Opposition Brief — Jordan Winczuk, Petitioner v. United States

No. 23-5619

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JORDAN WINCZUK, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

W. CONNOR WINN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner’s

prior

New

Jersey

convictions

for

sexually assaulting a minor between the ages of 13 and 15 and for

endangering a child’s welfare by sharing child pornography qualify

as offenses “relating to the sexual exploitation of children” for

purposes of the second sentencing enhancement in 18 U.S.C. 2251(e).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (D. Mass.):

United States v. Winczuk, No. 19-cr-40011 (Mar. 16, 2022)

United States Court of Appeals (1st Cir.):

United States v. Winczuk, No. 22-1190 (May 2, 2023)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-5619

JORDAN WINCZUK, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A22) is

reported at 67 F.4th 11.

The order of the district court is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 2,

2023.

A petition for rehearing was denied on June 21, 2023 (Pet.

App. C1).

The petition for a writ of certiorari was filed on

September 14, 2023.

The jurisdiction of this Court is invoked

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

2

STATEMENT

Following a guilty plea in the United States District Court

for the District of Massachusetts, petitioner was convicted on one

count of attempting to entice a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction

of such conduct, in violation of 18 U.S.C. 2251(a), and one count

of committing a felony offense against a minor while subject to a

requirement to register as a sex offender, in violation of 18

U.S.C.

2260A.

Pet.

App.

B1.

The

district

court

sentenced

petitioner to 45 years of imprisonment, to be followed by five

years of supervised release.

affirmed.

1.

Id. at B2-B3.

The court of appeals

Id. at A1-A22.

In 2018, petitioner began messaging an 11-year-old boy

on Instagram using an alias.

Pet. App. A3.

At the time he sent

the messages, petitioner was required to register as a sex offender

and was prohibited from contacting minors, as a result of prior

convictions.

Id. at A4-A5.

Petitioner at first talked to the child about school and

complimented his physical appearance.

Pet. App. A3.

week

became

period,

petitioner’s

sexually explicit.

Ibid.

messages

Over a two-

progressively

more

He began asking the boy about erections

and masturbation and repeatedly requested photos of the child’s

genitals.

Ibid.

Petitioner also proposed plans for the child to

visit him in New Jersey and described in detail the sex acts he

would perform on the boy.

Id. at A3-A4.

3

The child’s mother learned about the messages two weeks after

petitioner began contacting the child.

Pet. App. A3.

She then

posed as her son, continued the conversation with petitioner, and

elicited petitioner’s real name and other identifying information.

Ibid.

She took that information to New Jersey law enforcement.

Id. at A3-A4.

A subsequent search of petitioner’s electronic

devices and his social-media accounts revealed that petitioner had

also engaged in sexually explicit conversations with several other

social-media users who appeared to be children.

2.

In

2019,

a

federal

grand

jury

in

Id. at A4.

the

District

of

Massachusetts charged petitioner with one count of attempting to

entice a minor to engage in sexually explicit conduct for the

purpose

of

producing

a

visual

depiction

of

such

conduct,

in

violation of 18 U.S.C. 2251(a), and one count of committing a

felony offense against a minor while subject to a requirement to

register as a sex offender, in violation of 18 U.S.C. 2260A.

App. A5.

Pet.

Petitioner pleaded guilty to both offenses without a

plea agreement.

Ibid.

Section 2251’s sentencing provision has a default statutory

sentencing range of 15-30 years of imprisonment.

See 18 U.S.C.

2251(e). Section 2251(e) also contains two enhancements that apply

based on a defendant’s criminal history.

The first enhancement

provides that if the defendant:

has one prior conviction under this chapter [chapter 110 of

title 18], section 1591, chapter 71, chapter 109A, or chapter

117, or under section 920 of title 10 (article 120 of the

4

Uniform Code of Military Justice), or under the laws of any

State relating to aggravated sexual abuse, sexual abuse,

abusive sexual contact involving a minor or ward, or sex

trafficking of children, or the production, possession,

receipt,

mailing,

sale,

distribution,

shipment,

or

transportation of child pornography, such person shall be

fined under this title and imprisoned for not less than 25

years nor more than 50 years[.]

18 U.S.C. 2251(e).

The second enhancement states that if the

defendant:

has 2 or more prior convictions under this chapter, chapter

71, chapter 109A, or chapter 117, or under section 920 of

title 10 (article 120 of the Uniform Code of Military

Justice), or under the laws of any State relating to the

sexual exploitation of children, such person shall be fined

under this title and imprisoned not less than 35 years nor

more than life.

Ibid.

In this case, the presentence report found that petitioner

had two relevant prior convictions.

First, in 2008, petitioner

pleaded guilty to sexually assaulting a person between the ages of

13 and 15 as a person at least four years older, in violation of

N.J. Stat. Ann. § 2C:14-2c(4) (West 2008).

Second,

in

endangering

2009,

the

petitioner

welfare

of

C.A. Sealed App. 16.

pleaded

guilty

a

by

child

to

file

one

count

sharing

of

child

pornography, in violation of N.J. Stat. Ann. § 2C:24-4b(5)(1) (West

2009).

C.A. Sealed App. 18.

Based on those prior convictions,

the presentence report found that petitioner was subject to Section

2251(e)’s second enhancement.

Id. at 23.

Petitioner objected to the presentence report, asserting that

he should be sentenced for his Section 2251 offense under Section

5

2251(e)’s first enhancement, rather than its second.

49-50.

C.A. App.

He argued that neither of his New Jersey convictions

“relat[e] to the sexual exploitation of children” within the

meaning of the second enhancement -- a phrase he interpreted to

include only “the production of child pornography.”

Id. at 50.

At sentencing, the district court disagreed and found that

Section 2251(e)’s second enhancement applied.

Sent. Tr. 11.

The

court sentenced petitioner to a 35-year term of imprisonment for

the Section 2251 count and a mandatory consecutive ten-year term

of imprisonment for the Section 2260A count, to be followed by

five years of supervised release.

3.

Pet. App. B2-B3; see id. at A2.

The court of appeals affirmed.

Pet. App. A1-A22.

While

acknowledging the Ninth Circuit’s contrary analysis in United

States v. Schopp, 938 F.3d 1053 (2019), see Pet. App. A5, A13, the

court rejected the Ninth Circuit’s view that the statutory phrase

at issue refers only to the production of child pornography,

instead aligning itself with “the Third, Fourth, Sixth, and Eighth

Circuits.”

Id. at A2; see United States v. Moore, 71 F.4th 392,

399 (5th Cir. 2023) (rejecting same limiting argument), petition

for cert. pending, No. 23-219 (filed Sept. 5, 2023).

Relying on legal and nonlegal dictionaries from the time of

the phrase’s enactment in Section 2251’s sentencing provision, the

court of appeals found that “the plain text of ‘sexual exploitation

of children’ unambiguously refers to any criminal sexual conduct

involving children.’”

Pet. App. A14; see id. at A11-A14.

The

6

court rejected petitioner’s argument that the phrase necessarily

requires the conduct to “enrich or benefit the perpetrator beyond

sexual gratification,” id. at A13 (citation and internal quotation

marks omitted), finding that proposed requirement unsupported, id.

at A13-A14.

The court also observed that Section 2251(e)’s use of

“‘relating to’” “further expands the breadth of [the] phrase.”

Id. at A14 (citation omitted).

The

court

of

appeals

found

additional

support

interpretation in Section 2251(e)’s statutory context.

A14-A16.

for

its

Pet. App.

Among other contextual indicators, the court observed

that the phrase at issue “appears at the end of a list of federal

predicates” concerning “a broad range of sexual conduct related to

minors,” not just conduct related to child pornography.

A14-A15.

Id. at

This neighboring federal-predicate list indicated that

petitioner’s narrow interpretation of the state-predicate language

would be “directly contrary to congressional intent.”

Id. at A15.

The court further observed that “Congress has on multiple occasions

defined ‘exploitation’ (albeit not specifically for purposes of

§ 2251) as encompassing a broad range of criminal sexual conduct

related

to

children.”

Id.

at

A16

(citing

Adam

Walsh

Child

Protection and Safety Act of 2006, Pub. L. No. 109-248, § 704, 120

Stat. 649; PROTECT Our Children Act of 2008, Pub. L. No. 110-401,

§ 2, 122 Stat. 4229-4230); see id. at A10-A11.

The

court

of

amendment history.

appeals

also

relied

on

Section

2251(e)’s

Pet. App. A15-A16; see id. at A8-A11.

Among

7

other considerations, the court pointed out that Congress first

added

the

phrase

“laws

of

any

State

relating

to

the

sexual

exploitation of children” to Section 2251(e)’s first and second

recidivist

enhancements

in

1996;

two

courts

of

appeals

then

construed the phrase “as not being limited to the production of

child pornography”; and Section 2251(e) was thereafter amended,

against that judicial backdrop, in ways that left the phrase

undisturbed in the second enhancement.

Pet. App. A15-A16 (citing

cases). The court observed that, given the “normal[] assum[ption]”

that “when Congress enacts statutes, it is aware of relevant

judicial precedent,” Congress’s decision to leave the interpreted

language unchanged in the second enhancement was significant.

Ibid. (quoting Ryan v. Gonzales, 568 U.S. 57, 66 (2013)).

Finally, the court of appeals rejected petitioner’s remaining

counterarguments.

Pet. App. A17-A21.

It declined to limit the

plain meaning of “sexual exploitation of children” based on Section

2251’s use of that phrase in its title, id. at A17-A18, or based

on the definition of “exploitation” in a “very different child

victims’ and witness’ rights statute” enacted in 1990, id. at A18

(citing 18 U.S.C. 3509(a)).

The court also rejected the inference

that the enumerated predicates triggering the 25-year minimum in

the first enhancement (as amended) implicitly cabin the phrase

“relating to the sexual exploitation of children” in the second

enhancement.

Id.

at

A19-20A.

Pointing

out

that

the

first

enhancement’s enumerated list includes state offenses relating to

8

“the production

* * *

of child pornography,” 18 U.S.C. 2251(e),

the court reasoned that “[i]f anything,” “[t]he fact that Congress

clearly named this offense in the 25-year minimum weighs against

giving different language in the 35-year minimum the same precise

meaning.”

Pet. App. A20.

inapplicable

because

And the court found the rule of lenity

Section

2251(e)

suffers

grievous ambiguity nor grievous uncertainty.”

from

“neither

Id. at A21.

ARGUMENT

Petitioner renews his contention (Pet. 11-18) that the second

enhancement in 18 U.S.C. 2251(e) applies only to convictions for

state offenses involving the production of child pornography.

Petitioner further contends (Pet. 9-11) that the Court should grant

review to resolve a conflict among the courts of appeals on that

question.

Petitioner’s arguments are similar to those raised in

the petition for a writ of certiorari in Moore v. United States,

No. 23-219 (filed Sept. 5, 2023).

For the reasons explained in

the government’s brief in opposition in Moore, those contentions

lack merit and the question presented does not warrant further

review.

See Br. in Opp. at 6-16, Moore, supra (No. 23-219). *

To the extent that petitioner raises additional arguments not

raised by the petitioner in Moore, those arguments provide no basis

for further review in this case.

First, petitioner’s reliance on

We have served petitioner with a copy of the government’s

brief in opposition in Moore. The same question is also presented

in the pending petition in Sykes v. United States, No. 23-5429

(filed Aug. 22, 2023).

*

9

the rule of lenity (Pet. 17-18) is misplaced.

The rule applies

only if, “after considering text, structure, history, and purpose,

there remains a grievous ambiguity or uncertainty in the statute,

such

that

the

intended.”

Court

must

simply

guess

as

to

what

Congress

United States v. Castleman, 572 U.S. 157, 172-173

(2014) (citation omitted); see Shular v. United States, 140 S. Ct.

779, 789 (2020) (Kavanaugh, J., concurring).

application

here,

because

the

traditional

The rule has no

tools

of

statutory

interpretation do not reveal “grievous ambiguity” in the statute.

See Pet. App. A21; see also Br. in Opp. at 6-14, Moore, supra (No.

23-219).

Second,

petitioner

suggests

that

“impacts many individuals each year.”

the

question

Pet. i.

presented

But his source for

that assertion is a Sentencing Commission statistic aggregating

all defendants who were convicted in fiscal year 2016 of an offense

under Section 2251 or 18 U.S.C. 2260(a) (which cross-references

Section 2251(e)’s penalty provision, see 18 U.S.C. 2260(c)(1)).

See U.S. Sentencing Commission, Mandatory Minimum Penalties for

Sex Offenses in the Federal Criminal Justice System 19 (Jan. 2019).

That statistic does not reveal how many of those 373 defendants

were subject to Section 2251(e)’s second enhancement specifically,

let alone how many were subject to that enhancement based on at

least

one

prior

state

conviction

(as

opposed

to

federal

convictions), nor yet how many of those had prior state convictions

for non-child-pornography-production offenses.

See ibid.

It

10

therefore provides little insight into the importance of the narrow

question presented here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

W. CONNOR WINN

Attorney

NOVEMBER 2023