U.S. v. Farmer

• Decision Date: 06 December 2010
• Docket Number: No. 09-50124,09-50124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyler George FARMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

627 F.3d 416

UNITED STATES of America, Plaintiff-Appellee,

v.Tyler George FARMER, Defendant-Appellant.

No. 09-50124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2010.

Filed Dec. 6, 2010.

Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. No. 2:08-cr-00516-GW-1.

Richard A. Levy, Torrance, CA, for the defendant-appellant.

Aaron M. May, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Before: JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge BYBEE.

OPINION

BYBEE, Circuit Judge:

We are asked to decide whether Defendant-Appellant Tyler George Farmer's conviction under California Penal Code 19299 § 288(a), for lewd and lascivious acts involving a child, categorically qualifies as "a prior conviction ... relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252A(b)(2). Although the answer is more complicated that it at first appears, we are convinced that the answer is yes, and we affirm the judgment of the district court.

I

On November 3, 2008, Farmer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The Presentence Investigation Report ("PSR") noted that, in 1987, Farmer pleaded guilty to a violation of California Penal Code § 288(a), which prohibits lewd and lascivious acts upon a child younger than fourteen. The PSR explained that Farmer's conviction likely triggered § 2252A(b)(2)'s mandatory minimum sentence provision, which requires a district court to impose a sentence of "not less than 10 years" if a person convicted under § 2252A(a)(5) "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252A(b)(2). According to the PSR, § 2252A(b)(2)'s ten-year mandatory minimum applied here because, under United States v. Baron-Medina, 187 F.3d 1144 (9th Cir.1999), the conduct prohibited under California Penal Code § 288(a) categorically qualifies as "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A). The district court, relying primarily on our decision in United States v. Sinerius, 504 F.3d 737 (9th Cir.2007), agreed with the PSR's recommendation and sentenced Farmer to ten years in prison. Farmer timely appealed.

II

Farmer's only argument is that the district court erred by imposing a ten-yearmandatory minimum sentence under 18 U.S.C. § 2252A(b)(2), because his prior conviction under California Penal Code § 288(a) does not categorically fit within any of the predicate offenses contained in § 2252A(b)(2). Our methodology in these cases is by now familiar. Under the Supreme Court's opinion in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we begin by defining the federal generic offense. See id. at 599, 110 S.Ct. 2143. We then compare the conduct prohibited under the state statute to the generic definition to determine whether "the full range of conduct covered by the [state] statute falls within the meaning of" the federal definition. Sinerius, 504 F.3d at 740.¹

Section 2252A(b)(2) of Title 18 imposes a ten-year mandatory minimum sentence if the defendant "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." As its text makes clear, § 2252A(b)(2) refers to three separate offenses: " 'aggravated sexual abuse, sexual abuse, and abusive sexual conduct involving a minor [or ward].' " United States v. Strickland, 601 F.3d 963, 967 (9th Cir.2010) (en banc) (quoting 18 U.S.C. § 2252A(b)(2)). We will start (and, as it turns out, stop) with § 2252A(b)(2)'s "sexual abuse" offense.

A

This is not our first attempt to define § 2252A(b)(2)'s "sexual abuse" offense. In Sinerius, we addressed whether Montana Code Annotated § 45-5-502, which prohibits "knowingly subjecting 'another person to any sexual contact without consent,' " categorically constitutes a state law related to "sexual abuse" under § 2252A(b)(2). Sinerius, 504 F.3d at 741 (quoting Mont. Code Ann. § 45-5-502(1)). "[F]ollow[ing] our common practice in cases involving non-traditional offenses," we "defin[ed] [§ 2252A(b)(2)'s 'sexual abuse'] offense based on the ordinary, contemporary, and common meaning of the statutory words." Id. at 740 (quotation marks omitted). Consistent with that approach, we noted that "sexual" should be given its "ordinary and commonsense meaning." Id. at 741. Then, relying on a case that had defined "abuse" in a different context,² we said that "abuse" means to "misuse ... or treat so as to injure, hurt, or damage," and explained that the term "encompasses behavior that is harmful emotionally and physically." Id. at 740 (quotingUnited States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.2006) (alteration and quotation marks omitted)).

We elaborated on the proper definition of "sexual abuse" in applying this definition to Montana Code Annotated § 45-5502. We began by noting that "[u]nder the categorical approach, even the least egregious conduct proscribed by the [criminal] statute must qualify as an offense relating to sexual abuse." Id. at 741 (quotation marks and omission omitted). In our view, the "least egregious conduct" encompassed by the Montana statute was " 'consensual' sexual contact between a 16-year-old offender and a 13-year-old victim." Id. Citing our decision in Baron-Medina, we explained that "touching the body of a child under 14 years old with sexual intent ... indisputably falls within the common, everyday meaning of the word [ ] 'sexual'...." Id. at 741 (quoting Baron-Medina, 187 F.3d at 1147). We had little trouble concluding that § 455-502 categorically involved "abuse," because the " 'use of young children for the gratification of sexual desires constitutes an abuse.' " Id. (emphasis omitted) (quoting Baron-Medina, 187 F.3d at 1147); see also Baron-Medina, 187 F.3d at 1147 ("The use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order. It constitutes maltreatment, no matter its form." (citations omitted)).³

Our subsequent cases have reaffirmed the principle that "[s]exual conduct involving younger children is per se abusive," Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir.2009), and that "younger children" in this context means children younger than fourteen, United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir.2010) (holding that Washington Revised Code § 9A.44.076(1) "prohibits conduct that is per se abusive" because it "applies to sexual conduct with children younger than fourteen years").

B

We now turn to whether California Penal Code § 288(a) categorically fits the generic definition of "sexual abuse." Section 288(a) provides:

Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

"Section 288(a) has two elements: (a) the touching of an underage child's body (b) with a sexual intent." Baron-Medina, 187 F.3d at 1147 (citing People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037, 1042-43 (1995)). As we explained above, our cases have established that sexual touching of children younger than fourteen-the precise conduct prohibited by California Penal Code § 288(a)-invariably involves "sexual abuse." This would appear to make this case easy: because California Penal Code § 288(a) categoricallyinvolves sexual touching of children under fourteen, and because sexual touching of children under fourteen always involves abuse, California Penal Code § 288(a) must constitute a state law "relating to ... sexual abuse" for purposes of 18 U.S.C. § 2252A(b)(2). That we have repeatedly held that California Penal Code § 288(a) categorically involves "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), Baron-Medina, 187 F.3d at 1147, and the application notes to U.S.S.G. § 2L1.2(b)(1)(A), United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir.2009); United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir.2003), further supports this conclusion.

C

Farmer urges us to take a fresh look at defining § 2252A's three sex offenses and has suggested that there are good reasons for us to reexamine our case law. He argues that we should define § 2252A's three sex offenses-aggravated sexual abuse, sexual abuse, and abusive sexual conduct involving a minor or ward-exclusively by reference to their three federal law counterparts: 18 U.S.C. § 2241 (aggravated sexual abuse), 18 U.S.C. § 2242 (sexual abuse), and 18 U.S.C. § 2243 (sexual abuse of a minor or ward). Farmer acknowledges that we rejected the same argument in Sinerius, 504 F.3d at 742 ("We have never defined predicate sex offenses under § 2252A by cross reference to ... federal provisions ..., nor has any other court of appeals." ⁴), but contends that we overruled Sinerius sub silentio in our unanimous en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc).

In Estrada-Espinoza, we held that each of four California statutory rape provisions-California Penal Code §§ 261.5(c) (unlawful sexual intercourse with a person under eighteen, who is at least three years younger than the defendant, and who is not the defendant's spouse), 286(b)(1) (sodomy of a person under eighteen), 288a(b)(1) (oral copulation of a person under eighteen), and 289(h) (sexual penetration of a person under 18)-did not categorically constitute "sexual abuse of a minor" under 8...