United States v. Jay Liestman

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-3225

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAY A. LIESTMAN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:20-cr-00006-jdp-1 — James D. Peterson, Chief Judge.

____________________

ARGUED OCTOBER 27, 2023 — DECIDED APRIL 8, 2024

____________________

Before SYKES, Chief Judge, and EASTERBROOK, ROVNER,

WOOD, BRENNAN, SCUDDER, ST. EVE, KIRSCH, JACKSON-

AKIWUMI, LEE, and PRYOR, Circuit Judges.1

SCUDDER, Circuit Judge. Before us is Jay Liestman’s chal-

lenge to the federal sentence he received for transporting

child pornography in violation of 18 U.S.C. § 2252(a)(1). The

1 Circuit Judge Kolar did not participate in the consideration or deci-

sion of this case.

2 No. 21-3225

district court imposed an enhanced mandatory minimum

sentence of 15 years’ imprisonment under § 2252(b)(1) be-

cause Liestman had been convicted seven years earlier of pos-

sessing child pornography in violation of Wisconsin law. The

question presented is whether that state conviction qualifies

as a predicate conviction under § 2252(b)(1), which prescribes

enhanced penalties for certain recidivist child sex offenders.

Aligning with the approach of a majority of the circuits, we

hold that the answer is yes and affirm Liestman’s sentence.

I

In October 2019 Jay Liestman took to the Kik messenger

app and divulged his sexual interest in underage boys to an

undercover FBI agent. In ensuing discussions, Liestman sent

the agent a link to 561 videos depicting sexual assaults of

children. A federal prosecution followed, and Liestman

pleaded guilty to a single count of transporting child

pornography. See 18 U.S.C. § 2252(a)(1). This was not his first

child sex offense. Several years earlier, Liestman’s efforts to

meet a fourteen-year-old boy for sex culminated in two felony

convictions under Wisconsin law, one for attempted child

enticement, see Wis. Stat. § 948.07, and a second for the

possession of child pornography, see id. at § 948.12(1m).

At the federal sentencing, the government contended that

Liestman’s prior conviction for possessing child pornography

triggered 18 U.S.C. § 2252(b)(1)’s enhancement for repeat sex

offenders, which increases the mandatory minimum term of

imprisonment from 5 to 15 years if the defendant has a prior

conviction “under the laws of any State relating to … the pro-

duction, possession, receipt, mailing, sale, distribution, ship-

ment, or transportation of child pornography.” Liestman in-

sisted that the enhancement did not apply because Wis. Stat.

No. 21-3225 3

§ 948.12(1m) reached offense conduct that Congress did not

expressly enumerate in the text of § 2252(b)(1). Relying on our

decision in United States v. Kaufmann, 940 F.3d 377 (7th Cir.

2019), the district court disagreed and sentenced Liestman to

the enhanced mandatory minimum of 15 years.

The parties renew their positions on appeal, and we chose

to convene the full court to decide whether Liestman’s prior

offense of conviction for possessing child pornography under

Wis. Stat. § 948.12(1m) can serve as a predicate offense under

§ 2252(b)(1). Doing so requires application of the categorical

approach.

II

A

For all the consternation it tends to elicit, the categorical

approach serves an essential need. Throughout the United

States Code, Congress has attached adverse consequences to

the fact that a person has been convicted of a certain kind of

prior offense. See, e.g., 18 U.S.C. § 924(e)(1) (providing en-

hanced sentence for felon-in-possession defendants convicted

of three prior violent felonies or serious drug offenses); 8

U.S.C. § 1227(a)(2)(A)(iii) (providing for the removal of non-

citizens convicted of aggravated felonies); 5 U.S.C.

§ 8902a(b)(1) (providing for the debarment of health care ser-

vice providers convicted of offenses “relating to fraud, cor-

ruption, breach of fiduciary responsibility, or other financial

misconduct in connection with the delivery of a health care

service or supply”).

When Congress does so, it ordinarily describes the range

of qualifying offenses in general terms to account for the sheer

variety of state and federal laws on the books. See Taylor v.

4 No. 21-3225

United States, 495 U.S. 575, 590–91 (1990) (surveying a range

of state burglary offenses); Diaz-Rodriguez v. Garland, 55 F.4th

697, 720–22 (9th Cir. 2022) (canvassing the “wide variety of

approaches” states have taken “to labeling, categorizing, and

defining crimes against children”). Because of this, determin-

ing whether a particular prior offense triggers an adverse con-

sequence can be challenging.

The categorical approach emerged to address that

challenge. Its cornerstone—rooted in both practical and Sixth

Amendment concerns—is its insistence that we look only to

the formal definition of the prior offense, cutting real-world

facts out of the equation. Mathis v. United States, 579 U.S. 500,

504 (2016); see also Kawashima v. Holder, 565 U.S. 478, 483

(2012) (emphasizing that the categorical approach looks to

“the statute defining the crime of conviction, rather than the

specific facts underlying the crime”). Under the categorical

approach, a prior offense can trigger a statutory consequence

only if its statutory elements are defined in such a way that all

possible violations of the statute, however committed, would

fall within Congress’s chosen federal benchmark. If so, then

an offense is one that categorically—meaning in all cases—

triggers the federal statutory consequence.

The Supreme Court first interpreted a statute to require

categorical analysis in Taylor v. United States, 495 U.S. 575

(1990). There the Court addressed whether Arthur Taylor’s

prior convictions for second-degree burglary under Missouri

law qualified as “violent felon[ies]” that could trigger an en-

hanced sentence under § 924(e) of the Armed Career Criminal

Act. Id. at 578–79. That Act defines the term “violent felony”

to include, among other offenses, any crime that “is bur-

glary.” 18 U.S.C. § 924(e)(2)(B) & (B)(ii).

No. 21-3225 5

Focusing on the text, structure, and history of the enhance-

ment, the Court concluded that the word “burglary” in

§ 924(e) referred to “the generic sense in which the term [was

then] used in the criminal codes of most States.” 495 U.S. at

598. It then devised a generic definition of “burglary” cover-

ing any offense that has “the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or struc-

ture, with intent to commit a crime.” Id. at 599. To determine

whether Taylor’s convictions met that generic understanding

of “burglary,” the Court looked to the elements of Taylor’s

state convictions alone, without regard to how he actually

committed those crimes. Section 924(e), the Court explained,

“mandates a formal categorical approach” that “look[s] only

to the statutory definitions of the prior offenses, and not to the

particular facts underlying those convictions.” Id. at 600.

Today Taylor stands as the prime example of the so-called

generic strand of categorical analysis. Its rationale is straight-

forward. When Congress hinges the applicability of a statu-

tory consequence on whether a defendant’s prior convictions

qualify as a certain kind of offense—like burglary—we as-

sume that Congress intended to give that term a uniform, fed-

eral “definition independent of the labels used by the various

States’ criminal codes.” Id. at 575. And courts can give effect

to Congress’s “unadorned reference” to an offense only by

“com[ing] up with a ‘generic’ version of the crime” against

which the elements of state offenses can be compared. Shular

v. United States, 140 S.Ct. 779, 783 (2020).

In the years since Taylor, the generic approach has played

an important role in our categorical approach case law. See,

e.g., United States v. Hatley, 61 F.4th 536, 539 (7th Cir. 2023) (ge-

neric extortion); United States v. Misleveck, 735 F.3d 983, 988

6 No. 21-3225

(7th Cir. 2013) (generic arson). But sometimes the categorical

approach must proceed in a different way. As the Supreme

Court recently explained in Shular, Congress has drafted

many federal sentencing enhancements in ways that make the

generic approach a poor fit. Instead of prompting courts to

ask whether prior offenses qualify as discrete crimes like

“burglary,” “arson,” or “extortion,” many enhancements turn

instead on whether a defendant’s prior offense has some other

attribute. See 140 S.Ct. at 783 (explaining that many statutes

“ask the court to determine not whether the prior conviction

was for a certain offense, but whether the conviction meets

some other criterion”). The question these statutes ask is not

whether a prior conviction is a particular kind of offense, but

rather whether something else is true of its statutory ele-

ments.

Consider, for example, the Armed Career Criminal Act’s

definition of “serious drug offense”: any “offense under State

law[] involving manufacturing, distributing, or possessing

with intent to manufacture or distribute, a controlled sub-

stance.” 18 U.S.C. § 924(e)(2)(A)(ii). In Shular, the Court did

not view the various categories of conduct listed by this pro-

vision as offenses in need of generic definition. See 140 S.Ct.

at 784–85. Looking to “statutory text and context,” and in par-

ticular to Congress’s use of the word “involving” rather than

“is,” the Court concluded that Congress intended to reach any

state offense whose elements “necessarily entail one of the

types of conduct identified in § 924(e)(2)(A)(ii).” See id.

(cleaned up).

Taylor and Shular illustrate that the categorical approach is

not a one-size-fits-all formula. Rather, the proper categorical

analysis can take different forms depending on the language

No. 21-3225 7

Congress uses to frame the federal benchmark against which

courts must compare prior offenses. Although categorical

analysis always focuses on the elements of prior offenses, the

precise mechanics of deciding whether those elements trigger

a statutory consequence turn on how Congress articulates the

applicable federal benchmark.

B

With these principles in mind, we return to the question

before us. We start from the common point of agreement be-

tween Liestman and the government that 18 U.S.C.

§ 2252(b)(1) calls for a categorical analysis of one sort or an-

other. Our task is to determine what Congress intended that

analysis to look like. To put things another way, we must in-

terpret the language used to frame § 2252(b)(1)’s federal

benchmark and decide what kind of categorical comparison

it calls for, keeping in mind that Congress is free—subject

only to constitutional constraints—to frame its sentencing en-

hancements to require whatever inquiry it thinks most pru-

dent.

By its terms, § 2252(b)(1) states that a defendant like Jay

Liestman who violates § 2252(a)(1) “shall” serve a default sen-

tence of “not less than 5 years and not more than 20 years.”

The mandatory statutory range increases to 15 to 40 years,

however, if “such person has a prior conviction”

under the laws of any State relating to aggra-

vated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor or ward, or

the production, possession, receipt, mailing,

sale, distribution, shipment, or transportation of

8 No. 21-3225

child pornography, or sex trafficking of chil-

dren.

Id.

No one contends that Liestman’s prior conviction for pos-

sessing child pornography relates to sex trafficking or sexual

abuse as § 2252(b)(1) uses these terms. So we are left to deter-

mine whether Wis. Stat. § 948.12(1m) is categorically an of-

fense “relating to … the production, possession, receipt, mail-

ing, sale, distribution, shipment, or transportation of child

pornography.” That observation takes us to the text of Wis.

Stat. § 948.12(1m) as it stood at the time Liestman violated that

statute in 2013. See Portee v. United States, 941 F.3d 263, 266

(7th Cir. 2019) (“We consider the version of the State’s crimi-

nal statute in effect at the time of the offense.”). Because the

statute and its implementing definitions remain the same to-

day as they did at the time of Liestman’s offense conduct, we

refer to the current version of the statute for ease of readabil-

ity. Wis. Stat. § 948.12(1m) provides that

[w]hoever possesses, or accesses in any way

with the intent to view, any undeveloped film,

photographic negative, photograph, motion

picture, videotape, or other recording of a child

engaged in sexually explicit conduct under all

of the following circumstances [commits a Class

D felony]:

(a) The person knows that he or she possesses

or has accessed the material.

(b) The person knows, or reasonably should

know, that the material that is possessed or

No. 21-3225 9

accessed contains depictions of sexually ex-

plicit conduct.

(c) The person knows or reasonably should

know that the child depicted in the material

who is engaged in sexually explicit conduct

has not attained the age of 18 years.

Wis. Stat. § 948.12(1m).

With the pertinent statutory language on the table, we

agree with Liestman that Wis. Stat. § 948.12(1m) is broader

than § 2252(b)(1) in two respects. First, unlike § 2252(b)(1),

§ 948.12(1m) prohibits “access[ing]” child pornography in ad-

dition to possessing it. Second, Wisconsin law considers a

wider range of material to be child pornography. Both Wis-

consin and federal law criminalize the possession of material

depicting minors engaging in “sexually explicit conduct.” See

18 U.S.C. § 2256(8); Wis. Stat. § 948.12(1m). But while Wiscon-

sin defines this term as any “[l]ewd exhibition of intimate

parts”—to include “the breast, buttock, anus, groin, scrotum,

penis, vagina or pubic mound”—federal law defines it to

cover only the “lascivious exhibition of the anus, genitals, or

pubic area.” Compare 18 U.S.C. § 2256(2)(A)(v) with Wis.

Stat. §§ 939.22(19); 948.01(7)(e). So a defendant can be con-

victed in Wisconsin for possessing material that would not

support a federal prosecution. See United States v. Gleich, 397

F.3d 608, 614 (8th Cir. 2005) (holding that an image of “partial

buttocks” was “not of genitals or of a pubic area” and there-

fore did not meet the federal “definition of sexually explicit

conduct”).

Resisting this conclusion, the government contends that

the Wisconsin Supreme Court’s decision in State v. Petrone,

10 No. 21-3225

468 N.W.2d 676 (1991), eliminates any possibility that a de-

fendant could be convicted under Wis. Stat. § 948.12(1m) for

possessing images of a minor’s bare breast or buttock. On the

government’s reading, Petrone held that in order for an image

to be “lewd” it must expose a “child’s genitals or pubic area.”

468 N.W.2d at 688. In the government’s view, then, Petrone

forecloses the possibility that an image of a minor’s bare

breast or buttock could qualify as “lewd” within the meaning

of Wis. Stat. § 948.01(7)(e)—even though Wis. Stat.

§ 939.22(19) expressly identifies both as “intimate parts.”

We are not persuaded. Foremost, it makes little sense to

conclude that the Wisconsin legislature, in adding “breast”

and “buttock” to § 939.22(19), did not intend to prohibit the

possession of images displaying those parts of a child’s body.

More, Petrone itself interpreted a different offense, Wis. Stat.

§ 940.203(2) (1988), that incorporated a narrower definition of

“sexually explicit conduct” covering only the “lewd exhibi-

tion of the genitals or pubic area of any person.” Id.

§ 940.203(6)(b) (1988). This makes clear that Petrone rooted the

limitations it placed on the scope of § 940.203(2) in

§ 940.203(6)(b)’s definition of “sexually explicit conduct,” not

in the meaning of “lewd.”

We have little trouble concluding, then, that a defendant

could be prosecuted under § 948.12(1m) for possessing mate-

rial that would not be considered child pornography under

federal law. We therefore agree with Liestman that

§ 948.12(1m) is broader than § 2252(b)(1) in this way as well.

C

But that conclusion does not resolve this appeal. After all,

§ 2252(b)(1) requires only that a prior state offense “relat[e] to”

No. 21-3225 11

the conduct it enumerates to trigger an enhanced sentence.

Whether § 948.12(1m) qualifies depends on the effect the

phrase “relating to” has on the nexus required between a

prior offense’s elements and the conduct enumerated by the

federal enhancement. Does it, as Liestman argues, disqualify

as a predicate any offense broader than the conduct specified

in the enhancement? Or does it signal an intent by Congress

to adopt a less exacting standard? This presents a pure ques-

tion of statutory interpretation.

The proper beginning point is the phrase “relating to” it-

self. Congress left the term undefined, requiring us to give it

its ordinary meaning absent countervailing evidence of a con-

trary intent in the text or structure of § 2252(b)(1). See Perrin

v. United States, 444 U.S. 37, 42 (1979) (“A fundamental canon

of statutory construction is that, unless otherwise defined,

words will be interpreted as taking their ordinary, contempo-

rary, and common meaning.”); Smith v. United States, 508 U.S.

223, 228–29 (1993) (giving the word “use” in 18 U.S.C.

§ 924(c)(1) its ordinary meaning). This presumption is an im-

portant one, because the ordinary meaning of “relating to” is

broad. As the Supreme Court explained in Morales v. Trans

World Airlines, Inc., 504 U.S. 374 (1992), the phrase means “to

stand in some relation; to have bearing or concern; to pertain;

refer; to bring into association with or connection with.” Id. at

384 (quoting Black’s Law Dictionary 1158 (5th ed. 1979)). Alt-

hough Morales concerned federal preemption, the Court has

applied this definition in the categorical approach context as

well. See Pugin v. Garland, 599 U.S. 600, 607 (2023) (observing

that Congress’s use of “relating to” in 8 U.S.C. § 1101(a)(43)(S)

“ensures that [the] statute covers offenses that have ‘a connec-

tion with’ obstruction of justice”).

12 No. 21-3225

Were “relating to” in § 2252(b)(1) understood in this

way—as reaching all state offenses that bear a connection

with the enumerated conduct that follows—it would be no

stretch to conclude that § 948.12(1m) could trigger an en-

hanced federal sentence notwithstanding its overbreadth.

That “relating to” should receive its ordinary meaning is only

a presumption, however, and like any other presumption it

can be overcome. The challenge for Liestman is that other

clues in the text, structure, and history of § 2252(b)(1), as well

as its place in the overall statutory scheme, only reinforce that

Congress intended to use “relating to” in its broad, ordinary

sense.

First, by giving “relating to” its broad and ordinary mean-

ing, we avoid treating that language as synonymous with nar-

rower connecting language Congress has used to frame other

sentencing enhancements. Consider once more 18 U.S.C.

§ 924(e)(2)(A)(ii), which defines as a “serious drug offense”

any “offense under State law … involving manufacturing,

distributing, or possessing with intent to manufacture or dis-

tribute, a controlled substance.” In Shular, the Supreme Court

held that an offense is one “involving” § 924(e)(2)(A)(ii)’s

listed conduct only if it “necessarily entail[s]” it. 140 S.Ct. at

783; see also Kawashima, 565 U.S. at 484 (giving “involving”

the same interpretation in 8 U.S.C. § 1101(a)(43)(M)(i)). Inter-

preting “relating to” in § 2252(b)(1) in a manner that disqual-

ifies as a predicate any state offense that sweeps more broadly

than the conduct that “relating to” introduces would be no

different from holding that prior offenses must “necessarily

entail” (or “involve”) the enumerated conduct. It is, of course,

possible for Congress to use different words to convey the

same meaning. But the presumption usually runs in the other

direction, and we are hesitant to adopt an interpretation that

No. 21-3225 13

attaches no significance to Congress’s choice of the broad “re-

lating to” language in § 2252(b)(1).

Second, in the very statute that added the “relating to” lan-

guage to § 2252(b)(1), Congress amended another sentencing

enhancement—in 18 U.S.C. § 2241(c)—to expressly require

the kind of relationship Liestman reads into § 2252(b)(1). See

Child Pornography Prevention Act of 1996 (CPPA), Pub. L.

No. 104-208, § 121, 110 Stat. 3009, 3009-30. With respect to the

§ 2241(c) enhancement, Congress made clear that a state of-

fense would trigger enhanced penalties only if it “would have

been an offense under” § 2241(a) or (b) “had the offense oc-

curred in a Federal prison.” Id. at 110 Stat. 3009-31. What this

shows is that the same Congress that enacted § 2252(b)(1)

knew full well how to condition the applicability of a sentenc-

ing enhancement on a prior offense’s congruence with federal

law. See also United States v. Portanova, 961 F.3d 252, 257 &

n.29 (3d Cir. 2020) (providing similar examples). We find it

hard to believe, then, that Congress used “relating to”—the

broadest of connecting language—to achieve the same end in

§ 2252(b)(1), particularly in light of the availability of nar-

rower phrases like “involving” or even “is” that Congress has

used to frame other statutes.

Third, at the time Congress added the “relating to” lan-

guage to § 2252(b)(1) in 1996, only a fraction of states defined

child pornography in a manner congruent with or narrower

than the federal definition. By the government’s accounting,

which Liestman does not meaningfully contest, 40 states crim-

inalized the possession of some material—like an image of a

minor’s breast or buttock—that federal law does not reach.

See Addendum to Supplemental Brief of United States. If

Liestman’s cramped interpretation of “relating to” is right, it

14 No. 21-3225

would mean that on the day of its enactment, a large swath of

§ 2252(b)(1) could apply to only a handful of states scattered

across the country. Remember that the enhancement’s enu-

merated list of acts—including possession, receipt, mailing,

and sale—all take as their object the defined term “child por-

nography.” If “relating to” is not broad enough to permit

overbreadth in state definitions of child pornography, this

portion of the enhancement had no effect in the vast majority

of states at the time Congress expanded § 2252(b)(1) to cover

state offenses. Given the purpose of the enhancement to “ad-

dress high recidivism rates among child sex offenders,”

United States v. Kraemer, 933 F.3d 675, 683 (7th Cir. 2019)—no

doubt a persistent and grave problem—it defies belief that

Congress intended for the enhancement to have such limited

effect.

The Supreme Court has relied on this kind of backdrop

evidence in rejecting interpretations of other sentencing

enhancements. Returning to Taylor, the Court there rejected a

narrow, common-law definition of burglary in part because

“construing ‘burglary’ to mean common-law burglary would

come close to nullifying that term’s effect in the statute,

because few of the crimes now generally recognized as

burglaries would fall within the common-law definition.” 495

U.S. at 594. More recent examples abound, and each comes

directly to us from the Supreme Court. See, e.g., Pugin, 599

U.S. at 607 (admonishing that courts “should not lightly

conclude that Congress enacted a self-defeating statute”)

(internal quotation marks omitted); Quarles v. United States,

139 S.Ct. 1872, 1879 (2019) (avoiding an interpretation that

would “eliminate[]” “many States’ burglary statutes … as

predicate offenses under § 924(e)”); Stokeling v. United States,

139 S.Ct. 544, 551–53 (2019) (rejecting an interpretation under

No. 21-3225 15

which “many States’ robbery statutes would not qualify as

ACCA predicates”); United States v. Stitt, 139 S.Ct. 399, 403,

406 (2018) (interpreting “burglary” in § 924(e) to include the

burglary “of a structure or vehicle that has been adapted or is

customarily used for overnight accommodation” in part

because “a majority of state burglary statutes” covered such

places at the time Congress enacted the enhancement into

law); Esquivel-Quintana v. Sessions, 581 U.S. 385, 395 (2017)

(declining to adopt interpretation that “would categorically

exclude the statutory rape laws of most States”).

Together, these points combine to reinforce the starting

presumption that Congress used “relating to” in § 2252(b)(1)

in its broad ordinary sense. Congress’s use of narrower lan-

guage in other statutes, its proven ability to use different

words to require congruence between prior offenses and fed-

eral law, and the effect a narrower construction would have

on the scope of the enhancement all suggest an intent to

heighten sentences for defendants convicted of state offenses

that bear a connection with any of § 2252(b)(1)’s enumerated

list of child-pornography-related acts, even if those offenses

sweep more broadly than § 2252(b)(1) in some respects.

Albeit in more abbreviated reasoning, we reached this pre-

cise conclusion in United States v. Kaufmann. In no uncertain

terms, we rejected the view that § 2252(b)(1) “require[s] the

state statute of conviction to be the same as or narrower than

… analogous federal law,” 940 F.3d at 378, and instead held

that Darin Kaufmann’s prior Indiana convictions for pos-

sessing child pornography triggered the recidivism enhance-

ment even though Indiana, like Wisconsin, defines child por-

nography more broadly than does federal law. See id. at 380–

81.

16 No. 21-3225

Kaufmann was not an aberration. Then, and now, a major-

ity of circuits to have interpreted “relating to” in § 2252(b)(1)

and materially identical enhancements elsewhere in Chapter

110 of Title 18 of the U.S. Code, see 18 U.S.C. §§ 2251(e);

2252(b)(2); 2252A(b)(1); 2252A(b)(2), have given that phrase

its broad, ordinary meaning and permitted state offenses to

serve as predicates despite some amount of overbreadth. See

United States v. Mayokok, 854 F.3d 987, 993 & n.2 (8th Cir. 2017)

(holding that Congress used “relating to” in § 2252(b)(1) to

“subject a wider range of prior convictions to the § 2252(b)(1)

enhancement” and that the defendant’s Minnesota conviction

for possessing child pornography could serve as a predicate

even though Minnesota defines child pornography more

broadly than federal law); Portanova, 961 F.3d at 257–58, 262

(same); United States v. Bennett, 823 F.3d 1316, 1322–25 (10th

Cir. 2016) (holding that Colorado conviction was one “relat-

ing to” the possession of child pornography within the mean-

ing of § 2252A(b)(1) even though it “punish[es] the possession

of [some] visual depictions that fall outside the federal defini-

tion of child pornography”); but see United States v. McGrat-

tan, 504 F.3d 608 (6th Cir. 2007); United States v. Reinhart, 893

F.3d 606 (9th Cir. 2018).

D

Represented by very able counsel, Liestman urges us to

depart from the majority position and give § 2252(b)(1) a nar-

rower construction, principally on the basis of cases like

Mellouli v. Lynch, 575 U.S. 798 (2015), and United States v. Ruth,

966 F.3d 642 (7th Cir. 2020), that have interpreted “relating to”

more narrowly in other sentencing enhancements. From these

cases, he presses a general rule that introductory language

like “relating to” should not be understood to capture

No. 21-3225 17

offenses that sweep more broadly than the language it intro-

duces, particularly when that language is defined. At times,

Liestman appears to take this position as a matter of statutory

construction. At other times, he seems to see it as a general

limitation on how the categorical approach operates when a

sentencing enhancement lists conduct rather than offenses.

Both views are mistaken.

On the latter point, the Supreme Court has never inti-

mated that non-generic categorical analysis—which Liestman

fairly calls the conduct-based approach—must follow me-

chanical rules applicable to all sentencing enhancements

without regard to differences in text, structure, and purpose.

To the contrary, the unifying principle that ties the Supreme

Court’s categorical approach cases together is the recognition

that whether the categorical approach applies at all—and, if

so, what form it takes—are fundamentally questions of statu-

tory interpretation. See, e.g., United States v. Davis, 139 S.Ct.

2319, 2327 (2019) (observing that whether the categorical ap-

proach applies can be determined only through examination

of statute’s text, context, and history); Esquivel-Quintana, 581

U.S. at 391 (explaining that the meaning of “sexual abuse of a

minor” must be determined “using the normal tools of statu-

tory interpretation”).

Liestman’s rule also stands at odds with the Supreme

Court’s recent decision in Pugin v. Garland, which held that,

as used in 8 U.S.C. § 1101(a)(43)(S), the phrase “relating to”

carries its broad, ordinary meaning. See 599 U.S. at 607. That

provision, in conjunction with 8 U.S.C. § 1227(a)(2)(A)(iii),

makes removable any non-citizen convicted of a felony

“relating to obstruction of justice.” The question in Pugin was

whether a state conviction can trigger removal where the state

18 No. 21-3225

offense does not require obstruction of a pending

investigation or legal proceeding. See id. at

602–03. In holding that it can, the Court relied most heavily

on dictionary definitions and state and federal law

demonstrating that the backdrop understanding of

obstruction of justice at the time Congress added

§ 1101(a)(43)(S) to the Immigration and Nationality Act

encompassed pre-investigatory methods of obstruction. But

the Court was quick to underscore that Congress’s use of the

phrase “‘relating to’ … resolved” “any doubt [that]

remain[ed]” about the scope of the statute. Id. at 607. The

choice of the words “relating to,” the Court explained,

“ensures that [the] statute covers [any] offense[] that ha[s] ‘a

connection with’ obstruction of justice.” Id.

Pugin shows that nothing inherent in the categorical ap-

proach precludes courts from giving “relating to” its ordinary

meaning. Indeed, it is difficult to imagine where any such lim-

itation would come from other than the Constitution, which

Liestman does not invoke in this appeal. Cf. Portanova, 961

F.3d at 262–63 (considering and rejecting an as-applied void-

for-vagueness challenge to § 2252(b)(1)). When Congress

frames a sentencing enhancement, it is generally free to pre-

scribe whatever approach it thinks will best achieve its policy

aims. We therefore see no reason why—as a matter of statu-

tory construction—the phrase “relating to” cannot be under-

stood broadly in § 2252(b)(1). Or stated another way, we see

no reason why Congress could not have intended to use the

phrase “relating to” to capture state offenses that, although

broader than § 2252(b)(1)’s enumerated list of conduct in

some respects, bear the sort of connection to that conduct that

the phrase “relating to” typically captures. And, indeed, the

No. 21-3225 19

statutory features discussed above lead us to believe that this

was Congress’s intent with § 2252(b)(1).

Neither Mellouli nor Ruth calls this conclusion into ques-

tion. Today we apply the categorical approach while giving

the phrase “relating to” its broad ordinary meaning in the

context of § 2252(b)(1). But we do not suggest that this mean-

ing extends equally to all instances where “relating to” ap-

pears in the U.S. Code. As with any statutory term, we must

take each appearance as it comes, discerning meaning from a

holistic analysis of text, context, purpose, and history. See

Gundy v. United States, 139 S.Ct. 2116, 2126 (2019) (describing

statutory interpretation as a “holistic endeavor, which deter-

mines meaning by looking not to isolated words, but to text

in context, along with purpose and history”).

Mellouli and Ruth involved different statutory contexts.

Take Mellouli first. The Supreme Court there considered

whether Moones Mellouli’s Kansas conviction for possessing

drug paraphernalia triggered removal under the Immigration

and Nationality Act. See 575 U.S. at 802. The operative

provision, 8 U.S.C. § 1227(a)(2)(B)(i), makes removable any

non-citizen convicted of violating “any law or regulation of a

State, the United States, or a foreign country relating to a

controlled substance (as defined in section 802 of Title 21).”

(Emphasis added.) The parenthetical cross reference to § 802

proved important, because § 802(6) defines “controlled

substance” to include any “drug or other substance, or

immediate precursor” listed on the federal drug schedules. 21

U.S.C. § 802(6).

The Court declined to adopt a broad interpretation of the

term “relating to” in § 1227(a)(2)(B)(i). See id. at 811. Instead,

it held that a prior offense triggers removal under the statute

20 No. 21-3225

only if it necessarily involves a federally scheduled drug. See

id. In reaching that conclusion, however, the Court recognized

that the phrase “relating to” is ordinarily “broad.” Id. In de-

parting from that ordinary meaning, the Supreme Court

stressed that a number of textual and historical clues specific

to § 1227(a)(2)(B)(i) “tug[ged] … in favor of a narrower read-

ing.” Id. at 812 (internal quotation marks omitted).

The statute’s history stood front and center in the Court’s

analysis. Earlier versions of § 1227(a)(2)(B)(i), the Court em-

phasized, enumerated specific, federally scheduled drugs like

“opium, coca leaves, [and] cocaine.” Id. at 806–07 (internal

quotation marks omitted). But “[o]ver time, Congress

amended the statute to include additional … drugs.” Id. at

807. This “increasingly long list” of individually identified

drugs became unwieldy, leading Congress in 1986 to replace

the specific enumeration of qualifying controlled substances

with a simple cross-reference to the federal drug schedules

through 21 U.S.C. § 802. See id. All of this made evident that

Congress’s use of the phrase “relating to” in § 1227(a)(2)(B)(i)

was not intended to authorize removal based on convictions

involving non-federally scheduled drugs and, therefore, that

Mellouli’s Kansas conviction for possessing drug parapher-

nalia was not a categorical match.

Ruth is much the same—a holding rooted in the history

and context of the statute under review. In Ruth, we ad-

dressed whether an Illinois cocaine conviction qualified as a

“felony drug offense” that would trigger a sentencing en-

hancement under 21 U.S.C. § 841(b)(1)(C). See 966 F.3d at 645–

46. Federal law defines “felony drug offense” to include any

offense “that prohibits or restricts conduct relating to narcotic

drugs.” 21 U.S.C. § 802(44) (emphasis added). The term

No. 21-3225 21

“narcotic drugs,” in turn, is defined in exactingly technical de-

tail, down to the specific kinds of chemical isomers of co-

caine—optical and geometric, but not positional—that qual-

ify. See 21 U.S.C. § 802(17). Invoking Shular, we held that the

Illinois conviction could satisfy that standard only if it “nec-

essarily entail[s] the conduct identified in § 802(44).” Id. at

647. Our insistence on a strict one-for-one match was driven

by the highly technical nature of the statutes at issue, the sheer

particularity of which suggested that Congress’s definition

was intended to be exhaustive of the kinds of drugs that can

trigger an enhancement under § 841(b)(1)(C).

Our overarching point is that neither Mellouli nor Ruth

supports Liestman’s key contention—that the phrase “relat-

ing to” cannot receive its broad, ordinary meaning when in-

troducing sentence-enhancing conduct. Instead, those cases

turned on statutory and historical features that have limited

relevance to the proper interpretation of § 2255(b)(1), a provi-

sion whose meaning must be discerned in the light of its own

statutory context. Because that context supports a broad un-

derstanding of “relating to,” we hold—in alignment with our

decision in Kaufmann and with the views of a majority of the

circuits to have considered the issue—that “relating to” in

§ 2252(b)(1) brings within the ambit of the enhancement any

prior offense that categorically bears a connection with (or,

put in statutory terms, “relates to”) “the production, posses-

sion, receipt, mailing, sale, distribution, shipment, or trans-

portation of child pornography,” regardless of whether it

sweeps more broadly than that enumerated conduct in some

respects.

22 No. 21-3225

III

All that remains is to apply our holding to Jay Liestman’s

case. The question is whether Wis. Stat. § 948.12(1m) categori-

cally—meaning in all cases—prohibits conduct “relating to”

the conduct enumerated by 18 U.S.C. § 2252(b)(1). As in any

other categorical approach case, we must assume that Liest-

man was convicted for “the least serious conduct” covered by

§ 948.12(1m), Borden v. United States, 593 U.S. 420, 441 (2021),

which would be for accessing images lewdly exhibiting a mi-

nor’s breast or buttock. We must then ask whether that con-

duct bears the necessary connection to the conduct enumer-

ated in § 2252(b)(1). We have little trouble concluding that ac-

cessing images lewdly exhibiting a minor’s breasts or but-

tocks bears the necessary connection and, therefore, that

§ 948.12(1m) is a categorical match.

The line between “accessing” and “possessing” child por-

nography is razor thin, if indeed one exists at all. Accessing

was added to § 948.12(1m) to plug a possible hole in the statute

made apparent by cases like State v. Mercer, 782 N.W.2d 125

(Wis. 2010), in which defendants began to argue that their ef-

forts to view child pornography over the internet did not

qualify as “possession” as that term has historically been un-

derstood. But those arguments never succeeded. So when the

Wisconsin legislature added “accessing” to § 948.12(1m), any

practical difference between accessing and possessing re-

mained theoretical.

It appears to remain so today. Liestman has not identified

a single case—nor has our independent research uncovered

one—in which a defendant has been convicted of accessing

child pornography under circumstances that would not qual-

ify as possession under Wisconsin law. Indeed, under Mercer,

No. 21-3225 23

“an individual knowingly possesses child pornography when

that individual affirmatively pulls up images of child pornog-

raphy on the Internet and views those images knowing that

they contain child pornography.” Id. at 136. We find it diffi-

cult to imagine, let alone see with any clarity, daylight be-

tween accessing and possessing child pornography under

§ 948.12(1m).

Even if such a difference could be posited in the abstract,

accessing child pornography still clearly bears the requisite

connection to the possession or receipt of child pornography.

Statutes that criminalize accessing and possessing child por-

nography “address[] the same harm—sexual exploitation of

minors—that [§ 2252(b)(1)] targets.” Kaufmann, 940 F.3d at

380. Both seek to penalize participation in the market for sex-

ually abusive images of minors. Though they may do so in

different ways, the core purpose is the same.

Nothing about the broader scope of Wisconsin’s child por-

nography laws changes this. While we agree that Wisconsin’s

definition of child pornography reaches anatomy—the

breasts and buttocks—that federal law does not, images of

those parts of the body qualify as “sexually explicit conduct”

under § 948.01(7)(e) only if they are “lewd.” At the time Liest-

man violated § 948.12(1m), an image of a minor’s breast or

buttock could qualify as “lewd” only if the minor was por-

trayed as a “sex object.” United States v. Griesbach, 540 F.3d

654, 655 (7th Cir. 2008) (internal quotation marks omitted).

There can be little doubt that accessing such images “relate[s]

to” the conduct described by § 2252(b)(1)—namely, the traf-

ficking (in all manner of ways) of sexually abusive imagery.

Wis. Stat. § 948.12(1m) is therefore a categorical match.

For these reasons, we AFFIRM.

24 No. 21-3225

WOOD, Circuit Judge, joined by ROVNER, JACKSON-

AKIWUMI, LEE, and PRYOR, Circuit Judges, dissenting. When

the Framers of the Constitution “split the atom of sover-

eignty,” as Justice Kennedy put it in U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring),

they set in motion complex forces with which we are still

dealing today. On the plus side, our federal system pre-

serves local accountability and choice, while at the same

time it harnesses the power of the country as a whole for

matters of national or international concern. But on the mi-

nus side, we have learned that federalism isn’t always easy,

and it isn’t always neat. The question now occupying the en

banc court’s attention is a case in point. Federal criminal law

intersects with its counterparts in the 50 states, the District

of Columbia, and the territories in myriad ways. One of

those ways—the one involved here—relates to the use of

state convictions to enhance a federal sentence.

In an ideal world, it would be easy to identify which

state convictions should be used in conjunction with federal

sentencing: whichever ones Congress specifies in the rele-

vant recidivism statute. But applying that rule turns out to

be easier said than done. Enter the Supreme Court: In order

to foster uniformity across the country in the face of the

countless variations in state statutes, the Court has inter-

preted the federal recidivism statutes as normally taking a

“categorical” approach to the task of comparing a state con-

viction with a federal counterpart. (Obviously, when Con-

gress instructs otherwise, it has the last word.) But even the

categorical approach has at least two, and perhaps more,

forms, depending on the language of the statute that is be-

ing applied. The majority in the present case has concluded

that certain state convictions broadly relate to Jay Liest-

No. 21-3225 25

man’s federal offense, and thus a recidivism enhancement

to his sentence was properly assessed. With respect, I do not

read the governing statute in the same way, and so I dissent.

I

Because the majority has provided the key background

facts about Liestman’s conviction, I move straight to the

legal question before the en banc court: whether the

punishment for Liestman’s federal crime of transporting

child pornography in violation of 18 U.S.C. § 2252(a)(1) was

subject to being enhanced. If so, he faced not a five-year

minimum and 20-year maximum term of imprisonment,

but instead a 15-year minimum and 40-year maximum

based on his earlier Wisconsin conviction for possessing

child pornography in violation of Wis. Stat. § 948.12(1m).

See 18 U.S.C. § 2252(b). Like the majority, I understand this

to be a question of law—one that turns in the first instance

on the proper interpretation of section 2252(b), but that also

depends on the pertinent state law. But before turning to

that issue, it is useful to review what the “categorical”

approach is and how the Supreme Court has applied it.

The case usually credited for adopting this method of

reconciling state convictions with federal law is Taylor v.

United States, 495 U.S. 575 (1990). The question before the

Court in that proceeding concerned the meaning of the

word “burglary” as it was used in 18 U.S.C. § 924(e), which

“provides a sentence enhancement for a defendant who is

convicted under 18 U.S.C. § 922(g) … and who has three

prior convictions for specified types of offenses, including

‘burglary.’” 495 U.S. at 577–78. The problem arose because

there was (and still is) wide variation among the states over

the conduct that qualifies as “burglary.” After examining

26 No. 21-3225

the legislative history of the enhancement provision, the

Court concluded that it “always has embodied a categorical

approach to the designation of predicate offenses.” Id. at

588. In other words, Congress was trying to identify predi-

cate crimes that have “certain specified elements,” not

crimes that happen to bear the label “burglary.” Id. at 588–

89. Lest there was any doubt, the Court underscored that it

found “implausible” the idea “that Congress intended the

meaning of ‘burglary’ for purposes of § 924(e) to depend on

the definition adopted by the State of conviction.” Id. at 590.

Rather than relying on state definitions, the Taylor Court

settled on a generic definition of burglary.

But that was not Taylor’s only contribution to this area.

Equally important was the way in which the Court applied

that generic definition of burglary to the case before it. That

required the resolution of another general issue: “whether

the sentencing court in applying § 924(e) must look only to

the statutory definitions of the prior offenses, or whether

the court may consider other evidence concerning the de-

fendant’s prior crimes.” Id. at 600. It opted for what it called

a “formal” categorical approach, under which the sentenc-

ing court may consider only the statutory definitions and

elements of a prior crime, not the particular facts underly-

ing those convictions. Id.

In the years following Taylor, the Court has returned fre-

quently to the categorical approach. See, e.g., Begay v. United

States, 553 U.S. 137 (2008); Kawashima v. Holder, 565 U.S. 478

(2012); Moncrieffe v. Holder, 569 U.S. 184 (2013); Descamps v.

United States, 570 U.S. 254 (2013); Mathis v. United States, 579

U.S. 500 (2016); Esquivel-Quintana v. Sessions, 581 U.S. 385

(2017); United States v. Stitt, 586 U.S. __, 139 S. Ct. 399 (2018);

No. 21-3225 27

Stokeling v. United States, 586 U.S. __, 139 S. Ct. 544 (2019);

Shular v. United States, 589 U.S. 154 (2020); Pereida v. Wil-

kinson, 592 U.S. 224 (2021); Borden v. United States, 593 U.S.

420 (2021); United States v. Taylor, 596 U.S. 845 (2022); Pugin

v. Garland, 599 U.S. 600 (2023). And this issue is a staple of

the lower courts’ diet. For present purposes, it is not neces-

sary to dissect every one of these Supreme Court decisions.

It is enough briefly to discuss Shular, and then to consult the

other decisions as needed when I turn to the present appeal.

The setting of Shular was a familiar one: it dealt with the

proper way to apply the enhancement mandated by the

Armed Career Criminal Act, 18 U.S.C. § 924(e), to a defend-

ant with prior convictions for a “serious drug offense.” 589

U.S. at 156. This was a trickier problem than the one ad-

dressed in Taylor, where the Court was dealing with an old

common-law crime, burglary, and it had only to decide how

that crime should be defined for purposes of section 924(e).

With the straightforward Taylor solution off the table, the

parties in Shular presented two options to the Court: the

first, urged by the government, compared the elements of

the prior state offense to the conduct identified in section

924(e) (that is, the “manufacturing, distributing, or pos-

sessing with intent to manufacture or distribute, a con-

trolled substance,” id.); the second, advanced by Shular, re-

garded each of the activities listed in the statute as separate

offenses, next deduced what those generic offenses were,

and finally compared the state elements to those generic

crimes.

The Court opted for the government’s approach. In so

doing, it added a layer of complexity to Taylor’s categorical

approach. While the analysis is still applied in a categorical

28 No. 21-3225

fashion—that is, in a way that does not depend on the facts

of the particular case—Shular establishes that the categorical

approach is a methodology that can be used in different

ways. Specifically, it identifies two versions of the categori-

cal approach. The first and more familiar one “requires the

court to come up with a ‘generic’ version of a crime—that is,

the elements of ‘the offense as commonly understood.’” Id.

at 158 (citation omitted). The second (previously unrecog-

nized) variant asks the court “to determine not whether the

prior conviction was for a certain offense, but whether the

conviction meets some other criterion.” Id. One such criteri-

on focuses on the elements of an offense: the court must de-

termine whether the proposed state predicate offense has

the designated elements that Congress highlighted. Id.

The latter approach, the Court held, was the appropriate

one for Shular’s case. It explained that the operative terms

describing a “serious drug offense” logically referred to

conduct, not to any recognizable crime such as burglary, ar-

son, or extortion. The Court rejected the idea that something

“involving” the designated activities necessarily described

separate crimes. Wrapping up the opinion, the Court con-

cluded that Shular’s prior Florida conviction for selling co-

caine and possessing that drug with the intent to sell it “in-

volved” precisely the conduct covered by the federal stat-

ute, and thus the enhancement was proper.

With this general background about the categorical ap-

proach, I now turn to the particular statutes involved in

Liestman’s case.

No. 21-3225 29

II

A

My first step is to look carefully at the statute of convic-

tion, the statute governing sentencing, and the predicate

state-law offense. For convenience, I set them out here, so

that the reader will not need to flip back to the majority

opinion to find them. First, we have the statute of convic-

tion, 18 U.S.C. § 2252(a)(1):

(a) Any person who—

(1) knowingly transports or ships using any

means or facility of interstate or foreign commerce or

in or affecting interstate or foreign commerce by any

means including by computer or mails, any visual

depiction, if—

(A) the producing of such visual depiction

involves the use of a minor engaging in sex-

ually explicit conduct; and

(B) such visual depiction is of such con-

duct;

….

shall be punished as provided in subsection (b) of

this section.

Next there is the sentencing provision that applies for

section 2252(a) offenses, 18 U.S.C. § 2252(b)(1), which reads

as follows in pertinent part:

Whoever violates … paragraph (1) … of subsec-

tion (a) shall be fined under this title and imprisoned

not less than 5 years and not more than 20 years, but

30 No. 21-3225

if such 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, or the production, possession, receipt, mail-

ing, sale, distribution, shipment, or transportation of

child pornography, or sex trafficking of children,

such person shall be fined under this title and impris-

oned for not less than 15 years nor more than 40 years.

Id. (emphasis added).

Finally, there is the language of Wis. Stat. § 948.12(1m),

the state law underlying Liestman’s potentially qualifying

prior conviction:

Whoever possesses, or accesses in any way with

the intent to view, any undeveloped film, photo-

graphic negative, photograph, motion picture, vide-

otape, or other recording of a child engaged in sex-

ually explicit conduct under all of the following cir-

cumstances may be penalized under sub. (3):

(a) The person knows that he or she possesses or

has accessed the material.

(b) The person knows, or reasonably should

know, that the material that is possessed or accessed

contains depictions of sexually explicit conduct.

(c) The person knows or reasonably should know

that the child depicted in the material who is en-

gaged in sexually explicit conduct has not attained

the age of 18 years.

Liestman offers two reasons why his prior state convic-

tion under section 948.12(1m) does not qualify as a predi-

No. 21-3225 31

cate for purposes of section 2252(b)(1). First, he argues that

the Wisconsin statute sweeps more broadly than the federal

law because it encompasses the lewd exhibition of the

breasts and buttocks, see Wis. Stat. §§ 948.01(7), 939.22(19),

and the federal law does not, see 18 U.S.C. § 2256(2), (8).

Second, he contends that accessing child pornography is dif-

ferent from possessing child pornography, and that accessing

is not one of the enhancers for section 2252, the relevant

federal law. I agree with the majority that there is no merit

to the latter argument, and so I do not discuss it further.

With respect to the former point, Liestman relies principally

on Shular and this court’s decision in United States v. Ruth,

966 F.3d 642 (7th Cir. 2020). The government responds that

it is permissible for a state law to cover conduct that goes

beyond a federal statute when that statute calls only for ear-

lier conduct “relating to” the subject matter.

The nub of the question before us is thus how those two

words, “relating to,” affect the categorical analysis that

normally applies to these cases. The majority, ante at 10–16,

sees that phrase as a get-out-of-jail-free card from the cate-

gorical approach. The phrase, as they understand it, is so

broad and undefined, that even the loosest of connections to

the federal crime (here, transporting child pornography)

will suffice to qualify the earlier state crime as a proper en-

hancer under section 2252(b)(1). In so doing, they rely on

several cases from this court, and they then turn to guid-

ance from the Supreme Court. My analysis of those materi-

als, however, leads me to a different conclusion, as I now

explain.

32 No. 21-3225

B

In order to provide the legal framework for this

statutory-interpretation exercise, I begin with the Supreme

Court’s decisions interpreting the phrase “relating to” to see

how they apply to the sentencing-enhancement issue here.

Two cases are particularly relevant: Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383 (1992), and Mellouli v. Lynch,

575 U.S. 798 (2015). I discuss them in that order.

A layperson could be forgiven for being somewhat mys-

tified by the notion that Morales has anything to do with

Liestman’s sordid activities. As I discuss in more detail in a

moment, Morales was about airline pricing practices in a

market that only recently had been deregulated. Ascertain-

ing the proper prison term for a transporter of child por-

nography seems to be a far cry from an effort by state attor-

neys general to attack certain airline pricing stratagems as

deceptive trade practices. For that matter, child pornogra-

phy seems to have little to do with the regulation of pension

plans under federal law pursuant to the Employee Retire-

ment Income Security Act (ERISA), 29 U.S.C. § 1144(a), an

analogy on which the Morales Court leaned heavily. My

own examination of Morales (and ERISA, for that matter)

leads me to conclude that its understanding of the words

“relating to” for purposes of airline pricing provides at

most the first step of the analysis for the criminal matter be-

fore us.

The backdrop for Morales was Congress’s decision to

move from a world in which airline prices were regulated

by an administrative body (the Civil Aeronautics Board) to

a world in which unfettered price competition is the order

of the day. The Airline Deregulation Act of 1978, 49 U.S.C.

No. 21-3225 33

§ 1301 et seq., carried out that decision. The Act contained

two provisions relevant here: first, it included a broad pre-

emption section, under which the states were not allowed to

enforce “any law, rule, regulation, standard, or other

provision having the force and effect of law relating to rates,

routes, or services of any air carrier …,” 49 U.S.C. § 1305(a)

(emphasis added); second, the Deregulation Act contained a

“saving” clause, which as of 1992 read as follows: “Nothing

contained in this chapter shall in any way abridge or alter

the remedies now existing at common law or by statute, but

the provisions of this chapter are in addition to such

remedies.” 49 U.S.C. App. § 1506, repealed by Pub. L. 103-

272, § 1(e), July 5, 1994, and replaced by 49 U.S.C. § 40120

(stating “[a] remedy under this part is in addition to any

other remedies provided by law”).

The job before the Court was to decide whether the state

deceptive-practice laws fit within the saving clause, or if in-

stead the preemption clause had the effect of overriding

them. The Court thought that the latter reading was more

faithful to section 1305(a)(1)’s express preemption language.

The key phrase, it said, was “relating to.” Consulting the

fifth edition of Black’s Law Dictionary, the Court observed

that the “ordinary meaning” of those words is broad. Some-

thing “relates to” another thing if it “stand[s] in some rela-

tion; [has] a bearing or concern; pertain[s]; refer[s]; [or]

bring[s] into association with or connection with” that other

thing. 504 U.S. at 383. The Court found the same breadth in

ERISA’s preemption provision, 29 U.S.C. § 1144(a), which

preempts all state laws “insofar as they … relate to any em-

ployee benefit plan.”

34 No. 21-3225

Broad though the term “relating to” may be, however, it

is still necessary to tether it to the legal framework of the

law in which we find it. After all, as even the Palsgraf court

recognized, chains of causation can become so long that lia-

bility dissipates. See Palsgraf v. Long Island R. Co., 248 N.Y.

339 (1928). For want of a nail, the kingdom may have been

lost, but after a certain point we let that loss lie where it fell.

In the law at issue in Morales, however, Congress signaled

that it wanted a broad interpretation of laws that “relate to”

airline pricing. And following that instruction, the Court

held that the state laws before it were close enough to the

core of pricing that they were preempted. This was entirely

reasonable. We know from antitrust law that there are

many ways to compete on value without direct price-fixing:

quantities can be manipulated, warranties can be offered,

information can be conveyed in advertising, product differ-

entiation can occur, loss leaders can lure people in the door,

and so on (and on, and on). If the goal of a federal statute is

price deregulation, it makes sense to say that state law

should not get in the way of creative efforts by the airlines

to compete through such measures as advertising, frequent

flier programs (a form of discount from the customer’s per-

spective), and compensation for disrupted travel. Boiled

down to their essentials, these are all forms of competition,

and thus they are all logically encompassed by a law that

was designed to substitute a competitive regime for a regu-

latory one.

In short, there is inevitably a zone within which the de-

regulatory framework established by the federal Act must

be free to reign, and a space beyond that line in which state

law is free to continue to operate. No one thinks that the Act

confers carte blanche on airline personnel to steal people’s

No. 21-3225 35

suitcases, or to skim their credit cards while the customer is

paying to check a bag, or to flout a state’s minimum-wage

laws, see Hirst v. Skywest, Inc., 910 F.3d 961, 967 (7th Cir.

2018). Those activities are related to the person’s decision to

fly somewhere, but not in a way that requires preemption

of state law.

The same logic explains why the analogy to ERISA fails

in the end. ERISA preempts state laws “insofar as they …

relate to any employee benefit plan.” 29 U.S.C. § 1144(a). It

deals with sensitive actuarial computations that are de-

signed to ensure the financial soundness of retirement and

benefit plans. Pull one thread out of the tapestry and the

whole thing will unravel. The case of Shaw v. Delta Air Lines,

Inc., 463 U.S. 85 (1983), nicely illustrates the point. There the

Supreme Court had to decide whether ERISA preempted a

New York law forbidding employers from discriminating

on the basis of pregnancy. The idea was that the New York

law “prohibit[ed] employers from structuring their employ-

ee benefit plans” in particular ways that predictably might

affect the choices available to the plans’ participants. Id. at

97.

The Court held that the law “related to” ERISA plans,

reasoning that the history of ERISA’s preemption provision

“indicated that the section’s preemptive scope was as broad

as its language.” Id. In the course of doing so, it offered the

following guidance for determining whether ERISA

preemption exists: “A law ‘relate[s] to’ an employee benefit

plan, in the normal sense of the phrase, if it has a connec-

tion with or reference to such a plan.” Id. In order to see

whether the state law has that type of connection to an

36 No. 21-3225

ERISA plan, it is necessary to determine what laws Con-

gress intended to supplant. Id. at 95–98.

Sometimes the proper conclusion is that Congress did

intend that displacement, but as California Div. of Labor Stds.

Enforcement v. Dillingham Constr., N.A., 519 U.S. 316 (1997),

demonstrated in its rejection of ERISA preemption, some-

times Congress has no such intent. The state law there was

not preempted for several reasons: it did not have a “con-

nection with” ERISA plans, and it did not “reference”

ERISA plans because its requirements applied to both ap-

prenticeship programs covered by ERISA (those where the

parties had set up separate funds) and other programs that

were not (those where the employer supported the program

out of its general assets).

What we learn from Morales and the ERISA examples on

which it relied is that it is essential to pay attention to legis-

lative context. Neither airline deregulation nor the ERISA

scheme operates in a vacuum. It was necessary to ascertain

the scope of each statute before it was possible to see if a

state law “related to” the federal provision for purposes of

preemption. In contrast, in Mellouli, the same careful atten-

tion to legislative context caused the Court to require a

tighter relation between the federal law and the state law.

Mellouli concerned the use of state convictions in immi-

gration cases. In 2010, Moones Mellouli, a lawful permanent

resident of the United States, pleaded guilty to a misde-

meanor offense under Kansas law for the possession of

drug paraphernalia to store a controlled substance. The

“paraphernalia” was a sock, where he had put four Ad-

derall pills, which contain a mixture of amphetamine and

dextroamphetamine. Adderall is used to treat narcolepsy

No. 21-3225 37

and ADHD, among other things. The state court imposed a

suspended term of 359 days and 12 months’ probation.

After Mellouli successfully completed his probation, he

was arrested by agents of Immigration and Customs En-

forcement on the ground that the state misdemeanor ren-

dered him removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).

Using words that should by now be familiar to us, that stat-

ute authorizes the removal of a foreigner “convicted of a

violation of … any law … of a State … relating to a con-

trolled substance (as defined in section 802 of Title 21).” Id.

The question was whether Mellouli’s Kansas conviction fit

that definition. No, was the Court’s answer. It summarized

its reason for that holding as follows:

We hold that Mellouli’s Kansas conviction for con-

cealing unnamed pills in his sock did not trigger re-

moval under § 1227(a)(2)(B)(i). The drug-

paraphernalia possession law under which he was

convicted, Kan. Stat. Ann. § 21–5709(b), by definition,

related to a controlled substance: The Kansas statute

made it unlawful “to use or possess with intent to

use any drug paraphernalia to ... store [or] conceal ...

a controlled substance.” But it was immaterial under

[the Kansas] law whether the substance was defined

in 21 U.S.C. § 802. Nor did the State charge, or seek to

prove, that Mellouli possessed a substance on

the § 802 schedules. Federal law (§ 1227(a)(2)(B)(i)),

therefore, did not authorize Mellouli's removal.

575 U.S. at 801 (emphasis in original).

Note that the Court freely recognized in this passage

that the law underlying Mellouli’s Kansas conviction “relat-

38 No. 21-3225

ed to” a controlled substance. But that was not enough to

support the use of that conviction for removal, for the sim-

ple reason that the removal statute included an additional

requirement: the only controlled substances that could be

used as a reference point were those defined in 21 U.S.C. §

802(6), which in turn refers to schedules I, II, III, IV, and V

of part B of that subchapter.

Taking the categorical approach, the Court noted that

Kansas defines “controlled substances” more broadly than

the federal government does; the Kansas definition includes

“at least nine substances not included in the federal lists.”

575 U.S. at 802. The government argued, however, that the

use of the words “relating to” in the immigration statute

rendered that mismatch irrelevant. The Kansas drug mis-

demeanor of which Mellouli was convicted at least related to

the federal controlled substance laws, and that (the gov-

ernment contended) was enough.

Not so, the Court responded. The majority accepted that

“the last reasonable referent of ‘relating to,’ as those words

appear in § 1227(a)(2)(B)(i), is ‘law or regulation.’” 575 U.S.

at 811. Only the dissenting Justices accepted the argument

that the words “relating to” are so broad that they covered

this situation. The Court refused to go that far, warning in-

stead that “those words, extended to the furthest stretch of

their indeterminacy, stop nowhere.” Id. at 812 (cleaned up).

“Context,” the majority continued, “may tug in favor of a

narrower reading.” Id. (cleaned up). Both the historical

background of § 1227(a)(2)(B)(i) and the language of the

statute indicated to the Court that there had to be a “direct

link between an alien’s crime of conviction” and a federally

defined controlled substance. Id. at 812. The statute itself

No. 21-3225 39

specified which controlled substances could be used for the

immigration purpose at hand. Concluding, the Court held

that “to trigger removal under § 1227(a)(2)(B)(i), the Gov-

ernment must connect an element of the alien’s conviction

to a drug ‘defined in [§ 802].’” Id. at 813.

C

That moves us closer to Liestman’s case. It is common

ground between the majority and me that his Wisconsin

conviction could not be used to enhance his federal sen-

tence if we were to use the “generic crime” version of the

categorical approach. Wisconsin’s statute covers more body

parts—that is, more activity—than the federal statute does,

and so it fails that test. But what about the “conduct” ap-

proach? And how should the words “relating to” affect our

analysis? Those two questions already have come up before

this court.

The first case I examine is United States v. Kraemer, 933

F.3d 675 (7th Cir. 2019), which was handed down on July 31,

2019. The facts in Kraemer were almost a carbon copy of

those in Liestman’s case. After being charged with five

counts of distribution of child pornography in violation of

18 U.S.C. § 2252(a)(2) and one count of possession in viola-

tion 18 U.S.C. § 2252(a)(4)(B), Kraemer pleaded guilty to the

possession count. 933 F.3d at 677. The government then

dismissed the five distribution counts.

At the sentencing stage, Kraemer’s two earlier convic-

tions under Wisconsin law for first-degree sexual assault of

a child became relevant. See Wis. Stat. § 948.02(1), (2) (1995).

Citing 18 U.S.C. § 2252(b)(2) (which is functionally identical

to (b)(1), the statute involved in Liestman’s case), the Proba-

40 No. 21-3225

tion Office advised that Kraemer’s Wisconsin convictions

supported an enhancement because they “related to” the

sexual abuse of a minor. But there was a wrinkle. Although

Kraemer’s crime of conviction is located in chapter 110 of

Title 18, that chapter did not contain any definition of the

term “sexual abuse.” Lacking statutory guidance, the dis-

trict court turned to the definition of sexual abuse in 18

U.S.C. § 2246(3), which specifically says that it provides def-

initions for terms “[a]s used in this chapter [109A].” The

court found four offenses that used the section 2246(3) defi-

nition: 18 U.S.C. §§ 2241, 2242, 2243, and 2244. 933 F.3d at

677. Kraemer’s Wisconsin offenses (from a categorical per-

spective, of course) covered more conduct than that identi-

fied in sections 2241, 2243, and 2244. Id. 677–78. This left

section 2242, which prohibits knowingly “engag[ing] in a

sexual act with another person if that other person is … in-

capable of appraising the nature of the conduct.” See id. at

678 (quoting 18 U.S.C. § 2242(2)). Finding this to be a cate-

gorical match with Wis. Stat. § 948.02(2), on the theory that

a person whose age is below the age of consent might be

incapable of appreciating the nature of the act, the district

court found the enhancement to be proper. Id.

We upheld that decision, id. at 685, but our rationale dif-

fered subtly from that of the district court. We emphasized

that the prior conviction supporting an enhancement need-

ed only to “relate to” aggravated sexual abuse, id. at 679,

not to be “absolute[ly] congruen[t]” with the federal law, id.

at 680. Importantly, there was no statutory definition bind-

ing us, since chapter 110 (unlike chapter 109A) has no defi-

nition of the terms “aggravated sexual abuse,” “sexual

abuse,” or “abusive sexual conduct.” In that setting, we

concluded that the words “relate to” have their default

No. 21-3225 41

broad meaning. Id. at 679 (citing Mellouli, 504 U.S. at 383).

We distinguished Mellouli on the ground that it turned on

“the particular removal statute’s surrounding text and his-

tory.” 933 F.3d at 681. We could find no comparable history

or text that informed the statutes at issue in Kraemer. Id. at

682. On the understanding that there was no contrary direc-

tion from Congress, we felt free to conclude that a “slight

difference in the maximum age of the victim” (Wisconsin

used age 13, while the federal statute used age 12) did not

prevent the state crime from being “related to” the federal

offense, id. at 684, and so we were relieved of the need to

use the normal categorical approach.

Just three months later, we returned to this subject in

United States v. Kaufmann, 940 F.3d 377 (7th Cir. 2019).

Although Kaufmann purported to follow Kraemer’s

reasoning, id. at 381 (“[W]e adhere to our Kraemer decision

today”), a closer look reveals that it missed a critical point.

Like Kraemer, Kaufmann had pleaded guilty to child

pornography offenses—in Kaufmann’s case both receiving

and possessing materials involving sexual exploitation of a

minor, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4).

Rather than looking at the governing statutes, we assumed

again that the “relating to” language in section 2252(b)

exempted us from the need to conduct any comparison

between the federal and the state laws. It was enough, we

thought, that there was “at least substantial overlap in

content” between the two. 940 F.3d at 380. That, we held,

was enough to permit the enhancement to the federal law.

Id.

What we missed in Kaufmann was the importance of a

statutory definition. Although there was no governing stat-

42 No. 21-3225

utory definition in Kraemer, the opposite was true in Kauf-

mann. The key term in Kaufmann was “child pornography,”

not “sexual abuse” or one of its variants. The term “child

pornography” is defined in 18 U.S.C. § 2256(8), 1 which con-

tains the definitions “[f]or the purposes of this chapter

[110].” Mellouli holds that when a statutory definition such

as this one exists, that is what we must use in carrying out

the categorical approach. There was an argument that the

Indiana statute under which Kaufmann had been convicted

swept more broadly than the statutory definition of “child

pornography,” insofar as it covered possession of images

that did not depict an actual minor. That was a critical issue;

if Kaufmann had been able to demonstrate that such a dif-

ference existed (a question on which I take no position), the

enhancement would have been improper.

1 The definition reads as follows in its entirety:

(8) “child pornography” means any visual depiction, including any

photograph, film, video, picture, or computer or computer-generated

image or picture, whether made or produced by electronic, mechanical,

or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use

of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer im-

age, or computer-generated image that is, or is indistinguisha-

ble from, that of a minor engaging in sexually explicit conduct;

or

(C) such visual depiction has been created, adapted, or

modified to appear that an identifiable minor is engaging in

sexually explicit conduct.

No. 21-3225 43

The third case I wish to highlight is United States v. Ruth,

966 F.3d 642 (7th Cir. 2020). Defendant Ruth pleaded guilty

to one count of possession of a firearm by a felon, 18 U.S.C.

§ 922(g), and one count of possession of cocaine with intent

to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(C). The govern-

ment notified him that it intended to use a 2006 Illinois con-

viction for possession of a controlled substance (cocaine)

with intent to distribute, 720 ILCS 570/401(c)(2), to enhance

his federal sentence. Ruth objected to that enhancement, be-

cause the Illinois definition of “controlled substance” is

broader than the federal definition.

The Controlled Substances Act defines the term “felony

drug offense” as “an offense that is punishable by impris-

onment for more than one year under any law of the United

States or of a State or foreign country that prohibits or re-

stricts conduct relating to narcotic drugs, marihuana, anabolic

steroids, or depressant or stimulant substances.” 21 U.S.C.

§ 802(44) (emphasis added). That definition, however, did

not play a role in our analysis. Instead, in my opinion cor-

rectly, we compared the federal definition of the term “nar-

cotic drugs” which includes “[c]ocaine, its salts, optical and

geometric isomers, and salts of isomers,” id. § 802(17), with

the state definition, which criminalizes not only optical and

geometric isomers of cocaine, but also positional isomers.

Ruth attached no significance to the use of the phrase “relat-

ing to” in the definition of “felony drug offense.” We held,

following Shular’s guidance, that the variant of the categori-

cal approach that applied was the one that relied on con-

duct, that the Illinois statute is categorically broader than

the federal law, and thus that the state conviction could not

be used to enhance Ruth’s sentence. 966 F.3d at 654.

44 No. 21-3225

I take several lessons from all of these cases. First, the

Supreme Court has steadfastly adhered to the categorical

approach, and so any step we take must be consistent with

it. The only thing that Shular did was to ensure that courts

did not think, after Taylor, that it is always necessary to con-

jure up a generic offense. Second, whether federal and state

laws can be compared depends on the conduct that each

covers. Third, when it comes to identifying pertinent con-

duct, we must pay close attention to the text of the federal

statute under consideration. Sometimes the statute defines

the actionable conduct quite broadly, as simply “relating to”

airline pricing, controlled-substance offenses, child abuse,

or whatever else Congress wishes to use as the point of

comparison. Sometimes it has a narrower definition, and

sometimes there is no definition at all. Another case on

which the majority relies, Pugin v. Garland, 599 U.S. 600

(2023), is an example of the last type of case.

In Pugin, the question was whether a state offense “re-

lated to” obstruction of justice if there was no pending in-

vestigation or proceeding. The term “obstruction of justice”

was undefined in the statute, and so the Court turned to

definitions appearing in various state laws as a hint to what

Congress may have had in mind when it used that term. See

id. at 607. The majority does the same here. Ante at 13. But

while 50-state surveys may be appropriate in cases involv-

ing the generic categorical approach where Congress leaves

a term undefined, they cannot take precedence when Con-

gress tethers the comparison to a defined term in federal

law. We should presume that Congress knows what it is do-

ing, even if it adopts a definition that only a minority of

states follow. In Liestman’s case, we need not guess what

offenses are reached by the phrase “child pornography,”

No. 21-3225 45

because the definition in section 2256 tells us exactly what

conduct Congress had in mind. We are not free to ignore

that definition even if (as in Mellouli) the phrase “related to”

occurs elsewhere in the law. As Mellouli held, we must stay

within the definition Congress gave us.

III

All that remains is to apply this law to Liestman’s case.

His crime of conviction is the transportation of child por-

nography. As I noted earlier, the term “child pornography”

is defined for purposes of chapter 110 in 18 U.S.C. § 2256(8).

That is enough, in my view, to bring this case within the

scope of the Mellouli rule. The majority refuses to do so, on

the ground that the statute in Mellouli contained an express

cross-reference to the governing definition in the Controlled

Substances Act, but that distinction elevates form over sub-

stance. When Congress specifies that a definition applies

throughout a certain chapter, it should not also have to in-

sert a cross-reference to the defined term every time it aris-

es. Here is what section 2252(b)(1), Liestman’s sentencing

statute, would look like if we were to insist on such a rule:

Whoever violates, or attempts or conspires to vio-

late, paragraph (1) … of subsection (a) shall be fined

under this title and imprisoned not less than 5 years

and not more than 20 years, but if such person has a

prior conviction … under the laws of any State relat-

ing to aggravated sexual abuse, sexual abuse, or abu-

sive sexual conduct involving a minor (as defined in

section 2256 of this title) or ward, or the production,

possession, receipt, mailing, sale, distribution, ship-

ment, or transportation of child pornography (as de-

fined in section 2256 of this title), or sex trafficking of

46 No. 21-3225

children, such person shall be fined under this title

and imprisoned for not less than 15 years nor more

than 40 years.

The first line of section 2256 already does the work of the

italicized parentheticals. Liestman’s case is thus indistin-

guishable from Mellouli.

The proper comparison, using the conduct-based cate-

gorical approach, is between the conduct defined to be child

pornography by the governing federal statute, and the con-

duct covered by Liestman’s predicate Wisconsin conviction.

We all agree that the Wisconsin statute criminalizes more

conduct than the federal statute. That should be enough to

require a holding that Liestman’s earlier conviction cannot

be used to enhance his sentence in this case.

I would remand for resentencing. I therefore respectfully

dissent from the holding of the en banc court.