FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50124
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00516-
TYLER GEORGE FARMER, GW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
May 7, 2010—Pasadena, California
Filed December 6, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Bybee
19297
UNITED STATES v. FARMER 19299
COUNSEL
Richard A. Levy, Torrance, California, for the defendant-
appellant.
Aaron M. May, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
We are asked to decide whether Defendant-Appellant Tyler
George Farmer’s conviction under California Penal Code
19300 UNITED STATES v. FARMER
§ 288(a), for lewd and lascivious acts involving a child, cate-
gorically qualifies as “a prior conviction . . . relating to aggra-
vated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward.” 18 U.S.C. § 2252A(b)(2).
Although the answer is more complicated that it at first
appears, we are convinced that the answer is yes, and we
affirm the judgment of the district court.
I
On November 3, 2008, Farmer pleaded guilty to one count
of possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The Presentence Investigation Report
(“PSR”) noted that, in 1987, Farmer pleaded guilty to a viola-
tion of California Penal Code § 288(a), which prohibits lewd
and lascivious acts upon a child younger than fourteen. The
PSR explained that Farmer’s conviction likely triggered
§ 2252A(b)(2)’s mandatory minimum sentence provision,
which requires a district court to impose a sentence of “not
less than 10 years” if a person convicted under § 2252A(a)(5)
“has a prior conviction . . . under the laws of any State relat-
ing to aggravated sexual abuse, sexual abuse, or abusive sex-
ual conduct involving a minor or ward.” 18 U.S.C.
§ 2252A(b)(2). According to the PSR, § 2252A(b)(2)’s ten-
year mandatory minimum applied here because, under United
States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), the
conduct prohibited under California Penal Code § 288(a) cate-
gorically qualifies as “sexual abuse of a minor” under 8
U.S.C. § 1101(a)(43)(A). The district court, relying primarily
on our decision in United States v. Sinerius, 504 F.3d 737 (9th
Cir. 2007), agreed with the PSR’s recommendation and sen-
tenced Farmer to ten years in prison. Farmer timely appealed.
II
Farmer’s only argument is that the district court erred by
imposing a ten-year mandatory minimum sentence under 18
U.S.C. § 2252A(b)(2), because his prior conviction under Cal-
UNITED STATES v. FARMER 19301
ifornia Penal Code § 288(a) does not categorically fit within
any of the predicate offenses contained in § 2252A(b)(2). Our
methodology in these cases is by now familiar. Under the
Supreme Court’s opinion in Taylor v. United States, 495 U.S.
575 (1990), we begin by defining the federal generic offense.
See id. at 599. We then compare the conduct prohibited under
the state statute to the generic definition to determine whether
“the full range of conduct covered by the [state] statute falls
within the meaning of” the federal definition. Sinerius, 504
F.3d at 740.1
[1] Section 2252A(b)(2) of Title 18 imposes a ten-year
mandatory minimum sentence if the defendant “has a prior
conviction . . . under the laws of any State relating to aggra-
vated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward.” As its text makes clear,
§ 2252A(b)(2) refers to three separate offenses: “ ‘aggravated
sexual abuse, sexual abuse, and abusive sexual conduct
involving a minor [or ward].’ ” United States v. Strickland,
601 F.3d 963, 967 (9th Cir. 2010) (en banc) (quoting 18
U.S.C. § 2252A(b)(2)). We will start (and, as it turns out,
stop) with § 2252A(b)(2)’s “sexual abuse” offense.
A
This is not our first attempt to define § 2252A(b)(2)’s “sex-
ual abuse” offense. In Sinerius, we addressed whether Mon-
tana Code Annotated § 45-5-502, which prohibits “knowingly
subjecting ‘another person to any sexual contact without con-
sent,’ ” categorically constitutes a state law related to “sexual
abuse” under § 2252A(b)(2). Sinerius, 504 F.3d at 741 (quot-
ing MONT. CODE ANN. § 45-5-502(1)). “[F]ollow[ing] our
common practice in cases involving non-traditional offenses,”
we “defin[ed] [§ 2252A(b)(2)’s ‘sexual abuse’] offense based
on the ordinary, contemporary, and common meaning of the
1
We review the district court’s decision de novo. See United States v.
Velasquez-Bosque, 601 F.3d 955, 957 (9th Cir. 2010).
19302 UNITED STATES v. FARMER
statutory words.” Id. at 740 (quotation marks omitted). Con-
sistent with that approach, we noted that “sexual” should be
given its “ordinary and commonsense meaning.” Id. at 741.
Then, relying on a case that had defined “abuse” in a different
context,2 we said that “abuse” means to “misuse . . . or treat
so as to injure, hurt, or damage,” and explained that the term
“encompasses behavior that is harmful emotionally and physi-
cally.” Id. at 740 (quoting United States v. Lopez-Solis, 447
F.3d 1201, 1207 (9th Cir. 2006) (alteration and quotation
marks omitted)).
We elaborated on the proper definition of “sexual abuse” in
applying this definition to Montana Code Annotated § 45-5-
502. We began by noting that “[u]nder the categorical
approach, even the least egregious conduct proscribed by the
[criminal] statute must qualify as an offense relating to sexual
abuse.” Id. at 741 (quotation marks and omission omitted). In
our view, the “least egregious conduct” encompassed by the
Montana statute was “ ‘consensual’ sexual contact between a
16-year-old offender and a 13-year-old victim.” Id. Citing our
decision in Baron-Medina, we explained that “touching the
2
In addition to its appearance in 18 U.S.C. § 2252A, the phrase “sexual
abuse” makes two other relevant appearances. One is in 8 U.S.C.
§ 1101(a)(43)(A), which defines “aggravated felony” to include “murder,
rape, or sexual abuse of a minor.” (Emphasis added.) We rely on this stat-
utory subsection to determine whether an alien is removable for commit-
ting an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii), see
Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012-13 (9th Cir. 2009), and
whether an eight-level enhancement should be imposed for a defendant’s
pre-removal commission of an “aggravated felony” under
§ 2L1.2(b)(1)(C) of the Sentencing Guidelines, see United States v.
Pereira-Salmeron, 337 F.3d 1148, 1151 (9th Cir. 2003). The other appear-
ance of “sexual abuse” is in the application notes to § 2L1.2(b)(1) of the
Sentencing Guidelines. Section 2L1.2(b)(1)(A)(ii) requires a sixteen-level
enhancement if a defendant has previously been convicted of a “crime of
violence,” which the application notes define as, among other things, “sex-
ual abuse of a minor.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); see United States
v. Medina-Villa, 567 F.3d 507, 510 (9th Cir. 2009); United States v.
Lopez-Solis, 447 F.3d 1201, 1206-07 (9th Cir. 2006).
UNITED STATES v. FARMER 19303
body of a child under 14 years old with sexual intent . . .
‘indisputably falls within the common, everyday meaning of
the word[ ] ‘sexual’ . . . .” Id. at 741 (quoting Baron-Medina,
187 F.3d at 1147). We had little trouble concluding that § 45-
5-502 categorically involved “abuse,” because the “ ‘use of
young children for the gratification of sexual desires consti-
tutes an abuse.’ ” Id. (emphasis omitted) (quoting Baron-
Medina, 187 F.3d at 1147); see also Baron-Medina, 187 F.3d
at 1147 (“The use of young children as objects of sexual grati-
fication is corrupt, improper, and contrary to good order. It
constitutes maltreatment, no matter its form.” (citations omit-
ted)).3
[2] Our subsequent cases have reaffirmed the principle that
“[s]exual conduct involving younger children is per se abu-
sive,” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir.
2009), and that “younger children” in this context means chil-
dren younger than fourteen, United States v. Valencia-
Barragan, ___ F.3d ___, No. 09-50018, 2010 WL 2489528,
at *3 (9th Cir. June 22, 2010) (holding that Washington
Revised Code § 9A.44.076(1) “prohibits conduct that is per se
abusive” because it “applies to sexual conduct with children
younger than fourteen years”).
B
[3] We now turn to whether California Penal Code
§ 288(a) categorically fits the generic definition of “sexual
abuse.” Section 288(a) provides:
3
We also noted that § 2252A(b)(2)’s “relating to” language has a broad-
ening effect, mandating a ten-year mandatory minimum sentence “for any
state offense that stands in some relation, bears upon, or is associated with
sexual abuse.” Sinerius, 504 F.3d at 743. This raises the possibility that a
state criminal statute that does not categorically involve “sexual abuse”
may nonetheless constitute a “state offense that stands in some relation,
bears upon, or is associated with [sexual abuse].” We need not address the
precise scope of § 2252A(b)(2)’s “relating to” language here, however,
because, as is explained below, California Penal Code § 288(a) categori-
cally involves “sexual abuse.”
19304 UNITED STATES v. FARMER
Any person who willfully and lewdly commits any
lewd or lascivious act . . . upon or with the body, or
any part or member thereof, of a child who is under
the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sex-
ual desires of that person or the child, is guilty of a
felony and shall be punished by imprisonment in the
state prison for three, six, or eight years.
“Section 288(a) has two elements: (a) the touching of an
underage child’s body (b) with a sexual intent.” Baron-
Medina, 187 F.3d at 1147 (citing People v. Martinez, 903
P.2d 1037, 1042-43 (Cal. 1995)). As we explained above, our
cases have established that sexual touching of children youn-
ger than fourteen—the precise conduct prohibited by Califor-
nia Penal Code § 288(a)—invariably involves “sexual abuse.”
This would appear to make this case easy: because California
Penal Code § 288(a) categorically involves sexual touching of
children under fourteen, and because sexual touching of chil-
dren under fourteen always involves abuse, California Penal
Code § 288(a) must constitute a state law “relating to . . . sex-
ual abuse” for purposes of 18 U.S.C. § 2252A(b)(2). That we
have repeatedly held that California Penal Code § 288(a) cate-
gorically involves “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A), Baron-Medina, 187 F.3d at 1147, and the
application notes to U.S.S.G. § 2L1.2(b)(1)(A), United States
v. Medina-Villa, 567 F.3d 507, 516 (9th Cir. 2009); United
States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003),
further supports this conclusion.
C
Farmer urges us to take a fresh look at defining § 2252A’s
three sex offenses and has suggested that there are good rea-
sons for us to reexamine our case law. He argues that we
should define § 2252A’s three sex offenses—aggravated sex-
ual abuse, sexual abuse, and abusive sexual conduct involving
a minor or ward—exclusively by reference to their three fed-
UNITED STATES v. FARMER 19305
eral law counterparts: 18 U.S.C. § 2241 (aggravated sexual
abuse), 18 U.S.C. § 2242 (sexual abuse), and 18 U.S.C.
§ 2243 (sexual abuse of a minor or ward). Farmer acknowl-
edges that we rejected the same argument in Sinerius, 504
F.3d at 742 (“We have never defined predicate sex offenses
under § 2252A by cross reference to . . . federal provisions
. . . , nor has any other court of appeals.”4), but contends that
we overruled Sinerius sub silentio in our unanimous en banc
decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th
Cir. 2008) (en banc).
[4] In Estrada-Espinoza, we held that each of four Califor-
nia statutory rape provisions—California Penal Code
§§ 261.5(c) (unlawful sexual intercourse with a person under
eighteen, who is at least three years younger than the defen-
dant, and who is not the defendant’s spouse), 286(b)(1) (sod-
omy of a person under eighteen), 288a(b)(1) (oral copulation
of a person under eighteen), and 289(h) (sexual penetration of
a person under 18)—did not categorically constitute “sexual
abuse of a minor” under 8 U.S.C. § 1101(a)(43). 546 F.3d at
1159. In contrast with earlier cases, we declined to define
“sexual abuse of a minor” according to its “ordinary, contem-
porary, and common meaning,” because “Congress ha[d] enu-
merated the elements” of the federal “sexual abuse of a
minor” offense in 18 U.S.C. § 2243.5 Id. at 1152. “Sexual
abuse of a minor,” we explained, “refers to a specific [federal]
crime,” rendering reliance on the “ordinary, contemporary,
4
This statement is no longer true. Although, as we noted in Sinerius, the
Fifth Circuit rejected the proposition that § 2252A(b)(2)’s offenses should
be defined by reference to federal law, see United States v. Hubbard, 480
F.3d 341, 348-49 (5th Cir. 2007), the Seventh Circuit recently concluded
the opposite, see United States v. Osborne, 551 F.3d 718, 720 (7th Cir.
2009) (explaining that “these laws [§ 2252A and §§ 2241, 2242, and 2243]
should be read together” because they use “the same three terms”—
aggravated sexual abuse, sexual abuse, and abusive sexual conduct involv-
ing a minor or ward—and were revised and enacted together in 1990).
5
Section 2243 contains the elements of a federal crime labeled “sexual
abuse of a minor or ward.”
19306 UNITED STATES v. FARMER
and common meaning” of the words unnecessary. Id. at 1156
(quotation marks omitted). Thus, we held, “when Congress
added ‘sexual abuse of a minor[ ]’ to the list of aggravated
felonies in the [Immigration and Nationality Act] it meant
‘sexual abuse of a minor’ as defined in the federal criminal
code.” Id. at 1158. As for Section 2243, we explained that it
contains four elements: “(1) a mens rea level of knowingly;
(2) a sexual act; (3) with a minor between the ages of 12 and
16; and (4) an age difference of at least four years between the
defendant and the minor.” Id. at 1158. We concluded that the
California statutory rape laws did not categorically meet
§ 2243’s definition because, among other reasons, “sexual
activity with a younger child is certainly abusive, [but] sexual
activity with an older adolescent is not necessarily abusive.”
Id. at 1153.
According to Farmer, Estrada-Espinoza established the
principle that, when Congress passes a federal criminal statute
with the same name as a federal generic offense, we are to
look to that statute, rather than the “ordinary, common, and
contemporary meaning” of the statutory terms, to define the
generic offense. From this, he argues that we should define
§ 2252A(b)(2)’s three sex offenses in accordance with
§§ 2241, 2242, and 2243. In addition, he argues, because
Estrada-Espinoza’s mandated approach to interpreting federal
offenses is inconsistent with the approach undertaken in
Sinerius, Sinerius is now overruled. [Blue Brief at 18-19 (cit-
ing United States v. Vasquez-Ramos, 531 F.3d 987, 991 (9th
Cir. 2008))]. Although Farmer’s argument carries significant
force, it cannot survive our post-Estrada-Espinoza precedent.
1
As to the first part of Farmer’s argument, we have recently
made clear that Estrada-Espinoza did not announce a broad
rule limiting courts to looking to federal statutes to define fed-
eral generic offenses where the federal statute uses the same
name as a federal generic offense. In Medina-Villa, for exam-
UNITED STATES v. FARMER 19307
ple, we set out to answer the same question (under newly
revised Sentencing Guidelines) that we had already answered
twice before: did California Penal Code § 288(a) categorically
constitute “sexual abuse of a minor”? Again, we answered
yes. In doing so, we “reject[ed] the proposition [seemingly
put forth in Estrada-Espinoza] that [18 U.S.C.] § 2243 defines
the universe of sexual offenses contemplated by U.S.S.G.
§ 2L1.2’s term ‘sexual abuse of a minor.’ ” Medina-Villa, 567
F.3d at 515-16. Although we recognized that Estrada-
Espinoza’s definition served an important purpose, we held
that Estrada-Espinoza had not eliminated the alternative defi-
nition of “sexual abuse of a minor” established in pre-
Estrada-Espinoza cases. Id. Under that pre-Estrada-Espinoza
definition, we explained that “sexual abuse of a minor” con-
tains “three elements: [1] whether the conduct proscribed by
the statute is sexual; [2] whether the statute protects a minor;
and [3] whether the statute requires abuse.” Id. at 513.
[5] We also rejected Farmer’s reading of Estrada-Espinoza
and elaborated on Medina-Villa’s interpretation of “sexual
abuse of a minor” in Pelayo-Garcia. There, we made clear
that the definitions of “sexual abuse of a minor” laid out in
Estrada-Espinoza and Medina-Villa are complementary, not
inconsistent. As we explained, there are “two different generic
federal definitions of ‘sexual abuse of a minor.’ ” Pelayo-
Garcia, 589 F.3d at 1013. The first derives from 18 U.S.C.
§ 2243 and the definition set forth in Estrada-Espinoza. The
second is based on the “ordinary, contemporary, and common
meaning” of “sexual abuse of a minor,” as set forth in Baron-
Medina, other pre-Estrada-Espinoza cases, and Medina-Villa.
Id. at 1013-14. As it stands now, therefore, a state offense will
be a categorical match for “sexual abuse of a minor” if it fits
either definition. See id. at 1014-15. Three recent cases have
adopted and applied this two-definition approach. See
Valencia-Barragan, 2010 WL 2489528, at *3; United States
v. Castro, 607 F.3d 566, 568-69 (9th Cir. 2010); Rivera-
Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir. 2010). In
sum, whatever else our post-Estrada-Espinoza cases have
19308 UNITED STATES v. FARMER
established, they have at least made clear that Estrada-
Espinoza does not stand for the proposition that we must rely
exclusively on federal statutes to define federal generic
offenses.
2
For similar reasons, we are also unconvinced by the second
part of Farmer’s argument: that Estrada-Espinoza overruled
Sinerius. As an initial matter, Estrada-Espinoza was interpret-
ing a different statutory provision, 8 U.S.C. § 1101(a)(43)(A).
The court in Estrada-Espinoza never referred to the offenses
contained in 18 U.S.C. § 2252A or to our decision in Sinerius.
Moreover, as explained above, our cases have made clear that
Estrada-Espinoza did not overrule any prior cases that had
defined “sexual abuse of a minor” according to its “ordinary,
contemporary, and common meaning.” It strains credulity to
believe that although Estrada-Espinoza did not overrule any
of the cases addressing the same federal offense, it neverthe-
less sub silentio overruled a case interpreting an entirely dif-
ferent statutory provision. Finally, and most importantly, we
recently reaffirmed Sinerius in Strickland, 601 F.3d at 967.
There, sitting en banc, we approvingly cited Sinerius and
endorsed its approach to interpreting the offenses contained in
§ 2252A. Whatever the merits of Farmer’s proposed interpre-
tation of § 2252A(b)(2), we are unable to adopt it here.
III
[6] For the foregoing reasons, Farmer’s conviction under
California Penal Code § 288(a) categorically “relat[es] to . . .
sexual abuse.” 18 U.S.C. § 2252A(b)(2). We therefore affirm
the judgment of the district court.
AFFIRMED.
UNITED STATES v. FARMER 19309
BYBEE, Circuit Judge, with whom Judge NOONAN joins,
specially concurring:
Our precedents in United States v. Sinerius, 504 F.3d 737
(9th Cir. 2007), and Pelayo-Garcia v. Holder, 589 F.3d 1010
(9th Cir. 2009), compel us to affirm Farmer’s sentence. I
write separately to express my concerns with our current
approach to defining “abusive sexual conduct involving a
minor” for purposes of determining whether to apply a sen-
tencing enhancement to violators of the federal child pornog-
raphy statute, 18 U.S.C. § 2252A. My concerns are twofold.
First, in defining “abusive sexual conduct involving a minor,”
we have adopted uncritically the definition of “sexual abuse
of a minor” we had used to interpret an unrelated immigration
statute, without regard for the distinctive structure of
§ 2252A. See Sinerius, 504 F.3d at 742-43. Second, our recent
attempts to distinguish the array of contradictory cases in this
area of law has yielded the awkward result that we now apply
two competing, but equally recognized, definitions of “sexual
abuse of a minor.” See Pelayo-Garcia, 589 F.3d at 1012-15.
I discuss each of these concerns in turn.
I
We first held in Sinerius that, for purposes of determining
whether to apply an enhanced sentence to violators of
§ 2252A, the term “abusive sexual conduct involving a
minor” should be interpreted according to the “ordinary, con-
temporary, and common meaning of the . . . words.” Sinerius,
504 F.3d at 740 (quoting United States v. Lopez-Solis, 447
F.3d 1201, 1206-07 (9th Cir. 2006), and United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)). In
doing so, the Sinerius panel incorporated into § 2252A the
definition of “sexual abuse of a minor” that we had been
using to interpret provisions of both the Immigration and Nat-
uralization Act (INA), 8 U.S.C. § 1101(a)(43), and certain
Sentencing Guidelines provisions that cover immigration vio-
lations, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). See, e.g., Lopez-
19310 UNITED STATES v. FARMER
Solis, 447 F.3d at 1206-07 (using the “common meaning” to
interpret U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)); Cedano-Viera v.
Ashcroft, 324 F.3d 1062, 1065-66 (9th Cir. 2003) (using the
“common meaning” of “sexual abuse of a minor” to deter-
mine whether an alien’s state law offense qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43), thereby ren-
dering him removable); Baron-Medina, 187 F.3d at 1146
(using the “common meaning” definition to determine
whether to apply a sentencing enhancement to defendant
guilty of immigration offense based on past violation of state
statute criminalizing “lewd or lascivious act[s]” with children
under age fourteen). In Sinerius, however, we failed to con-
sider the distinct structure of § 2252A. As used in the INA
and the Guidelines, the term “sexual abuse of a minor” is
listed alongside other violent crimes, such as murder, rape,
and robbery. See 8 U.S.C. § 1101(a)(43); U.S.S.G. § 2L1.2
cmt. n.1(B)(iii). In these contexts, it might make sense to
define “sexual abuse of a minor” according to the ordinary,
common meaning of the term because nothing in the structure
of these provisions indicates that we should use any particular
definition. See Baron-Medina, 187 F.3d at 1146.
By contrast, § 2252A provides for stiffer sentences where
the defendant has a past conviction “relating to [1] aggravated
sexual abuse, [2] sexual abuse, or [3] abusive sexual conduct
involving a minor or ward.” 18 U.S.C. § 2252A(b)(2). Section
2252A(b)(2) treats these as three separate offenses, and not as
a generic crime of “sexual abuse.” Strikingly, these three pre-
cise offenses are defined and punished as federal offenses in
18 U.S.C. §§ 2241, 2242, and 2243. To me, this indicates that
when Congress created § 2252A(b)(2)’s three offenses, it
wanted them defined by reference to the simultaneously
enacted federal criminal statutes—consecutively numbered—
of the same name. See 18 U.S.C. §§ 2241 (“aggravated sexual
abuse”), 2242 (“sexual abuse”), 2243 (“sexual abuse of a
minor or ward”).
Interpreting § 2252A(b)(2)’s three offenses according to
§§ 2241, 2242, and 2243 would also eliminate the surplusage
UNITED STATES v. FARMER 19311
created if we interpret § 2252A(b)(2)’s offenses according to
their “ordinary, contemporary, and common meaning.” Under
the ordinary, contemporary meaning of “sexual abuse of a
minor,” two of § 2252A’s offenses—aggravated sexual abuse
and abusive sexual conduct involving a minor or ward—are
rendered superfluous because those offenses indisputably fall
within the broader definition of “sexual abuse.” See Sinerius,
504 F.3d at 744 (“Since we conclude that Sinerius’s prior
[state] conviction categorically qualifies as ‘sexual abuse’ for
purposes of § 2252A(b), we need not consider whether the
conviction would also qualify as ‘aggravated sexual abuse’ or
‘abusive sexual conduct involving a minor’ under the same
provision . . . .”). The same is not true if we defined “aggra-
vated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward” according to §§ 2241, 2242, and
2243. When one plausible interpretation creates surplusage
and another plausible interpretation does not, the latter gener-
ally controls. See Corley v. United States, 129 S. Ct. 1558,
1566 (2009) (“[O]ne of the most basic interpretive canons [is]
that a statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superflu-
ous, void or insignificant.”) (internal quotation marks and
alterations omitted).
Citing similar concerns, the Seventh Circuit recently held
that the offense of “abusive sexual conduct involving a
minor” from § 2252A should be given the statutory definition
Congress supplied in § 2243(a). United States v. Osborne, 551
F.3d 718, 720-21 (7th Cir. 2009). Acknowledging that there
are differences between the statutory structures of § 2252A
and the INA, the Seventh Circuit also declined to apply the
same definition of “sexual abuse of a minor” to both § 2252A
and the INA. See Gaiskov v. Holder, 567 F.3d 832, 837-38
(7th Cir. 2009). I believe that, given the opportunity to revisit
this issue, we would be well advised to embrace an approach
similar to the Seventh Circuit’s by adopting a common law
definition of the term for the INA, and a statutory definition
for § 2252A. For now, however, we remain bound by
19312 UNITED STATES v. FARMER
Sinerius. 504 F.3d at 737. See United States v. Strickland, 601
F.3d 963, 967 (9th Cir. 2010) (en banc) (relying on Sinerius
in affirming defendant’s enhanced sentence pursuant to
§ 2252A(b)).
II
My second problem with our approach to this area of the
law concerns how our caselaw now recognizes two competing
definitions of “sexual abuse of a minor.” At the time Sinerius
borrowed the definition of “sexual abuse of a minor” from our
immigration caselaw and incorporated it into § 2252A, our
immigration cases provided for only one approach for defin-
ing the offense—in accordance with the “ordinary, contempo-
rary, and common meaning” of the term. Sinerius, 504 F.3d
at 740 (adopting a definition first set out in Baron-Medina,
187 F.3d at 1146). Our immigration caselaw in this area was
subsequently thrown into disarray, however, by our en banc
decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th
Cir. 2008). Estrada-Espinoza held that, for purposes of deter-
mining whether an alien’s state conviction qualifies as “sexual
abuse of a minor,” we should apply the definition of “sexual
abuse of a minor” from § 2243(a). Id. at 1152-53. Although
we did not overturn any of our prior cases, we failed to note
that our holding was in conflict with a whole line of cases dat-
ing back to our original decision in 1999 in Baron-Medina,
187 F.3d at 1147. See also Lopez-Solis, 447 F.3d at 1206-07.
We have since struggled to reconcile Estrada-Espinoza
with the Baron-Medina line of cases. In Medina-Villa, we
attempted to reconcile our conflicting precedents by limiting
the applicability of Estrada-Espinoza to statutory rape statutes
only, while reaffirming the use of the Baron-Medina approach
for all other state statutes criminalizing conduct understood to
be “sexual abuse of a minor.” United States v. Medina-Villa,
567 F.3d 507, 514-16. Then, in Pelayo-Garcia, we again
attempted to reconcile Estrada-Espinoza and Medina-Villa by
arguing that we were bound by both definitions of the term.
UNITED STATES v. FARMER 19313
Pelayo-Garcia, 589 F.3d at 1013-16. As a consequence, if a
state statute satisfies the definition of “sexual abuse of a
minor” under either the Baron-Medina approach or Estrada-
Espinoza approach, a violation of that statute would trigger
removal or a mandatory minimum sentence. Most recently,
we reaffirmed the Pelayo-Garcia approach in United States v.
Castro, 607 F.3d 566 (9th Cir. 2010), and United States v.
Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010).
The result of our attempts to reconcile our precedents in
this area has yielded a most awkward arrangement in which
we have two definitions of the generic offense of “sexual
abuse of a minor.” While this approach, first adopted in
Pelayo-Garcia, might recommend itself because it did not
require us to overrule any precedents, it burdens litigants with
a needlessly confusing rule of law that has no compelling or
principled rationale. To illustrate, the definition of “sexual
abuse of a minor” under the Estrada-Espinoza approach,
which is based on the statutory definition in § 2243(a), differs
from the “ordinary, common, contemporary” definition of the
term used in the Baron-Medina approach in several signifi-
cant ways. Applying the definition of “sexual abuse of a
minor” from § 2243(a) would mean Farmer would only qual-
ify for enhanced sentencing if the state statute required that he
engage (1) knowingly, (2) in a sexual act, (3) with a minor
aged between 12 and 16, (4) where there is an age difference
of at least 4 years between the defendant and the minor.
Estrada-Espinoza, 546 F.3d at 1158. By contrast, the Baron-
Medina approach, which applies the “ordinary, contemporary,
and common meaning” of the term, would subject Farmer to
enhanced sentencing if the state statute requires (1) a sexual
act, (2) with a minor, that is (3) abusive. See Lopez-Solis, 447
F.3d at 1206-07; Baron-Medina, 187 F.3d at 1147.
The differences between these two definitions have impor-
tant consequences. First, while our definition under the
Estrada-Espinoza approach requires the state statute to
include a mens rea requirement of “knowingly” with respect
19314 UNITED STATES v. FARMER
to the sexual act, Baron-Medina is silent on mens rea. Second,
while the Baron-Medina approach defines “sexual act”
broadly, according to the “ordinary and commonsense mean-
ing” of “sexual,” see Sinerius, 504 F.3d at 741, the Estrada-
Esipinoza formula adopts a detailed definition of “sexual act”
from 18 U.S.C. § 2246(2), which requires direct physical con-
tact. See Castro, 607 F.3d at 569-70. Third, state statutes that
criminalize sexual conduct where the victim is older than six-
teen or where there is less than a four-year age difference
between the victim and perpetrator would never categorically
qualify under the Estrada-Espinoza approach, while the
Baron-Medina approach does not require an age difference
and is silent on how young the victim must be. Finally, the
Baron-Medina method requires the state offense only cover
conduct that is “abusive,” meaning “behavior that is harmful
emotionally and physically,” whereas the Estrada-Espinoza
approach does not. Lopez-Solis, 447 F.3d at 1207-1209.
Each definition is more restrictive than the other definition
in some respects, and less demanding in other respects. The
result is that a defendant is subject to an enhanced sentence
according to whichever is the least demanding definition in a
given circumstance. See Pelayo-Garcia, 589 F.3d at 1013-16.
In Farmer’s case, his underlying California conviction quali-
fies as “sexual abuse of a minor” under the ordinary, common
definition in Baron-Medina, but not under the statutory defi-
nition from § 2243(a) used in Estrada-Espinoza. Farmer is
therefore subject to enhanced sentencing. Thus, the effect of
allowing two dueling definitions of “sexual abuse of a minor”
to coexist essentially gives the government the choice of
whichever definition suits it best in a given instance, since the
underlying state offense categorically qualifies as “sexual
abuse of a minor” if it meets at least one of the two defini-
tions. I do not believe this is the result Congress intended.
Either the term “sexual abuse of a minor” should be defined
according to its ordinary, common meaning, or according to
§ 2243(a), but it cannot have two different definitions depend-
ing on whatever is more convenient for the government.
UNITED STATES v. FARMER 19315
Were we writing on a blank slate, I would use one defini-
tion of the term “sexual abuse of a minor” in immigration
cases and a different definition for § 2252A. For immigration
cases, I believe it might make sense to revert to using exclu-
sively the “ordinary, common, and contemporary” definition
we first adopted in Baron-Medina. 187 F.3d at 1146. This is
because, as I discussed in Part I, nothing in the structure of the
INA or the Guidelines suggests that Congress intended for us
to use the definition in § 2243(a). On the other hand, for pur-
poses of reading § 2252A, the structure of the statute indicates
that Congress wanted us to use exclusively the definition set
out in § 2243(a), as the Seventh Circuit held in Osborne. 551
F.3d at 720-21. I would therefore read § 2252A according to
§ 2243(a)’s definition of “sexual abuse of a minor.”
III
This area of the law cries for clarification. For the time
being, however, Sinerius requires us in § 2252A cases to
define the term in accordance with our cases interpreting the
INA and the Guidelines, 504 F.3d at 740, and Pelayo-Garcia
requires us to apply two different definitions of “sexual abuse
of a minor,” 589 F.3d at 1013-16.
Because this panel does not have the power to correct our
missteps, I reluctantly concur in my own majority opinion.