In United States v. Schopp, --- F.3d ---, No. 16-30185 (9th Cir. 2019), the Court vacated the defendant's life sentence for producing child pornography in
violation of 18 U.S.C. § 2251(a).
The defendant pleaded guilty with an appellate waiver. He was sentenced under section 2251(e)'s enhanced penalty provision: a defendant
with “2 or more prior convictions . . . under the laws of any
State relating to the sexual exploitation of children . . . shall
be . . . imprisoned not less than 35 years nor more than life.”
On appeal, he argued his prior Alaska convictions were not "relating to the sexual exploitation." Thus, his life sentence was illegal.
On plain error, and despite the appellate waiver, the Court agreed.
First, as to the appellate waiver, the Court held that it did not cover (prevent) an appeal of an illegal sentence.
Second, the Court determined, "the
federal generic definition of 'sexual exploitation of
children' is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct,
or put simply, the production of child pornography."
In reaching this conclusion, the Court relied heavily on the statute's heading: "The statute’s section heading, when read in conjunction
with the statutory text, largely resolves our question
concerning the federal generic definition of “sexual
exploitation of children." Further, "a section heading may serve
as the basis for establishing what offense is being defined in
the statutory text."
[This is helpful language for using headings to make arguments about what a statute means]
Third, the Court rejected the government's reliance on the term "relating to." It held: "We [] adhere to our conclusion that the 'relating
to' term in § 2251(e) encompasses state offenses that are a
categorical match to the federal offense of production of
child pornography and state offenses involving the
production of such pornography, that is, the conduct
enumerated in § 2251’s various subsections. It does not
include offenses that entirely lack the visual depictions
element that separates 'sexual exploitation of children from
other forms of child abuse in the federal criminal offense
panoply."
Because the defendant's priors did not fit within the definition, his sentence was illegal and could not stand.
