USA v. Christopher Mateen

Filing

PER CURIAM OPINION and JUDGMENT filed : The judgment of sentence is VACATED, and the case is REMANDED to the district court for resentencing with instructions to reconsider in the first instance whether Mateen s conviction for Gross Sexual Imposition triggers application of the statutory sentencing enhancement, consistent with the opinion of this court.decision for publication. R. Guy Cole, Jr., Chief Judge; Danny J. Boggs, Alice M. Batchelder, Karen Nelson Moore, Eric L. Clay (CONCURRING IN THE JUDGMENT), Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, David W. McKeague, Richard Allen Griffin, Raymond M. Kethledge, Helene N. White, Jane Branstetter Stranch, and Bernice Bouie Donald, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0205p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.

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No. 12-4481

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CHRISTOPHER J. MATEEN,
Defendant-Appellee.

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Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 2:12-cr-00041-1—Edmund A. Sargus, Jr., District Judge.
Argued: June 18, 2014
Decided and Filed: August 26, 2014
Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,
STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Benjamin C. Glassman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati,
Ohio, for Appellant. Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cincinnati, Ohio, for Appellee. ON BRIEF: Benjamin C. Glassman, UNITED STATES
ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant. Kevin M. Schad, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellee.
The court delivered a PER CURIAM opinion, in which COLE, C.J., and BOGGS,
BATCHELDER, MOORE, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
KETHLEDGE, WHITE, STRANCH, and DONALD, JJ., joined, and CLAY, J. joined in the
result. CLAY, J. (pp. 9–12), delivered a separate opinion concurring in the judgment.

1

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_________________
OPINION
_________________
PER CURIAM. The federal statutes prohibiting the sale, distribution, and possession of
child pornography include sentencing-enhancement provisions that apply to recidivist offenders
who have also been convicted of certain predicate state and federal offenses. Christopher
Mateen pleaded guilty to possessing “visual depiction[s] involv[ing] the use of a minor engaging
in sexually explicit conduct,” in violation of 18 U.S.C. § 2252(a)(4)(B). He had previously been
convicted of Gross Sexual Imposition, in violation of Ohio Revised Code § 2907.05. The district
judge determined that the statutory sentencing enhancement was not triggered by Mateen’s prior
state conviction, and sentenced him to the statutory maximum ten-year term of imprisonment.
At issue in this appeal is the proper construction of the sentencing-enhancement
provision, which provides that an individual with 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” will be subject to the enhancement. 18 U.S.C. § 2252(b)(2). We must decide whether the
phrase “involving a minor or ward” modifies only its direct antecedent, “abusive sexual
conduct,” or whether it modifies all three listed categories of conduct: “aggravated sexual
abuse,” “sexual abuse,” and “abusive sexual conduct.” We conclude that the limiting phrase
modifies only “abusive sexual conduct” and, accordingly, only state crimes relating to abusive
sexual conduct need involve a minor or ward in order to trigger enhancement under § 2252(b)(2).
Accordingly, we VACATE the judgment and REMAND to the district court for resentencing
and reconsideration of whether Mateen’s Gross Sexual Imposition conviction triggers the
statutory sentencing enhancement, as properly construed.
I. BACKGROUND
In 2012, an officer with a Franklin County task force targeting internet crimes against
children detected an IP address that hosted and shared several images and movies of minors
engaging in sexual acts. The officer traced the IP address to the residence of Christopher
Mateen. Investigators executed a search warrant at the residence and recovered a computer,

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which held over 300 images and movies of child pornography. R. 43 (Plea Hr’g Tr. at 20–21)
(Page ID #195–96). Mateen pleaded guilty to knowing possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). R. 18 (Guilty Plea at 1) (Page ID #31).
Mateen’s 2012 conviction was not his first conviction involving sexual misconduct.
Several years earlier, he pleaded guilty to Gross Sexual Imposition in violation of Ohio Revised
Code § 2907.05, which provides:
(A) No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual contact
with the offender; or cause two or more other persons to have sexual contact when
any of the following applies:
(1) The offender purposely compels the other person, or one of the
other persons, to submit by force or threat of force.
(2) For the purpose of preventing resistance, the offender
substantially impairs the judgment or control of the other person or
of one of the other persons by administering any drug, intoxicant,
or controlled substance to the other person surreptitiously or by
force, threat of force, or deception.
(3) The offender knows that the judgment or control of the other
person or of one of the other persons is substantially impaired as a
result of the influence of any drug or intoxicant administered to the
other person with the other person’s consent for the purpose of any
kind of medical or dental examination, treatment, or surgery.
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of
that person.
(5) The ability of the other person to resist or consent or the ability
of one of the other persons to resist or consent is substantially
impaired because of a mental or physical condition or because of
advanced age, and the offender knows or has reasonable cause to
believe that the ability to resist or consent of the other person or of
one of the other persons is substantially impaired because of a
mental or physical condition or because of advanced age.
(B) No person shall knowingly touch the genitalia of another, when the touching
is not through clothing, the other person is less than twelve years of age, whether
or not the offender knows the age of that person, and the touching is done with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person.
Violation of the Gross Sexual Imposition statute may constitute a felony of either the third or the
fourth degree. Id. at § 2907.05(C)(1). Although the state-court judgment of conviction does not

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specify the subsection on which Mateen’s guilty plea rested, it does indicate that Mateen pleaded
guilty to a fourth-degree felony. R. 30-1 (Com. Pleas J. Entry at 1) (Page ID #77). The
prosecutor stated at the state-court plea hearing that Mateen’s victim was an eight-year-old girl.
R. 33-1 (Com. Pleas Plea Colloquy Tr. at 2–4) (Page ID #89–91).
In the federal plea agreement, the government indicated that it would seek to apply a
statutory sentencing enhancement on the basis of Mateen’s state Gross Sexual Imposition
conviction. R. 12 (Plea Agreement ¶ 2) (Page ID #18–19). For first-time offenders, violation of
18 U.S.C. § 2252(a)(4) carries a maximum term of imprisonment of ten years. 18 U.S.C.
§ 2252(b)(2). For recidivist offenders, however, a sentencing enhancement applies. In relevant
part, the statute provides that an individual with 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 . . . shall be fined under this title and imprisoned for not less than 10 years nor more than 20
years.” Id. Mateen reserved the right to contest whether his state Gross Sexual Imposition
conviction qualified him for the enhancement. R. 12 (Plea Agreement ¶ 2) (Page ID #19).
The district court concluded that the sentencing enhancement did not apply to Mateen
because his prior conviction for Gross Sexual Imposition did not necessarily “involv[e] a minor
or ward.” 18 U.S.C. § 2252(b)(2). In construing the sentencing-enhancement provision, the
district court determined that the phrase “involving a minor or ward” modifies all three
categories of listed conduct: aggravated sexual abuse, sexual abuse, and abusive sexual conduct.
R. 36 (D. Ct. Op. at 6) (Page ID #117). The district court then applied the modified-categorical
approach articulated in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United
States, 544 U.S. 13 (2005), and determined that Mateen’s prior conviction for fourth-degree
felony Gross Sexual Imposition did not necessarily involve a minor or ward. Id. at 6–7 (Page ID
#117–18). Therefore, the district court held, “[w]ith some reluctance,” that the sentencing
enhancement did not apply to Mateen’s conduct. R. 39 (Sentencing Hr’g Tr. at 21) (Page ID
#154); R. 36 (D. Ct. Op. at 10) (Page ID #121). The district court sentenced Mateen to ten years
of imprisonment, which it believed to be the maximum possible term under the statute. R. 39
(Sentencing Hr’g Tr. at 26–29) (Page ID #159–62).

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On appeal, the government argues that the district court misconstrued the sentencingenhancement provision.
II. STATUTORY CONSTRUCTION
We review de novo the district court’s legal conclusions, including its “determinations
regarding statutory construction,” United States v. Felts, 674 F.3d 599, 602 (6th Cir. 2012), and
its “conclusion that a prior conviction triggers a mandatory minimum sentence,” United States v.
Gardner, 649 F.3d 437, 442 (6th Cir. 2011).

The government contends that the phrase

“involving a minor or ward” modifies only “abusive sexual conduct,” and that a prior conviction
for a state offense that relates to aggravated sexual abuse or sexual abuse triggers the sentencing
enhancement even if the crime did not involve a minor victim. As always, we begin our exercise
in statutory interpretation “by examining the language of the statute itself to determine if its
meaning is plain. Plain meaning is examined by looking at the language and design of the statute
as a whole.” United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) (internal quotation
marks and citations omitted).
The grammatical structure of the statutory language favors the interpretation advanced by
the government. According to “the grammatical ‘rule of the last antecedent,’ . . . a limiting
clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it
immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). The statute provides that, if
a person who violates 18 U.S.C. § 2252(a)(4) “has a prior conviction under [certain enumerated
federal statutes] or under the laws of any State relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor or ward . . . such person shall be fined under this
title and imprisoned for not less than 10 years nor more than 20 years.” 18 U.S.C. § 2252(b)(2).
According to the last-antecedent rule, we should interpret the limiting phrase “involving a minor
or ward” as modifying only the last of the three listed conduct categories, unless there are “other
indicia of meaning” to overcome the grammatical presumption. Barnhart, 540 U.S. at 26.
The district court concluded that the titles of the federal statutory section (18 U.S.C.
§ 2252) under which Mateen pleaded guilty and the chapter (chapter 110) in which it is
indexed—“Certain activities relating to material involving the sexual exploitation of minors” and
“Sexual Exploitation and Other Abuse of Children,” respectively—were “significant indicia”

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that the phrase “involving a minor or ward” modifies all three conduct categories. R. 36 (D. Ct.
Op. at 6) (Page ID #117). We are not persuaded. The section and chapter titles indicate the
nature of the conduct proscribed by the statute, but it does not follow that they provide
convincing evidence that all factors contributing to the sentencing-enhancement decision will
relate to the same subject matter.
Moreover, were we to override the rule of the last antecedent in the instant case, we
would run the danger of rendering some of the statutory language superfluous. “‘[A]busive
sexual conduct involving a minor’ seemingly would encompass anything that constitutes ‘sexual
abuse involving a minor,’ as well as, for example, other sexual conduct that may be criminalized
only when the victim is a child.” United States v. Lockhart, 749 F.3d 148, 153 (2d Cir. 2014).
Thus, application of the phrase “involving a minor or ward” to each of the three conduct
categories renders the categories redundant. Such a reading violates the principle that we assume
“each term [in a statute has] a particular, nonsuperfluous meaning.” Bailey v. United States,
516 U.S. 137, 146 (1995).

Therefore, the canon against surplusage also counsels that we

construe the phrase “involving a minor or ward” as applying only to the conduct category that
immediately precedes it, “abusive sexual conduct.”
Two aspects of the statutory structure lend further support to the grammar-based
interpretation of the language at issue. First, § 2252(b) identifies federal offenses “under this
chapter [110], chapter 71, chapter 109A, or chapter 117, or under section 920 of Title 10” as
qualifying predicates for the sentencing enhancement. 18 U.S.C. § 2252(b)(2). Many of these
chapters contain sections prohibiting sexual conduct that does not involve minor victims. See,
e.g., 18 U.S.C. §§ 2241, 2242 (chapter 109A); 18 U.S.C. §§ 2421, 2422 (chapter 117). We can
think of no logical reason that Congress would have identified federal offenses not involving
minor victims as qualifying predicates while excluding state offenses that criminalize identical
conduct. See Lockhart, 749 F.3d at 154; United States v. Spence, 661 F.3d 194, 197 (4th Cir.
2011); United States v. Hubbard, 480 F.3d 341, 350 (5th Cir. 2007); United States v. Rezin, 322
F.3d 443, 448 (7th Cir. 2003). To the contrary, we may reasonably assume “that Congress
would intend for courts to treat prior sexual abuse convictions similarly, regardless of whether
the conviction was under federal or state law.” Lockhart, 749 F.3d at 156.

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Second, the three categories of state predicate offenses parallel three federal crimes
identified in the statute as predicate offenses. Chapter 109A, one of the chapters that contain
qualifying federal offenses, see 18 U.S.C. § 2252(b)(2), contains three sections labeled
aggravated sexual abuse (id. at § 2241), sexual abuse (id. at § 2242), and sexual abuse of a minor
or ward (id. at § 2243). The parallel between these three federal offenses and the three listed
categories of state offenses—aggravated sexual abuse, sexual abuse, and abusive sexual conduct
involving a minor or ward—is inescapable.1 Upon careful review of the statutory language and
structure, we agree with the government that the sentencing-enhancement provision requires a
predicate state offense to involve a minor or ward only if that offense relates to abusive sexual
conduct.2
Our construction of the statutory language aligns with that of each of our sister circuits
which have carefully considered the issue. See Lockhart, 749 F.3d at 151–56; Spence, 661 F.3d
at 197; Hubbard, 480 F.3d at 350; Rezin, 322 F.3d at 447–48; cf. United States v. Hunter, 505
F.3d 829, 831 (8th Cir. 2007) (assuming without discussion that a prior state conviction requires
a minor victim to trigger the sentencing enhancement); United States v. McCutchen, 419 F.3d
1122, 1125 (10th Cir. 2005) (same). Accordingly, we now hold that a prior state conviction
triggers the sentencing enhancement under 18 U.S.C. § 2252(b)(2) if the offender was previously
convicted of a state crime relating to (1) aggravated sexual abuse, (2) sexual abuse, or
(3) abusive sexual conduct involving a minor or ward.
After the district court misinterpreted the statute as triggering enhancement only if the
prior state conviction involved a minor victim, it concluded that the sentencing enhancement did
1

Although we note the parallel structure between the three categories of state predicate offenses and the
parallel federal crimes in §§ 2241 ̶ 43, this should not be construed as implying that the state predicate offenses are
to be defined with reference to these sections. The parallel structure is here significant only in that it informs our
analysis of what “involving a minor” modifies. We do not decide whether the state predicate offenses should be
defined according to their generic, contemporary meaning or with reference to the Chapter 109(A) offenses or by
some other means. Compare United States v. Osborne, 551 F.3d 718, 720 (7th Cir. 2009) (defining the state
predicate offenses with reference to the Chapter 109(A) offenses), with United States v. Sinerius, 504 F.3d 738, 740
(9th Cir. 2007) (defining the state predicate offenses using the “ordinary, contemporary, and common meaning of
the statutory words”).
2

Mateen’s argument that the rule of lenity requires us to interpret the statute in his favor is unpersuasive
because we “apply the rule of lenity to resolve ambiguities in favor of a defendant [only] when a criminal statutory
term is ambiguous and cannot be clarified by the statute’s history or structure.” United States v. Booth, 551 F.3d
535, 541 (6th Cir. 2009) (emphasis omitted). The language and structure of § 2252(b)(2) dictate a clear result, and
thus the rule of lenity has no purchase in the present case.

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not apply. The district court sentenced Mateen to a ten-year term of imprisonment, believing
that to be the statutory maximum. R. 39 (Sentencing Hr’g Tr. at 21, 29) (Page ID #154, 162).
Under the correct construction of the statute, however, Mateen’s prior conviction could trigger
the sentencing enhancement even if his victim in the prior state conviction was not a minor or
ward.

No court has yet considered whether Mateen’s fourth-degree felony Gross Sexual

Imposition conviction “relat[es] to aggravated sexual abuse [or] sexual abuse” involving either
an adult or a minor victim. 18 U.S.C. § 2252(b)(2). Accordingly, it is appropriate to remand this
case to the district court with instructions to determine whether Mateen’s prior conviction relates
to “aggravated sexual abuse,” “sexual abuse,” or “abusive sexual conduct involving a minor or
ward.”
III. CONCLUSION
We VACATE the judgment of sentence and REMAND to the district court for
resentencing with instructions to reconsider in the first instance whether Mateen’s conviction for
Gross Sexual Imposition triggers application of the statutory sentencing enhancement, consistent
with this opinion.

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______________________________________
CONCURRENCE IN THE JUDGMENT
______________________________________
CLAY, Circuit Judge, concurring in the judgment. I concur in the judgment but write
separately to express my concern with this Court’s analysis of the underlying issue in this case.
The conclusion reached in the majority opinion—that “involving a minor or ward” modifies only
the last of the three forms of conduct listed in 18 U.S.C. § 2252(b)(2)—is not foretold by logic or
supported by any empirical basis. Instead, the arguments asserted as support for the majority’s
interpretation of the statutory language are speculative and conclusory, based in large part on our
sister circuits’ analysis of the issue and the majority’s own unsupported conjecture as to
Congress’ intent.

Resolution of the underlying issue in this case is therefore not as clear or

persuasive as the majority would have us believe.
To begin, the majority opinion places great weight in the last antecedent rule as a method
for resolving this dispute. However, the majority fails to grapple with a contrary rule of statutory
construction, one which was considered by the Second Circuit in United States v. Lockhart,
749 F.3d 148 (2d Cir. 2014). In Lockhart, the Court acknowledged the possible application of
two competing rules of statutory construction—the last antecedent rule and the series qualifier
canon1. 749 F.3d at 152. Ultimately, the Lockhart Court was “not fully persuaded that either
canon applie[d] unambiguously based on the language and structure of th[e] statutory phrase
alone.” Id. While I do not express a definitive point of view as to which of the two canons is
more persuasive, I believe the majority should have followed the lead of the Second Circuit by
considering both canons, and should have conceded that an interpretation under either would be
virtually equally plausible. Instead, the majority opinion is written to imply that the rule of the
last antecedent is the only rule of statutory construction that might apply in these circumstances.
Next, this Court dismisses the district court’s primary conclusion in two sentences. In its
opinion, the district court ignored the rule of the last antecedent, finding that the title of
1

The “series-qualifier” canon of statutory construction “provides that a modifier at the beginning or end of
a series of terms modifies all the terms [in that series].” United States v. Laraneta, 700 F.3d 983, 989 (7th Cir.
2012).

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18 U.S.C. § 2252 (“Certain activities relating to material involving the sexual exploitation of
minors”) and the title of Chapter 110, under which the statute is found (“Sexual Exploitation and
Other Abuse of Children”), provide “significant indicia” that the phrase “involving a minor or
ward” modifies all three forms of conduct. (R. 36, D. Ct. Op. at 6.) Each of these titles concerns
activity involving children and seems to imply that the activity following those titles would also
involve children. However, without any reasoned analysis of this argument, the majority simply
states that “[t]he section and chapter titles indicate the nature of the conduct proscribed by the
statute, but it does not follow that they provide convincing evidence that all factors contributing
to the sentencing-enhancement decision will relate to the same subject matter.” Maj. Op. at 6.
Why not? I do not know whether the chapter titles provide significant indicia regarding the
proper interpretation of the statutory language, but it also appears that the majority of this Court
cannot definitively answer that question. And because this Court reverses the district court on
this ground, among others, one would expect an explanation for rejecting the district court’s
analysis, not just a blanket, conclusory statement.
Reflecting the opinions of a number of our sister circuits, the majority goes on to find that
“were we to override the rule of the last antecedent in the instant case, we would run the danger
of rendering some of the statutory language superfluous.” Maj. Op. at 6. Quoting the Second
Circuit’s analysis in Lockhart, the majority explains that if “involving a minor or ward” were to
modify each of the categories of conduct listed in § 2252(b)(2), “abusive sexual conduct
involving a minor or ward” would likely encompass “sexual abuse involving a minor or ward,”
rendering the latter category superfluous. However, it is not clear from the statutory language or
the opinion of this Court which conduct Congress intended to fit within each of these categories.
This very issue was extensively debated during oral argument before the en banc Court. In fact,
it is difficult to say that any particular category would be rendered superfluous if “involving a
minor or ward” were to modify all three categories of conduct.

This would be the case

regardless of whether similar or parallel phrases were used or repeated for emphasis, or for the
purpose of showing inclusiveness, or simply as a result of awkwardness in statutory construction.
Next, the majority finds that Congress must have intended the qualifying conduct under
state law to include acts against adults and children because the federal predicate offenses listed

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in § 2252(b)(2) include conduct against both adults and children. The majority states that “we
may reasonably assume” Congress intended the federal and state predicate offenses to mirror
each other. Maj. Op. at 6. However, the opinion fails to consider some of the legislative history
of this provision, which, even if not definitive, provides some indication of Congress’ intent in
this matter. Congress’ overarching concern in enacting and amending the Child Pornography
Prevention Act was to protect child victims from the “vicious cycle of child sexual abuse and
exploitation,” in which “[c]hild pornography plays a critical role.” S. Rep. No. 104–358, 104th
Cong., 1996 WL 506545, at *12 (1996). Most importantly, the legislative history demonstrates
Congress’ intent regarding the enhancement set forth in § 2252:
Section 2252A mirrors with respect to “child pornography” . . . the prohibitions
. . . contained in 18 U.S.C. 2252. The penalties in sections 2252 and 2252A
would be identical. Violation of paragraphs (1), (2), or (3) of section 2252A(a)
pertaining to the distribution, reproduction, receipt, sale or transportation of child
pornography would be fined or imprisoned for not less than 15 years, or both; a
repeat offender with a prior conviction under chapter 109A or 110 of title 18, or
under any State child abuse law or law relating to the production, receipt or
distribution of child pornography would be fined and imprisoned for not less than
5 years nor more than 30 years.
Id. at *9 (emphasis added).2 Even if Congress’ intent regarding application of this enhancement
is less than clear, this language from the legislative history is relevant for determining that intent.
The Senate report clearly indicates that the enhancement applies to repeat offenders whose prior
convictions fall “under any State child abuse law” and does not mention state law crimes against
adults. It would seem that the majority should have considered this language before speculating
as to Congress’ intent.
The majority opinion also emphasizes a parallel between three of the federal crimes
identified as predicate offenses under Chapter 109A (“aggravated sexual abuse” at § 2241,
“sexual abuse” at § 2242, and “sexual abuse of a minor or ward” at § 2243) and the three
categories of conduct that qualify as state predicate offenses (“aggravated sexual abuse, sexual
2

Although this section of the report specifically deals with 18 U.S.C. § 2252A, it also indicates that the
penalties in §§ 2252 and 2252A would be identical. See id.; Lockhart, 749 F.3d at 156 (internal quotation marks
omitted) (“[T]he penalties under §§ 2252 and 2252A would provide for a mandatory minimum sentence for a repeat
offender with a prior conviction under chapter 109A or 110 of title 18, or under any State child abuse law or law
relating to the production, receipt or distribution of child pornography.”).

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abuse, or abusive sexual conduct involving a minor or ward”). The majority asserts that this
parallel provides definitive support for its conclusion that “involving a minor or ward” modifies
only “abusive sexual conduct,” the last category of conduct.
This argument is troubling in two respects. The majority has clearly chosen only those
arguments that help reach its conclusion and ignored others that are contrary to, or complicate,
that conclusion. In a footnote, the majority cautions the reader that
[a]lthough we note the parallel structure between the three categories of state
predicate offenses and the parallel federal crimes in §§ 2241–43, this should not
be construed as implying that the state predicate offenses are to be defined with
reference to these sections. The parallel structure is here significant only in that it
informs our analysis of what “involving a minor” modifies.
Maj. Op. at 7 n.1. There is no reason provided to explain why this parallel structure only
provides assistance with our analysis of this particular issue, yet does not provide definitions for
the state predicate offenses.
Additionally, the language and structure of Chapter 109A do not parallel § 2252(b)(2) as
closely as the majority would have us believe. The majority ignores the fact that Chapter 109A
includes four sexual abuse crimes, while § 2252(b)(2) only lists three categories of conduct
qualifying for the enhancement. Furthermore, the sexual abuse crimes listed in Chapter 109A
are phrased differently from the three categories of conduct included in § 2252(b)(2). As a
result, this purported parallel would appear to carry very little weight for purposes of resolving
the underlying issue in this case.
Finally, the majority seems to take great solace in the fact that “[o]ur construction of the
statutory language aligns with that of each of our sister circuits which have carefully considered
the issue.” Maj. Op. at 7. However, while this Court may be guided by the opinions of other
circuits, we review our cases independent of their holdings and analyses. We should not rely on
other courts’ opinions when they are similarly speculative and supported by much of the same
weak analysis as provided by this Court’s majority opinion.
For the foregoing reasons, I concur only in the judgment.