FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-30185 Plaintiff-Appellee, D.C. No. v. 1:15-cr-00001- TMB-1 THOMAS SCHOPP, AKA Thomas Hiser, Defendant-Appellant. 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 Defendant- Appellant. 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, ...
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