FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10409 Plaintiff-Appellant, D.C. No. v. 4:15-cr-00330-JSW-1 DAVID WESLEY REINHART, Defendant-Appellee. OPINION Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding Argued and Submitted November 16, 2017 San Francisco, California Filed June 18, 2018 Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Nancy Freudenthal, * Chief District Judge. Opinion by Judge Murguia * The Honorable Nancy Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation. 2 UNITED STATES V. REINHART SUMMARY ** Criminal Law The panel affirmed the district court’s imposition of a 78-month sentence for two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The government argued that based on the defendants’ prior convictions for possession of child pornography (Calif. Penal Code § 311.11(a)) and sexual exploitation of child (Calif. Penal Code § 311.3(a)), he was subject to the ten-year mandatory minimum set forth in 18 U.S.C. § 2252(b)(2) for having had a prior state conviction “relating to” the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography. The government also argued that in determining whether the prior convictions trigger the § 2252(b)(2) enhancement, the usual Taylor categorical approach does not apply, because the words “relating to” in § 2252(b)(2) mandate a broader comparison of the offenses in the federal and state statutes than the usual comparison between the elements of the state and federal statutes. Because the terms “child pornography” and “sexually explicit conduct” are explicitly defined in the same statutory chapter as the sentencing enhancement provision at § 2252(b)(2), the panel did not depart from the usual, elements-based, categorical approach to determine whether ** 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. REINHART 3 the defendant’s prior California statutes of conviction trigger the mandatory minimum provision in § 2252(b)(2). Following United States v. Chavez-Solis, 803 F.3d 1004 (9th Cir. 2015), the panel held that § 311.11(a) is categorically overbroad because it sweeps in depictions of a broader range of “sexual conduct” than the federal child pornography statute; and that the statute is not divisible. The panel likewise held that § 311.3(a) is categorically overbroad as compared to the federal definition of “sexually explicit conduct,” and that it is not divisible. The panel therefore did not look to any fact-specific documents to determine whether either of the defendant’s prior convictions was an offense “relating to” the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography under § 2252(b)(2), and concluded that neither of the prior convictions triggers the mandatory minimum sentence. COUNSEL Jonas Lerman (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney’s Office, San Francisco, California; for Plaintiff- Appellant. Ned Smock (argued), Assistant Federal Public Defender; Steven G. Kalar, ...
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