v.
Michael Portanova
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1381
_____________
UNITED STATES OF AMERICA
v.
MICHAEL PORTANOVA,
Appellant
______________
On Appeal from the United States
District Court for the Middle District of Pennsylvania
(D.C. Crim. Action No. 3-18-cr-00015-001)
District Judge: Hon. James M. Munley
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 4, 2019
______________
Before: SHWARTZ, SCIRICA and FUENTES, Circuit
Judges.
(Opinion Filed: May 27, 2020)
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
______________
OPINION
______________
FUENTES, Circuit Judge.
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
1 18 U.S.C. § 2252(a)(2), (b)(1). 2 18 Pa. Cons. Stat. § 6312(c)–(d). 3 18 U.S.C. § 2252(b)(1).
[*253]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.
I.
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 4 18 U.S.C. § 2252(b)(1).
[*254]fifteen-year mandatory minimum enhancement. Portanova appeals this sentence.
II.[7]
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.
[*255]A.
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.
1.
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]
[*256][*257]As we have previously recognized, the present statute and circumstances are “quite different” from the 18 U.S.C.
[*258]§ 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]
[*259][*260][*261][*262]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
[*263]2.
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]
[*264]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 restriction[]” and favored a “narrower reading of ‘relating to.’”45
[*265]In our view, this reliance on Mellouli is misplaced. Unlike the object of “relating to” in Mellouli, “a controlled substance (as defined in section 802 of Title 21),”46 the object of § 2252(b)(1)’s “relating to” here is “the . . . possession . . . of child pornography,” an offense containing a defined term. Section 2252(b)(1) lacks the removal statute’s express limiting parenthetical, which applies with equal force to both federal and state convictions.[47] And Reinhart’s narrow reading of “child pornography” fails to give sufficient weight not only to the words “relating to”—an approach arguably countenanced by Mellouli—but also to “the . . . possession . . . of” preceding “child pornography,”—words absent from the statute at issue in Mellouli—rendering them surplusage contrary to our usual principles of statutory interpretation.[48]
[*266]Although we agree that the definitions of “child pornography” and “sexually explicit conduct” in § 2256 are the appropriate starting place for determining the generic federal offense, § 2256’s definitions do not foreclose our use of the looser categorical approach.[49] Reinhart, in focusing on “child pornography,” reads the statute too narrowly. Moreover, “child pornography,” as defined in § 2256, is not itself a “conviction,” and is thus an inequivalent object of comparison under a categorical approach analysis of any stripe, better directed to “elements” rather than “facts.”50 It is the entire clause, and not just “child pornography,” that constitutes the federal generic offense. As discussed, we also find it significant that Congress, in employing broad “relating to” language, chose not to cabin its meaning by explicit reference to § 2252(a) or a definition in another federal section.[51]
[*267]Reinhart’s approach has the additional effect of creating different applications to different predicate offenses in Section 2252(b), a result whose tension Reinhart acknowledges.[52] This is a “consequence[] Congress could not have intended” and contrary to the usual interpretation of statutes “as a symmetrical and coherent regulatory scheme.”53 Because these predicates, taken as a whole, are undefined, the incongruous treatment required by Reinhart becomes even less tenable. Accordingly, § 2252(b)(1) does not require complete congruence between federal and state predicates.[54] Our approach also better matches Congress’ purpose of ensuring that a wide range of state offenses would fall within § 2252’s enhancement provisions.[55] As Reinhart recognized, and unlike Mellouli, there is no extensive historical practice favoring the formal categorical approach in the § 2252(b) context.[56]
[*268]While we heed Mellouli’s admonition that the words “relating to,” when “extended to the furthest stretch of their indeterminacy, stop nowhere,” we find no contradiction in the broader application of “relating to” under our “looser categorical approach” or in our generic treatment of “the . . . possession . . . of child pornography.”57 3.
[*269]Accordingly, applying our broader reading of “relating to,” we turn our attention to the language of the statutes and conclude that Portanova has a prior conviction “relating to” the child pornography offenses described in § 2252(b)(1).
The Pennsylvania statute, 18 Pa. Con. Stat. § 6312(c) and (d), under which Portanova was convicted, provides: (c) Dissemination of photographs, videotapes, computer depictions and films.—Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.
(d) Child pornography.—Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.58
[*270]A “[p]rohibited sexual act” is defined in the same section as “[s]exual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.”59
In determining whether Portanova’s Pennsylvania convictions relate to “the . . . possession . . . of child pornography” under § 2252(b)(1), we must also determine what constitutes the federal generic offense of “possession . . . of child pornography.” As discussed, we read the term generically, taking the federal statutory definition of “child pornography” as our starting frame of reference, but we do not confine ourselves to it.[60]
58 18 Pa. Con. Stat. § 6312(c)–(d).
[*271]Federal law defines “child pornography” as “any visual depiction . . . of a minor engaging in sexually explicit conduct.”61 In turn, at the time of the offense conduct, “‘sexually explicit conduct’ means actual or simulated— (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.”62
Parsing these statutes, Portanova argues that, since the federal definition reaches only the “lascivious exhibition of the genitals or pubic area”63 and does not encompass other “nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction,”64 the state statute is overbroad. Not so.[65] Under our looser categorical approach, we require no such direct match to establish that Portanova’s conviction is one “relating to . . . the . . . possession . . . of child pornography.”66
[*272]Applying this broader meaning of “relating to,” Portanova’s prior Pennsylvania conviction stands in some relation and pertains to “the . . . possession . . . of child pornography,” and the § 2252(b) mandatory minimum applies. Surveying the interrelationship between the statutes, it is readily apparent that the crimes share a logical connection between them. Both statutes focus on the same actus rei, including possession and distribution, and, with narrow exception, define nearly identical subject matter as child pornography. In effect, they “target the same, core criminal conduct such that they are ‘directly analogous.’”67 Portanova’s reading of the Pennsylvania statute to cover additional types of nudity is insufficient to disrupt the nexus between the possession of “child pornography,” “prohibited sexual acts” and their defined subject matter under Pennsylvania law and the possession of child pornography, “sexually explicit conduct,” and its subject matter under federal law.
[*273]Portanova’s prior Pennsylvania conviction, then, is one “relating to . . . the . . . possession . . . of child pornography,” and the sentencing enhancement provision applies.
B.
Portanova also argues that the breadth and indeterminacy of § 2252(b)(1)’s “relating to” language is unconstitutionally vague, failing to give fair warning or notice and violating the Due Process Clause.[68]
“The void-for-vagueness doctrine reflects the fundamental principle that, in order to comply with the requirements of due process, a statute must give fair warning of the conduct that it prohibits.”69 “[T]he Fifth Amendment’s vagueness doctrine bars the Government from ‘taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’”70 “These principles apply to laws ‘defining elements of crimes’ or ‘fixing sentences.’”71 “Because vagueness challenges are evaluated ‘on a case by case basis[,]’ we must examine” the statute to determine if it “is vague as applied” to Portanova.[72]
[*274]Applying a broad meaning of “relating to” adopted by the Supreme Court and our Court, 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. As we explained earlier, we find that it does, and that the application of these principles in a broader but straightforward reading of the text does not render the statute unconstitutionally vague.
We find further support for this conclusion in Lockhart v. United States, in which the Supreme Court examined another part of § 2252(b)(2), addressing the issue of “whether the phrase ‘involving a minor or ward’ modifies all items in the list of predicate crimes . . . or only the one item that immediately precedes it.”73 There, the Supreme Court interpreted § 2252(b)(2) based on “sensible grammatical principle buttressed by the statute’s text and structure” and declined to apply the rule of lenity.[74] Though Lockhart did not reach the issue of “[w]hether the terms in § 2252(b)(2) are given their ‘generic’ meaning . . . or are defined in light of their federal counterparts,” or address unconstitutional vagueness, it concluded that § 2252(b)(2)’s terms “are unlikely to sweep in the bizarre or unexpected state offenses.”75
[*275]Accordingly, there is no question that a person of ordinary intelligence would have fair warning that a conviction pursuant to 18 U.S.C. § 2252 could expose him to greater penalties if such a person has a prior state conviction “relating to . . . the . . . possession . . . of child pornography.” As a result, § 2252(b)(1)’s sentencing enhancement provision is not unconstitutionally vague.[76]
[*276]III.
Because we conclude that Portanova’s prior conviction is among those “relating to . . . the . . . possession . . . of child pornography,” and that the provision is not unconstitutionally vague, he is subject to the fifteen-year mandatory minimum sentence imposed by the District Court under § 2252(b)(1), and we will affirm.
[*277]