FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10042
Plaintiff-Appellee, D.C. No.
1:20-cr-00029-
v. FMTG-1
CHRISTOPHER DE LEON
GUERRERO, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted October 3, 2023
Honolulu, Hawaii
Filed December 26, 2023
Before: Marsha S. Berzon, Eric D. Miller, and Lawrence
VanDyke, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Berzon
2 USA V. DE LEON GUERRERO
SUMMARY *
Criminal Law
The panel affirmed Christopher De Leon Guerrero’s
convictions and sentence for attempted enticement of a
minor in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. § 2,
except that it reversed, vacated, and remanded as to three
special conditions of supervised release.
Section 2422(b) provides that
[w]hoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in . . . any sexual activity for
which any person can be charged with a
criminal offense, or attempts to do so, shall
be fined under this title and imprisoned not
less than 10 years or for life.
De Leon Guerrero contended that the predicate-offense
element of § 2422(b) was not established because he could
not have been charged under Guam law for actions that took
place on a federal enclave, Andersen Air Force Base. The
panel agreed with both parties that United States v. Lopez, 4
F.4th 706 (9th Cir. 2021), forecloses that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. DE LEON GUERRERO 3
challenge. Following Lopez, the panel affirmed the
§ 2422(b) convictions by referencing a predicate offense not
specified in the indictment—9 Guam Code Ann. § 13.10, the
Guam criminal attempt statute—with which De Leon
Guerrero could have been charged based on off-base
conduct.
With respect to special conditions of supervised release:
The panel remanded with instructions that the district
court conform Special Condition 2 to refer to locations
“primarily used by” children under 18.
The panel remanded with instructions that the district
court conform Special Condition 4 to the holding in United
States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), which
cautioned that conditions that too broadly restrict access to
sexual images raise serious First Amendment issues.
The panel remanded with instructions that the district
court modify Special Condition 14 to conform with the
assessment-based approach to sex-offense-specific
treatment announced at De Leon Guerrero’s sentencing.
Concurring, Judge Berzon wrote separately to explain
three reasons why the reasoning and holding of Lopez, which
dictates the resolution of the conviction issue in this case, are
seriously mistaken: (1) the reasoning of Lopez is at war with
the statutory text of § 2422(b); (2) Lopez creates stark
problems of judicial administrability and overreach; and (3)
Lopez muddles the case law in this circuit by looking
exclusively to territorial law to locate a predicate offense.
4 USA V. DE LEON GUERRERO
COUNSEL
Sonam A.H. Henderson (argued), Assistant Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Federal Public Defender’s Office, Los Angeles, California;
for Defendant-Appellant.
Benjamin K. Petersburg (argued), Assistant United States
Attorney, United States Attorney’s Office, Hagatna, Guam,
for Plaintiff-Appellee.
OPINION
PER CURIAM:
Christopher De Leon Guerrero appeals from his
convictions and sentence on two counts of attempted
enticement of a minor. We affirm his convictions and
sentence, except that we reverse, vacate, and remand as to
three special conditions of supervised release.
I. Background
In November 2020, De Leon Guerrero replied to an
online post by “Emily.” He believed she was a thirteen-year-
old girl living on Andersen Air Force Base. In actuality,
“Emily” was a make-believe persona created by federal
agents as part of an undercover operation to identify
individuals “with access to Andersen Air Force Base who
were willing to engage in sexual conversation or attempt to
meet a minor for sexual contact.”
De Leon Guerrero and “Emily” had online conversations
over several days, during which they discussed engaging in
USA V. DE LEON GUERRERO 5
sexual activity together. The two talked about meeting on
Andersen Air Force Base over an upcoming weekend.
Among other sexual activities, De Leon Guerrero discussed
performing oral sex on “Emily” and having sexual
intercourse with her.
On November 19, De Leon Guerrero told “Emily” that
he would buy condoms before they met. The next day, they
made plans to meet at “Emily’s” house on Andersen Air
Force Base. That evening, De Leon Guerrero arrived at the
on-base house he believed to be “Emily’s” with condoms in
his truck. After parking, he was questioned and arrested by
federal agents.
A grand jury returned an indictment charging De Leon
Guerrero with two counts of attempted enticement of a
minor in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. § 2.
Section 2422(b) provides that
[w]hoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18
years, to engage in . . . any sexual activity for
which any person can be charged with a
criminal offense, or attempts to do so, shall
be fined under this title and imprisoned not
less than 10 years or for life.
18 U.S.C. § 2422(b). Each count specified a chargeable
predicate offense under Guam law, namely first-degree
criminal sexual conduct in violation of 9 Guam Code Ann.
6 USA V. DE LEON GUERRERO
§ 25.15(a)(1) 1 and second-degree criminal sexual conduct in
violation of 9 Guam Code Ann. § 25.20(a)(1). 2
After De Leon Guerrero was convicted on both counts,
the district court sentenced him to a ten-year mandatory
minimum term in prison and five years of supervised release.
As part of De Leon Guerrero’s supervised release, the
district court imposed several special conditions, described
orally at his sentencing and in the written judgment that
followed.
II. Convictions
Because De Leon Guerrero “did not make a Rule 29(a)
motion” to preserve his objection to the sufficiency of the
evidence, we “review his claim for plain error.” United
States v. Chu, 5 F.3d 1244, 1248 (9th Cir. 1993).
De Leon Guerrero objects that his convictions under
§ 2422(b) are not supported by sufficient evidence. He could
not have been charged under Guam law, he contends, for
actions that took place on a federal enclave, Andersen Air
Force Base, so the predicate-offense element of § 2422(b)
was not established. We agree with both parties that our
precedent in United States v. Lopez forecloses that challenge.
4 F.4th 706 (9th Cir. 2021).
The defendant in Lopez was arrested in Guam after
arranging to meet up for sexual activity on Andersen Air
Force Base with “Brit,” whom he believed to be a thirteen-
1
That Guam statute bans “sexual penetration with . . . [a] victim [who]
is under fourteen (14) years of age.” 9 Guam Code Ann. § 25.15(a)(1).
2
That Guam statute bans “sexual contact with another person . . . [if] that
other person is under fourteen (14) years of age.” 9 Guam Code Ann.
§ 25.20(a)(1).
USA V. DE LEON GUERRERO 7
year-old girl but who was in fact a federal agent. Id. at 712-
13. An indictment charged Lopez with violating § 2422(b)
by attempting to entice a minor to engage in a chargeable
sexual activity, namely sexual penetration of a minor in
violation of § 25.15(a)(1). Id. at 713. He was convicted. Id.
at 712. On appeal, Lopez challenged the sufficiency of the
evidence in support of that conviction; he disputed that the
predicate Guam offense was chargeable, maintaining that his
contemplated conduct was on-base and so beyond Guam’s
criminal jurisdiction. Id. at 718-19. This court affirmed his
conviction, reasoning that § 2422(b)’s chargeable-offense
element was satisfied as Lopez could have been charged for
a different predicate offense given his off-base conduct—
namely attempted sexual penetration of a minor under 9
Guam Code Ann. § 13.10 with reference to § 25.15(a)(1).
See id. at 724. We concluded that the attempt conduct—
Lopez’s emails and text messages—took place off-base in
Guam, so he could have been prosecuted for it. Id. at 724.
Following Lopez, we affirm De Leon Guerrero’s
§ 2422(b) convictions by referencing another predicate
offense, not specified in the indictment, with which he could
have been charged. See id. at 724-25. Both of De Leon
Guerrero’s convictions under §2422(b) can be supported by
§ 13.10, the Guam criminal attempt statute relied upon in
Lopez. See id.
Under that statute, “[a]n attempt conviction requires
proof of the defendant’s ‘intent to engage in conduct which
would constitute such crime’ and ‘a substantial step toward
commission of the crime.’” Lopez, 4 F.4th at 724 (quoting 9
Guam Code Ann. § 13.10). “That is exactly what happened
here when [De Leon Guerrero] intentionally communicated
with [‘Emily’] from within the Territory of Guam in
furtherance of his goal of sexual penetration” in violation of
8 USA V. DE LEON GUERRERO
§ 25.15(a)(1) and of sexual conduct in violation of
§ 25.20(a)(1). Id. The full § 13.10 predicate offenses for
purposes of § 2422(b) would thus be attempted sexual
penetration of a minor (as in Lopez) and attempted sexual
conduct with a minor.
At trial, the government “introduced records of [online]
communications in which [De Leon Guerrero] discussed sex
with [‘Emily’] and sought to persuade ‘her’ to have sex when
they met in person.” Id. “A reasonable jury could conclude
some of the communications with [‘Emily’] were sent from
off-base locations, including from [De Leon Guerrero’s]
home, where he spent substantial time and likely formed the
intent sexually to penetrate [and have sexual conduct with] a
minor. It is well established that communications intended
to groom a victim to engage in sexual activity in the future
constitute substantial steps toward the completion of a
crime.” Id.
In light of Lopez, we conclude, after identifying a
predicate offense for each count with which he could have
been charged based on off-base conduct, that “it was not
error, let alone plain error, for the district court to enter a
judgment of conviction” on that record as to both counts
under § 2422(b). Id. at 719.
III. Sentence
The parties agree that De Leon Guerrero’s sentence
should be reversed, vacated, and remanded to the district
court for reconsideration of three special conditions imposed
on his supervised release. We have previously remanded
criminal cases for resentencing where both parties so
request. See, e.g., United States v. Gurolla, 333 F.3d 944,
958 (9th Cir. 2003). Remand is warranted here based on our
USA V. DE LEON GUERRERO 9
precedents disapproving of comparable conditions of
supervised release.
1. Special Condition 2 provides that De Leon Guerrero
“must not go to, or remain at, any place where [he] know[s]
children under the age of 18 are likely to be, including parks,
libraries, schools, playgrounds, and childcare facilities
without prior approval of the probation officer.” That
condition, as written, sweeps too broadly. It is not limited to
the five examples given but would ban De Leon Guerrero
from a wide range of locations where children often go,
including hospitals, courthouses, places of worship, grocery
stores, and gas stations. Additionally, it will require him to
engage in a probabilistic guessing game to determine where
children are “likely to be.”
We have approved similar conditions that, as worded, do
not have the defects of this one. United States v. Bee upheld
a condition that banned the defendant while on supervised
release from “loiter[ing] within 100 feet of school yards,
parks, playgrounds, arcades, or other places primarily used
by” children. 162 F.3d 1232, 1235-36 (9th Cir. 1998). Both
parties favorably referenced this language from Bee. We
remand with instructions that the district court conform
Special Condition 2 to refer, as in Bee, to locations
“primarily used by” children under 18.
2. Special Condition 4 as included in the written
judgment provides that De Leon Guerrero “must not view or
possess any ‘visual depiction’ (as defined in 18 U.S.C.
§ 2256), including any photograph, film, video, picture, or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of
10 USA V. DE LEON GUERRERO
‘sexually explicit conduct’ (as defined in 18 U.S.C.
§ 2256).” 3
Our court has cautioned that conditions of supervised
release that too broadly restrict access to sexual images raise
serious First Amendment issues. See United States v. Gnirke,
775 F.3d 1155, 1163-65 (9th Cir. 2015). Gnirke offered
guidance for appropriately tailoring such restrictions,
construing a similar condition of supervised release to apply
“(1) to any materials with depictions of ‘sexually explicit
conduct’ involving children, as defined by 18 U.S.C.
§ 2256(2), and (2) to any materials with depictions of
‘sexually explicit conduct’ involving adults, defined as
explicit sexually stimulating depictions of adult sexual
conduct that are deemed inappropriate by Gnirke’s probation
officer.” See id. at 1166. We remand with instructions that
the district court conform Special Condition 4 to our holding
in Gnirke.
3. Special Condition 14 provides in part that De Leon
Guerrero “must participate in a sex offense-specific
treatment program and follow the rules and regulations of
that program.” (Emphasis added.) At De Leon Guerrero’s
3
At De Leon Guerrero’s sentencing, the district court described this
condition as providing that he “must not view or possess any visual
depiction, as defined, including any photograph, film, video, picture or
computer-generated image or picture, whether made or produced . . .
electronically, mechanically or other means produced of ‘sexually
explicit conduct.’ And your probation officer can define that to you,
okay.” Contrary to De Leon Guerrero’s characterization, that description
is compatible with the later written version, if understood to contemplate
that the probation officer will define “sexually explicit conduct” based
on the relevant statute defining that term. The court’s description cannot
reasonably be read as allowing probation officers free rein to create their
own definition, and so is consistent with the written version.
USA V. DE LEON GUERRERO 11
sentencing, the district court announced the condition
otherwise:
You must participate in a sex offense specific
assessment. You must pay the cost of the
assessment based on your ability to pay and
follow the rules and regulations of the
program and pay for that if you’re assessed to
have any issues. It could be that you come out
of prison and they assess you they say, no,
you’re fine, so you may not have to do it.
(Emphases added.) De Leon Guerrero objects that the
district court impermissibly transformed sex-offense-
specific treatment from a potential requirement (contingent
on an evaluation) into a mandatory one, and that the
contingent oral pronouncement at sentencing controls.
Our case law makes clear that he is right—as to
sentencing, the oral pronouncement controls if it varies from
the written judgment. See United States v. Montoya, 82 F.4th
640, 648 (9th Cir. 2023) (en banc). We therefore remand
with instructions that the district court modify Special
Condition 14 to conform with the assessment-based
approach to sex-offense-specific treatment announced at De
Leon Guerrero’s sentencing.
AFFIRMED IN PART and REVERSED,
VACATED, AND REMANDED IN PART.
12 USA V. DE LEON GUERRERO
BERZON, Circuit Judge, concurring:
The resolution of the conviction issue in this case is
dictated by United States v. Lopez. See 4 F.4th 706 (9th Cir.
2021). But I am convinced that Lopez’s reasoning and
holding are seriously mistaken. I write separately to explain
three reasons that is so. 1
I.
First, the reasoning of Lopez is at war with the statutory
text of 18 U.S.C. § 2422(b).
Section 2422(b) provides that
[w]hoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
1
Judge Bennett’s dissent in Lopez persuasively discussed additional
problems. He explained that the government should be required to prove
the predicate offense alleged in a § 2422(b) indictment, and that
convicting under a different offense “changes [the indictment]
materially” and so violates the Fifth Amendment. United States v. Lopez,
4 F.4th 706, 738 (9th Cir. 2021) (Bennet, J., dissenting); see id. at 735-
42. He also noted that, as construed in Lopez, § 2422(b) “perhaps . . .
allows the government to . . . not specify[] a predicate offense” before a
grand jury, id. at 740—even though the phrase “‘any sexual activity for
which any person can be charged with a criminal offense’ is an element
that requires statutes to give it meaning,” id. at 741 (quoting 18 U.S.C.
§ 2422(b)), because “possible predicate offenses have different elements
and require different facts to prove those elements, which facts would
need to be presented to the grand jury,” id. Finally, Judge Bennett
objected that “the jury [in Lopez] was specifically instructed that the
government must prove beyond a reasonable doubt a predicate crime that
Lopez did not commit.” Id. at 741 n.21.
USA V. DE LEON GUERRERO 13
individual who has not attained the age of 18
years, to engage in . . . any sexual activity for
which any person can be charged with a
criminal offense, or attempts to do so, shall
be fined under this title and imprisoned not
less than 10 years or for life.
18 U.S.C. § 2422(b). Lopez affirmed a challenged
conviction by identifying the relevant predicate “sexual
activity for which any person can be charged with a criminal
offense” as attempted sexual penetration of a minor. Id.; see
United States v. Lopez, 4 F.4th 706, 724 (9th Cir. 2021)
(citing Guam’s criminal-attempt statute, 9 Guam Code Ann.
§ 13.10, with reference to Guam’s sexual-penetration
statute, 9 Guam Code Ann. § 25.15). On this view, Lopez’s
federal crime was inducing a minor to engage in attempted
sexual penetration. But attempted sexual penetration—
which, in Lopez, involved emails discussing sex—is not
itself a sexual activity. See id. at 724-25; see also Sexual
Activity, Black’s Law Dictionary (11th ed. 2019) (referring
to the entry for “sexual relations”); Sexual Relations, Black’s
Law Dictionary (11th ed. 2019) (defining “sexual relations”
as “[p]hysical sexual activity” and synonymous with “sexual
activity” and “sex act” (emphasis added)). That is, the
chargeable conduct on which Lopez relies is not itself a
sexual activity and thus not an appropriate predicate under
§ 2422(b).
The structure of § 2422(b) confirms that, contrary to
Lopez, the “sexual activity” predicate must be a physical
activity, not an attempt at such activity. Section 2422(b)
proscribes inducing a minor to engage in sexual activity or
“attempt[ing] to do so.” 18 U.S.C. § 2422(b). Given this dual
prohibition, the meaning of “sexual activity” in the statute
14 USA V. DE LEON GUERRERO
cannot also refer to inchoate crimes; the underlying
reference must instead be to actual sexual activity.
Otherwise, the offense in Lopez and in this case—in which
there was no physical sexual activity, only an attempt to do
so—becomes “attempting to entice to attempt [to sexually
penetrate a minor],” an incoherent concept. Lopez, 4 F.4th at
734 (Bennett, J., dissenting in part).
Lopez nowhere addresses what predicate “sexual
activit[ies]” can sustain a § 2422(b) conviction nor explains
how an attempt under § 13.10 can be “sexual activity” when
no physical activity occurs, given that § 2422(b) itself
reaches attempts. These shortcomings risk significantly
expanding the scope of liability under § 2422(b) by
broadening the pool of possible predicate offenses well
beyond what the statute contemplates.
II.
Second, Lopez creates stark problems of judicial
administrability and overreach. Lopez sustained a § 2422(b)
conviction based on a predicate offense articulated sua
sponte and for the first time by this court on appeal. See id.
at 724-25 (majority opinion). In doing so, Lopez held that the
predicate offense need not be specified in the indictment. See
id. at 726. Instead, Lopez held it sufficient that “the
Government proved at trial that Lopez’s proposed conduct
would have been unlawful under another Guam statute
which requires proof of an attempt to engage in sexual
penetration,” id. at 729, and then reasoned that “[a]n attempt
conviction [under § 13.10] requires proof of the defendant’s
intent . . . [and] a substantial step . . . . That is exactly what
happened here when Lopez intentionally communicated
with ‘Brit’ from within the Territory of Guam in furtherance
of his goal of sexual penetration,” id. at 724 (citations and
USA V. DE LEON GUERRERO 15
quotation marks omitted). So the Lopez decision itself—but
not the indictment and not the jury instructions, id. at 725,
729—identified the elements of § 13.10 and then concluded
that the trial evidence was sufficient to show that Lopez
could be charged under that Guam statute.
Lopez does recognize that, “[o]nce the government
adduced evidence that [a defendant] proposed sexual
conduct to a minor, the jury was required to determine
whether the sexual conduct [proposed] was considered
criminal in Guam or another territorial jurisdiction.” Id. at
731. But then, Lopez placed the burden of locating
applicable predicate offenses on the district court rather than
on the government. That is, “the burden was on the district
court, not the Government” in its charging document, to find
an “applicable federal, state, [or] territorial law[]” that fit the
conduct charged under § 2422(b). Id. The only reason
provided for absolving the government of its usual
responsibility to identify the legal basis for any charge is that
“[f]ederal courts may take judicial notice of matters of public
record, including statutes.” Id.
So, according to Lopez, the district court was obliged to
“ensure the jury possessed the requisite background
knowledge to evaluate the sufficiency of the Government’s
evidence against applicable criminal laws,” such that its
“failure to do so was error.” Id. This approach imposes an
impractical obligation on district courts. Given that post-
Lopez indictments under § 2422(b) need not specify any
predicate offense, id. at 719, this framework requires district
courts to determine the potential predicate offenses (which
may be numerous) and then to provide the jury with
sufficient background knowledge about each offense.
16 USA V. DE LEON GUERRERO
Moreover, Lopez held that even though the district court
in that case did not in fact instruct the jury on a viable
predicate offense, it did not plainly err because there was no
effect on Lopez’s substantial rights. Id. In light of the
evidence, Lopez held, there was no reasonable probability
that the trial result would have been different had the jury
been properly instructed. Id. But Lopez also contemplated
“different Section 2422(b) case[s] in which the definition of
applicable federal or state offenses would influence the
jury’s evaluation of whether the defendant proposed sexual
conduct that would have been criminal.” Id. This approach
authorizes extraordinary judicial overreach. That is, Lopez
allows district courts, through their unilateral choice of
which “applicable criminal laws” to present to the jury,
retrospectively to influence (if not determine) whether the
evidence presented by the government is sufficient to meet
the “sexual activity” element needed to convict.
Beyond the jurisprudential issues described above,
Lopez’s framework also encroaches on important
constitutional interests. Under the approach endorsed by
Lopez, a § 2422(b) defendant may not know which predicate
offenses (or even how many) are in play until the court gives
its instructions to the jury after both parties put on their cases
(or even, as in Lopez itself, until an appellate court identifies
a predicate offense). Such lack of notice threatens
defendants’ due-process rights, denying them the ability to
respond adequately at trial and put on a defense.
III.
Finally, Lopez muddles the case law in this circuit by
looking exclusively to territorial law to locate a predicate
USA V. DE LEON GUERRERO 17
offense under § 2422(b). As Judge Bennett noted in his
dissent, it is difficult
[to] understand why the Majority discusses
this particular uncharged predicate offense
[§ 13.10]. As Lopez himself acknowledged at
oral argument, the government could have
charged him with enticement in violation of
§ 2422(b), with the predicate offense of
sexual abuse of a minor within the Special
Maritime and Territorial Jurisdiction of the
United States, in violation of 18 U.S.C.
§ 2243(a).
Id. at 734 n.5 (Bennett, J., dissenting in part). Indeed,
§ 2243(a) would have been an appropriate predicate offense
in Lopez’s circumstances and, as the government and
counsel for De Leon Guerrero agreed at oral argument in this
case, more generally as well.
That federal statute provides that
[w]hoever, in the special maritime and
territorial jurisdiction of the United States . . .
knowingly engages in a sexual act with
another person who—
(1) has attained the age of 12 years but has
not attained the age of 16 years; and
(2) is at least four years younger than the
person so engaging; or attempts to do so,
18 USA V. DE LEON GUERRERO
shall be fined under this title, imprisoned
not more than 15 years, or both.
18 U.S.C. § 2243(a). Relevantly, § 2243(a) both clearly
governs an actual “sexual activity” (unlike 9 Guam Code
Ann. § 13.10) and, as a federal law expressly applicable to
the territorial jurisdiction of the United States, avoids
questions about the reach of Guam law on Andersen Air
Force Base. 2 Yet, despite the reference in Judge Bennett’s
dissent, Lopez never discusses § 2243(a) and only mentions
in passing the general use of federal law as a predicate
offense. See Lopez, 4 F.4th at 730 (referring to charges under
“federal, state, or territorial law”). So Lopez creates the
impression—erroneously—that a § 2422(b) prosecution
must rest on proof of a state or territorial, not a federal,
offense. 3
2
“Federal prosecutors exercise exclusive criminal jurisdiction over
[Andersen Air Force Base] because the base is a federal enclave within
the special maritime and territorial jurisdiction of the United States.”
Lopez, 4 F.4th at 724 (majority opinion). “Guam would have lacked
jurisdiction to prosecute an offense taking place exclusively within [on-
base] territory, and the evidence adduced at trial indicated Lopez
proposed to meet ‘Brit’ only at locations within [the base].” Id. at 725.
3
Unlike proceeding under § 2243(a) directly, prosecuting under
§ 2422(b) carries the ability to charge for attempted conduct, as well as
the potential for a significantly longer sentence. Compare 18 U.S.C.
§ 2243(a) (providing for a 15-year maximum sentence but not covering
attempts) with 18 U.S.C. § 2422(b) (providing for a maximum sentence
of life and covering attempts). Conversely, § 2243(a)’s age-based
restrictions narrow the sweep of the chargeable offense. See id.
§ 2243(a). Proceeding under § 2422(b) based on predicate state or
territorial offenses permits the prosecution to seek conviction under
statutes that do not impose a four-year age range for the victim or an age
differential between the victim and the perpetrator.
USA V. DE LEON GUERRERO 19
It appears that there are vanishingly few § 2422(b)
prosecutions based on federal predicate offenses, at least as
recorded in the standard online databases. Beyond Judge
Bennett’s dissent in Lopez, acknowledgments that federal
predicate offenses may be used are few and far between. I
write separately in part to correct any misimpression left by
that silence. 4 Lopez’s reflexive turn to territorial law to
locate predicate conduct unnecessarily confuses this court’s
case law on § 2422(b).
4
For two brief exceptions, see Br. for the United States in Opposition to
Certiorari at 8-9, Lopez v. United States, No. 21-7624 (U.S. 2022); Ninth
Circuit Model Criminal Jury Instructions 8.192A (referring to “criminal
offense[s] under the laws of [the United States]”).