United States v. Portanova
| Decision Date | 27 May 2020 |
| Docket Number | No. 19-1381,19-1381 |
| Citation | 961 F.3d 252 |
| Parties | UNITED STATES of America v. Michael PORTANOVA, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Frederick W. Ulrich Office of Federal Public Defender 100 Chestnut Street Suite 306 Harrisburg, PA 17101 Counsel for Appellant
Francis P. Sempa Office of United States Attorney 235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503 Counsel for Appellee
Before: SHWARTZ, SCIRICA and FUENTES, Circuit Judges.
Michael Portanova pleaded guilty to receiving child pornography.1 Applying a statutory sentencing enhancement, the District Court determined that his prior Pennsylvania conviction for possessing and distributing child pornography2 was a conviction relating to the possession of child pornography and sentenced him to a mandatory fifteen-year term of imprisonment.3
We conclude, first, that under our "looser categorical approach," 18 U.S.C. § 2252(b)(1) ’s "relating to" language does not require an exact match between the state and federal elements of conviction, and second, that the provision is not unconstitutionally vague. Accordingly, we will affirm.
In 2017, Portanova admitted to downloading child pornography onto his cell phone, on which investigators found sixty-three videos depicting minors engaged in sexually explicit conduct. Portanova subsequently pleaded guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). An individual who violates § 2252(a)(2) is subject to a fifteen-year mandatory minimum sentence if that person "has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."4 This enhancement also applies to a prior state conviction "relating to ... the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography."5 Portanova had previously been convicted of possessing and distributing child pornography under Pennsylvania law.6
At sentencing and over Portanova's objection, the District Court concluded that his state conviction triggered the fifteen-year mandatory minimum enhancement. Portanova appeals this sentence.
On appeal, Portanova makes two arguments that the District Court erred in concluding that his conviction triggered the mandatory minimum provision. First, he asserts that § 2252(b)(1) requires a narrow analysis under the formal categorical approach, and that state child pornography offenses that are broader than the federal child pornography definition, including his, cannot constitute mandatory minimum predicate offenses.8 Second, Portanova argues that § 2252(b)(1) ’s broad "relating to" language is void for vagueness.9 Accordingly, Portanova argues that he is not subject to the fifteen-year mandatory minimum enhancement.
Portanova challenges the District Court's broader application of the mandatory minimum sentence enhancement under 18 U.S.C. § 2252(b)(1). He asserts that the District Court should have applied the formal categorical approach, construing "relating to" narrowly. Because the Pennsylvania child pornography statute criminalizes conduct not covered under federal law, he argues, it could not constitute a § 2252(b)(1) predicate offense.
To determine whether Portanova's prior conviction triggers the § 2252(b)(1) enhancement, we begin with the categorical approach.10 Under this approach, "the sentencing court can look only to the fact of conviction and the statutory definition of the prior offense."11 In other words, it may look to "the elements ... of a defendant's prior offenses, and not ‘to the particular facts underlying those convictions.’ "12 Under the formal categorical approach,13 we line up the elements of the state crime of conviction with the federal generic offense, that is, "the offense as commonly understood,"14 and determine if they match.15 A prior conviction counts as a sentencing enhancement predicate "if its elements are the same as, or narrower than, those of the generic offense[, b]ut if the crime of conviction covers any more conduct than the generic offense," it does not.16
As we have previously recognized, the present statute and circumstances are "quite different" from the 18 U.S.C. § 924(e) context.17 Consistent with our treatment of the analogous "relating to" language in 18 U.S.C. § 2251(d), § 2252(b)(1) "does not require a sentencing court to determine if the prior conviction satisfies the generic elements of a crime as does [ 18 U.S.C. § 924(e) ]," under our usual, formal categorical approach.18 Instead, § 2252(b)(1) requires only that Portanova's previous state conviction be one "relating to ... the ... possession ... of child pornography."19 In other contexts, we have applied this broader "relating to" language under a somewhat different inquiry, which we have termed the "looser categorical approach."20 This approach does not require a precise match between the federal generic offense and state offense elements.21 So too here. "[T]he phrase ‘relating to’ must be ‘read expansively’ and ‘encompass[es] crimes other than those specifically listed in the federal statutes.’ "22
In determining what constitutes "possession ... of child pornography," we must also consider whether the term is understood generically,23 or must be defined strictly in light of its federal counterparts.24 Taking into account all of the relevant words, and not just "child pornography," we conclude that "the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography," like "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor or ward" is not collectively a defined term and is best understood generically.25 Under this generic treatment, the offense should be read as commonly understood and informed by its constituent terms, but not strictly cabined by them as under the formal categorical approach.26 Conversely, inclusion of these actus rei prevents the application of a sentencing enhancement founded upon mere association with child pornography in general, no matter how attenuated.27
Nothing in the text of § 2252(b)(1) points to a different, narrower result.28 Congress has demonstrated a command of limiting language that strictly refers only to conduct criminalized under federal law, and it could have employed it here if it so intended.29
Accordingly, we join several of our sister circuits in adopting a broader reading of "relating to" in the § 2252(b)(1) context.30 Under our looser categorical approach, we examine the statutory definitions of Portanova's crime of conviction and determine whether it is categorically a law "relating to ... the ... possession ... of child pornography," as generically understood under federal law.31
The Supreme Court has defined "relating to" as "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with."32 "[W]e ‘survey [the statutory provisions’] interrelationship’ and consider whether there is ‘a logical or causal connection’ between them."33 "We may conclude that the crimes are logically connected if they both target the same, core criminal conduct such that they are directly analogous."34
In arguing for the application of the formal categorical approach to § 2252(b)(1) ’s "relating to" language, Portanova points to the Ninth Circuit's reasoning in United States v. Reinhart , which rejected a conclusion that equivalent "relating to ... child pornography" language in § 2252(b)(2) required "a broader comparison between the state statutes and the federal statutes."35 For the additional reasons that follow, we decline to adopt its rationale.
Reinhart ’s application of "relating to" in § 2252(b)(2) followed the Supreme Court's approach in Mellouli v. Lynch .36 Mellouli considered the application of 8 U.S.C. § 1227(a)(2)(B)(i), which "authorizes the removal of an alien ‘convicted of a violation of ... any law or regulation of a State [or] the United States ... relating to a controlled substance (as defined in section 802 of Title 21)."37 There, the Supreme Court applied the formal categorical approach, concluding that a misdemeanor Kansas conviction for possession of drug paraphernalia to conceal a controlled substance,38 though "by definition[ ] related to" controlled substances, was not limited to those controlled substances defined in 21 U.S.C. § 802 and was thus categorically overbroad.39 Mellouli relied on the "historical background of § 1227(a)(2)(B)(i)," which demonstrated a longstanding requirement for "a direct link between an alien's crime of conviction and a particular federally controlled drug."40 The government's proposed broader reading of "relating to" also failed to give meaning to the statutory text, whose parenthetical "as defined in section 802 of Title 21" restricted the types of controlled substances giving rise to removal.41
An earlier Ninth Circuit post- Mellouli decision, United States v. Sullivan , had adopted a broader reading of "relating to" in § 2251(e) and § 2252(b)(2).42 Applying Mellouli ’s framework, Sullivan concluded that § 2251(e) and § 2252(b)(2) ’s historical backgrounds and unqualified texts "did not require a ‘direct link’ between the state crime of conviction and a particular federal statute."43 Reinhart arrived at the opposite result by concluding that, whereas the terms "aggravated sexual abuse, sexual abuse, [or] abusive sexual conduct involving a minor or ward" were not specifically defined terms in the same statutory chapter and may be considered "generic offenses," the term "child pornography" was specifically defined, thus forcing a narrow reading in accordance with Mellouli .44 Reinhart inferred that the "language of [the] statute," by this link to an explicit federal definition, triggered a "textual...
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