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United States v. Schopp

United States Court of Appeals, Ninth Circuit

September 16, 2019

United States of America, Plaintiff-Appellee,
v.
Thomas Schopp, AKA Thomas Hiser, Defendant-Appellant.

          Argued and Submitted June 10, 2019

          Appeal from the United States District Court for the District of Alaska No. 1:15-cr-00001-TMB-1 Timothy M. Burgess, Chief District Judge, Presiding

          Myra Sun (argued), Los Angeles, California, for Defendant-Appellant.

          Allison Meredith O'Leary (argued) and Kyle Reardon, Assistant United States Attorneys; Bryan Schroder, United States Attorney; Office of the United States Attorney, Anchorage, Alaska; for Plaintiff-Appellee.

          Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated a life sentence imposed following the defendant's guilty plea to producing child pornography in violation of 18 U.S.C. § 2251(a), and remanded for resentencing, in a case in which the district court, applying the multiple-conviction enhancement contained in 18 U.S.C. § 2251(e), concluded that the defendant's prior Alaska convictions "relat[e] to the sexual exploitation of children."

         The panel held that the appeal is permitted despite the defendant's appeal waiver because the appeal goes to the legality of the sentence in that the defendant argues that the imposed life sentence was in excess of the maximum statutory penalty.

         Applying the categorical approach, the panel held that the federal generic definition of "sexual exploitation of children" is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct. The panel explained that the "relating to" term in § 2251(e) encompasses state offenses that are a categorical match to the federal offense of production of child pornography and state offenses involving the production of child pornography (that is, the conduct enumerated in § 2251's various subsections), and does not include offenses that entirely lack the visual depictions element that separates "sexual exploitation of children" from other forms of child abuse in the federal criminal offense panoply.

         The panel held that because the defendant's prior Alaska convictions concerning the sexual abuse and sexual assault of minors do not require a visual depiction element, they do not "relat[e] to the sexual exploitation of children" and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement in § 2251(e). The panel concluded that the district court therefore erred in applying the enhancement and sentencing the defendant to life imprisonment.

         The panel held that the district court's imposition of the wrong sentencing enhancement was plain error that affected the defendant's substantial rights.

          OPINION

          BERZON, CIRCUIT JUDGE

         Thomas Schopp pleaded guilty to producing child pornography in violation of 18 U.S.C. § 2251(a). Section 2251 is headed "[s]exual exploitation of children" and describes several substantive offenses. The statute's penalty provision provides, among other things, that a defendant with "2 or more prior convictions . . . under the laws of any State relating to the sexual exploitation of children . . . shall be . . . imprisoned not less than 35 years nor more than life." 18 U.S.C. § 2251(e) (emphasis added). Our question is whether the meaning of the term "relating to the sexual exploitation of children" in § 2251's enhancement provision should reflect the elements of the substantive crimes described in the same "[s]exual exploitation of children" statute.

         Schopp has several prior Alaska convictions relating to the sexual assault and sexual abuse of minors, none involving the production of child pornography. See Alaska Stat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438, 11.41.436, 11.41.434 (1993). The district court concluded that Schopp's prior Alaska convictions "relat[e] to the sexual exploitation of children." Applying the multiple-conviction enhancement contained in § 2251(e), the district court sentenced Schopp to life imprisonment, the maximum sentence permitted under that enhancement. We hold that Schopp's prior Alaska convictions are not offenses "relating to the sexual exploitation of children" under § 2251(e), so the district court improperly applied the sentencing enhancement.

         I

         In August 2014, Schopp met a fifteen-year-old boy at the grocery store at which they both worked in Juneau, Alaska. Months later, Schopp invited the boy to his apartment and either recorded or photographed himself engaging in sexual acts with the minor on his cellphone camera. Schopp was charged with one count of production of child pornography, in violation of 18 U.S.C. § 2251(a).

         Schopp initially pleaded not guilty but later sought to change his plea. At the change of plea hearing, the government established that Schopp had a number of prior state convictions for sexual assault and sexual abuse of minors-specifically, convictions for: (1) six counts of sexual assault in the first degree in violation of Alaska Statutes § 11.41.410(a)(3), from 1988; and (2) two counts of sexual abuse of a minor I in violation of Alaska Statutes § 11.41.434(a)(1), three counts of sexual abuse of minor II in violation of Alaska Statutes § 11.41.436(a)(2), and one count of attempted sexual abuse of a minor III in violation of Alaska Statutes § 11.41.438(a)(1), from 1993.

         18 U.S.C. § 2251(e) provides in full:

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 (article 120 of the Uniform Code of Military Justice), 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 (article 120 of the Uniform Code of Military Justice), 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. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life.

(emphasis added). Taking the convictions recited by the government into account and applying § 2251(e)'s multiple-conviction enhancement (without specific reference to it), the district court informed Schopp that he faced a mandatory minimum of thirty-five years and a maximum sentence of life imprisonment. At the end of the hearing, however, the district court decided not to accept Schopp's change of plea, because Schopp had equivocated several times as to whether he wished to plead guilty.

         A month later, Schopp changed his mind again and pleaded guilty, this time pursuant to a written plea agreement. In the agreement, Schopp waived his right to appeal on most grounds, reserving the right to appeal only claims alleging ineffective assistance of counsel and involuntariness of the guilty plea. He also stipulated to being "previously convicted on two prior occasions of violations of the laws of the State of Alaska relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," using the language of the single-conviction portion of § 2251(e). (emphasis added). Despite that stipulation, it is clear from the plea agreement's repeated reference to two or more prior state convictions, as well as from the stipulated penalty range of thirty-five years to life, that the agreement contemplated applying the multiple-conviction, not the single-conviction, enhancement.

         At the subsequent change of plea hearing, the district court, using the single-conviction enhancement language from the plea agreement, asked Schopp whether he had stipulated to being "convicted on two prior occasions of violations of Alaska law relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor." Schopp confirmed that he had. The district court again informed Schopp that he was subject to a penalty range of thirty-five years to life imprisonment, the sentencing range for the multiple-conviction enhancement. This time, the district court accepted Schopp's plea.

         At sentencing, both parties sought a thirty-five-year term of imprisonment (which would have been available under § 2251(e)'s single-conviction enhancement). The district court rejected the joint recommendation. It concluded that several sentencing factors, particularly the seriousness of the offense and the sentencing goals of deterrence and protecting the public, warranted a harsher sentence. The district court sentenced Schopp to life imprisonment. This appeal followed.

         Schopp argues on appeal that his prior Alaska convictions do not "relat[e] to the sexual exploitation of children," so the district court erred by applying § 2251(e)'s multiple-conviction enhancement. That issue triggers de novo review. See United States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015).

         II

         Before reaching the enhancement issue, we address whether, given the appeal waiver, Schopp may pursue this challenge to his life sentence. We have long "recognized that the waiver of a right to appeal may be subject to certain exceptions such as claims involving . . . an illegal sentence imposed in excess of a maximum statutory penalty." United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).

         Had the multiple-conviction enhancement not been applied, Schopp's mandatory penalty range would have been twenty-five to fifty years, the range applicable to persons with a single prior conviction "relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward." See 18 U.S.C. § 2251(e).[1] If, as Schopp argues, the district court erroneously applied § 2251(e)'s multiple-conviction enhancement, the imposed life sentence was "in excess of [the] maximum statutory penalty." Baramdyka, 95 F.3d at 843. Because Schopp's appeal goes to the legality of his sentence, it is permitted despite his appeal waiver.

         III

         We turn to whether Schopp's prior state convictions are predicate offenses for the multiple-conviction enhancement under § 2251(e). The categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), guides this inquiry. See also Descamps v. United States, 570 U.S. 254 (2013); Mathis v. United States, 136 S.Ct. 2243 (2016).

         Under the categorical approach, we first define the federal generic offense. Id. at 2248. We then determine "whether the elements of the [state] crime of conviction sufficiently match the elements of [the generic federal crime]." Id. In comparing the state and federal statutes, we may "'look only to the statutory definitions'-i.e., the elements-of a defendant's prior offenses, and not 'to the particular facts underlying those convictions.'" Descamps, 570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). If the state statute of conviction criminalizes the same or less conduct than the federal generic definition ...


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