United States v. Edward Sullivan

ORDER

The opinion filed on May 28, 2014, and appearing at 753 F.3d 845 , is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.

OPINION

Edward Sullivan was convicted of violations under 18 U.S.C. §§ 2251 (a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a 14-year-old girl. He raises multiple challenges to these convictions, as well as to the mandatory minimum sentences imposed under 18 U.S.C. §§ 2251 (e) and 2252(b)(2). The government cross appeals, arguing that the district court miscalculated Sullivan’s Sentencing Guidelines range. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 , and affirm in part and reverse in part.

I

Sullivan’s use of 14-year-old Erika Doe to produce the sexually explicit video at issue in this case was not the first time he engaged in sex-related conduct with a minor. In 2001, Sullivan was convicted in Nevada of conspiracy to commit pandering involving a 13-year-old girl. In 2002, Sullivan was convicted in California of four offenses involving a 14-year-old female victim: (1) unlawful…