NEW Ninth Circuit Opinion Regarding Federal Sentencing Enhancements and California State Court Convictions for Penal Code section 261.5(c)

On June 16, 2020, the United States Ninth Circuit Court of Appeal, certified for publication a new Opinion in United States v. Chad Carl Jaycox, 2020 S.O.S. 19-10077, analyzing whether a prior California state court conviction for violating Penal Code section 261.5(c), “unlawful sexual intercourse with a minor who is more than three years younger that the perpetrator,” constitutes a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” for purposes of 18 U.S.C. section 2252(b)(1), thereby increasing the mandatory minimum for a receipt of child pornography charge (18 U.S.C. section 2252(a)(2)) from five years to fifteen years.

The defendant in Jaycox, pleaded guilty in federal court to violating 18 U.S.C. 2252(a)(2), “receipt of child pornography” which typically carries a mandatory minimum sentence of five years and a maximum of twenty years. According to the pre-sentence investigation report (“PSR”), the defendant’s prior conviction for violating California Penal Code section 261.5(c) triggered the sentencing enhancement under 18 U.S.C. section 2252(b)(1) - increasing the mandatory minimum to fifteen years and maximum to forty years. The defendant objected to the sentencing enhancement arguing that Penal Code section 261.5(c) was not a predicate crime under 18 U.S.C. section 2252(b)(1). The district court overruled the defendant’s objection to the sentencing enhancement, citing United States v. Sullivan (2015) 797 F.3d 623, which held that a conviction under Penal Code section 261.5(d), “unlawful sexual intercourse when a minor is 16 and the perpetrator is 21 years or older,” triggered the enhancement. The defendant appealed, arguing that the his state court conviction under Section

The defendant appealed the district court’s application of the sentencing enhancement, arguing that his prior conviction for Section 261.5(c) is not necessarily an abusive one and thus is not one relating to “aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward” as required to apply the enhancement. The government responded by arguing that although the defendant’s state conviction may not be an “element-for-element” match to the related federal crime, it nonetheless is “relating to relevant federal corollaries” because of the “psychological harm in light of the age of the victim.”

It making its ruling, the Ninth Circuit applied the categorical approach set forth in Taylor v. United States (1990) 495 U.S. 575, to determine whether the Section 261.5(c) offense “falls into the specified class of federal offenses.” Under this approach if the state crime criminalizes more conduct than does the federal crime, then the state crime is not a categorical match. In its analysis, the Ninth Circuit recognized that the minimum conduct required for a conviction includes “consensual sexual intercourse between an individual a day shy of eighteen and an individual who is twenty-one years of age.” The Ninth Circuit further recognized that consensual sexual intercourse with individuals over the age of sixteen is “not necessarily physically or psychologically abusive.” Thus, this conviction does not warrant application of the federal sentencing enhancement under 18 U.S.C. section 2252(b)(1).

According to this Opinion, unlike a conviction under Subdivision (d) of Penal Code section 261.5, a Penal Code section 261.5(c) offense is not a “categorical match” to the generic federal definition of sexual abuse of a minor - thus, for federal immigration purposes, a conviction under Subdivision (c) of this Statute would provide a better plea disposition given that the offense cannot be considered a crime of sexual abuse of a minor according to federal law.


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