United States v. Edward Sullivan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10196
Plaintiff-Appellee,
D.C. No.
v. 4:09-cr-00167-
DLJ-1
EDWARD LEE SULLIVAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 12-10217
Plaintiff-Appellant,
D.C. No.
v. 4:09-cr-00167-
DLJ-1
EDWARD LEE SULLIVAN,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding

Argued and Submitted
January 14, 2014—San Francisco, California

Filed May 28, 2014
2 UNITED STATES V. SULLIVAN

Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
Judges, and Beverly Reid O’Connell, District Judge.*

Opinion by Judge Ikuta

SUMMARY**

Criminal Law

The panel affirmed in part and reversed in part a criminal
judgment in a case in which the defendant was convicted
under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing
and possessing a sexually explicit video depicting a fourteen-
year-old girl.

The panel held that venue in the Northern District of
California for the production count was not improper. The
panel also held that National Federation of Independent
Business v. Sebelius, 132 S. Ct. 2566 (2012), does not
undermine this court’s precedent that Congress may regulate
even purely intrastate production of child pornography and
criminalize its intrastate possession.

The panel held that the district court did not err in
denying the defendant’s motion to suppress evidence
obtained from his laptop computer. Balancing the nature of

*
The Honorable Beverly Reid O’Connell, United States District Court
Judge for the Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SULLIVAN 3

the intrusion into the defendant’s possessory interests against
the governmental interests justifying the intrusion, the panel
concluded that the government’s seizure and retention of the
laptop for 21 days before obtaining a search warrant was,
under the totality of the circumstances, not unreasonable
under the Fourth Amendment.

The panel held that the conduct proscribed by Cal. Penal
Code § 261.5(d) (unlawful sexual intercourse with a minor
under 16 years of age) and Cal. Penal Code § 288a(b)(2) (oral
copulation with a minor under 16 years of age) is
categorically a conviction “under the laws of any State
relating to . . . sexual abuse” for purposes of 18 U.S.C.
§§ 2251(e) and 2252(b)(2), and that the district court
therefore properly applied the mandatory minimum
enhancement provisions contained in §§ 2251(e) and
2252(b)(2).

On the government’s cross-appeal, the panel held that the
district court erred in its legal analysis when sustaining the
defendant’s objection to the inclusion of a two-level
enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1. The panel remanded for resentencing because it
could not tell if the district court would impose the same
sentence if it applied the correct legal analysis.

COUNSEL

John J. Jordan, San Francisco, California, for Defendant-
Appellant.

Anne Voigts (argued), Assistant United States Attorney;
Melinda Haag, United States Attorney; Barbara J. Valliere,
4 UNITED STATES V. SULLIVAN

Assistant United States Attorney, San Francisco, California,
for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

Edward Sullivan was convicted of violations under
18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and
possessing a sexually explicit video depicting a fourteen-
year-old girl. He raises multiple challenges to these
convictions, as well as to the mandatory minimum sentences
imposed under 18 U.S.C. §§ 2251(e) and 2252(b)(2). The
government cross appeals, arguing that the district court
miscalculated Sullivan’s Sentencing Guidelines range. We
have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, and affirm in part and reverse in part.1

I

Sullivan’s use of fourteen-year-old Erika Doe to produce
the sexually explicit video at issue in this case was not the
first time he engaged in sex-related conduct with a minor. In
2001, Sullivan was convicted in Nevada of conspiracy to
commit pandering involving a 13-year-old girl. In 2002,
Sullivan was convicted in California of four offenses
involving a 14-year-old female victim: (1) unlawful sexual
intercourse with a minor in violation of California Penal Code
§ 261.5(d); (2) oral copulation with a minor in violation of

1
We resolve Sullivan’s remaining claims in a concurrently filed
memorandum disposition. United States v. Sullivan, – F. App’x – (9th
Cir. 2014).
 UNITED STATES V. SULLIVAN 5

California Penal Code § 288a(b)(2); (3) pimping in violation
of California Penal Code § 266h(a); and (4) pandering in
violation of California Penal Code § 266i(a)(2). Sullivan was
sentenced to 140 months imprisonment for the California
convictions.

In November 2007, Sullivan was released on parole. As
a parolee, Sullivan was subject to a range of standard and
special parole conditions. Among the standard parole
conditions was a consent to search, which stated: “You and
your residence and any property under your control may be
searched without a warrant by an agent of the Department of
Corrections or any law enforcement officer.” In addition,
Sullivan was subject to a number of special parole conditions,
which (among other things) prohibited him from having any
contact with females between the ages of 14 and 18 years,
and provided that “[a]ny computer or mobile
telecommunications device under your control, or [to] which
you have access, is subject to search and seizure by your
Parole Agent.” The California Department of Corrections
gave Sullivan notice of these conditions, which Sullivan
acknowledged by signing the notice form and initialing each
of the special conditions.

Sullivan took up temporary residence at the Bay Breeze
Inn located in Oakland, California. In March 2008, about
four months after his release, Sullivan approached Erika, a
fourteen-year-old girl who was standing on a street in
Berkeley, California, with her friends after school. After
Erika and Sullivan talked, she left with Sullivan in his car.
Erika stayed with Sullivan for the next two weeks. On the
first night, Sullivan took Erika to the house of Kimberlea
Reed, a friend of his who lived in Vacaville, California. Reed
knew that Sullivan was not allowed to have contact with
6 UNITED STATES V. SULLIVAN

minor girls, and when Erika failed to produce a license
proving she was 18 years old, Reed told Sullivan not to bring
Erika to her home. For the next two weeks, Sullivan and
Erika stayed at the Bay Breeze Inn or in Sullivan’s car, but
returned at least once to the house in Vacaville. While at the
Bay Breeze Inn, Sullivan had sex with Erika.

The district court found that during this period, Sullivan
became the dominating force in Erika’s life, and controlled
all of her daily activities. Among other things, Sullivan
replaced Erika’s clothing with more adult and sophisticated
outfits and paid to have her hair straightened and amplified
with extensions. Erika testified that she was afraid of
Sullivan, a large man in his forties, about six feet five inches
tall and 250 pounds.

Over the course of the two weeks that Erika remained
with Sullivan, he took numerous videos and still photographs
of Erika in various poses. In several of the videos, Sullivan
discussed prostitution with Erika. In one video, Sullivan
discussed a past incident where he had “checked” or punished
Erika because she had tried to leave him. Sullivan uploaded
one of the still photographs of Erika onto an adult website,
“Fungirlsplay,” using his name and e-mail address.

On March 9, 2008, Sullivan returned to the house in
Vacaville where he made the sex video at issue in this case
using a digital camera that had been manufactured in China
and exported to the United States. According to the district
court, the video, 100_0064.mov, showed Erika performing
oral sex on Sullivan. Erika’s face was clearly visible in the
video, and a man’s voice could be heard in the background,
directing and describing the activities that were taking place.
At trial, Erika testified that Sullivan had shot and narrated the
 UNITED STATES V. SULLIVAN 7

video, and is also the man seen in the video. This sex video
was later uploaded to Sullivan’s laptop computer. After the
video was produced, Sullivan recorded and narrated two other
videos, one of which showed Erika naked from the waist up,
and the other showed Sullivan questioning Erika regarding
whether she wanted to be a porn star.

On March 17, 2008, an Oakland police officer saw Erika
standing on the street in an area frequented by prostitutes.
Suspecting she was engaging in prostitution, the officer
stopped her for questioning. In response to a question about
Sullivan, who was standing nearby, Erika denied he was her
pimp. Although the Oakland police stopped and questioned
Sullivan, they did not arrest him. The officer took Erika into
custody, and after learning that she was the subject of a
missing persons report, returned her to her mother. Once
Erika was home, her mother took her to the hospital, where
Erika made a statement to the police. Because the initial
abduction occurred in Berkeley, jurisdiction over the
investigation was transferred to the Berkeley Police
Department.

About a week later, on March 24, 2008, Erika’s mother
contacted Sullivan’s parole officer and reported that Sullivan
had kidnaped, raped, and pimped her daughter. Based on this
report, Sullivan’s parole was revoked. On March 25, 2008,
parole officers arrested Sullivan in his car outside of the Bay
Breeze Inn. During a parole search of the car, the agents
seized several items, including the laptop computer, digital
camera, a book about pimping, and a cellular telephone. The
parole officers took Sullivan into custody and charged him
with eight parole violations, including that Sullivan forced
Erika to engage in intercourse and had kept pornographic
images on his cellular telephone, in violation of his parole
8 UNITED STATES V. SULLIVAN

conditions.2 On April 2, 2008, the parole officers transferred
custody of the evidence to the Berkeley Police Department
because the California Department of Corrections did not
have the technical ability to conduct a forensic search of the
laptop.

On April 10, 2008, Detective Kaplan and Sergeant Ross
of the Berkeley Police Department interviewed Sullivan at the
jail where he was being held. Sullivan claimed that in one of
the videos on his laptop, Erika stated that she was 19 years
old. Sullivan agreed that the police should view the video to
corroborate his belief about Erika’s age. He stated, “Look in
the computer. I give you consent.” Sullivan also signed a
consent form.3 On April 15, 2008, Detective Kaplan also
obtained a search warrant to search the laptop. A forensic
search of Sullivan’s laptop revealed the sex video at issue in
this case.

2
On April 14, 2008, Sullivan agreed to a disposition of the violation
charges.
3
This consent form stated:

I, Edward Sullivan, give Officer Kaplan and Sgt. Ross
of the Berkeley Police Department permission to search
through all files, hard drives and all information
contained on my computer that was taken from me by
Agent Tran [, a parole officer,] when I got arrested.
Including all drives, internal and external storage
devices.

I give this permission and consent freely. I was not
coerced.

I also give consent to search my camera.
 UNITED STATES V. SULLIVAN 9

The federal government filed a two-count indictment
against Sullivan in the Northern District of California on
February 18, 2009. Count 1 charged Sullivan with
production of child pornography pursuant to 18 U.S.C.
§ 2251(a). Count 2 charged Sullivan with possession of child
pornography pursuant to 18 U.S.C. § 2252(a)(4)(B). Sullivan
entered a plea of not guilty, and later waived his right to a
jury trial.

Before trial, Sullivan moved to suppress the evidence
obtained from his laptop computer. Relevant to this appeal,
he argued that the 21-day delay between March 25, 2008, the
date the parole officers seized the laptop, and April 15, 2008,
the date the police obtained a warrant, was unreasonable, and
therefore the search and seizure of the laptop violated his
Fourth Amendment rights. The district court denied the
motion.

The bench trial commenced on December 14, 2010. At
the close of the government’s case-in-chief, Sullivan moved
to dismiss Count 2 (possession of child pornography under
§ 2252(a)(4)(B)) because the sex video was not sufficiently
connected to interstate commerce, and moved to dismiss
Count 1 (production of child pornography under § 2251(a))
for lack of venue, because the video had been filmed in
Vacaville (in the Eastern District of California), and the
district court was in the Northern District of California. The
district court denied both motions.

At the conclusion of the 13-day bench trial, the district
court found Sullivan guilty on both counts. The district court
found incredible Sullivan’s testimony that he did not know
10 UNITED STATES V. SULLIVAN

Erika was a minor, given that Erika’s physical appearance
made it clear that she was an adolescent.4

During the sentencing phase of the proceeding, the district
court determined that the mandatory minimum enhancement
provisions contained in the two statutes of conviction, see
18 U.S.C. §§ 2251(e), 2252(b)(2), applied to Sullivan based
on his California convictions for unlawful sexual intercourse
with a minor and oral copulation with a minor, see Cal. Penal
Code §§ 261.5(d), 288a(b)(2). The district court also ruled on
Sullivan’s objection to the two-level Guidelines enhancement
for obstruction of justice recommended in the Presentence
Investigation Report (PSR). Despite having found Sullivan’s
testimony “not credible” and “not true,” the district court
sustained the objection and declined to increase Sullivan’s
offense level from 36 to 38.

The district court sentenced Sullivan to the mandatory
minimum 25 years imprisonment for the conviction under
§ 2251(a) and the mandatory minimum 10 years
imprisonment for the conviction under § 2252(a)(4)(B), to be
served concurrently, followed by a lifetime of supervised
release. Sullivan timely appealed his convictions and
sentence. The government cross appealed the district court’s
ruling regarding the obstruction enhancement.

II

We begin by addressing Sullivan’s threshold arguments
that the district court erred in denying his motion to dismiss

4
Sullivan filed several post-verdict motions, one of which reiterated his
arguments that the district court lacked jurisdiction and venue. The
district court concluded there was no basis to revisit its prior rulings.
 UNITED STATES V. SULLIVAN 11

Count 1 of the indictment (production of child pornography
under 18 U.S.C. § 2251(a)) for improper venue, and his
motion to dismiss Count 2 of the indictment (possession of
child pornography under 18 U.S.C. § 2252(a)(4)(B)) for lack
of federal jurisdiction.

A

Sullivan argues that the district court was required to
dismiss the production of child pornography count, 18 U.S.C.
§ 2251(a), for lack of venue in the Northern District of
California because Sullivan produced the sex video at issue
in the Eastern District of California. We review the district
court’s venue determination de novo. United States v.
Gonzalez, 683 F.3d 1221, 1224 (9th Cir. 2012).

The Constitution provides that the trial in a criminal
prosecution shall be in the “[s]tate where the said [c]rimes
shall have been committed.” U.S. Const. art. III, § 2, cl. 3;
see also Fed. R. Crim. P. 18 (“Unless a statute or these rules
permit otherwise, the government must prosecute an offense
in a district where the offense was committed.”). Under
18 U.S.C. § 3237(a), offenses “begun in one district and
completed in another, or committed in more than one district,
may be inquired of and prosecuted in any district in which
such offense was begun, continued, or completed.” To
determine whether a crime is a continuing offense for
purposes of § 3237, “a court must initially identify the
conduct constituting the offense (the nature of the crime) and
then discern the location of the commission of the criminal
acts.” United States v. Stinson, 647 F.3d 1196, 1204 (9th Cir.
2011) (quoting United States v. Rodriguez-Moreno, 526 U.S.
275, 279 (1999)). “Venue is proper under § 3237 when an
‘essential conduct element’ of the offense continues into the
12 UNITED STATES V. SULLIVAN

charging district.” Id. (quoting Rodriguez-Moreno, 526 U.S.
at 280–82).

Here, the conduct constituting the elements of a § 2251(a)
offense include: (1) employing, using, persuading, inducing,
enticing or coercing any minor to engage in “any sexually
explicit conduct”; (2) “for the purpose of producing any
visual depiction of such conduct”; (3) if the depiction “was
produced or transmitted using materials that have been
mailed, shipped, or transported in or affecting interstate or
foreign commerce.” 18 U.S.C. § 2251(a). Sullivan engaged
in conduct constituting the offense in both the Northern and
Eastern Districts of California. First, the district court found
that Sullivan “established and maintained physical and mental
control over the relationship between himself and the girl
from the time she first entered his car” in Berkeley, which is
in the Northern District, and used this control to coerce her
into making a sex video. Second, the court found that
Sullivan used his control over Erika to induce her to produce
the sex video at issue (the second element of the § 2251(a)
offense) in Vacaville, which is in the Eastern District.
Accordingly, Sullivan’s conduct constituting the § 2251(a)
offense spanned more than one district. Sullivan argues that
his interactions with Erika in the Northern District of
California were merely preliminary, or were for the sole
purpose of recruiting Erika to become a prostitute, and
therefore were not essential steps towards making the video.
This argument is meritless; the evidence adduced at trial
supports the district court’s findings that the persuasion,
inducement, enticement and coercion that led to the video’s
filming in Vacaville had their genesis in the Northern
District. See United States v. Engle, 676 F.3d 405, 417–18
(4th Cir. 2012) (holding that venue for a violation of
§ 2251(a) is proper in the district where a defendant entices
 UNITED STATES V. SULLIVAN 13

the victim to engage in sexual conduct, even though the
defendant created the video at issue in a different district).
Therefore, venue was proper in the Northern District of
California under § 3237(a).

B

We next address Sullivan’s argument that Congress lacks
the authority to regulate purely intrastate production and
possession of a single video, and therefore neither § 2251(a)
nor § 2252(a)(4)(B) can constitutionally be applied to him.5
We have previously rejected this argument, concluding that
Congress could rationally “conclude that homegrown child
pornography affects interstate commerce,” and therefore
Congress may regulate even purely intrastate production of
child pornography, see United States v. McCalla, 545 F.3d
750, 755–56 (9th Cir. 2008), and criminalize its intrastate
possession, United States v. Gallenardo, 579 F.3d 1076, 1081
(9th Cir. 2009). Nevertheless, Sullivan claims that the
Supreme Court’s recent decision in National Federation of
Independent Business v. Sebelius (NFIB), 132 S. Ct. 2566
(2012), requires us to overrule this precedent. We disagree.
Chief Justice Roberts’s separate opinion in NFIB stated that
the Commerce Clause did not give Congress authority to
“compel[] individuals to become active in commerce by
purchasing a product.” Id. at 2587 (emphasis omitted). The
four dissenting justices agreed that “one does not regulate

5
Following the government’s completion of its case-in-chief in the
bench trial, Sullivan moved for acquittal on Count 1 of the indictment on
the ground that it could not be constitutionally applied to him, but he did
not challenge Count 2 on this basis. We review a sufficiency of the
evidence challenge that is first brought on appeal for plain error. United
States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004).
14 UNITED STATES V. SULLIVAN

commerce that does not exist by compelling its existence.”
Id. at 2644 (Scalia, J., dissenting). Accordingly, five justices
agreed that the Commerce Clause gives Congress authority
only to regulate commerce, not to compel it. This precedent
is not applicable here, however, because § 2251 and § 2252
do not compel commerce, but merely regulate an activity that
Congress could rationally determine would affect interstate
commerce, taken in the aggregate. See Gallenardo, 579 F.3d
at 1081; McCalla, 545 F.3d at 755–56. Because NFIB is not
“clearly irreconcilable” with our precedents, they remain
binding. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)
(en banc); see also United States v. Sheldon, No. 12-30324,
– F.3d –, 2014 WL 1378122 (9th Cir. Apr. 9, 2014)
(concluding that because the recorder used to produce child
pornography was manufactured in China, there was
“sufficient [evidence] to satisfy the jurisdictional element of
§ 2251(a)”). Accordingly, § 2251(a) and § 2252(a)(4)(B) are
constitutional as applied to Sullivan.

III

We next consider Sullivan’s argument that the district
court erred in denying his motion to suppress evidence
obtained from his laptop computer. He claims that under the
reasoning in United States v. Dass, 849 F.2d 414 (9th Cir.
1988), and the Eleventh Circuit’s decision in United States v.
Mitchell, 565 F.3d 1347 (11th Cir. 2009) (per curiam), the
government’s unexplained 21-day delay in obtaining a search
warrant was unreasonable, and therefore violated his Fourth
Amendment rights.6 We review de novo the denial of

6
Sullivan’s suppression motion in the district court pertained to
evidence obtained from his laptop computer. To the extent Sullivan
claims on appeal that evidence obtained from his digital camera should
 UNITED STATES V. SULLIVAN 15

Sullivan’s suppression motion. United States v. Hernandez,
313 F.3d 1206, 1208 (9th Cir. 2002). We review the district
court’s factual findings for clear error. United States v. Gill,
280 F.3d 923, 928 (9th Cir. 2002).

The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend IV. An unreasonable delay between the seizure of a
package and obtaining a search warrant may violate the
defendant’s Fourth Amendment rights. The touchstone is
reasonableness. See United States v. Van Leeuwen, 397 U.S.
249, 252–53 (1970). We “determine whether the delay was
‘reasonable’ under the totality of the circumstances, not
whether the Government pursued the least intrusive course of
action.” Hernandez, 313 F.3d at 1213. Such determinations
are made on a case-by-case basis. See Van Leeuwen,
397 U.S. at 253.

The Supreme Court has adopted a balancing test to
determine whether a seizure is reasonable. We must balance
“the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.”

have also been suppressed, this argument is waived. See Fed. R. Crim. P.
12(b)(3)(C), (e) (providing that a party waives any objection that must be
made in a pretrial motion, including a motion to suppress evidence, by
failing to raise it at the proper time); see also United States v. Davis,
663 F.2d 824, 831 (9th Cir. 1981) (motions to suppress evidence must be
raised prior to trial). “Although we may grant relief from a waiver if the
defendant present[s] a legitimate explanation for his failure to raise the
issue in a timely manner,” United States v. Mausali, 590 F.3d 1077,
1080–81 (9th Cir. 2010) (internal quotation marks omitted), Sullivan has
presented no such legitimate explanation here.
16 UNITED STATES V. SULLIVAN

United States v. Place, 462 U.S. 696, 703 (1983). In
balancing these interests, courts may consider whether the
individual consented to a seizure and search. See, e.g.,
United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011).
“Where a person consents to search and seizure, no
possessory interest has been infringed because valid consent,
by definition, requires voluntary tender of property.” Id.; see
also United States v. Christie, 717 F.3d 1156, 1163 (10th Cir.
2013); United States v. Laist, 702 F.3d 608, 618 (11th Cir.
2012). Courts may also consider a defendant’s parolee status.
See Samson v. California, 547 U.S. 843, 849–50 (2006)
(parolee status significantly diminishes privacy interests); see
also Soldal v. Cook Cnty., Ill., 506 U.S. 56, 68–69 (1992)
(holding that intrusions into possessory and privacy interests
resulting from a seizure must satisfy similar Fourth
Amendment standards).

In applying this balancing test to the seizure of Sullivan’s
laptop, we start by considering the extent of the intrusion on
Sullivan’s possessory interests given the totality of the
circumstances. We conclude they were minimal. During the
entire time period when the laptop was retained by the
government, Sullivan was in custody on eight parole violation
charges. He does not claim that he could have made use of
the laptop while incarcerated or that he sought return of his
laptop to himself or a third party. Where individuals are
incarcerated and cannot make use of seized property, their
possessory interest in that property is reduced. See United
States v. Segura, 468 U.S. 796, 813 (1984) (Burger, C.J.)
(plurality opinion) (holding that defendants’ possessory
interests in their apartment were “virtually nonexistent” when
they “were under arrest and in the custody of the police
throughout the entire period the agents occupied the
apartment”); see also United States v. Clutter, 674 F.3d 980,
 UNITED STATES V. SULLIVAN 17

984–85 (8th Cir. 2012) (determining that when defendant was
in jail at the time of the seizure of his computer, the seizure
“did not meaningfully interfere with his possessory
interests”). Moreover, an individual who did “not even
allege[], much less prove[], that the delay in the search of
packages adversely affected legitimate interests protected by
the Fourth Amendment” and “never sought return of the
property” has not made a sufficient showing that the delay
was unreasonable. United States v. Johns, 469 U.S. 478, 487
(1985).

Further, several of the factors that reduce an individual’s
possessory interest applied here. Some seventeen days after
his laptop was seized, Sullivan gave his express consent to
the search of his laptop, and indeed urged the police officers
to review videos stored on the laptop, claiming they contained
exculpatory evidence. Because such consent “requires
voluntary tender of property,” Stabile, 633 F.3d at 235, it
further vitiates his claim that any possessory interest was
infringed. Moreover, because Sullivan was a parolee subject
to a consent condition for seizure, his possessory interest in
the laptop was reduced. Cf. Samson, 547 U.S. at 850; United
States v. Knights, 534 U.S. 112, 119 (2001). Under these
circumstances, “[t]he actual interference” with Sullivan’s
possessory interests was minimal. See Segura, 468 U.S. at
813 (Burger, C.J.) (plurality opinion).

We next consider the degree to which the seizure and
retention of the laptop was necessary for the promotion of
legitimate governmental interests. Place, 462 U.S. at 703–04.
The state “has an overwhelming interest in supervising
parolees because parolees . . . are more likely to commit
future criminal offenses.” Samson, 547 U.S. at 853 (internal
quotation marks omitted). Moreover, under the
18 UNITED STATES V. SULLIVAN

circumstances of this case, the government had a reasonable
basis for retaining and searching the laptop based on the
likelihood that it contained evidence of Sullivan’s parole
violations, as well as child pornography. Because the parole
officers who initially seized the laptop from Sullivan’s
vehicle did not have the capability to perform a forensic
search, they transferred it to the Berkeley police. The
Berkeley police then obtained Sullivan’s consent to the search
of the laptop and also sought a search warrant.

The government’s course of conduct was reasonable
under the totality of the circumstances given Sullivan’s
incarceration and the government’s interest in retaining and
searching the laptop for evidence of crimes. Even if the
government could have moved faster to obtain a search
warrant, the government is not required to pursue “the least
intrusive course of action.” Hernandez, 313 F.3d at 1213.
Accordingly, we conclude that the government’s seizure and
retention of the laptop for 21 days before obtaining a search
warrant was not an unreasonable seizure under the Fourth
Amendment.

Sullivan’s reliance on Dass and Mitchell is misplaced. In
Dass, law enforcement officials collected suspicious
packages at post offices and allowed police dogs to sniff
them. 849 F.2d at 414. If the dog alerted, suggesting the
presence of marijuana, then the agents would retain the
package in order to obtain a search warrant. Id. In holding
that law enforcement acted unreasonably by detaining
packages for 7 to 23 days before executing a search warrant,
Dass implicitly determined that such a lengthy retention of
mailed packages constituted a substantial intrusion into the
possessory interests of the individuals who placed the
packages in the mail. Id. at 415. Dass’s conclusions
 UNITED STATES V. SULLIVAN 19

regarding the interests of a member of the public putting a
package in the mail are not applicable here, where a parolee
under a consent-to-seizure condition was arrested for
violation of other parole conditions.

Nor does Mitchell help Sullivan. In Mitchell, ICE agents
went to the defendant’s residence based on their suspicion
that he was engaged in distributing and receiving child
pornography. After the defendant consented to a search of
his laptop, the agents removed and retained the computer’s
hard drive, but did not obtain a search warrant until 21 days
later. 565 F.3d at 1350–51. On the facts of that case, the
Eleventh Circuit held that the delay was unreasonable
because the defendant had a substantial possessory interest in
the hard drive, which was likely to contain information “of
exceptional value to its owner,” and the “detention of the hard
drive for over three weeks before a warrant was sought
constitute[d] a significant interference with Mitchell’s
possessory interest.” Id. at 1351. On the other side of the
balance, the court held that there was no compelling
justification for the government’s delay. Id.

Here, by contrast, Sullivan was in custody the entire time
on distinct charges, does not argue he made any request for
the laptop’s return, and had a reduced possessory interest due
to his status as a parolee. On the government-interest side of
the balance, the government had a reasonable basis for its
delay, including the need to transfer the laptop between
agencies. Cf. id. at 1352–53 (applying a rule of
reasonableness “dependent on all of the circumstances,” and
indicating that “if the assistance of another law enforcement
officer had been sought, we would have been sympathetic to
an argument that some delay in obtaining that assistance was
reasonable”). Because this case presents different
20 UNITED STATES V. SULLIVAN

circumstances than Dass and Mitchell, the district court did
not err in striking the balance between the intrusion into
Sullivan’s interests and the opposing law enforcement
interests in favor of the government.

IV

We next turn to Sullivan’s arguments that his prior state
convictions for unlawful sexual intercourse with a minor
under 16 years of age, California Penal Code § 261.5(d), and
oral copulation with a minor under 16 years of age, California
Penal Code § 288a(b)(2), do not qualify as federal generic
offenses for which the mandatory minimum enhancements
under § 2251(e) and § 2252(b)(2) must be imposed. We
review de novo whether Sullivan’s prior convictions support
the statutory mandatory minimum enhancements. United
States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en
banc).

To determine whether a prior state conviction falls into
the specified class of federal offenses, we apply the
categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990). See United States v. Sinerius, 504 F.3d
737, 740 (9th Cir. 2007). Under Taylor, the court first
defines the federal generic definition of the crime, and then
compares the elements of the state offense with that
definition. United States v. Gonzalez-Monterroso, No.
12-10158, – F.3d –, 2014 WL 575952, at *1 (9th Cir. Feb. 14,
2014). If the state offense criminalizes the same or less
conduct than the federal generic definition of the crime, then
it is a categorical match to the federal generic offense. See id.
But where a state statute of conviction criminalizes more
conduct than the federal generic offense, it does not qualify
as a categorical match. Id. Under these circumstances, a
 UNITED STATES V. SULLIVAN 21

court may apply a modified categorical approach if the state
criminal statute is divisible. See Descamps v. United States,
133 S. Ct. 2276, 2283–85 (2013).

Applying the Taylor framework, we begin by defining the
generic federal offense. Under § 2251(e) (mandatory
minimum for production of child pornography), a defendant
with a prior conviction “under the laws of any State relating
to aggravated sexual abuse, sexual abuse, or abusive sexual
contact involving a minor or ward” is subject to a mandatory
minimum sentence of “not less than 25 years.” 18 U.S.C.
§ 2251(e) (emphasis added).7 Similarly, under § 2252(b)(2)
(mandatory minimum for the possession of child
pornography), a defendant with 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” is subject to a mandatory minimum sentence of “not

7
Section 2251(e) states, in pertinent part:

Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30
years, but if such person has one prior conviction . . .
under the laws of any State relating to aggravated
sexual abuse, sexual abuse, abusive sexual contact
involving a minor or ward, or sex trafficking of
children, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography, such person shall be fined under this title
and imprisoned for not less than 25 years nor more than
50 years . . . .
22 UNITED STATES V. SULLIVAN

less than 10 years.” Id. § 2252(b)(2) (emphasis added).8
Under this language, the federal generic offense is a class of
offenses “relating to” the three named crimes. When
considering such a class of offenses, we “‘compare the crime
of conviction with crimes we have previously determined to’
fall into that particular classification of crimes.”
Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir.
2013) (quoting Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th
Cir. 2008)) (considering “crimes of violence”).

“Under the categorical approach, we follow our common
practice in cases involving non-traditional offenses by
defining the offense based on the ordinary, contemporary, and
common meaning of the statutory words.” Sinerius, 504 F.3d
at 740 (internal quotation marks omitted). We first consider
the meaning of “relating to.” The Supreme Court has broadly
defined the term “relating to” as “to stand in some relation; to
have bearing or concern; to pertain; refer; to bring into
association with or connection with.” Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting
Black’s Law Dictionary 1158 (5th ed. 1979)) (construing
“relating to” in a different statutory context). We have held

8
Section 2252(b)(2) provides, in pertinent part:

Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this
title or imprisoned not more than 10 years, or both, but
. . . if such person 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, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 10 years nor
more than 20 years.
 UNITED STATES V. SULLIVAN 23

that the phrase “relating to” has a broadening effect on what
follows; in the context of similar language in 18 U.S.C.
§ 2252A(b),9 we held that the phrase “relating to” “does not
simply mandate a sentencing enhancement for individuals
convicted of state offenses equivalent to sexual abuse.”
Sinerius, 504 F.3d at 743. “Rather, it mandates the
enhancement for any state offense that stands in some
relation, bears upon, or is associated with that generic
offense.” Id.

We next consider the phrase “sexual abuse,” which we
define by coupling the dictionary definition of “abuse” with
the common understanding of “sexual.” We give “the term
‘sexual’ its ordinary and commonsense meaning.” Id. at 741.
We have addressed the term “abuse” in several different
contexts. “[W]e have defined ‘abuse’ to mean ‘misuse . . . to
use or treat so as to injure, hurt, or damage . . . to commit
indecent assault on.’” Id. at 740 (quoting United States v.
Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir. 2006)). This
definition “encompass[es] behavior that is harmful
emotionally and physically.” Id. (quoting Lopez–Solis,
447 F.3d at 1207). In addition, we have previously
determined that a statutory rape offense constitutes “the
generic offense of ‘sexual abuse of a minor’” if it includes the
elements set forth in 18 U.S.C. § 2243, specifically: “(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.” Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152

9
That offense imposes a mandatory minimum enhancement where the
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.” 18 U.S.C. § 2252A(b)(1), (2).
24 UNITED STATES V. SULLIVAN

(9th Cir. 2008) (en banc), overruled on other grounds by
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th
Cir. 2011) (en banc) (per curiam), abrogated by Descamps,
133 S. Ct. 2276. This definition of “sexual abuse of a minor”
also “comports with ‘the ordinary, contemporary, and
common meaning of the words’” sexual abuse of a minor. Id.
(quoting United States v. Baron–Medina, 187 F.3d 1144,
1146 (9th Cir. 1999)). While we have rejected the argument
that the term “sexual abuse” must be defined by reference to
the federal offenses listed in 18 U.S.C. §§ 2241–2248, see
Sinerius, 504 F.3d at 742 (considering the generic federal
definition of “sexual abuse” for purposes of 18 U.S.C.
§ 2252A(b)), and thus are not limited “to looking to federal
statutes to define federal generic offenses where the federal
statute uses the same name as a federal generic offense,”
United States v. Farmer, 627 F.3d 416, 421 (9th Cir. 2010),
such federal statutes nevertheless have relevance for our
consideration of whether a particular state statute is one
“relating to” such a federal generic offense, see Estrada-
Espinoza, 546 F.3d at 1152–53 (stating that “it is unnecessary
to survey current criminal law to ascertain a federal [generic
definition of ‘sexual abuse of a minor’] because Congress has
already supplied it”).

We now turn to the California crimes of conviction in
order to compare them with the federal generic offense.
Section 261.5(d) proscribes any person 21 years of age or
older from engaging in an act of unlawful sexual intercourse
with a minor who is under 16 years of age. Cal. Penal Code
§ 261.5(d). Section 288a(b)(2) proscribes any person over
age 21 from participating in an act of oral copulation with a
person who is under 16 years of age. Id. § 288a(b)(2). We
have previously determined that because section 261.5(d)
criminalizes sexual relations with a person who is “a day shy
 UNITED STATES V. SULLIVAN 25

of 16,” it is not necessarily abusive. Pelayo-Garcia v.
Holder, 589 F.3d 1010, 1015–16 (9th Cir. 2009); see also
United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.
2009). The same reasoning would apply to section 288a.
Further, the offenses described in section 261.5(d) and section
288a(b)(2) are not equivalent to the federal generic offense of
sexual abuse of a minor described in Estrada-Espinoza
because one element of that offense requires the government
to prove that the defendant engaged in the sexual act
“knowingly,” Pelayo-Garcia, 549 F.3d at 1013, and neither
California statute includes this mens rea requirement.
Therefore, the state offenses are not a categorical match to the
federal generic definitions we have adopted for sexual abuse.

But for purposes of § 2251(e) and § 2252(b)(2), a state
crime need not be equivalent to a generic federal offense; it
is necessary only that it “stands in some relation, bears upon,
or is associated with [the] generic offense.” Sinerius,
504 F.3d at 743. A state criminal statute that does not
categorically involve “sexual abuse” may nevertheless qualify
as one of the federal generic offenses defined in those statutes
because it “stands in some relation, bears upon, or is
associated with [sexual abuse].” See Farmer, 627 F.3d at
419 n.3 (quoting Sinerius, 504 F.3d at 743) (noting this
possibility). Other circuits agree that this type of
enhancement “does not require that the predicate conviction
amount to ‘sexual abuse’ or ‘abusive sexual conduct
involving a minor.’” United States v. Colson, 683 F.3d 507,
511 (4th Cir. 2012) (considering 18 U.S.C. § 2252A(b)(1)).
Rather, “Congress’s use of [the ‘relating to’] phrase in
§ 2252(b)(2) indicates its intent to allow a sentencing court to
look beyond the mere elements of a prior state conviction in
determining whether such conviction is sufficient to trigger
26 UNITED STATES V. SULLIVAN

application of the sentence enhancement provisions.” United
States v. McCutchen, 419 F.3d 1122, 1127 (10th Cir. 2005).

Here, the state crimes described in section 261.5(d) and
section 288a(b)(2) relate to the generic offense “sexual abuse
of a minor” as defined in Estrada-Espinoza. Although the
state offenses lack the mens rea element, this element relates
to the culpability of the defendant, not to the impact of the
conduct on the minor. The elements relating to the effect of
the offense on the minor indicate that under our generic
federal statutory rape definition, sexual conduct is abusive
when the minor is under 16 and the defendant is four or more
years older. Section 261.5(d) and section 288a(b)(2) include
these elements, because they proscribe sexual acts between a
minor under 16 and a defendant who is over age 21.
Accordingly, the state crimes involved “conduct that causes
physical or psychological harm in light of the age of the
victim in question,” Pelayo–Garcia, 589 F.3d at 1014
(internal quotation marks omitted), and as such, are crimes
“relating to . . . sexual abuse.” In a similar context, the
Eighth Circuit concluded that because the term “relating to”
“carries a broad ordinary meaning,” a state conviction for
lascivious acts with children was “relating to” sexual abuse,
even though the state offense did not include the element of
physical contact required for the generic federal offenses
spelled out in 18 U.S.C. §§ 2241, 2242, or 2243. United
States v. Sonnenberg, 556 F.3d 667, 670–71 (8th Cir. 2009)
(internal quotation marks omitted); cf. United States v.
McGarity, 669 F.3d 1218, 1262–63 (11th Cir. 2012) (noting
that “any perceived difference” between “abusive sexual
contact” in § 2251(e) and the state offense of “enticing a
minor for indecent purposes,” which did not require touching
or attempting to touch a minor, “is overcome by our
interpretation of the phrase ‘relating to’”).
 UNITED STATES V. SULLIVAN 27

Applying this approach, we conclude that the conduct
proscribed by section 261.5(d) and section 288a(b)(2) is
categorically a conviction “under the laws of any State
relating to . . . sexual abuse” for purposes of § 2251(e) and
§ 2252(b)(2). Because Sullivan’s prior conviction
categorically relates to sexual abuse as that phrase is
ordinarily understood, we conclude the district court properly
applied the mandatory minimum enhancement provisions
contained in both statutes of conviction.10

V

Finally, we address the government’s argument on cross
appeal that the district court erred by sustaining Sullivan’s
objection to the inclusion of a two-level Guidelines
enhancement for obstruction of justice. “In determining
whether the district court committed procedural error, we
review the district court’s interpretation of the Sentencing
Guidelines de novo and its factual findings for clear error.”
United States v. Smith, 719 F.3d 1120, 1123 (9th Cir. 2013).11
“It would be procedural error for a district court to fail to
calculate—or to calculate incorrectly—the Guidelines range.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).

10
Because we decide the enhancements were proper on this ground, we
need not address Sullivan’s argument regarding Descamps or the
government’s argument that the same enhancements are also appropriate
based on Sullivan’s pimping and pandering convictions, see Cal. Penal
Code §§ 266h(a), 266i(a)(2).
11
Although we have yet to resolve the “intracircuit conflict as to
whether the standard of review for application of the Guidelines to the
facts is de novo or abuse of discretion,” United States v. Swank, 676 F.3d
919, 921–22 (9th Cir. 2012), the standard of review is not at issue here.
28 UNITED STATES V. SULLIVAN

Section 3C1.1 of the Guidelines is applicable if “the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice” with respect
to the prosecution of the offense of conviction. U.S.S.G.
§ 3C1.1. The enhancement applies when the district court
finds that the defendant gave materially false testimony at
trial with the willful intent to provide false testimony. United
States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir.
2007) (per curiam).

Although the district court did not credit Sullivan’s
testimony, and concluded that Sullivan had testified
untruthfully during the trial, the district court determined that
the two-level enhancement for obstruction of justice should
not be included in Sullivan’s offense level. The district court
explained its reasoning as follows. First, the district court
indicated that the § 3C1.1 enhancement was not applicable
because the court was not actually misled. The court
explained that “[t]he question is whether or not I was
obstructed as far as justice is concerned,” and concluded that
it was not, and that it “had the responsibility of making
credibility determinations under any circumstance.” Second,
the court noted that “the defendant has the right to testify, and
that there is a problem of when you punish, and you punish
for that testimony you are in a sense punished twice.”
Finally, the district court remarked that applying the two-
level enhancement would result in a sentencing impact which
was “far more than it should be.”

None of these concerns is a correct basis for excluding the
obstruction of justice enhancement from the calculation of the
base offense level. First, conduct that “has the potential for
obstructing” the prosecution of the offense is sufficient to
warrant enhancement. United States v. Draper, 996 F.2d 982,
 UNITED STATES V. SULLIVAN 29

986 (9th Cir. 1993). Indeed, an application note to the
Guidelines states that “providing materially false information
to a judge” is conduct to which the enhancement applies.
U.S.S.G. § 3C1.1 cmt. n.4(F). Second, the Supreme Court
has rejected the view that imposing a penalty for perjury at
trial violates the privilege of an accused to testify on his own
behalf. As the Supreme Court has explained, “a defendant’s
right to testify does not include a right to commit perjury,”
and thus the enhancement penalizes the defendant for perjury,
not for testifying. United States v. Dunnigan, 507 U.S. 87, 96
(1993). Finally, while the district court has discretion in
pronouncing a sentence, it must first correctly calculate the
applicable Guidelines range. See Carty, 520 F.3d at 993.
“The Supreme Court has made clear that the district court
must correctly calculate the recommended Guidelines
sentence and use that recommendation as the starting point
and the initial benchmark.” United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam)
(internal quotation marks omitted). Accordingly, the district
court erred in its legal analysis of Sullivan’s offense level.

Although there are circumstances where an erroneous
Guidelines calculation can be harmless, id. at 1030 & n.5, this
is not one of those cases. If a two-level obstruction
enhancement were imposed, Sullivan’s Guidelines range
would have been 324 to 405 months (as opposed to 262 to
327 months), requiring the district court to provide a greater
justification for imposing a below-Guidelines sentence of 300
months. See id. at 1031; see also Carty, 520 F.3d at 991–92
(noting the district court must explain its reasoning for the
extent of a variance).

Because we cannot tell if the district court would impose
the same sentence if it applied the correct legal analysis, a
30 UNITED STATES V. SULLIVAN

remand for resentencing is required. See Jimenez-Ortega,
472 F.3d at 1103–04 (explaining that findings regarding
factual predicates of an obstruction enhancement must be
made by the district court in the first instance).

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.