Farmer

Opinion by Judge BYBEE; Concurrence by Judge BYBEE.

OPINION

We are asked to decide whether Defendant-Appellant Tyler George Farmer’s conviction under California Penal Code 19299 § 288(a), for lewd and lascivious acts involving a child, categorically qualifies as “a prior conviction ... relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U.S.C. § 2252A(b)(2). Although the answer is more complicated that it at first appears, we are convinced that the answer is yes, and we affirm the judgment of the district court.

I

On November 3, 2008, Farmer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The Presentence Investigation Report (“PSR”) noted that, in 1987, Farmer pleaded guilty to a violation of California Penal Code § 288(a), which prohibits lewd and lascivious acts upon a child younger than fourteen. The PSR explained that Farmer’s conviction likely triggered § 2252A(b)(2)’s mandatory minimum sentence provision, which requires a district court to impose a sentence of “not less than 10 years” if a person convicted under § 2252A(a)(5) “has a prior conviction ...…

specially concurring:

Our precedents in United States v. Sinerius, 504 F.3d 737 (9th Cir.2007), and Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir.2009), compel us to affirm Farmer’s sentence. I write separately to express my concerns with our current approach to defining “abusive sexual conduct involving a minor” for purposes of determining whether to apply a sentencing enhancement to violators of the federal child pornography statute, 18 U.S.C. § 2252A. My concerns are twofold. First, in defining “abusive sexual conduct involving a minor,” we have adopted 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. See Sinerius, 504 F.3d at 742-43 . Second, our recent attempts to distinguish the array of contradictory cases in this area of law has yielded the awkward result that we now apply two competing, but equally recognized, definitions of “sexual abuse of a minor.” See Pelayo-Garcia, 589 F.3d at 1012-15 . I discuss each of these concerns in turn.

I

We first held in Sinerius that, for purposes of determining whether to apply an enhanced sentence to violators…

Richard A. Levy, Torrance, CA, for the defendant-appellant.

Aaron M. May, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Before: JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge BYBEE.

BYBEE, Circuit Judge:

We are asked to decide whether Defendant-Appellant Tyler George Farmer's conviction under California Penal Code 19299 § 288(a), for lewd and lascivious acts involving a child, categorically qualifies as "a prior conviction ... relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252A(b)(2). Although the answer is more complicated that it at first appears, we are convinced that the answer is yes, and we affirm the judgment of the district court.

On November 3, 2008, Farmer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The Presentence Investigation Report ("PSR") noted that, in 1987, Farmer pleaded guilty to a violation of California Penal Code § 288(a), which prohibits lewd and lascivious acts upon a child younger than fourteen. The PSR explained that…