United States v. Cavon Clark

FILED

NOT FOR PUBLICATION

JUL 21 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30377

Plaintiff - Appellee, D.C. No. 2:11-cr-00173-LRS-

v.

MEMORANDUM*

CAVON C. CLARK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, Senior District Judge, Presiding

Argued and Submitted April 8, 2014 Submission Vacated February 9, 2015 Resubmitted July 20, 2016 Seattle, Washington

Before: KOZINSKI, RAWLINSON and BEA, Circuit Judges.

The district court erred in determining whether Clark’s convictions under

Washington law “relat[ed] to the sexual exploitation of children.” 18 U.S.C. §

2251(e). The government argues that the court used the categorical approach to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. page 2 find that Clark’s convictions under a Washington statute qualified as predicate

offenses under § 2251(e). But the court didn’t restrict its analysis to the elements

of the…

MEMORANDUM *

The district court erred in determining whether Clark’s convictions under Washington law “relat[ed] to the sexual exploitation of children.” 18 U.S.C. § 2251 (e). The government argues that the court used the categorical approach to find that Clark’s convictions, under a Washington statute qualified as predicate offenses under § 2251(e). But the court didn’t restrict its analysis to the elements of the crime, as required by the categorical approach. It specifically looked to the “conduct that occurred” in the case as well as statements contained in the judgment and sentence. And the government concedes that any use of the modified categorical approach was error because the Washington statute is not divisible.

*303 Further, the district court did not have the benefit of recent decisions analyzing whether convictions under state law “relat[e] to” a federal offense. 18 U.S.C. § 2251 (e); see Mellouli v. Lynch, — U.S. -, 135 S.Ct. 1980, 1990-91 , 192 L.Ed.2d 60 (2015) (interpreting “relating to” language in 8 U.S.C. § 1227 (a)(2)(B)(i)); United States v. Sullivan, 797 F.3d 623, 640-41 (9th Cir. 2015) (interpreting “relating to” language for the single prior conviction…

dissenting:

Cavon Clark pleaded guilty to producing child pornography, in violation of 18 U.S.C. § 2251 (b), and transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(l). At sentencing, the district court found that Clark had two prior state-law convictions “relating to the sexual exploitation of children,” because, in 2005, he had pleaded guilty to two counts of “knowingly possessing] visual or printed matter depicting a minor engaged in sexually explicit conduct.” Wash. Rev. Code § 9 .68A.070 (2005). The district court thus ruled that the multiple-conviction sentence enhancement in 18 U.S.C. § 2251 (e) applied and that § 2251(e) mandated a minimum sentence of 35 years’ imprisonment.

I agree with the majority that the dis-' trict court misapplied the categorical approach when it determined that Clark’s prior convictions 1 “relat[e] to the sexual exploitation of children” for the reasons stated in the majority’s decision. However, we are perfectly capable of rectifying this error, 2 because Wash. Rev. Code § 9 .68A.070 (2005) does categorically “relat[e] to the sexual exploitation of children.” See United States v. Quintero-Junco, 754 F.3d 746, 752-53 (9th Cir.…