In United States v. Thompson, --- F.4th ---, No. 23-2288 (9th Cir. 2025), the Court affirmed a sentence imposed for Lamar Allen Thompson’s convictions for production and possession of child pornography.
The first issue was whether Thompson's prior 2016 Washington state conviction for first-degree child molestation under Washington Revised Code § 9A.44.083 triggered a 10-year increase under § 2251(e).
An individual convicted under 18 U.S.C. § 2251(a) for production of child pornography is subject to a mandatory term of imprisonment of at least 15 years. However, under 18 U.S.C. § 2251(e), that mandatory term is increased to at least 25 years if that individual “has one prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward.”
The Court held that a Washington conviction under § 9A.44.083 categorically matches or relates to the predicate generic offenses in § 2251(e), thus triggering the increase.
The Court further held that the district court did not plainly err in declining to recommend whether Thompson’s federal sentence should run concurrently with the anticipated state sentences. "Given the Supreme Court’s statements regarding district courts’ discretion not to make concurrency recommendations and our sister circuits’ similar conclusions, Thompson fails to show any error, let alone plain error."
Of note, despite the fact that Thompson asked for concurrent time, the Court applied plain error review because he did not further object when the district court declined to make a recommendation.
