In United States v. Hudson, --- F.3d ---, No. 19-10227 (9th Cir. 2021), the Court affirmed a mandatory minimum 10-year sentence for possession of child pornography under 18 U.S.C. § 2252(b)(2).
The statute applies if, among other things, a defendant has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
Mr. Hudson argued the provision was vague. The Court disagreed.
"Hudson is correct that our precedent interpreting 'sexual abuse of a minor' has created a two-part definition—one covering the crime of statutory rape proscribed by § 2243 and the other covering sexual abuse crimes in the ordinary sense—both of which inform our analysis under § 2252(b)(2) . . . Yet, that criticism does not reveal a constitutional infirmity. Indeed, the two definitions ultimately are 'complementary, not inconsistent.' And '[w]hether the terms in § 2252(b)(2) are given their generic meaning or are defined in light of their federal counterparts . . . they are unlikely to sweep in the bizarre or unexpected state offenses . . . .' Absent such risk, the phrase 'abusive sexual conduct involving a minor' provides ordinary people with fair notice of the statute’s reach and does not raise a constitutional vagueness concern."
"The same is true of the phrase 'relating to.' As we recently explained, 'the relating to’ language . . . has a broadening effect [that] will allow certain flexibility at the margins,' but it is not without limits. To trigger the sentencing enhancement, the state offense must share a core substantive element of the generic federal definition. Thus, even if that flexibility at the margins could be 'an indicator' of an as-applied challenge, it is not an indicator that the statute is impermissibly vague on its face, and certainly not as applied to Hudson."
One other thing to note: the Court expressly does not decide whether it can consider facial vagueness challenges or only as-applied: "Absent exceptional circumstances, 'a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute.”'Keshem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019). Although Keshem held that a recent line of Supreme Court cases did not alter this general rule, id. at 375–76, we later addressed a facial vagueness challenge to two criminal statutes, noting that the same Supreme Court cases 'refute[d] the Government’s assertion that outside the First Amendment context, only as applied vagueness challenges may be considered,' Kuzma, 967 F.3d at 971 n.10. Because Hudson’s challenge fails whether facial or as applied, we do not decide that issue here."
