Petition for Writ of Certiorari — Michael Portanova, Petitioner v. United States

No. 20IN THE

SUPREME COURT

OF THE UNITED STATES

___________

MICHAEL PORTANOVA,

Petitioner

v.

UNITED STATES OF AMERICA,

___________

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

HEIDI R. FREESE

RONALD A. KRAUSS

FREDERICK W. ULRICH*

QUIN M. SORENSON

BRANDON R. REISH

TAMMY L. TAYLOR

FEDERAL PUBLIC DEFENDERS OFFICE

MIDDLE DISTRICT OF PENNSYLVANIA

100 CHESTNUT STREET, 3RD FLOOR

HARRISBURG, PA 17101

(717) 782-2237

Counsel for Petitioner

September 17, 2020

* Counsel of Record

QUESTION PRESENTED

Whether the “categorical approach,” which this

Court has repeatedly held must be applied in assessing whether a prior state conviction qualifies as a

predicate offense for purposes of a federal sentencing

enhancement, may be disregarded or “loosened” – as

the court of appeals in this case concluded (deepening

an existing circuit split) – in child pornography cases.

i

PARTIES TO THE PROCEEDINGS

The petitioner is Michael Portanova.

The respondent is the United States.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDINGS .......................... ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINION BELOW....................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISION ......................................... 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE..................................... 3

A.

Factual background................................ 3

B.

Procedural background .......................... 4

C.

Rulings below ......................................... 5

REASONS FOR GRANTING THE PETITION .......... 6

1.

The “looser categorical” approach

contravenes this Court’s

precedent interpreting identical

statutory language. ................................ 7

iii

2.

The circuits are divided over the

scope of the sentencing

enhancement in Section

2252(b)(1), and in applying the

categorical approach to identical

language.................................................. 9

3.

This case presents an issue of

substantial importance. ....................... 10

CONCLUSION .......................................................... 12

APPENDIX

Opinion and Judgment of the U.S. Court of Appeals for the Third Circuit (May 27, 2020) .......... 1a

iv

TABLE OF AUTHORITIES

Page

Cases

Descamps v. United States,

570 U.S. 254 (2013) .................................................. 6

Mathis v. United States,

136 S. Ct. 2243 (2016) .............................................. 7

Mellouli v. Lynch,

575 U.S. 798, 135 S. Ct. 1980 (2015) ................... 8, 9

Moncrieffe v. Holder,

569 U.S. 184 (2013) .................................................. 7

Mylius v. Uhl,

210 F. 860 (2d Cir. 1914).......................................... 6

Shular v. United States,

140 S. Ct. 779 (2020) ................................................ 6

Taylor v. United States,

495 U.S. 575 (1990) .............................................. 6, 7

United States ex rel. Guarino v. Uhl,

107 F.2d 399 (2d Cir. 1939)...................................... 6

United States v. Barker,

723 F.3d 315 (2d Cir. 2013)................................ 9, 10

United States v. Bennett,

823 F.3d 1316 (10th Cir. 2016) ................................ 9

United States v. Davis,

139 S. Ct. 2319 (2019) .............................................. 7

United States v. Kroll,

918 F.3d 47 (2d Cir. 2019)...................................... 10

United States v. Mateen,

806 F.3d 857 (6th Cir. 2015) .................................... 9

v

United States v. Miller,

819 F.3d 1314 (11th Cir. 2016) .......................... 9, 10

United States v. Pavulak,

700 F.3d 651 (3d Cir. 2012).................................... 10

United States v. Ramos,

892 F.3d 599 (3d Cir. 2018)...................................... 7

United States v. Reinhart,

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

United States v. Sumner,

816 F.3d 1040 (8th Cir. 2016) .................................. 9

Statutes

18 U.S.C. § 2252(a)(2) .................................................. 4

18 U.S.C. § 2252(b)(1) ........................................ passim

18 U.S.C. § 3559(e) .................................................... 10

18 U.S.C. § 924(c)......................................................... 7

18 U.S.C. § 924(e) ........................................................ 7

28 U.S.C. § 1254(1) ...................................................... 1

8 U.S.C. § 1101............................................................. 7

8 U.S.C. § 1227(a)(2)(B)(i) ........................................... 8

vi

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Michael Portanova, hereby petitions

for a writ of certiorari to review the judgment of the

Court of Appeals for the Third Circuit.

OPINION BELOW

The opinion of the Third Circuit is reported at 961

F.3d 252 and reproduced at Petition Appendix (“Pet.

App.”) 1a-26a.

JURISDICTION

The court of appeals entered judgment on May 27,

2020, Pet. App. 1a. This Court has jurisdiction over

this timely filed petition under 28 U.S.C. § 1254(1).

STATUTORY PROVISION

The penalty provision in Section 2252(b)(1) provides:

(b)(1) Whoever violates . . . paragraph .

. .(2) . . . of subsection (a) . . . 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, mailing, sale, distribution, shipment, or transportation of

child pornography, or sex trafficking of

children, such person shall be fined under this title and imprisoned for not

less than 15 years nor more than 40

years.

18 U.S.C. § 2252(b)(1) (emphasis added).

INTRODUCTION

This case presents whether a so-called “looser categorical approach” (as described by the court of appeals), see Pet. App. 8a, 12a, should be applied in cases

involving child pornography. This Court has never

used that phrase, has never suggested that the standard categorical approach may be “loosened” in any subset of cases, and has indeed said—repeatedly—that

the categorical approach must be applied when a statute directs courts to consider whether a prior crime of

conviction qualifies as a predicate for an enhancement.

E.g., Mathis v. United States, 135 S. Ct. 2243, 2251-52

(2016). That includes cases, like this one, in which the

statute provides for an enhancement when a prior conviction “relates to” a particular type of crime.

The court of appeals here nevertheless held that the

standard approach should be (again, to use the circuit

court’s own verbiage) “loosened” in child pornography

prosecutions, given the seriousness of the offense and

the use of “relating to” language in the relevant statutes. See Pet. App. 8a. Several other circuits have

agreed, while at least one other—the Court of Appeals

for the Ninth Circuit—has held to the contrary. See

id. at 12a-15a. That court, echoed by dissenting opinions in other courts, has said that a “looser categorical

approach” is (with apologies for the pun) categorically

forbidden by this Court’s precedent. See id. at 13a14a.

2

The issue demands review by this Court. The penalties for child pornography offenses are severe to

begin with, and now a division within the circuits has

created a geographical punishment disparity. This

Court should grant a writ of certiorari to resolve the

circuit split and bring uniformity to this area of the

law.

STATEMENT OF THE CASE

A.

Factual background

Having been sexually abused as a child and suffering

from mental health issues, Mr. Portanova turned to

the internet and ended up possessing and distributing

child pornography. For this, in 2014 state authorities

charged him and he pleaded guilty to distributing and

possessing child pornography. See Pet. App. 3a; CA at

18. 1 The state court sentenced Mr. Portanova to an

indeterminate term of imprisonment for 11 ½ to 23

months, followed by a four-year term of probation.

Part of the sentence for the state offense involved

counseling and sex-offender treatment. While in treatment in 2017, Mr. Portanova admitted to relapsing

and to downloading child pornography. As a result of

that admission, state probation officers confronted

him, and he confirmed that he had re-offended. See

Pet. App. 3a; CA at 25. Around the same time, Homeland Security agents had been conducting an online investigation on the BitTorrent network, which allows

the sharing of child pornography. See id. Those agents

connected a cellular telephone with Mr. Portanova’s

internet protocol address that they believed had files

containing child pornography. See CA at 25.

1

CA refers to the appendix filed in the court of appeals.

3

Mr. Portanova provided a statement to county detectives, admitting to having used peer-to-peer software

to download child pornography. See Pet. App. 3a; CA

at 25. A later forensic examination of his phone revealed videos of child pornography. See id.

B.

Procedural background

In January 2018, a grand jury returned a one-count

indictment, charging Mr. Portanova with having received child pornography in violation of 18 U.S.C. §

2252(a)(2). See Pet. App. 2a-3a. The grand jury also

alleged that the conduct occurred after state convictions for distributing and possessing child pornography, thus subjecting Mr. Portanova to the enhanced

penalties in Section 2252(b)(1). See id.

Mr. Portanova pleaded guilty to the offense in October 2018, with counsel noting an objection to applying

the mandatory minimum because it should not qualify

as a prior conviction under the statute. See Pet. 3a-4a.

The probation office prepared a presentence report and

counsel objected to the enhanced sentence, arguing,

among other things, that the district court should not

count the state conviction as a qualifying prior conviction and that the language in Section 2252(b) was void

for vagueness. See CA at 28-34. In particular, Mr.

Portanova argued that the district court should apply

a categorical approach in determining whether the

prior conviction qualified as a predicate for the enhancement.

4

C.

Rulings below

At sentencing, the district court acknowledged that

the child pornography penalties were draconian, explaining that the court was sympathetic with Mr.

Portanova’s circumstances. See CA at 71, 76-77. Even

so, the district found that the state-court conviction

“related to” the federal pornography offense and that

the statutory language was broadly interpreted. See

CA at 71. Based on the statutory language, the district

court did not apply a categorical approach.

On appeal, the Third Circuit affirmed, based on its

“looser categorical approach.” Pet. App. 3a. In doing

so, the court acknowledged that the traditional (viz.,

not “looser”) categorical approach must be applied in

determining whether a prior conviction triggers an enhancement. See Pet. App. 5a. Under this approach, a

court compares the elements of the state conviction

with those of the federal definition or generic offense.

See id. at 6a. And the court explained that a prior conviction counts as a predicate when its elements are the

same as or narrower than the federal counterpart. See

id. at 7a.

But the court did not employ the traditional categorical approach. Instead, the court found that its own

“looser categorical approach” applied. Pet. App. 8a. In

the court’s view, Congress’ use of the “relating to” language required an expansive analysis, “encompass[ing] crimes other than those specifically listed in

the federal statutes.” Id.

In reaching this conclusion, the court conceded several things. One, that it had employed a traditional

categorical approach when interpreting other statutory enhancements conditioned on predicates “relating

5

to” certain offenses. See Pet. App. 11a nn.28-29. Two,

that the circuits were divided on this issue. See Pet.

App. 12a. Three, that this Court had addressed identical language, and that ruling supported employing a

traditional categorical approach. See Pet. App. 15a16a. And finally, that coupling the statute’s scope to

the phrase “relating to,” leaves it with an indeterminate reach. See Pet. App. 18a.

The court recognized that the state predicate offense

at issue was broader—encompassing additional types

of nudity—than its federal counterpart. See Pet. App.

21a, 23a. But in the court’s view, it stood in some

“loose” relation to the possession of child pornography.

See Pet. App. 22a. For this reason, it affirmed the enhancement of Mr. Portanova’s sentence.

REASONS FOR GRANTING THE PETITION

Thirty years ago, this Court prescribed the categorical approach for determining when a prior conviction

constitutes a predicate for a sentencing enhancement.

See Taylor v. United States, 495 U.S. 575, 600 (1990). 2

This Court has consistently adhered to this approach,

including this most recent Term. E.g., Shular v.

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

has been only one recognized exception to the rule—

when a statute has alternative elements.

See

Descamps v. United States, 570 U.S. 254, 261-62

(2013). In that circumstance, a court applies a

The approach stems from Congress’ directive to consider convictions

and not conduct. But its roots extend to the latter 1800’s when Congress

directed non-citizens deportable based on convictions for crimes involving

moral turpitude. See, e.g., United States ex rel. Guarino v. Uhl, 107 F.2d

399, 400 (2d Cir. 1939) (explaining “deporting officials may not consider

the particular conduct for which the [non-citizen] has been convicted”);

United States ex rel. Mylius v. Uhl, 210 F. 860, 863 (2d Cir. 1914).

2

6

modified categorical approach. But this merely permits a court to look to a limited class of documents in

identifying which of the alternative elements applied.

See Mathis, 136 S. Ct. at 2256.

Courts have applied the categorical approach across

various federal statutes. For instance, it has been employed for the Armed Career Criminal Act enhancement, 18 U.S.C. § 924(e), e.g., Taylor, 495 U.S. at 600;

for the penalty for possessing a firearm in relation to a

felony, 18 U.S.C. § 924(c), e.g., United States v. Davis,

139 S. Ct. 2319, 2334-35 (2019); for identifying an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101, e.g., Moncrieffe v. Holder, 569

U.S. 184, 190-91 (2013); and to the career-offender enhancement under the Sentencing Guidelines, e.g.,

United States v. Ramos, 892 F.3d 599, 606-07 (3d Cir.

2018).

But some circuits have carved out an exception to the

categorical approach for the prior-conviction enhancement in the child pornography statute. That exception, which the Third Circuit describes as the “looser

categorical approach,” conflicts with this Court’s precedent, the approach of the Ninth Circuit, and infringes

on fundamental principles of federalism.

A.

The “looser categorical” approach contravenes this Court’s precedent interpreting

identical statutory language.

In addressing Mr. Portanova’s argument, the Third

Circuit focused on the “relating to” language that precedes the list of predicate crimes. See Pet App. 7a-8a.

That language, according to the appeals court, requires a broader reading under a different inquiry. See

Pet. App. at 8a. Indeed, the court held that “relating

to” must be read as expansive and including crimes

7

other than those specifically listed in the federal offenses. Id.

But this Court has construed identical statutory language, and chose not to “loosen” the categorical approach because of it. In Mellouli v. Lynch, 575 U.S.

798, 135 S. Ct. 1980 (2015), the Court addressed Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act. That provision authorizes removal of an alien

if they have been “convicted of a violation of . . . any

law or regulation of a State . . . relating to a controlled

substances (as defined in section 802 of Title 21)[.]” 8

U.S.C. § 1227(a)(2)(B)(i) (emphasis added). While acknowledging that the phrase “relating to” is both broad

and indeterminate, the Court declined to use this as a

basis for abandoning the categorical approach. See

Mellouli, 135 S. Ct. at 1990. In reaching this conclusion, the Court stressed the statute’s use of the term

“convicted,” and the efficiency, fairness, and predictability of the categorical approach. See id. at 1986-87.

The Court explained that “relating to” extends to the

furthest reach, stopping nowhere, and thus context

tugged in favor of a narrower reading. See id. at 1990.

So too here. As this Court directed, the existence of

the phrase “relating to” does not permit a “looser categorical approach.” The text of Section 2252(b)(1)

speaks of a “prior conviction.” 18 U.S.C. § 2252(b)(1).

By permitting the “relating to” language to expand the

reach of the enhancement, the Third Circuit sidestepped the need for efficiency, fairness, and predictability–implicitly repudiating the holding of Mellouli.

8

1.

The circuits are divided over the scope of

the sentencing enhancement in Section

2252(b)(1), and in applying the categorical

approach to identical language.

Following this Court’s decision in Mellouli, the Ninth

Circuit construed the “relating to” language in Section

2252(b)(1), in United States v. Reinhart, 893 F.3d 606

(9th Cir. 2018), just as this Court directed—i.e., as not

permitting a “loosened” approach. The court emphasized that one need not venture outside the statutory

chapter for a definition of child pornography or sexually explicit conduct. See id. at 614-15. Rather, the

court in Reinhart chose to anchor the “relating to” language to the federal definition of child pornography.

See id. This, the court explained, prevented the language at issue from “drifting aimlessly.” Id. 3 And, as

the court noted, the lack of a statutory enhancement

does not prevent an offender from receiving significant

punishment—the Sentencing Guidelines adequately

address that. See id.

At the same time, apart from the Third Circuit, several other circuits have reached the opposite conclusion. For instance, the Second, see United States v.

Barker, 723 F.3d 315, 322 (2d Cir. 2013), Sixth, see

United States v. Mateen, 806 F.3d 857, 860-61 (6th Cir.

2015), Eighth, see United States v. Sumner, 816 F.3d

1040, 1043-44 (8th Cir. 2016), Tenth, see Bennett, 823

F.3d at 1324-25, and the Eleventh Circuit, see United

States v. Miller, 819 F.3d 1314, 1317 (11th Cir. 2016),

have applied a broad approach to the enhancement.

Some of these decisions, notably, preceded Mellouli,

did not discuss it, or relied on earlier holdings. E.g.,

In this respect, the Reinhart court’s rationale borrowed heavily from the

dissenting opinion by Judge Hartz in the Tenth Circuit. See United States

v. Bennett, 823 F.3d 1316, 1328-29 (10th Cir. 2016).

3

9

Barker, 723 F.3d at 322; Miller, 819 F.3d at 1317. Others, like the Third Circuit, tried to distinguish

Mellouli, citing the historical background of the immigration statute and the lack of a defined offense reference. See Pet. App. 15a; Bennett, 823 F.3d 1322-23.

But this Court’s holding in Mellouli rested on the “relating to” language and concerns over its “indeterminacy.” Mellouli, 135 S. Ct. at 1990. The same concern

exists here.

And the Third Circuit’s broad construction of “relating to” implicates other statutes, and other conflicts.

For example, Section 3559(e) in Title 18 mandates a

life sentence for having prior convictions “relating to”

a list of sex offenses. 18 U.S.C. § 3559(e). Yet as the

Third Circuit conceded, it applied the categorical approach to that language—not the “looser” version. See

Pet. App. 11a n.29 (citing United States v. Pavulak,

700 F.3d 651, 671 (3d Cir. 2012)). Other courts have

done the same. E.g., United States v. Kroll, 918 F.3d

47, 55 (2d Cir. 2019).

The result of these decisions is an ad hoc patchwork

of rules governing substantial penalties that differ geographically. This division demands review.

2.

This case presents an issue of exceptional

importance.

Not only is the resolution of this issue of extraordinary importance to the many, like Mr. Portanova, who

are subject to the enhancement. It also implicates fundamental concerns over federalism.

As to the former, Mr. Portanova’s case highlights the

significance of the enhancement. For example, his

conduct could have been viewed as a relapse, requiring

more counseling. Or, it may have been treated as a

violation of his state supervision. Instead, the federal

10

prosecution, even without the enhancement, subjected

him to a seven or eight-year term of incarceration under the Sentencing Guidelines. This was far more

than what he was exposed to in the state system. Because of the enhancement, however, he is serving 15

years.

As to the latter, the holding of the appeals court here

(and others that have agreed with it) implicates and

undermines the balance of authority between the

states and the federal government. States are entitled

by the U.S. Constitution to define the crimes within

their jurisdiction (within the limits imposed by the Bill

of Rights) in their own way and according to their own

judgments, and the federal government is likewise obligated by the U.S. Constitution to respect those judgments and to interpret state offenses in a manner consistent with that adopted by the state. The “loosened”

categorical approach, however, allows and invites to

define a state offense as one “relating to” child pornography—and thus qualifying as a predicate offense under Section 2252(b)(1)—when the state’s own government defined it differently and, in fact, understood and

intended that it would not so qualify. Put otherwise,

it allows the federal government to dictate to states the

nature and definition of the criminal offenses they

have created.

States have a constitutional right to define crimes

with the expectation that federal courts will interpret

them the same way, including prior convictions. The

“looser categorical” approach abandons federalism

limitations, allowing overbroad state laws to trigger

harsh federal penalties. And because of the severity of

the penalties, courts should be particularly careful to

apply them only within the bounds that Congress established. See United States v. Stitt, 139 S. Ct. 399

11

(2018) (No. 17-765, transcript of oral argument at 29:24, Ginsburg, J.). Here, respect for state authority requires acceptance of how they define a predicate offense. The “looser categorical” approach undermines

federalism limitations, allowing overbroad state laws

to trigger harsh federal penalties.

In sum, this case presents issues of exceptional importance, both to individual defendants (as Mr.

Portanova) and also to the constitutional relationship

between states and the federal government. Review is

amply warranted.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

HEIDI R. FREESE

RONALD A. KRAUSS

FREDERICK W. ULRICH*

QUIN M. SORENSON

BRANDON R. REISH

TAMMY L. TAYLOR

Counsel for Petitioner

September 17, 2020

* Counsel of Record

12