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U.S. v. Edward Lee Sullivan

In this sentencing case, a panel of the Ninth Circuit has once again concocted a way to squirm out of the categorical analysis.  The Supreme Court's harsh rebuke just last term in Descamps apparently has had little effect.  After reciting the admittedly terrible facts of the case (a parolee pimping out a 14 year-old runaway and using her to produce porn after prior convictions for sex with a minor and conspiracy to pander a minor), Judge Ikuta's opinion announces it is applying the categorical analysis and then utterly subverts it.

The portion of the opinion reviewed here concerns the use of the categorical analysis to determine whether a sentencing enhancement for a prior conviction for sexual abuse of a minor applies.   The opinion first notes the generic federal definition of sexual abuse of a minor requires conviction of either (a) a sexual offense with a minor that is inherently abusive or (b) an offense that involves knowingly engaging in a sexual act with a minor between the ages of 12 and 16 and a 4 year age difference.  The opinion then recognizes that Ninth Circuit precedent holds the defendant's prior conviction for California Penal Code section 261.5(d) (unlawful sex with a minor younger than 16 by an adult 21 or older) does not categorically meet this definition (and that by extension his prior conviction for PC 288a(b)(2) does not either).  PC 261.5(d) is not inherently abusive because it could involve consensual sex with a minor just one day shy of 16.  Nor does it meet the alternative test because the conviction does not require that the defendant know (or that he reasonably should know) the minor is under the age of 16.

No match should mean that the mandatory minimum sentences applied by the district court judge (25 years and 10 years) do not apply, but the panel snatches victory from the jaws of defeat with the magic words "relating to."   The panel finds that the sentencing enhancement requires only conviction of an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact with a minor or ward."  It explains this "mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.”   Whatever that means, the panel holds it does not require the conviction to have the same elements as the generic definition.

The opinion cites a Ninth Circuit decision, United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007), as support for its holding.  The citation, however, is suspect because it pre-dates the Supreme Court's last four decisions on the categorical analysis (Nijhawan, Johnson, Moncrieffe, and Descamps), which all have emphasized the primacy of elements when evaluating whether a conviction meets a federal definition.  Moreover, actually reading the Sinerius decision reveals that it does not offer quite as much support as the Sullivan panel asserts.  Sinerius does expound on "relating to," but its actual holding does not purport to dispense with a categorical analysis of the elements of the offense. Instead, It simply found that the generic definition of sexual abuse meant more than federal statutory rape, that it also covered sexual offenses with children younger than 14.  And then it compared the elements of the statute of conviction to that generic definition.  Sinerius does not assert that a conviction can satisfy a federal generic definition even if it is missing an element of the generic definition.

The flawed reasoning of Sullivan unfortunately has potential consequences beyond its application here.  For example, a conviction for an offense "relating to" a federal controlled substance makes a noncitizen deportable or inadmissible.  Thus, the panel's reasoning could be used to argue a conviction for California Health and Safety Code section 11377(a) "relates to" an offense involving a federally controlled substance even if the conviction actually did not (because some of the substances covered by it are not prohibited by the federal Controlled Substances Act).  This certainly would be news to another Ninth Circuit panel that recently held 11377(a) does not categorically make a noncitizen inadmissible.  See Quijada Coronado.  Ditto for another panel on a Hawaii controlled substances statute.  See Ragasa.

Let's hope the other judges on the Ninth Circuit see this chicanery for what it is.