a), and remanded for 

resentencing, in a case in which the district court, applying 

the multiple-conviction enhancement contained in 18 U.S.C. 

§ 2251(e), concluded that the defendant’s prior Alaska 

convictions “relat[e] to the sexual exploitation of children.”

The panel held that the appeal is permitted despite the 

defendant’s appeal waiver because the appeal goes to the 

legality of the sentence in that the defendant argues that the 

imposed life sentence was in excess of the maximum 

statutory penalty.

Applying the categorical approach, the panel held that 

the federal generic definition of “sexual exploitation of 

children” is defined within § 2251 as the production of visual 

depictions of children engaging in sexually explicit conduct. 

The panel explained that the “relating to” term in § 2251(e) 

encompasses state offenses that are a categorical match to 

the federal offense of production of child pornography and 

state offenses involving the production of child pornography 

(that is, the conduct enumerated in § 2251’s various 

subsections), and does not include offenses that entirely lack 

the visual depictions element that separates “sexual 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SCHOPP 3

exploitation of children” from other forms of child abuse in 

the federal criminal offense panoply. 

The panel held that because the defendant’s prior Alaska 

convictions concerning the sexual abuse and sexual assault 

of minors do not require a visual depiction element, they do 

not “relat[e] to the sexual exploitation of children” and 

cannot serve as predicate offenses for purposes of the 

multiple-conviction enhancement in § 2251(e). The panel 

concluded that the district court therefore erred in applying 

the enhancement and sentencing the defendant to life 

imprisonment. 

The panel held that the district court’s imposition of the 

wrong sentencing enhancement was plain error that affected 

the defendant’s substantial rights.

COUNSEL

Myra Sun (argued), Los Angeles, California, for DefendantAppellant.

Allison Meredith O’Leary (argued) and Kyle Reardon,

Assistant United States Attorneys; Bryan Schroder, United 

States Attorney; Office of the United States Attorney,

Anchorage, Alaska; for Plaintiff-Appellee.
4 UNITED STATES V. SCHOPP

OPINION

BERZON, Circuit Judge:

Thomas Schopp pleaded guilty to producing child 

pornography in violation of 18 U.S.C. § 2251(a). Section 

2251 is headed “[s]exual exploitation of children” and 

describes several substantive offenses. The statute’s penalty 

provision provides, among other things, that a defendant 

with “2 or more prior convictions . . . under the laws of any 

State relating to the sexual exploitation of children . . . shall 

be . . . imprisoned not less than 35 years nor more than life.” 

18 U.S.C. § 2251(e) (emphasis added). Our question is 

whether the meaning of the term “relating to the sexual 

exploitation of children” in § 2251’s enhancement provision 

should reflect the elements of the substantive crimes 

described in the same “[s]exual exploitation of children” 

statute.

Schopp has several prior Alaska convictions relating to 

the sexual assault and sexual abuse of minors, none 

involving the production of child pornography. See Alaska 

Stat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438, 

11.41.436, 11.41.434 (1993). The district court concluded 

that Schopp’s prior Alaska convictions “relat[e] to the sexual 

exploitation of children.” Applying the multiple-conviction 

enhancement contained in § 2251(e), the district court 

sentenced Schopp to life imprisonment, the maximum 

sentence permitted under that enhancement. We hold that 

Schopp’s prior Alaska convictions are not offenses “relating 

to the sexual exploitation of children” under § 2251(e), so 

the district court improperly applied the sentencing 

enhancement.
UNITED STATES V. SCHOPP 5

I

In August 2014, Schopp met a fifteen-year-old boy at the 

grocery store at which they both worked in Juneau, Alaska.

Months later, Schopp invited the boy to his apartment and 

either recorded or photographed himself engaging in sexual 

acts with the minor on his cellphone camera. Schopp was 

charged with one count of production of child pornography, 

in violation of 18 U.S.C. § 2251(a).

Schopp initially pleaded not guilty but later sought to 

change his plea. At the change of plea hearing, the 

government established that Schopp had a number of prior 

state convictions for sexual assault and sexual abuse of 

minors—specifically, convictions for: (1) six counts of 

sexual assault in the first degree in violation of Alaska 

Statutes § 11.41.410(a)(3), from 1988; and (2) two counts of 

sexual abuse of a minor I in violation of Alaska Statutes 

§ 11.41.434(a)(1), three counts of sexual abuse of minor II 

in violation of Alaska Statutes § 11.41.436(a)(2), and one 

count of attempted sexual abuse of a minor III in violation 

of Alaska Statutes § 11.41.438(a)(1), from 1993.

18 U.S.C. § 2251(e) provides in full:

Any individual who violates, or attempts or 

conspires to violate, this section shall be 

fined under this title and imprisoned not less 

than 15 years nor more than 30 years, but if 

such person has one prior conviction under 

this chapter, section 1591, chapter 71, chapter 

109A, or chapter 117, or under section 920 of 

title 10 (article 120 of the Uniform Code of 

Military Justice), or under the laws of any 

State relating to aggravated sexual abuse, 

sexual abuse, abusive sexual contact 
6 UNITED STATES V. SCHOPP

involving a minor or ward, or sex trafficking 

of children, or the production, possession, 

receipt, mailing, sale, distribution, shipment, 

or transportation of child pornography, such 

person shall be fined under this title and 

imprisoned for not less than 25 years nor 

more than 50 years, but if such person has 2 

or more prior convictions under this chapter, 

chapter 71, chapter 109A, or chapter 117, or 

under section 920 of title 10 (article 120 of 

the Uniform Code of Military Justice), or 

under the laws of any State relating to the 

sexual exploitation of children, such person 

shall be fined under this title and imprisoned 

not less than 35 years nor more than life. Any 

organization that violates, or attempts or 

conspires to violate, this section shall be 

fined under this title. Whoever, in the course 

of an offense under this section, engages in 

conduct that results in the death of a person, 

shall be punished by death or imprisoned for 

not less than 30 years or for life.

(emphasis added). Taking the convictions recited by the 

government into account and applying § 2251(e)’s multipleconviction enhancement (without specific reference to it), 

the district court informed Schopp that he faced a mandatory 

minimum of thirty-five years and a maximum sentence of 

life imprisonment. At the end of the hearing, however, the 

district court decided not to accept Schopp’s change of plea, 

because Schopp had equivocated several times as to whether 

he wished to plead guilty.

A month later, Schopp changed his mind again and 

pleaded guilty, this time pursuant to a written plea 
UNITED STATES V. SCHOPP 7

agreement. In the agreement, Schopp waived his right to 

appeal on most grounds, reserving the right to appeal only 

claims alleging ineffective assistance of counsel and 

involuntariness of the guilty plea. He also stipulated to being 

“previously convicted on two prior occasions of violations 

of the laws of the State of Alaska relating to aggravated 

sexual abuse, sexual abuse, or abusive sexual conduct 

involving a minor,” using the language of the singleconviction portion of § 2251(e). (emphasis added). Despite 

that stipulation, it is clear from the plea agreement’s repeated 

reference to two or more prior state convictions, as well as 

from the stipulated penalty range of thirty-five years to life, 

that the agreement contemplated applying the multipleconviction, not the single-conviction, enhancement.

At the subsequent change of plea hearing, the district 

court, using the single-conviction enhancement language 

from the plea agreement, asked Schopp whether he had 

stipulated to being “convicted on two prior occasions of 

violations of Alaska law relating to aggravated sexual abuse, 

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

Schopp confirmed that he had. The district court again 

informed Schopp that he was subject to a penalty range of 

thirty-five years to life imprisonment, the sentencing range 

for the multiple-conviction enhancement. This time, the 

district court accepted Schopp’s plea.

At sentencing, both parties sought a thirty-five-year term 

of imprisonment (which would have been available under 

§ 2251(e)’s single-conviction enhancement). The district 

court rejected the joint recommendation. It concluded that 

several sentencing factors, particularly the seriousness of the 

offense and the sentencing goals of deterrence and protecting 

the public, warranted a harsher sentence. The district court 
8 UNITED STATES V. SCHOPP

sentenced Schopp to life imprisonment. This appeal 

followed.

Schopp argues on appeal that his prior Alaska 

convictions do not “relat[e] to the sexual exploitation of 

children,” so the district court erred by applying § 2251(e)’s 

multiple-conviction enhancement. That issue triggers de 

novo review. See United States v. Sullivan, 797 F.3d 623, 

635 (9th Cir. 2015).

II 

Before reaching the enhancement issue, we address 

whether, given the appeal waiver, Schopp may pursue this 

challenge to his life sentence. We have long “recognized that 

the waiver of a right to appeal may be subject to certain 

exceptions such as claims involving . . . an illegal sentence 

imposed in excess of a maximum statutory penalty.” United 

States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).

Had the multiple-conviction enhancement not been 

applied, Schopp’s mandatory penalty range would have been 

twenty-five to fifty years, the range applicable to persons 

with a single prior conviction “relating to aggravated sexual 

abuse, sexual abuse, [or] abusive sexual contact involving a 

minor or ward.” See 18 U.S.C. § 2251(e).1 If, as Schopp 

argues, the district court erroneously applied § 2251(e)’s 

multiple-conviction enhancement, the imposed life sentence 

1 Schopp concedes that his prior state convictions “relat[e] to 

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

involving a minor or ward.” See 18 U.S.C. § 2251(e). There is support in 

the record for that conclusion. Schopp stipulated in his plea agreement 

to being “previously convicted on two prior occasions of violations of 

the laws of the State of Alaska relating to aggravated sexual abuse, 

sexual abuse, or abusive sexual conduct involving a minor.”
UNITED STATES V. SCHOPP 9

was “in excess of [the] maximum statutory penalty.” 

Baramdyka, 95 F.3d at 843. Because Schopp’s appeal goes 

to the legality of his sentence, it is permitted despite his 

appeal waiver.

III

We turn to whether Schopp’s prior state convictions are 

predicate offenses for the multiple-conviction enhancement 

under § 2251(e). The categorical approach set forth in Taylor 

v. United States, 495 U.S. 575 (1990), guides this inquiry.

See also Descamps v. United States, 570 U.S. 254 (2013); 

Mathis v. United States, 136 S. Ct. 2243 (2016).

Under the categorical approach, we first define the 

federal generic offense. Id. at 2248. We then determine 

“whether the elements of the [state] crime of conviction 

sufficiently match the elements of [the generic federal 

crime].” Id. In comparing the state and federal statutes, we 

may “‘look only to the statutory definitions’—i.e., the 

elements—of a defendant’s prior offenses, and not ‘to the 

particular facts underlying those convictions.’” Descamps, 

570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). If the state 

statute of conviction criminalizes the same or less conduct 

than the federal generic definition of the offense, it is a 

categorical match to the federal offense and qualifies as a 

prior conviction for federal sentencing enhancement 

purposes. Id.

Where the state statute of conviction criminalizes more 

conduct than the federal generic definition of the offense, it 

is not a categorical match. In that circumstance, we 

determine the statute’s divisibility. Id at 262. A statute is 

indivisible if it “sets out a single . . . set of elements to define 

a single crime,” even if it provides for alternative means of 

committing the offense. Mathis, 136 S. Ct. at 2248. A statute 
10 UNITED STATES V. SCHOPP

is divisible if it “list[s] elements in the alternative, . . .

defin[ing] multiple crimes.” Id. at 2249. We apply the 

modified categorical approach for divisible statutes, where 

we “look[] to a limited class of documents . . . to determine 

what crime, [and] with what elements, a defendant was 

convicted of.” Id.

A

Under the Taylor categorical approach, we begin by 

defining the generic federal offense—“sexual exploitation of 

children.” We have yet to define the offense in a precedential 

opinion, so this is a matter of first impression.2

In defining a generic federal offense, we employ 

ordinary principles of statutory interpretation to ascertain the 

meaning of the relevant term, beginning with the text of the 

statute. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 

1569 (2017). As additional evidence of the generic meaning 

of the federal offense we may consider related federal 

statutes, state criminal codes, the Model Penal Code, and the

ordinary meaning of the offense. Id. at 1569–71.

2 In two unpublished memorandum dispositions, we concluded that 

“sexual exploitation of children” was not defined in 18 U.S.C. § 2251 

and should therefore be defined according to its “ordinary, 

contemporary, and common meaning of the statutory words.” See United 

States v. Clark, 755 F. App’x 702 (9th Cir. 2019) (citations omitted); 

United States v. Devore, No. 17-30205, 2019 WL 2333975, at *1 (9th 

Cir. May 31, 2019). Neither case actually defined the substantive term, 

each holding instead that the defendants’ prior convictions were for 

offenses “relat[ing] to the sexual exploitation of children.” Clark, 755 F. 

App’x at 702; Devore, 2019 WL 2333975 at *1 (emphasis added). Even 

so, memorandum dispositions are nonbinding in subsequent

dispositions, as they are nonprecedential under our circuit rules. See 9th 

Cir. R. 36-3(a).
UNITED STATES V. SCHOPP 11

Starting with the text of the statute: Section 2251 is titled 

“[s]exual exploitation of children” and sets forth a series of 

federal offenses, all related to the production of visual 

depictions of minors engaging in sexually explicit conduct. 

See 18 U.S.C. §§ 2251(a)–(d)(1). Specifically, § 2251 

subjects to criminal conviction any person who:

employs, uses, persuades, induces, entices, or 

coerces any minor to engage in, or who has a 

minor assist any other person to engage in, or 

who transports any minor in or affecting 

interstate or foreign commerce . . . with the 

intent that such minor engage in, any sexually 

explicit conduct for the purpose of producing 

any visual depiction of such conduct or for 

the purpose of transmitting a live visual 

depiction of such conduct.

Id. at § 2251(a); see also id. at § 2251(b) (concerning a 

parent or legal guardian who knowingly permits a minor to 

engage in sexually explicit conduct for the purpose of 

producing visual depictions of such conduct); id. 

at § 2251(c)(1) (pertaining to any person who transports 

sexually explicit visual depictions of a minor); id. 

at § 2251(d)(1) (concerning any person who knowingly 

seeks or offers through advertisements sexually explicit 

visual depictions of a minor). A “minor” is defined as a 

person under the age of 18. 18 U.S.C. § 2256(1). “Sexually 

explicit conduct” is defined for purposes of the section as 

actual or simulated intercourse between persons; lascivious 

exhibition of the genitals, breast, or pubic area; bestiality; 

masturbation; or sadistic or masochistic abuse. Id.

at § 2256(2). Each enumerated § 2251 offense references 

§ 2251(e), the provision that sets forth the multipleconviction enhancement, stating that the offender “shall be 
12 UNITED STATES V. SCHOPP

punished as provided under subsection (e).” Id. 

at §§ 2251(a)–(d)(1). 18 U.S.C. § 2251(e), in turn, provides, 

as relevant:

[I]f such person has 2 or more prior 

convictions under this chapter, chapter 71, 

chapter 109A, or chapter 117, or under 

section 920 of title 10 (article 120 of the 

Uniform Code of Military Justice), or under 

the laws of any State relating to the sexual 

exploitation of children, such person shall be 

fined under this title and imprisoned not less 

than 35 years nor more than life.

The statute’s section heading, when read in conjunction 

with the statutory text, largely resolves our question 

concerning the federal generic definition of “sexual 

exploitation of children.” Congress titled § 2251 “[s]exual 

exploitation of children.” By doing so, it signaled that the 

enumerated federal offenses in § 2251 constitute the federal 

understanding of the term “sexual exploitation of children,” 

and that the term as subsequently used in § 2251(e) bears 

that same meaning.

It is of no import that Congress did not set forth the 

meaning of the statute’s heading with a definitional 

provision (i.e., “sexual exploitation of children is defined 

as”), although it did define terms used within the statute, in 

18 U.S.C. § 2256. Congress frequently uses section headings 

for the precise purpose of conveying the reach of the offense 

a statute covers.

For example, the Supreme Court in Esquivel-Quintana 

v. Sessions concluded that “[s]ection 2243, which 

criminalizes ‘[s]exual abuse of a minor or ward,’ contains 

the only definition of that phrase in the United States Code.” 
UNITED STATES V. SCHOPP 13

137 S. Ct. at 1570. Like § 2251, 18 U.S.C. § 2243 does not 

contain a definitional provision. Aside from two subsection 

headings which read “[sexual abuse] of a minor” and 

“[sexual abuse] of a ward,” the text contains no express 

reference to the term. See 18 U.S.C. §§ 2243(a)–(b). By 

concluding that § 2243 defines “sexual abuse of a minor or 

ward,” the Court indicated that a section heading may serve 

as the basis for establishing what offense is being defined in 

the statutory text.

The import of section headings for defining federal 

offenses applies with equal force here.3 Because § 2251 is 

titled “[s]exual exploitation of children,” the enumerated 

elements of the offenses described in the statute constitute 

the definition of the offense bearing that name. All of the 

offenses described in § 2251 concern visual depictions of 

children engaging in sexually explicit conduct, with 

“sexually explicit conduct” defined in a separate statute. See 

18 U.S.C. §§ 2256(1)–(2). We accordingly hold that the 

federal generic definition of “sexual exploitation of 

children” is defined within § 2251 as the production of visual 

3 Concerns typically raised when a section heading is relied upon in 

construing a statute are not here applicable. When section headings are 

discounted, it is ordinarily because they are not part of the statute as 

originally enacted and therefore have no bearing on statutory meaning or 

congressional intent. See, e.g., United States v. Welden, 377 U.S. 95, 98

n.4 (1964) (“Certainly where, as here, the ‘change of arrangement’ was 

made by a codifier without the approval of Congress, it should be given 

no weight.”); Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 

939–40 (9th Cir. 2009) (“There can be little doubt that titles, in general, 

are of some help, but the mere addition of a title by the Law Revision 

Counsel cannot change the meaning or intent of a statutory provision.”). 

Here, however, § 2251, as originally enacted, contained the section

heading “Sexual exploitation of children.” See Protection of Children 

Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 

(1978).
14 UNITED STATES V. SCHOPP

depictions of children engaging in sexually explicit conduct, 

or put simply, the production of child pornography.

Although the section heading is an independently 

sufficient basis for our conclusion, it is not the only 

indication that we have reached the proper definition of the 

offense. Defining the federal generic definition of “sexual 

exploitation of children” as the production of child 

pornography comports with other federal statutory 

definitions; the U.S. Sentencing Guidelines; state criminal 

codes; and Black’s Law Dictionary.

For starters, 18 U.S.C. § 3509, which sets forth court 

procedures for child victims, specifically defines “the term 

‘exploitation’ [as] mean[ing] child pornography or child 

prostitution.” 18 U.S.C. § 3509(a)(6). Not only does this 

definition generally align with our definition of the offense, 

it is illustrative of Congress’s understanding of exploitative 

offenses. In defining “exploitation” as it pertains to child 

victims of sexual crimes by specific reference to child 

pornography and child prostitution, Congress illustrated that 

“exploitation” necessarily requires some form of distinct 

enrichment or benefit deriving from the sexual conduct, 

other than sexual gratification from the conduct alone.4

Furthermore, the Sentencing Guidelines use the term 

“sexually exploiting a minor” to refer to the “production of 

sexually explicit visual or printed material” involving 

minors. See U.S.S.G. § 2G2.1. And twenty-three states 

criminalize the “sexual exploitation of children” (or 

similarly titled offenses, such as “sexual exploitation of a 

4 Child prostitution is not covered under any of the federal offenses 

described in § 2251. There are no child prostitution prior convictions, 

however, at issue here.
UNITED STATES V. SCHOPP 15

minor” or “unlawful exploitation of a minor”), all defining 

the offense as the production of child pornography. See 

Alaska Stat. § 11.41.455; Ariz. Rev. Stat. § 13-3553; Cal. 

Penal Code § 311.3; Colo. Rev. Stat. § 18-6-403(3); Del. 

Code Ann. tit. 11, §1108; Ga. Code Ann. §16-12-100; Idaho 

Code Ann. § 18-1507; Ind. Code § 35-42-4-4; Kan. Stat. 

Ann. § 21-5510; Me. Stat., tit. 17-A, § 282; Miss. Code Ann. 

§ 97-5-33; Mo. Rev. Stat. § 573.023; N.M. Stat. Ann. § 30-

6A-3; N.C. Gen. Stat. § 14-190.16; Okla. Stat. tit. 21, 

§ 843.5; 18 Pa. Cons. Stat. § 6320; S.C. Code Ann. § 16-15-

395; S.D. Codified Laws § 22-22-24.3; Tenn. Code Ann. 

§ 39-17-1005; Utah Code Ann. § 76-5b-201; Wash. Rev. 

Code § 9.68A.040; Wis. Stat. § 948.05; Wyo. Stat. Ann. § 6-

4-303.

Finally, Black’s Law Dictionary’s definition comports 

with our understanding of the term’s usage in § 2251. It 

defines “sexual exploitation” as “the use of a person, esp. a 

child, in prostitution, pornography, or other sexually 

manipulative activity.” Black’s Law Dictionary (11th ed. 

2019). Like the definition contained in 18 U.S.C. § 3509, 

Black’s definition recognizes that “sexual exploitation” 

includes some form of enrichment of or benefit to the 

perpetrator beyond sexual gratification, as evidenced by its 

reference to the same sexually exploitative crimes, child 

pornography and child prostitution, covered in § 3509.

In short, all roads lead to the same conclusion: “sexual 

exploitation of children” as contained in § 2551(e) means the 

production of child pornography.5

5 Our definition of “sexual exploitation of children” as contained in 

§ 2251(e) conflicts with definitions adopted by two other federal 

appellate courts. See United States v. Mills, 850 F.3d 693, 697 (4th Cir. 
16 UNITED STATES V. SCHOPP

B

Having defined the generic federal offense, the Taylor 

categorical approach dictates that we next compare the 

federal generic offense to the state statutes of conviction. See 

Mathis, 136 S. Ct. at 2248.

Schopp’s prior Alaska convictions consist of various 

degrees of sexual assault and sexual abuse of minors. An 

offender commits the offenses for which Schopp was 

convicted previously if he or she satisfies the element of 

either engaging or attempting to engage in sexual penetration 

or sexual contact with a minor, or encouraging a minor to 

engage in sexual contact with another person. See Alaska 

Stat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438, 

11.41.436, 11.41.434 (1993). The federal generic definition 

of “sexual exploitation of children,” on the other hand, 

criminalizes the production of visual depictions of children 

2017) (defining the term as “tak[ing] advantage of children for selfish 

and sexual purposes”); United States v. Smith, 367 F.3d 748, 751 (8th 

Cir. 2004) (defining “the term [as] unambiguously refer[ring] to any 

criminal sexual conduct with a child”); see also United States v. Pavulak, 

700 F.3d 651, 673–74 (3d Cir. 2012) (concluding that the relevant prior 

state convictions “relat[e] to the sexual exploitation of children” but not 

defining the substantive term); United States v. Randolph, 364 F.3d 118, 

122 (3d Cir. 2004) (same). But the analysis in those decisions is 

fundamentally flawed. Our sister courts failed to employ ordinary 

principles of statutory interpretation: they did not read the section 

heading in conjunction with the text of the statute; and they did not 

consider other uses of the term in federal statutes, state criminal codes, 

and the Guidelines. Moreover, their definitions obliterate the careful

lines Congress has drawn demarcating “sexual abuse” from “sexual 

exploitation” by failing to grapple with the “exploitation” component of 

the federal offense and focusing exclusively on the “sexual abuse” 

aspect.
UNITED STATES V. SCHOPP 17

engaging in sexually explicit conduct, requiring in addition 

to the underlying child sexual abuse, the creation of sexually 

explicit depictions.6 Looking at their diverse elements, it is 

apparent that the state and federal statutes make criminal 

different conduct. The state statutes of convictions 

concerning sexual assault and sexual abuse are thus not a 

categorical match to the federal definition of “sexual 

exploitation of children.”7

Accordingly, we hold that Schopp’s prior Alaska 

convictions are not a categorical match to the generic federal 

offense of “sexual exploitation of children” and cannot serve 

6 Alaska Statutes § 11.41.436 incorporates the conduct aspects but 

not the visual depiction elements of a separate Alaska statute, 

§ 11.41.455. Section 11.41.436 provides that “an offender commits the 

crime of sexual abuse of a minor in the second degree if . . . being 

16 years of age or older, the offender aids, induces, causes, or encourages 

a person who is under 16 years of age to engage in conduct described in 

AS 11.41.455(a)(2)–(6).” Alaska Stat. § 11.41.436(a)(4) (1990) 

(emphasis added). In turn, Alaska Statutes § 11.41.455, which sets forth 

the offense of “unlawful exploitation of a minor,” lists in the subsections 

incorporated in § 11.41.436 the “conduct” covered under the statute. 

That “conduct” includes: “(1) sexual penetration; (2) the lewd touching 

of another person’s genitals, anus, or breast; (3) the lewd touching by 

another person of the child’s genitals, anus, or breast; (4) masturbation; 

(5) bestiality; (6) the lewd exhibition of the child’s genitals; or (7) sexual 

masochism or sadism.” Alaska Stat. § 11.41.455(a)(1)–(7) (1990). 

Reading the statute in context, it is clear that Alaska Statutes

§ 11.41.436, Schopp’s statute of conviction for Sexual Abuse of a Minor 

II, captures the “actual . . . conduct” listed in § 11.41.455(a)(2)–(6), but 

does not incorporate the visual depiction aspect of that offense.

7 We need not determine whether the state statutes are divisible or 

indivisible. The government does not argue that the modified categorical 

approach applies or contend that the state statutes of conviction are 

divisible for purposes of that approach. See Descamps, 570 U.S. at 261–

62.
18 UNITED STATES V. SCHOPP

as predicate offenses for purposes of the multiple-conviction 

enhancement under § 2251(e).

C

Aside from arguing that “sexual exploitation of children” 

is not defined in § 2251—the argument we have rejected—

the government offers two additional contentions 

concerning the meaning of “sexual exploitation of children” 

in § 2251(e).

First, espousing the reasoning in Mills, 850 F.3d at 693, 

the government contends that because the single-andmultiple-conviction enhancements in § 2251(e) once 

contained the same predicate offenses, Congress’s 2006 

amendment to the enhancement provision reflects a drafting 

error. The government is suggesting that Congress meant to 

replace “relating to sexual exploitation of children” in both 

the single- and multiple-conviction enhancements with 

“relating to aggravated sexual abuse, sexual abuse, abusive 

sexual contact involving a minor or ward,” see 18 U.S.C. 

§ 2251(e), but then did so only for the single-conviction 

enhancement.

We “ha[ve] no free-floating power to rescue Congress 

from its drafting errors.” King v. Burwell, 135 S. Ct. 2480, 

2504 (2015) (citation and internal quotation marks omitted). 

“Only when it is patently obvious to a reasonable reader that 

a drafting mistake has occurred may a court correct the 

mistake.” Id. at 2504–05. The rare drafting errors that are 

corrected are “apparent from the face of the law,” such as the 

drafting error in “the Affordable Care Act [which] creates 

three separate Section 1563s.” Id. at 2505; see also Lamie v. 

U.S. Tr., 540 U.S. 526, 542 (2004) (concluding that a 

grammatical error in an amended provision in the 
UNITED STATES V. SCHOPP 19

Bankruptcy Code was not ambiguous and declining to 

correct Congress’s drafting error).

Here, it is far from apparent that there was a drafting 

error. Congress quite reasonably could have included a 

narrower set of offenses for the multiple-conviction 

enhancement, which carries the hefty maximum penalty of 

life imprisonment, than for the single-conviction 

enhancement. Furthermore, the prosecution can obtain a 

substantial term of imprisonment—between twenty-five and 

fifty years—using the single-conviction enhancement statute 

to capture the various “sexual abuse” state offenses not 

captured under “sexual exploitation of children.”8

Second, the government contends that Congress 

intended parallelism between the enumerated federal crimes 

and the qualifying state offenses in the multiple-conviction 

enhancement. See 18 U.S.C. §§ 1460–1470 (concerning 

federal obscenity offenses); 18 U.S.C. §§ 2241–2248 

(concerning federal sexual abuse offenses); 18 U.S.C. 

§§ 2421–2429 (concerning federal sex trafficking offenses); 

10 U.S.C. § 920 (concerning federal sexual assault under the 

Uniform Code of Military Justice). The government regards 

it as “nonsensical” for Congress to enumerate a broad 

category of qualifying federal offenses, including the various 

sexual abuse crimes, while limiting qualifying state offenses 

to the production of child pornography.

That argument falls of its own weight. The enumerated 

federal offenses are not limited to crimes involving children. 

8 Notably, the parties here did not address in the district court the 

distinctions between the two enhancements, see supra, at 7, presumably 

because they agreed on the imposition of a thirty-five-year sentence, 

which would have been permissible under both enhancements.
20 UNITED STATES V. SCHOPP

See, e.g., 18 U.S.C. §§ 1460–1466, 1468 (concerning 

obscenity offenses not specifically involving children); 

18 U.S.C. § 2242 (concerning sexual abuse not specifically 

involving children); 18 U.S.C. §§ 2421–2421A, 2424 

(concerning sex trafficking offenses not specifically 

involving children); 10 U.S.C. § 920 (concerning sexual 

assault under the Uniform Code of Military Justice not 

specifically involving children). Whatever else may be true 

of the term “sexual exploitation of children,” the offenses 

covered by it quite evidently must involve children.

Moreover, this disconnect between the qualifying prior 

federal convictions and qualifying prior state convictions for 

sentence enhancements under § 2251(e) is not limited to the 

multiple-conviction enhancement. The single-conviction 

enhancement exhibits the same lack of parallelism: Like the 

multiple-conviction enhancement, the single-conviction 

enhancement contains federal offenses not limited to crimes 

involving children, yet limits the qualifying prior state 

convictions to offenses that exclusively concern children 

(e.g., the various sexual abuse offenses perpetuated against 

children, sex trafficking of children, and possession of child 

pornography). See 18 U.S.C. § 2251(e). So no possible 

interpretation of § 2251(e) produces the parallelism between 

the enumerated federal offenses and the state offenses the 

government posits. We cannot say why Congress meant to 

permit sentencing enhancement for a much broader swath of 

federal offenses than of state crimes. But there is no 

disputing that it did. The enumerated federal crimes are 

therefore entirely uninformative as to the meaning of the 

term “sexual exploitation of children” as it pertains to the 

qualifying prior state offenses.
UNITED STATES V. SCHOPP 21

D

The government makes one final argument as to the 

scope of the § 2251(e) multiple-conviction enhancement—

that the term “relating to,” which appears before “sexual 

exploitation of children,” extends the reach of the 

enhancement to a broader range of state criminal offenses 

involving sexual abuse of children but lacking any visual 

depiction component. We cannot agree.

Section 2251(e) does, of course, contain the phrase 

“relating to sexual exploitation of children.” (emphasis 

added). And Supreme Court and Ninth Circuit cases have 

concluded that the phrase “relating to,” under certain 

circumstances, warrants a broader comparison of state 

offenses to the federal generic crime at issue than would 

otherwise be the case. See Mellouli v. Lynch, 135 S. Ct. 

1980, 1990 (2015); United States v. Reinhart, 893 F.3d 606, 

610 (9th Cir. 2018). To determine the reach of the “relating 

to” modifier here, we begin by examining each relevant 

decision concerning the term “relating to,” beginning with 

our decision in United States v. Sinerius, 504 F.3d 737 (9th 

Cir. 2007).

1

This court considered in Sinerius whether the 

defendant’s prior Montana conviction for sexual assault 

under Montana Code Annotated § 45-5-502 was a predicate 

offense for a sentencing enhancement under 18 U.S.C.

§§ 2252A(b)(1)–(2). Sections 2252(A)(b)(1)–(2) set forth a 

mandatory minimum sentence for the possession of child 

pornography 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.” 504 F.3d at 740. Sinerius defining “sexual abuse” 
22 UNITED STATES V. SCHOPP

according to the “ordinary, contemporary, and common 

meaning of the statutory words,” gave “sexual” its ordinary 

meaning and defined “abuse” as meaning to “misuse . . . to 

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

indecent assault on.” Id. (quoting United States v. LopezSolis, 447 F.3d 1201, 1206–07 (9th Cir. 2006)).

Sinerius rejected the defendant’s argument that the 

federal offense of “sexual abuse” as delineated in 18 U.S.C. 

§ 2242 defines “sexual abuse” as used in § 2252A. Id. 

at 742–43.9 It concluded that § 2242’s use of the term was 

9 Section 2242, which is titled “[s]exual abuse” but like § 2251 does 

not include an express definition of the phrase used as the title, provides

in full:

Whoever, in the special maritime and territorial 

jurisdiction of the United States or in a Federal prison, 

or in any prison, institution, or facility in which 

persons are held in custody by direction of or pursuant 

to a contract or agreement with the head of any Federal 

department or agency, knowingly–

(1) causes another person to engage in a sexual act by 

threatening or placing that other person in fear (other 

than by threatening or placing that other person in fear 

that any person will be subjected to death, serious 

bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that 

other person is–

(A) incapable of appraising the nature of the conduct; 

or

(B) physically incapable of declining participation in, 

or communicating unwillingness to engage in, that 

sexual act; or attempts to do so, shall be fined under 
UNITED STATES V. SCHOPP 23

inapplicable because it is located in an entirely different 

chapter. Id. The court then held that the prior Montana 

conviction at the very least “relat[ed] to . . . sexual abuse,” 

as the least egregious conduct under the Montana statute—

“consensual” sexual contact by a sixteen-year-old toward a 

thirteen-year-old—categorically matched the generic federal 

definition of “sexual abuse.” Id. at 741.

Years later, the Supreme Court in Mellouli v. Lynch, 

135 S. Ct. at 1980, provided significant guidance as to the 

reach of the phrase “relating to” in the categorical inquiry 

context. Mellouli considered whether a Kansas misdemeanor 

conviction for possessing drug paraphernalia triggered 

8 U.S.C. § 1227, the federal immigration removal statute. 

135 S. Ct. at 1984. Section 1227 applies to noncitizens 

“convicted of a violation of . . . any law or regulation of a 

State, the United States, or a foreign country relating to a 

controlled substance (as defined in section 802 of Title 21).” 

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). The 

government, relying on the federal removal statute’s 

“relating to” language, argued that a substantial overlap in 

the state and federal drug schedules permits “any drug 

crime” to trigger the federal removal statute, regardless of 

whether the state paraphernalia offense was limited to a 

federally controlled substance. Id. at 1989–91.

Acknowledging that the “relating to” term broadened the 

effect of the statutory provision to a degree, Mellouli

concluded that the phrase nonetheless has significant limits, 

id. at 1990–91, as “[c]ontext . . . may tug . . . in favor of a 

narrower reading.” Id. at 1990 (internal quotation marks, 

citation, and alterations omitted). Upon reviewing § 1227’s 

this title and imprisoned for any term of years or for 

life.
24 UNITED STATES V. SCHOPP

context, specifically its text and history, the Court concluded 

that Congress and the Board of Immigration Appeals 

“required a direct link between [a noncitizen’s] crime of 

conviction and a particular federally controlled drug.” Id.

The “relating to” phrase, that is, does not permit an 

expansion beyond the substantive linchpin element of the 

federal generic crime—there, federally controlled 

substances—although it does permit inclusion of various 

kinds of conduct involving that generic crime. Id. The Court 

therefore held that the statute’s parenthetical reference to 

21 U.S.C. § 802 narrowed its application to convictions 

stemming from federally controlled substances specifically 

defined in § 802. Id. at 1990. Because the Kansas 

paraphernalia statute made criminal the act of using drug 

paraphernalia to store or conceal any controlled substances, 

not just those defined in § 802, the defendant’s prior state 

conviction did not trigger the federal removal statute. Id. 

at 1984, 1991.

We applied Mellouli’s interpretation of “relating to” in 

United States v. Sullivan, 797 F.3d at 635. Sullivan 

considered whether the defendant’s prior California 

convictions for unlawful sexual intercourse and oral 

copulation with a minor triggered federal sentencing 

enhancements under the single prior conviction aspect of 

18 U.S.C. §§ 2251(e) and 2252(b)(2). Id. at 635. Both 

§§ 2251(e) and 2252(b)(2) enhancements apply when a 

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

State relating to aggravated sexual abuse, sexual abuse, or 

abusive sexual contact involving a minor or ward,” but the 

mandatory minimums differ.10 Like Sinerius, Sullivan

10 Section 2252(b)(2) reads, in pertinent part:
UNITED STATES V. SCHOPP 25

defined “sexual” according to its ordinary meaning and 

“abuse” as meaning to “misuse . . . to use or treat so as to 

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

Id. at 636. (quoting Sinerius, 504 F.3d at 740). In comparing 

the federal and state statutes, the court concluded that the 

prior state convictions were not a categorical match to the 

federal generic definition because they did not contain a 

mens rea requirement. Id. at 637. Sullivan concluded, 

however, that the prior state convictions were still predicate 

offenses because they “relat[e] to . . . sexual abuse.” Id. at 

641. In so concluding, Sullivan reasoned that, unlike the 

federal removal statute in Mellouli, the text and history of 

the two federal enhancement statutes at issue neither 

required a “direct link” between the federal and state statutes 

of conviction nor contained a limiting parenthetical 

narrowing the effect of the “relating to” language. Id. at 640.

The most recent decision from this court regarding the 

phrase “relating to” in the categorical approach context, 

United States v. Reinhart, 893 F.3d at 606, considered 

whether the defendant’s prior California convictions for 

possession of child pornography and sexual exploitation of 

a child were convictions “relating to child pornography” 

under § 2252(b)(2), one of the sentencing enhancement 

Whoever violates, or attempts or conspires to violate, 

paragraph (4) of subsection (a) shall be fined under 

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

. . . if such person has a prior conviction under . . . the 

laws of any State relating to aggravated sexual abuse, 

sexual abuse, or abusive sexual conduct involving a 

minor or ward, or the production, possession, receipt, 

mailing, sale, distribution, shipment, or transportation 

of child pornography, such person shall be fined under 

this title and imprisoned for not less than 10 years nor 

more than 20 years.
26 UNITED STATES V. SCHOPP

provisions reviewed in Sullivan. 893 F.3d at 608. Unlike 

the federal offenses at issue in Sinerius and Sullivan, the 

generic federal offense Reinhart considered—“child 

pornography”—and the related term “sexually explicit 

conduct” are defined within the same chapter as the federal 

enhancement. Id. at 613. Reinhart concluded that when there 

are federal definitions of the relevant terms within the same 

chapter as the federal statute, the court must apply those 

definitions to enhancement provisions as well as to others. 

Id. at 615. It likewise concluded that the presence of such 

definitions serves as requisite context “tug[ging] . . . in favor 

of a narrower reading” of “relating to.” Id. at 615 (citing 

Mellouli, 135 S. Ct. at 1990). Reinhart expressly did not, 

however, read the “relating to” language out of existence; 

the court instead “anchored [it] to the federal definition of 

child pornography.” Id. at 616.

Applying the traditional elements-based categorical 

approach, Reinhart held that the defendant’s prior state 

convictions in that case were not a categorical match to the 

generic federal definition of “child pornography.” Id. at 621. 

Both statutes, California Penal Code § 311.11(a) and 

California Penal Code § 311.3(a), defined “sexual conduct” 

more broadly than the federal definitions of “child 

pornography” and “sexually explicit conduct.” Id. at 617–

19. Because both statutes were indivisible, the modified 

categorical approach did not apply. Reinhart therefore held 

that neither California statute triggered an enhancement 

under § 2252(b)(2). Id. at 620–21.

2

Using these cases as guidance, we address how the 

phrase “relating to” in § 2251(e) applies here. Under 

Mellouli and Reinhart, a statute’s context, particularly its 

text and history, determine the reach of the phrase. See 
UNITED STATES V. SCHOPP 27

Mellouli, 135 S. Ct. at 1990; Reinhart, 893 F.3d at 614. The 

language of § 2251(e) tugs in favor of reading “relating to” 

as reaching various kinds of conduct involving the central

substantive concept, “sexual exploitation of children,” but 

not activity that does not include the key visual depiction 

aspect of that term.

For starters, the term “sexual exploitation of children” 

heads all offenses included in § 2251, anchoring the 

meaning of the “relating to” language to the definition of the 

generic federal offense as the production of child 

pornography. Reinhart, 893 F.3d at 614. Section 2251’s 

subsections then establish that various sorts of conduct 

“relating to the sexual exploitation of children” are 

proscribed: Subsection (b) relates to parents and custodians, 

who sexually exploit their children; subsection (c)(1) relates 

to persons who transport child pornography through 

interstate or foreign commerce; and subsection (d)(1) relates 

to persons who publish any notice or advertisement that 

seeks or offers to distribute or receive child pornography. 

Accordingly, a state conviction “relat[es] to the sexual 

exploitation of children” if it captures the conduct in those 

subsections, which all contain an element of exploitation that 

extends beyond unlawful sexual conduct with a minor.11

Schopp’s various prior state convictions for the sexual 

abuse and sexual assault of minors do not contain the 

requisite element of “exploitation,” as no visual depiction of 

sexually explicit conduct is required. His prior convictions 

11 It may be that state offenses that have different conduct elements 

from those covered in § 2251 but that also pertain to child pornography 

are covered as well. As the issue is not raised, we do not decide it.
28 UNITED STATES V. SCHOPP

for sexual abuse thus do not “relat[e] to the sexual 

exploitation of children” within the meaning of § 2251.

Despite the statutory evidence to the contrary, the 

government contends that “relating to sexual exploitation of 

children” includes all “sexual abuse” crimes involving 

minors, observing that the production of child pornography 

depicts such sexual abuse. In other words, although the 

production of child pornography statute contains other 

elements as well, the sexual abuse of a child is a necessary 

component of the offense.

But the statutory materials leave no doubt that Congress 

considers “sexual exploitation” and “sexual abuse” to be 

distinct categories of offenses; “sexual exploitation,” if 

anything, is a subset of “sexual abuse.” For example, 

Chapter 110 of Title 18, which includes § 2251, is titled 

“Sexual Exploitation and Other Abuse of Children,” 

confirming that not all “[s]exual . . . abuse of children” is 

“sexual exploitation of children.” Rather, “sexual 

exploitation,” limited to the production of child 

pornography, covers a narrower set of conduct than other 

sexual abuse of children offenses.

Mellouli and Reinhart do not permit the government’s 

attempt at so broadening the scope of the statute through the 

“relating to” clause, as to obliterate the careful distinction 

drawn in the statute between “sexual exploitation of 

children” and other forms of child sexual abuse. Expanding 

the statutorily delineated generic offenses through the phrase 

“relating to” to include categories of federal offenses that 

could have been included in the multiple-conviction 

enhancement provision but were not impermissibly throws 

overboard the overall statutory scheme.
UNITED STATES V. SCHOPP 29

We note, in particular, that the single-conviction 

enhancement in § 2251(e) delineates in haec verba the very 

sorts of state child sexual abuse offenses the government 

maintains are secretly buried in the “relating to” phrase that 

precedes “sexual exploitation of children” in the same

subsection. Why Congress would have expressly added the 

child sex abuse crimes to the single-conviction enhancement 

if they were already there in the earlier version of that 

enhancement, see supra, 19–20, we are not told. Nor are we 

told why the single and multiple conviction enhancements in 

the same subsection read so differently if they mean the same 

thing.

We therefore adhere to our conclusion that the “relating 

to” term in § 2251(e) encompasses state offenses that are a 

categorical match to the federal offense of production of 

child pornography and state offenses involving the 

production of such pornography, that is, the conduct 

enumerated in § 2251’s various subsections. It does not 

include offenses that entirely lack the visual depictions 

element that separates “sexual exploitation of children” from 

other forms of child abuse in the federal criminal offense 

panoply.

Because Schopp’s prior Alaska convictions concerning 

the sexual abuse and sexual assault of minors do not require 

a visual depiction element, they do not “relat[e] to the sexual 

exploitation of children” and cannot serve as predicate 

offenses for purposes of the multiple-conviction 

enhancement in § 2251(e). The district court therefore erred 

in applying the enhancement and so in sentencing Schopp to 

life imprisonment.
30 UNITED STATES V. SCHOPP

E

Because Schopp failed to object to the application of the 

multiple-conviction enhancement below, we review for 

plain error. See United States v. Olano, 507 U.S. 725, 731–

32 (1993). “Plain error is (1) error, (2) that is plain, and 

(3) that affects substantial rights . . . [and] (4) seriously 

affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Ameline, 409 F.3d 1073, 1078 

(9th Cir. 2005) (en banc) (internal citation and alterations 

omitted).

The district court’s imposition of the wrong sentencing 

enhancement was both error and plain; it affected Schopp’s 

substantial rights because it led to a sentence exceeding the 

statutory maximum; and “seriously affect[ed] the fairness, 

integrity or public reputation of judicial proceedings” 

because “it is a miscarriage of justice to give a person an

illegal sentence.” Id. at 1081. We therefore hold that the 

district court committed plain error by applying § 2251(e)’s 

multiple-conviction enhancement.

IV

In sum, “sexual exploitation of children” as contained in 

18 U.S.C. § 2251 is defined within that statute as the 

production of child pornography. Schopp’s prior Alaska 

convictions for sexual abuse and sexual assault with minors 

do not “relat[e] to the sexual exploitation of children” and so 

cannot serve as predicate offenses under § 2251(e). 

Accordingly, we REVERSE Schopp’s sentence and 

REMAND for resentencing.