United States v. David Reinhart

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10409
Plaintiff-Appellant,
D.C. No.
v. 4:15-cr-00330-JSW-1

DAVID WESLEY REINHART,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 16, 2017
San Francisco, California

Filed June 18, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Nancy Freudenthal, * Chief District Judge.

Opinion by Judge Murguia

*
The Honorable Nancy Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
2 UNITED STATES V. REINHART

SUMMARY **

Criminal Law

The panel affirmed the district court’s imposition of a
78-month sentence for two counts of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

The government argued that based on the defendants’
prior convictions for possession of child pornography (Calif.
Penal Code § 311.11(a)) and sexual exploitation of child
(Calif. Penal Code § 311.3(a)), he was subject to the ten-year
mandatory minimum set forth in 18 U.S.C. § 2252(b)(2) for
having had a prior state conviction “relating to” the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography. The
government also argued that in determining whether the
prior convictions trigger the § 2252(b)(2) enhancement, the
usual Taylor categorical approach does not apply, because
the words “relating to” in § 2252(b)(2) mandate a broader
comparison of the offenses in the federal and state statutes
than the usual comparison between the elements of the state
and federal statutes.

Because the terms “child pornography” and “sexually
explicit conduct” are explicitly defined in the same statutory
chapter as the sentencing enhancement provision at
§ 2252(b)(2), the panel did not depart from the usual,
elements-based, categorical approach to determine whether

**
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. REINHART 3

the defendant’s prior California statutes of conviction trigger
the mandatory minimum provision in § 2252(b)(2).

Following United States v. Chavez-Solis, 803 F.3d 1004
(9th Cir. 2015), the panel held that § 311.11(a) is
categorically overbroad because it sweeps in depictions of a
broader range of “sexual conduct” than the federal child
pornography statute; and that the statute is not divisible. The
panel likewise held that § 311.3(a) is categorically overbroad
as compared to the federal definition of “sexually explicit
conduct,” and that it is not divisible. The panel therefore did
not look to any fact-specific documents to determine
whether either of the defendant’s prior convictions was an
offense “relating to” the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of
child pornography under § 2252(b)(2), and concluded that
neither of the prior convictions triggers the mandatory
minimum sentence.

COUNSEL

Jonas Lerman (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellant.

Ned Smock (argued), Assistant Federal Public Defender;
Steven G. Kalar, Federal Public Defender; Office of the
Federal Public Defender, Oakland, California; for
Defendant-Appellee.
4 UNITED STATES V. REINHART

OPINION

MURGUIA, Circuit Judge:

David Reinhart was convicted of two counts of
possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). A defendant convicted of this offense who
has “a prior conviction . . . under the laws of any State
relating to . . . the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography” is subject to a ten-year mandatory minimum
sentence. 18 U.S.C. § 2252(b)(2) (emphasis added).
Reinhart was previously convicted of possession of child
pornography and sexual exploitation of child, in violation of
California Penal Code §§ 311.11(a) and 311.3(a),
respectively. We decide whether Reinhart’s prior California
convictions constitute offenses “relating to” child
pornography under 18 U.S.C. § 2252(b)(2), which imposes
a ten-year mandatory minimum sentence. The district court
found neither of Reinhart’s prior convictions constituted
prior convictions under 18 U.S.C. § 2252(b)(2). We affirm.

I. Background

In June 2015, the government charged Reinhart with two
counts of possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). The charges were based on
images of child pornography discovered during an
undercover online investigation and execution of a search
warrant on Reinhart’s residence. Reinhart pleaded guilty to
both counts without a plea agreement. At sentencing, the
parties disputed whether Reinhart’s prior California
convictions constituted prior convictions under 18 U.S.C.
§ 2252(b)(2) and whether Reinhart should be sentenced
pursuant to § 2252(b)(2)’s ten-year mandatory minimum.
Prior to sentencing, both the government and Reinhart
 UNITED STATES V. REINHART 5

submitted sentencing memoranda arguing their respective
positions on the issue.

Previously, in 2002, Reinhart was convicted of two
misdemeanor counts of violating California Penal Code
§ 311.11(a), possession of child pornography, and one
misdemeanor count of violating California Penal Code
§ 311.3(a), sexual exploitation of child. The convictions
arose from police officers’ search of Reinhart’s apartment
where the officers found printed images of children that
qualified as child pornography under California law. At
sentencing in the present case, the district court considered
whether these prior California convictions triggered the
federal sentencing enhancement, § 2252(b)(2), which would
require the court to impose a ten-year mandatory minimum
sentence. Section 2252(b)(2) is a recidivist penalty and
sentencing enhancement for those, such as Reinhart,
convicted federally of possession of child pornography
under § 2252(a)(4), and who have certain prior offenses. It
provides:

if such person [convicted under § 2252(a)(4)]
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.

§ 2252(b)(2) (emphasis added).

At sentencing before the district court, the government
argued that the words “relating to” in § 2252(b)(2) should be
6 UNITED STATES V. REINHART

read broadly to encompass state statutes even if the state
statutes of conviction do not categorically match the
definition of federal child pornography offenses. Reinhart
contended that the usual categorical approach should apply,
and under that analysis, Reinhart’s prior California
convictions were not a categorical match and were
overbroad as compared to the federal definition of child
pornography offenses in § 2252(b)(2).

The district court agreed with Reinhart and concluded
that Reinhart’s prior California convictions were not
predicate offenses constituting convictions “relating to . . .
child pornography” under § 2252(b)(2). The district court
relied on the United States Supreme Court’s decision in
Mellouli v. Lynch, 135 S. Ct. 1980 (2015), and found that
because “child pornography” was a federally-defined term,
the district court had to apply a narrower reading of “relating
to” in § 2252(b)(2) under the categorical approach. Applying
the categorical approach, the district court compared the
elements of Reinhart’s California statutes of conviction,
§ 311.11(a), possession of child pornography, and
§ 311.3(a), sexual exploitation of child, to the federal
definition of “child pornography.” This required the district
court to look at the federal definition of “sexually explicit
conduct,” a defined term within the definition of “child
pornography” at 18 U.S.C. § 2256(8). 1 Relying on this

1
[C]hild pornography is defined as “any visual depiction, including
any photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic, mechanical,
or other means, of sexually explicit conduct, where--(A) the production
of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; (B) such visual depiction is a digital image, computer
image, or computer-generated image that is, or is indistinguishable from,
that of a minor engaging in sexually explicit conduct; or (C) such visual
depiction has been created, adapted, or modified to appear that an
 UNITED STATES V. REINHART 7

district court’s prior case law, the court held that California
Penal Code § 311.11(a) was categorically broader than any
offense described in the federal counterparts 18 U.S.C.
§§ 2251, 2251A, or 2252. See Chavez-Solis v. Lynch,
803 F.3d 1004 (9th Cir. 2015). The district court also found
that § 311.11(a) was indivisible. The district court found
California Penal Code § 311.3(a), sexual exploitation of a
child, was overbroad because it included broader conduct
than under the federal statutes, and that it was also
indivisible. Because neither of Reinhart’s prior California
convictions was a categorical match to the federal definition
of child pornography, the offenses did not constitute
predicate offenses under § 2252(b)(2), and the ten-year
mandatory minimum sentence did not apply.

Without the mandatory minimum, Reinhart’s sentencing
guideline range was 78 to 97 months imprisonment. The
district court sentenced Reinhart to 78 months imprisonment
with a ten-year supervised release term to follow. The
government appeals the district court’s determination that
§ 2252(b)(2)’s sentencing enhancement did not apply.

II. Discussion

On appeal, we must determine whether the words
“relating to” in the ten-year mandatory minimum statutory
sentencing provision at § 2252(b)(2) require us to break
from our usual, elements-based categorical approach for
determining when state statutes of conviction trigger a
federal sentencing enhancement and instead, apply a broader
comparison between the state statutes and the federal
statutes. Here, we consider whether Reinhart’s prior

identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C.
§ 2256(8).
8 UNITED STATES V. REINHART

California statutes of conviction fall under the federal
definition of “child pornography” offenses as used in
§ 2252(b)(2). We review de novo whether prior convictions
support statutory mandatory-minimum enhancements.
United States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015)
(citing United States v. Strickland, 601 F.3d 963, 967 (9th
Cir. 2010) (en banc)).

A. “Relating to” and the Categorical Approach

This court applies the Taylor categorical approach to
determine whether a state statute of conviction falls within a
specified class of federal offenses. See Sullivan, 797 F.3d at
635–37 (citing this court’s “usual categorical approach”);
United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007)
(citing Taylor v. United States, 495 U.S. 575 (1990)). Under
Taylor’s familiar two-step test, “the court first defines the
federal generic definition of the crime, and then compares
the elements of the state offense with that definition” to
determine whether there is a “categorical match.” Sullivan,
797 F.3d at 635 (citation omitted). “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. But where a state statute of
conviction criminalizes more conduct than the federal
generic offense, it does not qualify as a categorical match”
and is considered overbroad. Id. (internal citations omitted).

When a statute is overbroad, the categorical inquiry does
not end. Descamps v. United States, 133 S. Ct. 2276, 2283–
84 (2013). Instead, we inquire whether the statute, though
overbroad, is nevertheless divisible. Id. A statute is divisible
when it lists potential offense elements, some of which
would fall under the generic federal definition and some that
would not. Id. at 2284. The government must prove elements
of an offense beyond a reasonable doubt. Id. Elements are
 UNITED STATES V. REINHART 9

not merely means of committing the offense listed in the
alternative. Id. If the statute is divisible, the court applies the
modified categorical approach in which it may look at
certain documents that illuminate the underlying facts of the
state conviction. Id. With those additional facts, the court
may then be able to determine whether the particular state
offense falls under the relevant federal statute.

Here, the portion of the federal sentencing statute at issue
applies when an individual has a prior state conviction
“relating to . . . the . . . possession . . . of child pornography.”
18 U.S.C. § 2252(b)(2). To ascertain the generic federal
definition, we look to the federal definition of “child
pornography.” See 18 U.S.C. § 2256(8). That federal
definition is compared to the elements in Reinhart’s two
state statutes of conviction—California Penal Code
§ 311.11(a), possession of child pornography, and
§ 311.3(a), sexual exploitation of child.

The government argues the usual Taylor categorical
approach does not apply. Relying on our decision in
Sullivan, it contends that the words “relating to” in
§ 2252(b)(2) mandate a broader comparison of the offenses
in the federal and state statutes rather than the usual
comparison between the elements of the state and federal
statutes. See Sullivan, 797 F.3d at 638. In Sullivan, the
defendant was in part convicted under the same federal
provision as Reinhart, 18 U.S.C. § 2252(a)(4)(B). Id. at 627.
Sullivan, however, had produced and possessed a sexually
explicit video depicting a 14-year-old girl with whom he had
a sexual relationship. Id. at 627–28, 630. Unlike Reinhart,
Sullivan’s prior state convictions were not possession of
10 UNITED STATES V. REINHART

child pornography offenses, but sexual abuse offenses. 2 Id.
at 627–28, 636.

The Sullivan court began by recognizing that this court
would “generally apply the categorical approach set forth in
Taylor.” Id. at 635. Sullivan’s prior state convictions
correlated with the “aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor or ward” clause
in § 2252(b)(2). Id. at 636. The Sullivan court determined the
commonality between the three types of offenses listed in the
federal statute § 2252(b)(2) involve “sexual conduct and
abuse,” and therefore, the court first had to identify the
generic meaning of those terms. Id. There is no federal
definition of “aggravated sexual abuse,” “sexual abuse,” or
“abusive sexual conduct” in the same statutory chapter as
§ 2252(b)(2), chapter 110, sexual exploitation and other
abuse of children. Without a specific definition, the court
considered the definition of the offenses “based on the
ordinary, contemporary, and common meaning of the
statutory words.” Sullivan, 797 F.3d at 636 (quoting
Sinerius, 504 F.3d at 740 (holding that in cases involving
“non-traditional offenses” the court employs the categorical
approach by defining the offenses based on the common
meaning of the statutory words)). The Sullivan court
undertook the categorical approach and concluded
Sullivan’s priors were not a categorical match to the federal
generic definitions for sexual abuse of a minor. Id. at 637.

2
Specifically, Sullivan had been convicted of: unlawful sexual
intercourse in violation of California Penal Code § 261.5(d); oral
copulation with a minor in violation of California Penal Code
§ 288a(b)(2); pimping in violation of California Penal Code § 266h(a);
and pandering in violation of California Penal Code § 266i(a)(2). Id. at
627–28.
 UNITED STATES V. REINHART 11

The court, however, did not stop there. It went on to hold
that the words “relating to” in the federal sentencing
enhancement at § 2252(b)(2) mandated a different method
than the usual elements-based categorical approach. Id. at
637–38. The court held that as to the sexual conduct and
abuse clause in § 2252(b)(2), because of the words “relating
to,” the court need only find that the state statute of
conviction “is one categorically ‘relating to’ such federal
offenses.” Id. The court cited to Sinerius, which considered
similar “relating to” language in 18 U.S.C. § 2252A(b). 3 Id.
Sinerius, like Sullivan, addressed sexual conduct and abuse
convictions, and Sinerius held that use of the phrase “relating
to” in that context mandated a federal enhancement for a
state offense “that stands in some relation, bears upon, or is
associated with th[e] generic offense.” 504 F.3d at 743. The
Sullivan court, following Sinerius, rejected the argument that
the strict categorical approach applied. It held that a prior
conviction could trigger a sentencing enhancement under
§ 2252(b)(2) even when the statutory definition of the prior
offense was not equivalent to a federal generic definition.
Sullivan, 797 F.3d at 638.

Sullivan distinguished its holding from Mellouli, in
which the Supreme Court held the usual categorical
approach applied to a federal statute despite that statute’s use
of the words “relating to.” Id. at 638–39; Mellouli, 135 S. Ct.
at 1984. The question presented in Mellouli was whether a
Kansas conviction for using drug paraphernalia triggered the
federal immigration statute that makes an alien subject to
deportation if he is “convicted of a violation of [a state law]
relating to a controlled substance (as defined in section 802

3
18 U.S.C. § 2252A is a statutory sentencing enhancement entitled,
“Certain activities relating to material constituting or containing child
pornography.”
12 UNITED STATES V. REINHART

of Title 21).” Id.; see 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis
added). The Supreme Court rejected the government’s
argument that “nearly a complete overlap” between the
conduct punished under the state and federal statutes was
sufficient for the state drug paraphernalia offense to trigger
the federal controlled substance statute. Mellouli, 135 S. Ct.
at 1989–91. Mellouli, citing the historical use of the
categorical approach to determine whether a state conviction
renders an alien removable, applied the usual categorical
approach. Id. at 1985–87. Mellouli highlighted that in
drafting the immigration statute, Congress predicated
deportation “on convictions, not conduct,” and accordingly,
the proper approach was to look to statutory definitions, not
underlying conduct. Id. at 1986. Mellouli cautioned that
although the words “relating to” are “broad” and
“indeterminate,” “those words, ‘extend[ed] to the furthest
stretch of [their] indeterminacy, . . . stop nowhere.’” Id. at
1990. Mellouli held that “[c]ontext, therefore, may tug . . . in
favor of a narrower reading.” Id. (internal quotation marks,
citation, and alterations omitted).

From Mellouli, the Sullivan court drew the principle that
“where language and historical context tug ‘in favor of a
narrower reading,’” “relating to” may still allow for the
categorical approach. Sullivan, 797 F.3d at 638 (quoting
Mellouli, 135 S. Ct. at 1990). The Sullivan court, however,
held that neither the language nor history of § 2252(b)(2), as
to the sexual conduct and abuse clause, required that narrow
reading. Id. at 640. The court held there was no textual
restriction to the words “sexual abuse” or “abusive sexual
conduct involving a minor or ward.” Id. Unlike the statute in
Mellouli that included a limiting parenthetical referencing
the federal statutory definition for “controlled substance,”
there was no reference to a federal statutory definition of
“sexual abuse” and “abusive sexual conduct.” See id.
 UNITED STATES V. REINHART 13

Sullivan also noted that there was no historical background
of a requirement of a “direct link” between the state crime of
conviction and federal statute as had been required in the
immigration context. Id.

The government urges that Sullivan determines the
outcome in this case. We disagree. At the outset, we
recognize that Sullivan examined the same federal
sentencing enhancement statute at issue here, § 2252(b)(2).
But § 2252(b)(2) describes a number of prior types of state
offenses, some of which include federally-defined terms,
and some of which do not. As Sullivan directs, the language
of a statute and any related textual restrictions may favor a
narrower reading. See Sullivan, 797 F.3d at 638.
Accordingly, we look at the different types of offenses listed
in separate clauses in § 2252(b)(2) to determine whether a
narrower reading of “relating to” and the categorical
approach should apply. Here, it does.

The case at bar is distinguishable from Sullivan and
Sinerius because in those cases, the applicable terms were
not defined within the same chapter that the terms appeared.
Here, we conclude that, applying well-established statutory
principles, where there is a federal definition of “child
pornography” in the same statutory chapter as the sentencing
enhancement provision at § 2252(b)(2), we apply that
definition. See Sinerius, 504 F.3d at 742–43. In both Sullivan
and Sinerius, the court analyzed the terms “sexual abuse”
and “abusive sexual conduct.” Those terms are undefined in
the relevant title 18, chapter 110, sexual exploitation and
other abuse of children. In contrast to Sullivan and Sinerius,
Reinhart’s prior statutes of convictions correlate to the
possession of child pornography clause in § 2252(b)(2), and
“child pornography,” is explicitly defined in chapter 110’s
§ 2256 definitional provision. See 18 U.S.C. § 2256(8).
14 UNITED STATES V. REINHART

That the overall statutory scheme in chapter 110 defines
“child pornography” matters. Sinerius relied on “well-
established principles of statutory interpretation,” in holding
that predicate sex offenses under § 2252A, a statutory
sentence enhancement provision, were not defined by cross-
reference to the federal offense of “sexual abuse” under
18 U.S.C. § 2242. See Sinerius, 504 F.3d at 742–43. The
court reasoned that § 2242, sexual abuse, is not a definitional
provision applicable to § 2252A, which is codified in title
18, crimes and criminal procedure, chapter 110, sexual
exploitation and other abuse of children. Id. at 743. Rather,
“[t]he definitions applicable to chapter 110 [regarding sexual
exploitation and other abuse of children] are located in
18 U.S.C. § 2256,” whereas the relevant provision in
Sinerius was § 2242, located in a different chapter, 109A,
sexual abuse. Id. at 743. In short, Sinerius rejected the
argument that the definition of § 2252A(b)’s term “sexual
abuse” was limited to the term as defined in § 2242, because
those two provisions were in different chapters, chapter 110,
sexual exploitation and other abuse of children, and chapter
109A, sexual abuse, respectively. See id. at 742–43. The
court held that an out-of-chapter definition could not control
the definition of the term in a separate chapter. Moreover,
the court stated that it inferred from Congress’s decision to
not provide a specific definition of “sexual abuse” in the
chapter 110 definitional provision that it was “Congress’s
intent to define ‘sexual abuse’ as a generic offense,
understood by its ordinary and common meaning.” Id. at
743.

Sullivan dealt with the same statutory sentencing
enhancement provision at issue here, § 2252(b)(2), but
addressed the same types of offenses as in Sinerius—those
involving “aggravated sexual abuse, sexual abuse, [or]
abusive sexual conduct involving a minor or ward.” Sullivan,
 UNITED STATES V. REINHART 15

797 F.3d at 636 (alteration in original). As Sinerius provided,
the terms of those offenses are not specifically defined and
may be considered generic offenses. Sinerius, 504 F.3d at
743. Therefore, Sinerius’s reasoning that those terms and
offenses should be generally defined by their ordinary and
common meaning also applied in Sullivan. See Sullivan,
797 F.3d at 636–37. That reasoning, however, does not
apply to Reinhart’s case.

Here, the applicable clause in § 2252(b)(2) is “child
pornography.” Unlike the terms in Sinerius and Sullivan,
there is a federal definition of “child pornography” in the
same chapter as § 2252(b)(2), chapter 110. The definition of
“child pornography,” includes the term “sexually explicit
conduct,” which in turn, is also defined in chapter 110’s
definitional provision, § 2256. 18 U.S.C. § 2256(2)(A).
Accordingly, applying well-established statutory principles,
where there are federal definitions in chapter 110 that apply
to the relevant “child pornography” clause in § 2252(b)(2),
we apply those definitions. See Sinerius, 504 F.3d at 742–
43. These definitions provide a basis in the statutory text that
requires a narrower reading of “relating to.” See Sullivan,
797 F.3d at 639 (holding statutory text may favor a narrower
reading of “relating to”).

Because of the applicable definitional provisions, the
present case is akin to Mellouli where, because of the
statutory text and historical context, “relating to” was given
a narrower reading and the Supreme Court applied the usual
categorical approach. Mellouli, 135 S. Ct. at 1990–91. In
Mellouli, the federal immigration statute, 8 U.S.C.
§ 1227(a)(2)(B)(i), used “relating to” referring “to a
controlled substance,” and the statute included a
parenthetical to clarify that “controlled substance” was
defined as in § 802 of title 21, a federal drug schedule. Id. at
16 UNITED STATES V. REINHART

1984 (citing 8 U.S.C. § 1227(a)(2)(B)(i)). Accordingly, the
Court held that the immigration provision, 8 U.S.C.
§ 1227(a)(2)(B)(i), limited the meaning of “controlled
substance” to the referenced federal definition. Id. at 1990–
91. Despite the words “relating to” in the federal
immigration provision, the usual categorical approach
applied. See id.

We are not convinced by the government’s attempt to
distinguish this case from Mellouli. The governments argues
that Mellouli required a narrow approach because of the
immigration statute’s use of a parenthetical to specifically
reference the federal definition of “controlled substance.”
The statute in Mellouli was an immigration removal statute,
title 8 U.S.C. § 1227, deportable aliens. Within that removal
statute the definition of “controlled substance” referenced
was title 21 U.S.C. § 802. The immigration statute
specifically provided a cross-reference to the drug schedule
definition because the two statutes were in completely
different titles of the federal statutes. The reader needed
guidance to the location of the federal drug schedule.

The federal statute at issue here—the mandatory
minimum sentencing provision—is at 18 U.S.C. § 2252
within chapter 110, sexual exploitation and other abuse of
children. The relevant definitions for “child pornography”
and “sexually explicit conduct,” also are in title 18 and
chapter 110 at § 2256, entitled “definitions for chapter.”
Section 2256 states that the definitions of the terms therein
apply “[f]or purpose of this chapter.” Unlike Mellouli, the
reader of § 2252 need not venture out to a different federal
statutory title or chapter. The reader need only look within
the same chapter, 110, to the marked definitional section that
applies to the entire chapter. Because the link to § 2256’s
definitions for chapter 110 is clear from the statutory
 UNITED STATES V. REINHART 17

structure, we do not read the absence of a specific
parenthetical referring to a definitional provision to be a
significant distinction from Mellouli.

In sum, we hold that the because the terms “child
pornography” and “sexually explicit conduct,” are explicitly
defined in chapter 110, the statutory text “tug[s] . . . in favor
of a narrower reading” of “relating to.” See Mellouli, 135
S. Ct. at 1990 (internal quotation marks and citation
omitted); Sullivan, 797 F.3d at 638. Therefore, we do not
depart from the usual, elements-based, categorical approach
to determine whether Reinhart’s prior state statutes of
conviction trigger the federal mandatory minimum provision
in § 2252(b)(2) for individuals with prior offenses “relating
to” child pornography.

In so holding, we note that we are at odds with the Tenth
Circuit. See United States v. Bennett, 823 F.3d 1316 (10th
Cir. 2016) (holding defendant’s prior Colorado conviction
for sexual exploitation of a child related to child
pornography triggering the mandatory minimum ten-year
sentence under § 2252A(b)(2)). 4 The dissent in Bennett,

4
The Eighth Circuit has also addressed how to determine what state
convictions trigger § 2252(b)(1)’s mandatory minimum sentence. United
States v. Mayokok, 854 F.3d 987 (8th Cir. 2017). Mayokok stated it
employed the categorical approach to determine whether a prior
conviction triggers a mandatory minimum sentence under § 2252(b)(1).
Id. at 991. The Mayokok court determined that the state statute at issue
punished more conduct than would be punishable under federal law,
which would render it overbroad. See id. at 991–93. The court, however,
then dismissed the categorical approach and reframed the inquiry as
whether the “full range of conduct” under the state statute of conviction
“relates to the ‘possession . . . of child pornography’ as that term is
defined under federal law.” Id. at 993 (emphasis in original). Mayokok
also references Morales v. Trans. World Airlines, Inc., 504 U.S. 374, 383
(1992), in a footnote. Id. at 993 n.2. In Morales, the Supreme Court noted
18 UNITED STATES V. REINHART

however, persuasively counters several of the government’s
arguments in the present appeal. See Bennett, 823 F.3d at
1327 (Hartz, J., dissenting). The dissent in Bennett
recognizes, and Reinhart concedes, that unlike Mellouli,
within the § 2252 context, there is no historical requirement
of a “direct link” between the state crime of conviction and
the particular federal offense conduct. Id. at 1329 (citing
Mellouli, 135 S. Ct. at 1990). However, we agree with the
dissent in Bennett that it is not clear from Mellouli that the
history of such a direct link is a requirement for a narrower
reading of “relating to,” or that such a link was essential to
Mellouli’s holding. See id. Rather, the Supreme Court
concluded its analysis in Mellouli with its concern about how
the government’s proposed “sweeping interpretation departs
so sharply from the statute’s text and history that it [could
not] be considered a permissible reading.” Mellouli, 135
S. Ct. at 1990.

We also recognize the government’s argument that in
enacting § 2252(b)(2)’s mandatory-minimum enhancement
for recidivists, Congress intended to broaden the scope of
what prior crimes might trigger the enhancement. Despite
this, as Mellouli cautioned and as the Bennett dissent
reiterated, “[the ‘relating to’ language’s] interpretation must
somehow be anchored to prevent it from drifting aimlessly.”
Bennett. at 1327 (Hartz, J., dissenting). Here, that anchor is
the federal definition of child pornography defined in the
same chapter as § 2252(b)(2).

the broad interpretation of the phrase “relating to.” Id. Although we
assume that Congress used the phrase “relating to” for a purpose,
Mellouli and Sullivan also counsel that we must look at the statutory
scheme and text, which here, include a specific federal definitional
provision, § 2256. Mayokok did not address this definitional provision,
and we do not find Mayokok persuasive.
 UNITED STATES V. REINHART 19

The government argues that applying the usual
categorical approach will have the effect of making
§ 2252(b)(2) inapplicable in numerous states that define
child pornography more broadly than the federal definition.
Indeed, this may be true. Because of the way Congress has
drafted the federal definition of child pornography, in some
cases the federal definition is more restrictive than state
definitions. In those cases, the ten-year mandatory minimum
sentence may not apply to defendants. However, that the
mandatory minimum may not apply does not mean that
overly lenient sentences will be imposed. District courts still
use the sentencing guidelines to guide their decisions.
Moreover, “[b]y focusing on the legal question of what a
conviction necessarily established, the categorical approach
ordinarily works to promote efficiency, fairness, and
predictability . . . .” Mellouli, 135 S. Ct. at 1987 (emphasis
in original).

Finally, in support of its interpretation of “relating to,”
the government argues that a narrower interpretation of the
phrase would render the words meaningless, contrary to the
principles of statutory interpretation. Mellouli rejected this
argument when it applied the strict, usual categorical
approach. See Mellouli, 135 S. Ct. at 1990–91. “Relating to”
still has meaning, but here, its meaning is anchored to the
federal definition of “child pornography.” 5

We conclude that the statutory scheme and text,
including the applicable federal definitions of “child
5
We acknowledge that our holding, in conjunction with Sullivan,
results in reading the “relating to” phrase differently as to different
provisions of § 2252(b)(2). However, this is the appropriate reading in
light of Mellouli and the fact that § 2252(b)(2) contains some clauses of
defined terms that require a narrow reading of “relating to,” and some of
undefined terms that require a broad reading.
20 UNITED STATES V. REINHART

pornography” and “sexually explicit conduct” weigh in
favor of reading narrowly “relating to” in § 2252(b)(2).
Accordingly, we apply the categorical approach.

B. Applying the Categorical Approach

Under the Taylor categorical approach, we make a
categorical comparison of the elements of the state statute of
conviction and the federal generic definition. Chavez-Solis
v. Lynch, 803 F.3d 1004, 1006 (9th Cir. 2015). Here, we
compare the elements of California Penal Code § 311.11(a),
possession of child pornography, and California Penal Code
§ 311.3(a), sexual exploitation of a child under 18 years old,
with those of 18 U.S.C. §§ 2252(b)(2) and 2252(a)(4)(B).

The federal possession of child pornography statute,
18 U.S.C. § 2252(a)(4)(B), which Reinhart was convicted
under, punishes a person who:

knowingly possesses, or knowingly accesses
with intent to view, 1 or more books,
magazines, periodicals, films, video tapes, or
other matter which contain any visual
depiction . . . if—(i) the producing of such
visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B)). The definitional provision in the
same chapter, chapter 110, defines “child pornography” as
“any visual depiction . . . of sexually explicit conduct,
where—(A) the production of such visual depiction involves
 UNITED STATES V. REINHART 21

the use of a minor engaging in sexually explicit conduct.” 6
18 U.S.C. § 2256(8). In turn, § 2256 defines “sexually
explicit conduct” as actual or simulated:

(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or
pubic area of any person;

18 U.S.C. § 2256(2)(A). 7 These definitions constitute the
generic federal definition. See Chavez-Solis, 803 F.3d at
1006–07. We compare the elements of the generic federal

6
The remainder of the statute reads: “(B) such visual depiction is a
digital image, computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in sexually explicit
conduct; or (C) such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8).

7
Within § 2256 there are two definitions for “sexually explicit
conduct.” The definition in § 2256(2)(B) applies only to one part of the
definition of “child pornography” in subsection (8)(B) of § 2256, that
addresses digital, computer, or computer-generated images. That there
are two definitions is not meaningful in this case as both the definitions
for § 2256(2)(A) and (2)(B) list the same underlying conduct.
22 UNITED STATES V. REINHART

definition to Reinhart’s two prior convictions under
California Penal Code §§ 311.11(a) and 311.3.

1. California Penal Code § 311.11(a)

Reinhart was previously convicted under California
Penal Code § 311.11(a), possession or control of matter
depicting minor engaging in or simulating sexual conduct.
The statute punishes a person who “knowingly possesses or
controls any matter, representation of information, data, or
image, . . . the production of which involves the use of a
person under 18 years of age, knowing that the matter
depicts a person under 18 years of age personally engaging
in or simulating sexual conduct.” Cal. Penal Code
§ 311.11(a). In turn, “sexual conduct” is defined as actual or
simulated:

sexual intercourse, oral copulation, anal
intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism,
sexual masochism, penetration of the vagina
or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals
or pubic or rectal area for the purpose of
sexual stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section
288, or excretory functions performed in a
lewd or lascivious manner.

Cal. Penal Code § 311.4(d)(1).

Our court has previously conducted the categorical
analysis of California Penal Code § 311.11(a) and the federal
definition of “child pornography” and “sexually explicit
conduct,” and held that the California statute of conviction
is overbroad compared to the federal definition. Chavez-
 UNITED STATES V. REINHART 23

Solis, 803 F.3d at 1006–08. 8 In Chavez-Solis, the court held
that because of California’s definition of “sexual conduct,”
the California statute was overbroad. Id. at 1008. The
California definition of sexual conduct, “unlike the federal
statute, . . . include[s] ‘any lewd or lascivious sexual act as
defined in [California Penal Code] Section 288,’” which is
entitled, “Lewd or lascivious acts; penalties; psychological
harm to victim.” Id. at 1008. “Section 288 prohibits ‘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 sexual desires of that person
or the child.’” Id. at 1008–09; Cal. Penal Code § 288(a).
“Section 288 is quite broad.” Id. at 1009. It encompasses any
contact without a requirement that a specific or intimate
body part be touched, so long as the touching of an underage
child was for the purpose of sexual arousal. Id. Because
California’s definition of “sexual conduct” as used in
§ 311.11(a) encompasses the full range of conduct
proscribed by § 288, the definition is overbroad compared to
the federal statute’s definition of “sexually explicit conduct”
in § 2256. Id. Nothing in the federal statute would include
the broader conduct of “any touching” on “any part” of a
child’s body with the intent of arousing sexual desires. Id.
We must follow Chavez-Solis’s holding that California’s
possession of child pornography statute under § 311.11(a)
“sweeps in depictions of a broader range of ‘sexual conduct’

8
In Chavez-Solis, we considered whether a California Penal Code
§ 311.11(a) conviction was an aggravated felony, as defined in 8 U.S.C.
§ 1101(a)(43)(I), for immigration removal purposes. In conducting that
inquiry the court looked at the same federal child pornography statute
here, and therefore, our previous analysis applies here.
24 UNITED STATES V. REINHART

than the federal child pornography statute,” and therefore is
categorically overbroad. Id.

As stated, that a state statute of conviction is not a
categorical match to the federal definition does not end the
inquiry. If a statute is divisible, we apply a “modified
categorical approach” that “allows us to look beyond the
statutory text to a limited set of documents to determine
whether the petitioner was necessarily convicted of all the
elements of the federal generic offense.” Id. at 1012 (citation
omitted). We only employ the modified categorical approach
where the state statute of conviction is divisible, meaning it
“lists multiple, alternative elements, and so effectively
creates several different . . . crimes.” Id. (quoting Rendon v.
Holder, 764 F.3d 1077, 1083 (9th Cir. 2014)). Chavez-Solis
held that § 311.11(a) is not divisible and, therefore, our
categorical inquiry need not go further. Id. at 1012–13.

In sum, as the district court concluded, Reinhart’s
California Penal Code § 311.11(a) conviction does not
trigger the federal § 2252(b)(2)’s mandatory minimum
because there is not a categorical match and the California
statute is indivisible.

2. California Penal Code § 311.3(a)

Reinhart also was previously convicted under California
Penal Code § 311.3(a), sexual exploitation of child. Section
311.3(a) punishes anyone who “knowingly develops,
duplicates, prints, or exchanges any representation of
information, data, or image . . . that contains or incorporates
in any manner, any film or filmstrip that depicts a person
under the age of 18 years engaged in an act of sexual
conduct.” Cal. Penal Code § 311.3(a). Section 311.3 defines
“sexual conduct” within that provision as:
 UNITED STATES V. REINHART 25

(1) Sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or
opposite sex or between humans and animals.

(2) Penetration of the vagina or rectum by any
object.

(3) Masturbation for the purpose of sexual
stimulation of the viewer.

(4) Sadomasochistic abuse for the purpose of
sexual stimulation of the viewer.

(5) Exhibition of the genitals or the pubic or
rectal area of any person for the purpose of
sexual stimulation of the viewer.

(6) Defecation or urination for the purpose of
sexual stimulation of the viewer.

Cal. Penal Code § 311.3(b). 9

We agree with the district court’s conclusion below and
hold that § 311.3 is overbroad as compared to the federal
definition of “sexually explicit conduct.” The federal statute
defining “sexually explicit conduct” covers “(i) sexual
intercourse, . . . ; (ii) bestiality; (iii) masturbation;

9
Unlike the definition that applies in California Penal Code
§ 311.11, the definition of “sexual conduct” in California Penal Code
§ 311.3 does not incorporate California Penal Code § 288. Accordingly,
Chavez-Solis’s reasoning regarding § 311.11’s overbreadth due to the
broad scope of conduct under § 288 does not apply to California Penal
Code § 311.3.
26 UNITED STATES V. REINHART

(iv) sadistic or masochistic abuse; or (v) lascivious
exhibition of the genitals or pubic area of any person.”
18 U.S.C. § 2256(2)(A). There is overlap between the first
five types of conduct listed in California Penal Code
§ 311.3(b) and the conduct listed in the federal statute.
However, California Penal Code § 311.3(b) includes a sixth
type of conduct, “[d]efecation or urination for the purpose of
sexual stimulation of the viewer.” For there to be a
categorical match, anyone convicted under the state statute
of conviction must necessarily be guilty of all the federal
statute’s elements. See Moncrieffe v. Holder, 569 U.S. 184,
190–91 (2013) (stating courts “examine what the state
conviction necessarily involved, not the facts underlying the
case”). Here, California Penal Code § 311.3(b)’s sixth type
of conduct is not necessarily covered under the federal
statute, and therefore the California statute is overbroad. See
id.

That the California statute lists “defecation or urination”
for sexual stimulation of the viewer separately from
“exhibition of the genitals or the pubic or rectal area of any
person” for the purpose of sexual stimulation of the viewer
confirms that depictions of the former are not necessarily
encompassed within the latter. The difference between the
conduct of “lascivious exhibition of the genitals or pubic
area,” in the federal statute at 18 U.S.C. § 2256(2)(A) and
the California statute’s listing of “[d]efecation or urination
for the purpose of sexual stimulation of the viewer” may
seem to be a fine line. It is conceivable that in many cases
when an individual is involved in defecation or urination for
purposes of sexual stimulation of the viewer, there will be
exhibition of the genital, pubic, or rectal area of that
individual. This is not necessarily so, however. It is also
conceivable, that in some instances, there may be a depiction
of a minor that does not involve exhibition of the genitals or
 UNITED STATES V. REINHART 27

pubic or rectal area, but the minor is engaged in defecation
or urination created for the purpose of sexual stimulation of
the viewer. That depiction would fall under California Penal
Code § 311.3(b)’s sixth type of conduct, but would not fall
under any prong of the federal statute at 18 U.S.C.
§ 2256(2)(A) defining “sexually explicit conduct.” In sum,
because broader conduct is encompassed in § 311.3(a), it is
categorically overbroad as compared to the federal statute.

California Penal Code § 311.3(a) also is not divisible.
Like Reinhart’s conviction under California Penal Code
§ 311.11(a), his conviction under § 311.3(a) refers to “sexual
conduct,” albeit with a different definition of “sexual
conduct.” 10 Both statutes punish offenses dealing with
depictions of minors and list the ways in which depictions
might constitute minors engaged in acts of sexual conduct.
See California Penal Code §§ 311.3, 311(a). Analyzing
§ 311.11(a), we held the statute’s reference to “‘sexual
conduct’ does not create different crimes, each one
depending on the particular sexual conduct depicted in an
alleged image of child pornography.” Chavez-Solis,
803 F.3d 1012. “Rather, th[e] definition simply lists
numerous ways in which an image may be considered to
depict ‘sexual conduct’ and thus qualify for the single crime
. . . .” Id. at 1012–13. The same rationale applies to
§ 311.3(a), sexual exploitation of child, which also lists ways
in which a depiction might show a minor engaged in sexual
conduct.

10
As stated, California Penal Code § 311.11(a) refers to “sexual
conduct” as defined in § 311.4(d), whereas § 311.3 defines “sexual
conduct” within the same provision as the list of six types of conduct
noted above at § 311.3(b).
28 UNITED STATES V. REINHART

Although § 311.3’s definition of “sexual conduct” is
worded in the disjunctive, as we held with regard to
§ 311.11, this does not mean the jury is required to find “that
the pornographic materials portray any particular type of
sexual conduct—only that the materials portray sexual
conduct.” 11 See id. at 1013 (citing California cases in which
jury instructions involving “sexual conduct” listed the
various types of sexual conduct without requiring the jury to
determine the particular sexual conduct depicted). Because
the jury need not unanimously decide what particular sexual
conduct is depicted, the listed types of sexual conduct are
only means, not elements of the crime. See Rendon, 764 F.3d
at 1085–86 (holding that a statute is divisible “[o]nly when
state law requires that in order to convict the defendant the
jury must unanimously agree that he committed a particular
substantive offense contained within the disjunctively
worded statute”). Finally, although § 311.3 and § 311.11
definitions’ of “sexual conduct” are different, the structure
of both definitions parallel each other and Chavez-Solis leads
us to the conclusion that § 311.3 is also not divisible.

In sum, because California Penal Code § 311.3 is
indivisible, the modified categorical approach does not

11
Although the parties did not provide a model jury instruction for
California Penal Code § 311.3 and the court did not locate one, it appears
California courts list the various types of sexual conduct in jury
instructions, without requiring that the jury agree on which type of sexual
conduct occurred. See, e.g., People v. Spurlock, 114 Cal. App. 4th 1122,
1130–31 (2003) (holding trial court was not required to instruct sua
sponte on the meaning of “exhibition of the genitals” or “for the purpose
of sexual stimulation of the viewer” and upholding a jury instruction for
charges under § 311.3 that stated “[s]exual conduct means any of the
following, whether actual or simulated: . . . exhibition of genitals, pubic
or rectal area for the purposes of sexual stimulation of the viewer . . . .”
citing to §§ 311.3, 311.4).
 UNITED STATES V. REINHART 29

apply, and therefore, we do not look to any fact-specific
documents to determine whether Reinhart’s offense triggers
the federal statute. See Descamps, 570 U.S. at 257, 263–65.
Reinhart’s prior conviction under § 311.3(a) does not
constitute an offense “relating to . . . the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography” under 18 U.S.C.
§ 2252(b)(2) and does not trigger the sentencing
enhancement.

Neither of Reinhart’s two prior California statutes of
convictions triggers the mandatory minimum sentence under
18 U.S.C. § 2252(b)(2). We affirm the district court’s
sentencing determination that the ten-year mandatory
minimum did not apply. 12

III. Conclusion

We hold that 18 U.S.C. § 2252(b)(2)’s reference to
offenses “relating to” child pornography must be read more
narrowly due to the statutory text that limits the meaning of
“child pornography” and “sexually explicit conduct.” See
18 U.S.C. § 2256(2)(A), (8). In accordance with this more
narrowed reading of “relating to,” we apply the categorical
approach in determining whether Reinhart’s prior California
statutes of conviction trigger the federal sentencing
enhancement provision at 18 U.S.C. § 2252(b)(2). Under the
categorical approach, we conclude that both California Penal
Code § 311.11 and § 311.3 are overbroad compared to the
federal statute and indivisible. Accordingly, neither of

12
The court need not reach Reinhart’s argument that the
government’s interpretation of § 2252(b)(2)’s “relating to” clause is
unconstitutionally vague under Johnson v. United States, 135 S. Ct.
2551, 2556–57 (2015).
30 UNITED STATES V. REINHART

Reinhart’s prior California statutes of conviction triggers
18 U.S.C.§ 2252(b)(2)’s ten-year mandatory minimums
sentencing enhancement.

We AFFIRM.