FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVEY WAYNE HUDSON,

Defendant-Appellant.

No. 19-10227

D.C. No.

4:18-cr-00232-

JST-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

Argued and Submitted October 21, 2020

San Francisco, California

Filed January 29, 2021

Before: Michael Daly Hawkins, N. Randy Smith, and 

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Hawkins
2 UNITED STATES V. HUDSON

SUMMARY*

Criminal Law

The panel affirmed a sentence for possession of child 

pornography in a case in which the district court determined 

that the defendant was subject to a ten-year mandatory 

minimum sentence under 18 U.S.C. § 2252(b)(2), which 

applies if, among other things, 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.”

The district court applied the § 2252(b)(2) ten-year 

minimum as a result of the defendant’s prior conviction 

under California Penal Code § 288(a), which criminalizes 

lewd and lascivious conduct with a minor under the age of 

fourteen.

Rejecting the defendant’s constitutional challenge, the 

panel held that § 2252(b)(2)’s reference to state crimes 

“relating to aggravated sexual abuse, sexual abuse, or 

abusive sexual conduct involving a minor” is not 

unconstitutionally vague, because the language neither fails 

to give ordinary people notice of its scope nor poses a risk 

of arbitrary enforcement. 

* 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. HUDSON 3

COUNSEL

Hanni M. Fakhoury (argued), Assistant Federal Public 

Defender; Steven G. Kalar, Federal Public Defender; Office 

of the Federal Public Defender, Oakland, California; for 

Defendant-Appellant.

Matthew M. Yelovich (argued), Assistant United States 

Attorney; Merry Jean Chan, Chief, Appellate Section, 

Criminal Division; David L. Anderson, United States 

Attorney; United States Attorney’s Office, San Francisco, 

California; for Plaintiff-Appellee.

OPINION

HAWKINS, Circuit Judge:

Individuals convicted of possessing child pornography, 

in violation of 18 U.S.C. § 2252(a)(4), face a ten-year 

mandatory minimum sentence if, among other things, they 

have 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. 

§ 2252(b)(2). As a result of a prior conviction under 

California Penal Code § 288(a), which criminalizes lewd 

and lascivious conduct with a minor under the age of 

fourteen, appellant Davey Hudson received the ten-year 

mandatory minimum sentence for his guilty-plea conviction 

on one count of possessing child pornography. On appeal, 

Hudson contends that his sentence must be vacated because 

the statutory provision “relating to aggravated sexual abuse, 

sexual abuse, or abusive sexual conduct involving a minor 

or ward” is unconstitutionally vague. We hold that it is not 

and affirm the sentence.
4 UNITED STATES V. HUDSON

BACKGROUND

In 2017, federal agents and local police executed a search 

warrant for Hudson’s apartment after determining that 

Hudson was sharing child pornography on a peer-to-peer file 

sharing network. The agents unlocked several files 

contained on a laptop found in the residence and identified 

at least 135,156 images and 1,158 videos of child 

pornography.

Hudson was indicted on a single count of possession of 

child pornography, in violation of 18 U.S.C. 

§ 2252(a)(4)(B). At the time of the indictment, Hudson had 

a prior conviction under California Penal Code § 288(a)1 for 

engaging in a lewd and lascivious act with a minor under the 

age of fourteen, and the government gave notice that Hudson 

was subject to an enhanced sentence under 18 U.S.C. 

§ 2252(b)(2) as a result of that prior conviction.

Hudson entered a plea of guilty and proceeded to 

sentencing. At sentencing, the district court determined that 

Hudson was subject to the enhanced ten-year mandatory 

1 At the time of Hudson’s state conviction, that statute provided:

Any person who willfully and lewdly commits 

any lewd or lascivious act, including any of the acts 

constituting other crimes provided for in Part 1, upon 

or with the body, or any part or member thereof, of a 

child who is under the age of 14 years, with the intent 

of arousing, appealing to, or gratifying the lust, 

passions, or sexual desires of that person or the child, 

is guilty of a felony and shall be punished by 

imprisonment in the state prison for three, six, or eight 

years.

California Penal Code § 288(a) (1998).
UNITED STATES V. HUDSON 5

minimum sentence under § 2252(b)(2). The district court 

relied on our decision in United States v. Farmer, 627 F.3d 

416, 418, 420 (9th Cir. 2010), which held that a conviction 

under California Penal Code § 288(a) is a conviction 

categorically “relating to aggravated sexual abuse, sexual 

abuse, or abusive sexual conduct involving a minor or 

ward.” Although Farmer interpreted the sentencing 

enhancement under 18 U.S.C. § 2252A, the district court 

determined Farmer’s holding was applicable equally to 

§ 2252(b)(2), which contains identical language.

Hudson did not dispute that Farmer applied but argued 

instead that he was not subject to an enhanced mandatory 

minimum because § 2552(b)(2) is unconstitutionally vague. 

Hudson advocated for a sentence of 87 months—the low end 

of the otherwise applicable Guidelines range of 87 to 108 

months. Although the district court rejected Hudson’s 

constitutional argument and determined it was bound by 

Farmer to impose a minimum ten-year sentence, the district 

court explained that it would have imposed the requested 87-

month sentence but for the application of § 2252(b)(2). 

Hudson now appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo whether a prior conviction supports the 

statutory mandatory minimum enhancement under 

§ 2252(b)(2), United States v. Sullivan, 797 F.3d 623, 635 

(9th Cir. 2015), and whether a statute is unconstitutionally 

vague, United States v. Hungerford, 465 F.3d 1113, 1116 

(9th Cir. 2006).
6 UNITED STATES V. HUDSON

DISCUSSION

In this appeal, we must determine whether the statutory 

language “relating to aggravated sexual abuse, sexual abuse, 

or abusive sexual conduct involving a minor or ward” is 

unconstitutionally vague. “[T]he Government violates [the 

Fifth Amendment’s due process] guarantee by taking away 

someone’s life, liberty, or property under a criminal law so 

vague that it fails to give ordinary people fair notice of the 

conduct it punishes, or so standardless that it invites arbitrary 

enforcement.” Johnson v. United States, 576 U.S. 591, 595 

(2015) (citing Kolender v. Lawson, 461 U.S. 352, 357–58 

(1983)). Hudson contends that the challenged provision fails 

on both grounds. We disagree.

I. Case Law Interpreting § 2252(b)(2) and Related 

Provisions.

“Section 2252(b)(2) is a recidivist penalty and 

sentencing enhancement for those . . . convicted federally of 

possession of child pornography under § 2252(a)(4), and 

who have certain prior offenses.” United States v. Reinhart, 

893 F.3d 606, 609 (9th Cir. 2018). In relevant part, the 

statute provides:

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, but . . . 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 
UNITED STATES V. HUDSON 7

under this title and imprisoned for not less 

than 10 years nor more than 20 years.

18 U.S.C. § 2252(b)(2). To determine whether a prior 

conviction triggers the sentencing enhancement, the court 

begins with the categorical approach set forth in Taylor v. 

United States, 495 U.S. 575 (1990). Sullivan, 797 F.3d at 

635. Under that familiar test, we first define the federal 

generic offense, and “[w]e then compare the conduct 

prohibited under the state statute to the generic definition to 

determine whether ‘the full range of conduct covered by the 

[state] statute falls within the meaning of’ the federal 

definition.” Farmer, 627 F.3d at 418 (quoting United States 

v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007)).

Hudson’s arguments center on two lines of precedent: 

(1) our case law interpreting the phrase “abusive sexual 

conduct involving a minor or ward,” and (2) our case law 

determining how the phrase “relating to” affects our 

application of the categorical approach.

A. “Aggravated Sexual Abuse, Sexual Abuse, or 

Abusive Sexual Conduct Involving a Minor or 

Ward.”

We have interpreted the phrase “aggravated sexual 

abuse, sexual abuse, or abusive sexual conduct involving a 

minor or ward” as it is used in § 2252(b)(2) and related 

statutes on several occasions. See, e.g., United States v. 

Jaycox, 962 F.3d 1066 (9th Cir. 2020) (interpreting 

18 U.S.C. § 2252(b)(1)); Sullivan, 797 F.3d at 636–37 

(§ 2252(b)(2)); Farmer, 627 F.3d at 418–21 

(§ 2252A(b)(2)); Sinerius, 504 F.3d at 740–41 (§ 2252A(b)).

Because the terms “aggravated sexual abuse,” “sexual 

abuse,” and “abusive sexual conduct involving a minor or 
8 UNITED STATES V. HUDSON

ward” are not defined in § 2252 or anywhere else in Chapter 

110 of Title 18, we have “follow[ed] 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.” Sullivan, 797 F.3d at 636 

(quoting Sinerius, 504 F.3d at 740). We began with the 

terms “sexual” and “abuse,” which are common to all three 

predicates; we used the ordinary, commonsense meaning of 

“sexual” and looked to other contexts addressing the 

meaning of “abuse,” notably cases defining the word to 

mean to “misuse . . . to use or treat so as to injure, hurt, or 

damage . . . to commit indecent assault on,” including 

“behavior that is harmful emotionally and physically.” Id.

(internal quotation marks and citations omitted).

We have rejected the argument that we should define 

§ 2252(b)(2)’s predicate sexual abuse offenses—

“aggravated sexual abuse,” “sexual abuse,” and “abusive 

sexual conduct involving a minor or ward”—exclusively in 

relation to three similarly titled federal statutes—18 U.S.C. 

§ 2241 (aggravated sexual abuse), 18 U.S.C. § 2242 (sexual 

abuse), and 18 U.S.C. § 2243 (sexual abuse of a minor or 

ward). See Sullivan, 797 F.3d at 637; see also Farmer, 627 

F.3d at 420–21 (interpreting identical terms in § 2252A). 

However, these federal statutes are relevant to our § 2252(b) 

analysis, and “a statutory rape offense constitutes the generic 

offense of ‘sexual abuse of a minor’ if it includes the 

elements set forth in 18 U.S.C. § 2243, specifically: (1) a 

mens rea level of knowingly; (2) a sexual act; (3) with a 

minor between the ages of 12 and 16; and (4) an age 

difference of at least four years between the defendant and 

the minor.” Id. at 637 (internal quotation marks and citation 

omitted).
UNITED STATES V. HUDSON 9

In Farmer, we considered whether a prior conviction 

under California Penal Code § 288(a), Hudson’s prior statute 

of conviction, triggers a sentencing enhancement.2 We had 

little trouble determining that, under our existing precedent, 

a conviction under § 288(a) categorically involves sexual 

abuse. We explained:

Section 288(a) has two elements: (a) the 

touching of an underage child's body (b) with 

a sexual intent. . . . [O]ur cases have 

established that sexual touching of children 

younger than fourteen—the precise conduct 

prohibited by California Penal Code 

§ 288(a)—invariably involves “sexual 

abuse.” This would appear to make this case 

easy: because California Penal Code § 288(a) 

categorically involves sexual touching of 

children under fourteen, and because sexual 

touching of children under fourteen always 

involves abuse, California Penal Code 

§ 288(a) must constitute a state law “relating 

to . . . sexual abuse” for purposes of 18 

U.S.C. § 2252A(b)(2). That we have 

repeatedly held that California Penal Code 

§ 288(a) categorically involves “sexual abuse 

of a minor” [in other contexts] . . . further 

supports this conclusion.

2 Although Farmer involved the sentencing enhancement under 18 

U.S.C. § 2252A(b)(2), its analysis is equally applicable here as the 

operative language of the statute is identical to § 2252(b)(2). Hudson 

does not contest that his prior conviction is a qualifying predicate under 

§ 2252(b)(2) in light of Farmer.
10 UNITED STATES V. HUDSON

Id. at 419–20 (internal quotation marks and citations 

omitted).

A special concurrence in Farmer expressed “concerns 

with our current approach to defining ‘abusive sexual 

conduct involving a minor’ for purposes of determining 

whether to apply a sentencing enhancement.” Id. at 422–23 

(Bybee, J., concurring). The concurrence faulted earlier 

precedent for “adopt[ing] uncritically the definition of 

‘sexual abuse of a minor’ we had used to interpret an 

unrelated immigration statute, without regard for the 

distinctive structure of § 2252A,” which parallels the crimes 

listed in 18 U.S.C. §§ 2241–43. Id. The concurrence 

advocated for defining “abusive sexual conduct involving a 

minor or ward” by reference to its federal counterpart in 

§ 2243 and argued that adhering to that definition 

exclusively would “eliminate the surplusage” and awkward 

result created by instead defining the terms both according 

to their ordinary meaning and by reference to § 2243. Id. 

Nevertheless, the concurrence recognized that a three-judge 

panel was not empowered to alter the statutory 

interpretation, and our precedent clearly dictated that a 

conviction under California Penal Code § 288(a) 

categorically involves “abusive sexual conduct involving a 

minor.” Id. at 426.

Subsequent case law has not altered our interpretation of 

“abusive sexual conduct involving a minor or ward,” and, in 

fact, we have reiterated that, although relevant to analysis, 

we are not limited to the elements of § 2243 when 

determining whether a crime constitutes “abusive sexual 

conduct involving a minor or ward” under § 2252(b)(2). 

Sullivan, 797 F.3d at 637 (“[W]e are not limited to looking 

to federal statutes to define federal generic offenses where 

the federal statute uses the same name as a federal generic 
UNITED STATES V. HUDSON 11

offense, [but] such federal statutes nevertheless are relevant 

to our consideration of whether a particular state statute is 

one ‘relating to’ abusive sexual conduct.” (internal 

quotation marks and citations omitted)). Thus, we have 

continued to define “abusive sexual conduct involving a 

minor” both in accordance with its ordinary meaning and in 

reference to the elements of § 2243. Id.

B. “Relating to.”

We have long recognized that the phrase “relating to” 

has a broadening effect. Jaycox, 962 F.3d at 1069. For 

purposes of § 2252(b)(2), it means that “our inquiry does not 

end even if a state offense is not a categorical match” to the 

generic definitions of “aggravated sexual abuse, sexual 

abuse, or abusive sexual conduct involving a minor or 

ward.” Id. Instead, the prior conviction may trigger the 

enhancement if it “stands in some relation, bears upon, or is 

associated with that generic offense.” Sullivan, 797 F.3d at 

638 (quoting Sinerius, 504 F.3d at 743). A prior conviction 

will not trigger the sentencing enhancement, however, if its 

core substantive element is too far removed from the generic 

federal offense. Jaycox, 962 F.3d at 1070–71.

For example, we have held that a conviction under 

California Penal Code § 261.5(d), which proscribes any 

person who is 21 years of age or older from engaging in an 

act of unlawful sexual intercourse with a minor who is under 

16 years of age, is one categorically “relating to . . . abusive 

sexual conduct involving a minor.” Sullivan, 797 F.3d at 

637–38. The California statute did not include as an element 

the same mens rea level as its federal counterpart and thus 

was not a categorical match. Id. at 637. We explained, 

however, that the mens rea element related to the culpability 

of the defendant rather than the impact on the victim. Id. at 
12 UNITED STATES V. HUDSON

640. “The elements relating to the effect of the offense on 

the minor indicate that under our generic federal statutory 

rape definition, sexual conduct is abusive when the minor is 

under 16 and the defendant is four or more years older.” Id. 

Because the California statute also contained those elements, 

we concluded that the crime was categorically related to 

abusive sexual conduct involving a minor. Id.

Several years later, we reached the opposite conclusion 

when considering a prior conviction under California Penal 

Code § 261.5(c), which proscribes sexual intercourse with a 

person under the age of eighteen, who is at least three years 

younger than the defendant and is not the defendant’s 

spouse. Jaycox, 962 F.3d at 1070–71. We determined that 

statute does not categorically relate to abusive sexual 

conduct involving a minor because the statute “criminalizes 

conduct not necessarily abusive nor against those ordinarily 

considered minors for age of consent purposes.” Id. at 1070 

(internal citations omitted). We determined that “a core 

substantive element of the state crime—the age of the 

participants—is too far removed from the relevant federal 

generic definitions to be ‘related to’ them.” Id. at 1070–71.

We have adopted a slightly different interpretation of 

“relating to” when determining whether a childpornography-related prior conviction triggers the sentencing 

enhancement. Reinhart, 893 F.3d at 613. Reinhart

recognized that “the language of the statute and any related 

textual restrictions may favor a narrower reading” of the 

phrase “relating to.” Id. Because the relevant terms “child 

pornography” and “sexually explicit conduct,” unlike the 

terms “aggravated sexual abuse, sexual abuse, or abusive 

sexual conduct involving a minor or ward,” are defined in 

the same statutory chapter as § 2252(b)(2), Reinhart 

determined that the statutory text “tug[s] . . . in favor of a 
UNITED STATES V. HUDSON 13

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

Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015)). Thus, a 

child-pornography-related prior conviction must be a 

categorial match to the federal definition to trigger 

§ 2252(b)(2)’s enhancement. Id.

With this precedent as our backdrop, we turn to 

Hudson’s specific contentions.

II. Whether § 2252(b)(2) Is Unconstitutionally Vague.

Hudson posits that § 2252(b)(2) fails to give fair notice 

of the conduct it proscribes and risks arbitrary enforcement 

for two reasons: First, employing two definitions of “sexual 

abuse of a minor” and two interpretations of “relating to” 

prevents an ordinary person from having fair notice of the 

conduct that triggers § 2252(b)(2)’s sentence enhancement; 

second, the “competing definitions” lead to arbitrary and 

discriminatory application of the statute.3

3 “In assessing whether a statute is impermissibly vague, ‘the 

touchstone is whether the statute, either standing alone or as construed, 

made it reasonably clear at the relevant time that the defendant’s conduct 

was criminal.’” United States v. Kuzma, 967 F.3d 959, 967 (2020)

(quoting United States v. Lanier, 520 U.S. 259, 267 (1997) (emphasis 

removed)). Absent exceptional circumstances, “a defendant who cannot 

sustain an as-applied vagueness challenge to a statute cannot be the one 

to make a facial vagueness challenge to the statute.” Keshem v. Barr, 

941 F.3d 358, 375 (9th Cir. 2019). Although Keshem held that a recent 

line of Supreme Court cases did not alter this general rule, id. at 375–76, 

we later addressed a facial vagueness challenge to two criminal statutes, 

noting that the same Supreme Court cases “refute[d] the Government’s 

assertion that outside the First Amendment context, only as applied 

vagueness challenges may be considered,” Kuzma, 967 F.3d at 971 n.10. 

Because Hudson’s challenge fails whether facial or as applied, we do not 

decide that issue here.
14 UNITED STATES V. HUDSON

Hudson is correct that our precedent interpreting “sexual 

abuse of a minor” has created a two-part definition—one 

covering the crime of statutory rape proscribed by § 2243 

and the other covering sexual abuse crimes in the ordinary 

sense—both of which inform our analysis under 

§ 2252(b)(2). See Sullivan, 797 F.3d at 636–37. Our 

approach has been the subject of criticism. Cf. Farmer, 627 

F.3d at 422–26 (Bybee, J., concurring) (arguing that 

Congress intended solely the definition set forth in § 2243 to 

define “abusive sexual conduct involving a minor” as it is 

used in § 2252A(b)(2)). Yet, that criticism does not reveal a 

constitutional infirmity. Indeed, the two definitions

ultimately are “complementary, not inconsistent.” Farmer, 

627 F.3d at 421; see also Sullivan, 797 F.3d at 637 (“This 

definition of ‘sexual abuse of a minor’ [i.e., the elements of 

§ 2243,] also comports with the ordinary, contemporary, and 

common meaning of the words sexual abuse of a minor.” 

(internal quotation marks and citation omitted)). And 

“[w]hether the terms in § 2252(b)(2) are given their generic 

meaning or are defined in light of their federal counterparts 

. . . they are unlikely to sweep in the bizarre or unexpected 

state offenses . . . .” Lockhart v. United States, 136 S. Ct. 

958, 968 (2016) (internal citations omitted). Absent such 

risk, the phrase “abusive sexual conduct involving a minor” 

provides ordinary people with fair notice of the statute’s 

reach and does not raise a constitutional vagueness concern.

The same is true of the phrase “relating to.” As we 

recently explained, “the ‘relating to’ language . . . has a 

broadening effect [that] will allow certain flexibility at the 

margins,” but it is not without limits. Jaycox, 962 F.3d at 

1070. To trigger the sentencing enhancement, the state 

offense must share a core substantive element of the generic 

federal definition. Id. at 1070–71; cf. United States v. 

Schopp, 938 F.3d 1053, 1066 (9th Cir. 2019) (“relating to” 
UNITED STATES V. HUDSON 15

phrase “does not permit an expansion beyond the substantive 

linchpin element of the federal generic crime”). Thus, even 

if that flexibility at the margins could be “an indicator” of an 

as-applied challenge, it is not an indicator that the statute is 

impermissibly vague on its face, see Kuzma, 967 F.3d at 971, 

and certainly not as applied to Hudson, see United States v. 

Medina-Villa, 567 F.3d 507, 512–16 (9th Cir. 2009) 

(California Penal Code § 288(a) is a categorical match to the 

generic definition of “sexual abuse of a minor”).

We are also unpersuaded by Hudson’s argument that the 

definitions of “sexual abuse of a minor” and the broadening 

effect of the phrase “relating to” risk arbitrary application of 

§ 2252(b)(2). In support of his argument, Hudson relies on 

a recent line of Supreme Court cases that invalidated on 

vagueness grounds the so-called residual clauses of several 

statutory definitions of “violent felony” and “crime of 

violence,” but Hudson fails to show that § 2252(b)(2) 

presents the same problems as the statutes at issue in those 

cases.

Johnson addressed the residual clause of the Armed 

Career Criminal Act’s (“ACCA”) definition of “violent 

felony,” which provided that, in addition to several 

enumerated felonies, a “violent felony” was any other felony 

that “otherwise involves conduct that presents a serious 

potential risk of physical injury to another.” 576 U.S. at 594 

(quoting 18 U.S.C. § 924(e)(2)(B) (emphasis removed)). To 

determine whether a particular crime fell under the residual 

clause, a court was required “to picture the kind of conduct 

that the crime involves in ‘the ordinary case’ and to judge 

whether that abstraction presents a serious potential risk of 

physical injury.” Id. at 596.

Johnson explained that “[t]wo features of the residual 

clause conspire to make it unconstitutionally vague.” Id. at 
16 UNITED STATES V. HUDSON

597. First, the clause “leaves grave uncertainty about how 

to estimate the risk posed by a crime.” Id. Second, the 

clause “leaves uncertainty about how much risk it takes for 

a crime to qualify as a violent felony.” Id. at 598. In 

reaching its conclusion, the Court noted that “the failure of 

‘persistent efforts . . . to establish a standard’ can provide 

evidence of vagueness” and recounted the various, failed 

attempts to create a workable standard under which to 

analyze whether a crime fell under the residual clause. Id. 

(quoting United States v. L. Cohen Grocery Co., 255 U.S. 

81, 91 (1921)). The “repeated attempts and repeated failures 

to craft a principled and objective standard out of the residual 

clause confirm[ed] its hopeless indeterminacy.” Id.

Sessions v. Dimaya, 138 S. Ct. 1204 (2018), reached the 

same conclusion regarding the nearly identical residual 

clause of 8 U.S.C. § 16’s definition of “crime of violence.” 

Dimaya held that § 16’s residual clause contained the same 

two elements that conspired to render ACCA’s residual 

clause unconstitutionally vague. Id. at 1214–15. Like the 

uncertainty in ACCA’s residual clause, the uncertainty in 

§ 16’s residual clause also required courts “to picture the 

kind of conduct that the crime involves in the ordinary case, 

and to judge whether that abstraction presents some notwell-specified-yet-sufficiently-large degree of risk.” Id. at 

1216 (internal quotation marks omitted).

The Court applied the same rationale once more to strike 

down the residual clause of 18 U.S.C. § 924(c)(3)(B)’s 

definition of “crime of violence.” United States v. Davis, 

139 S. Ct. 2319, 2326–27 (2019). Davis explained that 

Johnson and Dimaya “teach that the imposition of criminal 

punishment can’t be made to depend on a judge’s estimation 

of the degree of risk posed by a crime’s imagined ‘ordinary 

case.’” Id. at 2326.
UNITED STATES V. HUDSON 17

Here, § 2252(b)(2)’s sexual abuse provision does not 

contain the elements that conspired to render the residual 

clauses at issue in Johnson, Dimaya, and Davis

unconstitutionally vague. The phrases “abusive sexual 

conduct involving a minor” and “relating to” do not require 

the court to imagine an ordinary case or assess an 

unspecified degree of risk posed by that imagined, ordinary 

case. Nor have courts struggled to create a workable, 

objective standard for applying § 2252(b)(2). Our analysis 

is rooted in an elements-based categorical approach and 

adherence to the ordinary meaning of the statutory words. 

See Sullivan, 797 F.3d at 636–38; see also Johnson, 576 U.S. 

at 597 (explaining that assessing whether a crime fell under 

ACCA’s residual clause went “beyond deciding whether 

creation of risk is an element of the crime”). Because the 

elements of the state statutes of conviction are at the core of 

this court’s analysis, there also is no risk of arbitrary 

enforcement stemming from consideration of the prior 

conviction’s underlying facts, as Hudson contends. See 

Jaycox, 962 F.3d at 1069.

The Third Circuit recently rejected a similar 

constitutional challenge to § 2252(b)(2). See United States 

v. Portanova, 961 F.3d 252, 262–63 (3d Cir. 2020) (holding 

phrase “relating to” does not render statute 

unconstitutionally vague). We join our sister circuit and 

hold that § 2252(b)(2)’s reference to state crimes “relating to 

. . . abusive sexual conduct involving a minor” is not 

unconstitutionally vague.

CONCLUSION

Section 2252(b)(2)’s application to state crimes “relating 

to aggravated sexual abuse, sexual abuse, or abusive sexual 

conduct involving a minor” neither fails to give ordinary 

people notice of its scope nor poses a risk of arbitrary 
18 UNITED STATES V. HUDSON

enforcement. We, therefore, reject Hudson’s constitutional 

challenge and affirm his sentence.

AFFIRMED.