United States v. Clark, 2:11-CR-0173-LRS-1
| Decision Date | 13 December 2016 |
| Docket Number | No. 2:11-CR-0173-LRS-1,2:11-CR-0173-LRS-1 |
| Court | U.S. District Court — District of Washington |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CAVON C. CLARK, Defendant. |
This court's 2012 sentence was vacated by the Ninth Circuit Court of Appeals and remanded so that the court "may apply the teachings of" Mellouli v. Lynch, 135 S.Ct. 1980 (2015) and U.S. v. Sullivan, 797 F.3d 623, 640-41 (9th Cir. 2015). This memorandum opinion memorializes and supplements the court's oral rulings on the Defendant's objections to the Presentence Investigative Report regarding the statutorily mandated minimum penalties and the calculation of the sentencing guidelines. The opinion also reiterates the court's expressed consideration of the factors under 18 U.S.C. § 3553(a).
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Cavon Clark pleaded guilty to producing child pornography, in violation of 18 U.S.C. §2251(b)(1) and transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). At sentencing, the court adopted the Presentence Investigation Report without change and found that Defendant's Washington state convictions for Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct under Wash.Rev.Code § 9.68A.070(2005) qualified for the recidivist sentencing enhancements under 18 U.S.C. § 2251(e) and 18 U.S.C. §2252A(b)(1). These enhancements mandated a sentence of at least 35 years' and 15 years' imprisonment. On November 15, 2012, the court sentenced the Defendant to serve 55-year and 30-year terms for the respective counts, to be served concurrently.
Defendant appealed his sentence to the Ninth Circuit Court of Appeals. The case was argued on April 8, 2014. On February 9, 2015, the Ninth Circuit panel vacated submission of the case pending the Supreme Court's decision in Mellouli v. Lynch, 135 S.Ct. 1980 (2015). On June 1, 2015, the Supreme Court rendered its decision in Mellouli. On July 29, 2015, the Ninth Circuit decided U.S. v. Sullivan, 797 F.3d 623 (9th Cir. 2015). One year later, after supplemental briefing on the impact of Mellouli and Sullivan, the Ninth Circuit filed its Memorandum Disposition vacating the Judgment and remanding the case for resentencing. The court unanimously found that this court had committed error in determining application ofthe recidivist sentencing enhancement under §2251(e), because it had not "restrict[ed] its analysis to the elements of the crime, as required by the categorical approach." 2016 WL 3924394, *1. Judge Bea, in dissent, wrote that the categorical analysis could be performed without further fact finding and therefore he would have determined that Defendant's convictions under Wash.Rev.Code §9.68A.070(2005) mandated a sentence of at least 35 years' imprisonment. Id at *2.
Defendant objects to the Guideline calculation utilizing four offense level enhancements under U.S.S.G. §2G2.1(b)(1)(A)(minor who had not attained the age of 12), §2G2.1(b)(5)(parental relationship to the minor victim), §2G2.1(b)(4)( sadistic or masochistic conduct or other depictions of violence enhancements), and §3A1.1(b)(vulnerable victim). He argues that "in concert," their application constitutes impermissible double counting because they all relate to involvement of a child, a fact also inherent in both convictions. The court overrules this objection. See U.S. v. Soterau, 524 F.3d 988 (9th Cir. 2008)(double counting is not always impermissible; it is sometimes authorized and intended by the Sentencing Guidelines when invocation of the behavior serves a unique purpose under the Guidelines). Each enhancement accounts for different aspect of Defendant's offense conduct and they are all authorized and intended by the Guidelines.
Defendant objects to the application of the multiple conviction enhancements under the recidivist-enhancement schemes of the statutes of conviction. As to the production count, 18 U.S.C. §§ 2251(e) provides:
(e) 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 this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (), or 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, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life.
18 U.S.C. §2251(e)(emphasis added). As to the transportation count, 18 U.S.C. §2252A(b)(1) provides:
(b)(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (), or 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, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
18 U.S.C. §2252A(b)(1)(emphasis added).
In 2005, Defendant pleaded guilty to two counts under Wash. Rev. Code § 9.68A.070 (2005). That statute provided:
[a] person who knowingly possessed visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a Class C felony.
Defendant contends his convictions do not qualify for the recidivist sentencing enhancements under §2251(e) and §2252A(b)(1) because Wash.Rev.Code §9.68A.070 is overbroad under the categorical approach defined by Taylor v. United States. Defendant contends it is neither a categorical match to the federal offense under 18 U.S.C. §2251 () or the federal definition of possession of child pornography under 18 U.S.C. §2252A(a)(5)(B). He notes the state law definition of "sexually explicit conduct" punishes visual depictions which fall outside the federal definition of child pornography. Defendant contends a narrow construction of the law is consistent with Taylor and its progeny, and avoids constitutional pitfalls.
The court rejects Defendant's argument that a prior conviction triggers a sentencing enhancement under § 2251(e) or § 2252A(b)(1) only if the statutory definition of the prior offense is equivalent to a federal generic definition of thedescribed offense. The phrase "relating to" does not mandate equivalence. Sullivan v. United States held:
Unlike our usual categorical approach, however, the federal statutes here do not require us to find that the state conviction is categorically the same as any particular federal offense, but only that the state conviction is one categorically "relating to" such federal offenses. We have held that the phrase "relating to" generally has a broadening effect on what follows. For example, in the context of similar language in 18 U.S.C. § 2252A(b), we held that the phrase 'relating to' 'does not simply mandate a sentencing enhancement for individuals convicted of state offenses equivalent to sexual abuse.' 'Rather, it mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.' This interpretation is consistent with Supreme Court precedent, which 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.' Accordingly, we reject Sullivan's argument that a prior conviction triggers a sentencing enhancement under § 2251(e) or § 2252(b)(2) only if the statutory definition of the prior offense is equivalent to a federal generic definition. Indeed, requiring such equivalence would render the words "relating to" in § 2251(e) and § 2252(b)(2) meaningless.
United States v. Sullivan, 797 F.3d 623, 638 (9th Cir. 2015) (internal quotation marks and citation omitted), cert. denied, 136 S.Ct. 2408 (2016).
Following Sullivan, the use of the term "relating to" in this context mandates the enhancement for any state offense that stands "in some relation, bears upon, or is associated with that generic offense." United States v. Sullivan, 797 F.3d 623, 638 (9th Cir. 2015) (internal quotation marks and citation omitted), cert. denied, — U.S. —, 136 S.Ct. 2408, 195 L.Ed.2d 783 (2016). Although the term "sexual exploitation of children" is not defined in the statute, its ordinary meaning unambiguously encompasses using children in child pornography. See Ashcroft v.Free Speech Coalition, 535 U.S. 234 (2002); Osborne v. Ohio, 495 US. 103 (1990)(a "state has compelling interests in protecting the physical and psychological well-being of minors and destroying the market for the exploitative use of children by penalizing those who possess and view the offending...
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