NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-1647

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UNITED STATES OF AMERICA

v.

JACK ULRICH,

Appellant

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On Appeal from the United States District Court 

for the Western District of Pennsylvania

(District Court No. 2:19-cr-00202-001)

Honorable Marilyn J. Horan, U.S. District Judge

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Submitted Under Third Circuit L.A.R. 34.1(a)

on March 15, 2022

Before: JORDAN, KRAUSE, and PORTER, Circuit Judges

(Filed: March 16, 2022)

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OPINION*

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*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

KRAUSE, Circuit Judge.

Having pleaded guilty to possession of material depicting the sexual exploitation 

of a minor, Jack Ulrich now appeals his sentence, claiming that his prior conviction did 

not qualify him as a prior offender for purposes of triggering the ten-year mandatory

minimum prison sentence required under 18 U.S.C. § 2252(b)(2). We discern no error 

and will affirm.

I. DISCUSSION1

A defendant who is found guilty of possessing child pornography under 18 U.S.C. 

§ 2252(a)(4)(B) is subject to an enhanced mandatory minimum penalty of ten years’ 

imprisonment if he has previously been convicted “under the laws of any State relating to 

. . . the production, possession, receipt, mailing, sale, distribution, shipment, or 

transportation of child pornography.” 18 U.S.C. § 2252(b)(2). To determine whether a 

prior state conviction qualifies under this sentencing enhancement, we apply the 

categorical approach, see United States v. Portanova, 961 F.3d 252, 255 (3d Cir. 2020), 

which requires that we “focus[] [our] attention on the statutory definition of [the] prior 

conviction” to see if it resembles the state laws described in the provision, United States 

v. Galo, 239 F.3d 572, 582 (3d Cir. 2001). We “look only to the fact of conviction and 

the statutory definition of the prior offense,” not “the conduct giving rise to the 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review of the 

District Court’s statutory interpretation. United States v. Portanova, 961 F.3d 252, 254 

n.7 (3d Cir. 2020). 
3

[defendant’s] conviction.” Id. at 577 (citing Taylor v. United States, 495 U.S. 575, 600–

02 (1990)). 

The categorical approach may be “formal” or “loose[]” depending on the

sentencing enhancement at issue. Portanova, 961 F.3d at 255–56. Under the formal

approach, “we line up the elements of the state crime of conviction with the federal 

generic offense, that is, ‘the offense as commonly understood,’ and determine if they 

match.” Id. (citing Mathis v. United States, 136 S. Ct. 2243, 2247, 2249 (2016)). But 

under the looser approach, we do “not require a precise match between the federal 

generic offense and state offense elements” but read the state offense “as commonly 

understood[,] informed by its constituent terms, but not strictly cabined by them.” Id. at 

255–57.

Here, Ulrich pleaded guilty to possession of child pornography in violation of 18 

U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), having previously been convicted of possession 

of child pornography under 18 Pa. C.S.A. § 6312(d). At sentencing, the District Court

applied the looser categorical approach to determine whether Ulrich’s prior conviction 

qualified him for the mandatory minimum sentence under § 2252(b)(2). In doing so, the 

Court followed Portanova, where we concluded, on the basis of the looser categorical 

approach, that a conviction for possession of child pornography under the same 

Pennsylvania statute triggered an enhanced mandatory minimum sentence under 

§ 2252(b)(1), which, like § 2252(b)(2), covers prior state convictions “relating to . . . the 

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

child pornography.” Portanova, 961 F.3d at 254 (quoting 18 U.S.C. § 2252(b)(1)). 
4

Reading the term “relating to” broadly, we held that a conviction under 18 Pa. C.S.A. 

§ 6312(d) triggers the “§ 2252(b) mandatory minimum,” as it “stands in some relation 

and pertains to ‘the . . . possession . . . of child pornography.’” Id. at 262. The District 

Court applied this binding precedent to hold that Ulrich’s prior conviction under the 

identical Pennsylvania statute stood “in relation to . . . the . . . possession . . . of child 

pornography,” subjecting him to § 2252(b)(2)’s “enhanced mandatory minimum 

penalty.” Appx. 164. 

Ulrich challenges this judgment on two bases, neither of which is persuasive.

First, Ulrich contends that the District Court should have applied the formal categorical 

approach in determining whether his prior Pennsylvania conviction triggered the 

mandatory minimum sentence under § 2252(b)(2). He acknowledges that Portanova is 

facially controlling but claims it is a nullity under I.O.P 9.1 because it conflicts with our

prior precedential opinion in Galo, where we applied the categorical approach to 

conclude that three Pennsylvania statutes did not qualify as “laws . . . relating to the 

sexual exploitation of children” for purposes of a sentencing enhancement because they

covered a wide variety of non-sexual conduct. Galo, 239 F.3d at 582–84. 

But Portanova is consistent with Galo and remains binding precedent. Indeed, we 

rooted our decision to apply the categorical approach in Portanova on Galo’s application 

of that approach to an “analogous [sentencing] enhancement under 18 U.S.C. § 2251(d)” 

that similarly employed the term, “relating to.” Portanova, 961 F.3d at 255 n.10 (citing 

Galo, 239 F.3d at 576). Moreover, in applying a looser categorical approach, we drew on 

Galo’s reasoning that the analogous enhancement did “not require a sentencing court to 
5

determine if the prior conviction satisfie[d] the generic elements of a crime,” as typically 

required by the formal approach. Id. at 256 (quoting Galo, 239 F.3d at 581). Portanova 

is simply a logical extension of our holding in Galo, and it applies on all fours to the 

present dispute.

Next, Ulrich argues that the District Court’s application of § 2252(b)(2) violated 

his constitutional rights, namely, his Fifth Amendment right to due process and his Sixth 

Amendment right to trial by jury.

2

In his Fifth Amendment claim, Ulrich contends that

§ 2252(b)(2) is void-for-vagueness in that it conditions a sentencing enhancement on a 

defendant’s prior conviction “relating to . . . the . . . possession . . . of child pornography.” 

But again, this argument was considered and rejected in Portanova, where we held that 

identical language in “§ 2252(b)(1)’s sentencing enhancement provision is not 

unconstitutionally vague,” as “there is no question that a person of ordinary intelligence 

would have fair warning that a conviction pursuant to 18 U.S.C. § 2252 could expose him 

to greater penalties if such a person has a prior state conviction ‘relating to . . . the . . . 

possession . . . of child pornography.’” Portanova, 961 F.3d at 263.

2 The Government claims that Ulrich’s failure to raise these precise constitutional 

arguments during his sentencing hearing resulted in waiver under United States v. FloresMejia, where we held that a party challenging a procedural error at sentencing “must 

object to the procedural error complained of after sentence is imposed in order to avoid 

plain error review on appeal.” 759 F.3d 253, 255 (3d Cir. 2014) (en banc). But Ulrich 

thoroughly briefed these issues in his reply to the Government’s sentencing 

memorandum, and he specifically referenced the arguments raised in his “sentencing 

memorandum and [] reply” when he objected to the District Court’s tentative findings at 

sentencing. Appx. 173. Preservation is therefore satisfied.
6

Ulrich’s final argument fares no better. He contends that, by applying the looser 

categorical approach, the District Court usurped the jury’s fact-finding role in violation of 

the Sixth Amendment. However, the District Court merely concluded, as a categorical 

matter, that the statute of Ulrich’s prior conviction “related to” the possession of child 

pornography. This was a “legal, rather than factual determination that depends only on 

the ‘fact of prior conviction,’” which is an explicit exception to the principle that “any 

fact that increases the penalty for a crime beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a reasonable doubt.” Portanova, 961 F.3d at 

255 n.11 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 

II. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.