Petition for Writ of Certiorari — Jay A. Liestman, Petitioner v. United States

Supreme Court briefSep 5, 2024

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APPENDIX A: Opinion of the United States

Court of Appeals for the Seventh Circuit,

No. 21-3225 (Apr. 8, 2024).............................. 1a

APPENDIX B: Order on Sentence Enhancement from the United States District

Court for the Western District of Wisconsin, No. 3:20-cr-00006-JDP (Oct. 5, 2021) ... 50a

APPENDIX C: Relevant Statutory Provisions .... 55a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 21-3225

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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

challenge to the federal sentence he received for

transporting child pornography in violation of 18

1 Circuit Judge Kolar did not participate in the consideration or

decision of this case.

U.S.C. § 2552(a)(1). The district court imposed an enhanced mandatory minimum sentence of 15 years’ imprisonment under § 2252(b)(1) because Liestman had

been convicted seven years earlier of possessing 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.

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 production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography.” Liestman insisted that the enhancement did

not apply because Wis. Stat. § 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.

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 enhanced 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 service providers convicted of offenses “re-

lating to fraud, corruption, 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. 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, determining whether a particular

prior offense triggers an adverse consequence 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 enhanced

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

(B)(ii).

Focusing on the text, structure, and history of the

enhancement, 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” covering any offense

that has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, 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 straightforward. When Congress hinges the

applicability of a statutory consequence on whether a

defendant’s prior convictions qualify as a certain kind

of offense—like burglary—we assume that Congress

intended to give that term a uniform, federal “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) (generic extortion); United

States v. Misleveck, 735 F.3d 983, 988 (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 elements.

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 substance.” 18 U.S.C.

§ 924(e)(2)(A)(ii). In Shular, the Court did not view

the various categories of conduct listed by this provision as offenses in need of generic definition. See 140

S.Ct. at 784–85. Looking to “statutory text and context,” and in particular 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 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.

With these principles in mind, we return to the

question before us. We start from the common point

of agreement between Liestman and the government

that 18 U.S.C. § 2252(b)(1) calls for a categorical analysis of one sort or another. Our task is to determine

what Congress intended that analysis to look like. To

put things another way, we must interpret 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 enhancements to require whatever inquiry it thinks most prudent.

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

like Jay Liestman who violates § 2252(a)(1) “shall”

serve a default sentence 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 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.

Id.

No one contends that Liestman’s prior conviction

for possessing child pornography relates to sex trafficking or sexual abuse as § 2252(b)(1) uses these

terms. So we are left to determine whether Wis. Stat.

§ 948.12(1m) is categorically an offense “relating to …

the production, possession, receipt, mailing, 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 criminal statute in effect at the time of the offense.”). Because the statute

and its implementing definitions remain the same today as they did at the time of Liestman’s offense conduct, we refer to the current version of the statute for

ease of readability. 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 accessed contains depictions of sexually

explicit conduct.

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 addition to

possessing it. Second, Wisconsin law considers a

wider range of material to be child pornography. Both

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Wisconsin 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 Wisconsin 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 convicted 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 therefore 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, 468 N.W.2d 676 (1991), eliminates

any possibility that a defendant 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

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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 exhibition 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 material 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.

But that conclusion does not resolve this appeal.

After all, § 2252(b)(1) requires only that a prior state

offense “relat[e] to” 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 question of statutory interpretation.

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The proper beginning point is the phrase “relating

to” itself. Congress left the term undefined, requiring

us to give it its ordinary meaning absent countervailing evidence of a contrary 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, contemporary, 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 important 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)). Although 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 connection with’ obstruction of justice”).

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 enhanced federal sentence notwithstanding its overbreadth. That “relating

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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

meaning, we avoid treating that language as synonymous with narrower 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 distribute,

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)). Interpreting

“relating to” in § 2252(b)(1) in a manner that disqualifies 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

attaches no significance to Congress’s choice of the

broad “relating to” language in § 2252(b)(1).

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Second, in the very statute that added the “relating to” language 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 offense would trigger enhanced penalties

only if it “would have been an offense under” § 2241(a)

or (b) “had the offense occurred 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 sentencing

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 narrower

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

used to frame other statutes.

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

language 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 criminalized 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

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of “relating to” is right, it 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 enumerated list of acts—including possession, receipt, mailing, and sale—all take as their object the defined term

“child pornography.” 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 “address 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

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“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 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 language in other statutes, its proven

ability to use different words to require congruence

between prior offenses and federal 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 precise 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

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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 possessing child pornography triggered the recidivism

enhancement even though Indiana, like Wisconsin,

defines child pornography more broadly than does

federal law. See id. at 380–81.

Kaufmann was not an aberration. Then, and now,

a majority 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 “relating to” the possession of child pornography within the meaning of

§ 2252A(b)(1) even though it “punish[es] the possession of [some] visual depictions that fall outside the

federal definition of child pornography”); but see

United States v. McGrattan, 504 F.3d 608 (6th Cir.

2007); United States v. Reinhart, 893 F.3d 606 (9th

Cir. 2018).

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Represented by very able counsel, Liestman urges

us to depart from the majority position and give

§ 2252(b)(1) a narrower 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 offenses that sweep more broadly

than the language it introduces, 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

intimated that non-generic categorical analysis—

which Liestman fairly calls the conduct-based approach—must follow mechanical 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 statutory interpretation. See, e.g., United

States v. Davis, 139 S.Ct. 2319, 2327 (2019) (observing that whether the categorical approach applies can

be determined only through examination of statute’s

text, context, and history); Esquivel-Quintana, 581

19a

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

abuse of a minor” must be determined “using the normal tools of statutory 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 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 approach precludes courts from giving “relating

to” its ordinary meaning. Indeed, it is difficult to imagine where any such limitation would come from

other than the Constitution, which Liestman does not

invoke in this appeal. Cf. Portanova, 961 F.3d at 262–

20a

63 (considering and rejecting an as-applied void-forvagueness challenge to § 2252(b)(1)). When Congress

frames a sentencing enhancement, it is generally free

to prescribe whatever approach it thinks will best

achieve its policy aims. We therefore see no reason

why—as a matter of statutory construction—the

phrase “relating to” cannot be understood 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 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 question. 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 meaning extends equally

to all instances where “relating to” appears 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 determines 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

21a

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 noncitizen 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 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

departing 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 reading.” 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 emphasized, 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

22a

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 paraphernalia 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 addressed whether an Illinois cocaine conviction qualified as a “felony drug offense” that would

trigger a sentencing enhancement 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 “narcotic drugs,” in turn, is defined in exactingly

technical detail, down to the specific kinds of chemical

isomers of cocaine—optical and geometric, but not positional—that qualify. See 21 U.S.C. § 802(17). Invoking Shular, we held that the Illinois conviction could

satisfy that standard only if it “necessarily 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).

23a

Our overarching point is that neither Mellouli nor

Ruth supports Liestman’s key contention—that the

phrase “relating to” cannot receive its broad, ordinary

meaning when introducing 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 provision

whose meaning must be discerned in the light of its

own statutory context. Because that context supports

a broad understanding 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,

possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” regardless of whether it sweeps more broadly than that

enumerated conduct in some respects.

III

All that remains is to apply our holding to Jay

Liestman’s case. The question is whether Wis. Stat.

§ 948.12(1m) categorically—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 Liestman

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 minor’s breast or buttock. We

must then ask whether that conduct bears the necessary connection to the conduct enumerated in

24a

§ 2252(b)(1). We have little trouble concluding that

accessing images lewdly exhibiting a minor’s breasts

or buttocks bears the necessary connection and,

therefore, that § 948.12(1m) is a categorical match.

The line between “accessing” and “possessing”

child pornography 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 efforts to view

child pornography over the internet did not qualify as

“possession” as that term has historically been understood. But those arguments never succeeded. So when

the Wisconsin legislature added “accessing” to

§ 948.12(1m), any practical difference between accessing and possessing remained 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 qualify as possession under Wisconsin law. Indeed, under Mercer, “an individual knowingly possesses child pornography when that

individual affirmatively pulls up images of child pornography on the Internet and views those images

knowing that they contain child pornography.” Id. at

136. We find it difficult to imagine, let alone see with

any clarity, daylight between 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

25a

accessing and possessing child pornography “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 sexually 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 pornography 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

Liestman violated § 948.12(1m), an image of a minor’s

breast or buttock could qualify as “lewd” only if the

minor was portrayed 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 trafficking (in all manner of ways) of sexually abusive imagery. Wis. Stat. § 948.12(1m) is therefore a categorical match.

For these reasons, we AFFIRM.

26a

WOOD, Circuit Judge, joined by ROVNER, JACKSONAKIWUMI, LEE, and PRYOR, Circuit Judges, dissenting.

When the Framers of the Constitution “split the atom

of sovereignty,” 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 preserves 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

minus 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 relevant 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 interpreted

the federal recidivism statutes as normally taking a

“categorical” approach to the task of comparing a

state conviction with a federal counterpart. (Obviously, when Congress instructs otherwise, it has the

last word.) But even the categorical approach has at

least two, and perhaps more, forms, depending on the

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language of the statute that is being applied. The majority in the present case has concluded that certain

state convictions broadly relate to Jay Liestman’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.

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 15year 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

28a

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 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 predicate

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

called a “formal” categorical approach, under which

the sentencing court may consider only the statutory

definitions and elements of a prior crime, not the particular facts underlying those convictions. Id.

29a

In the years following Taylor, the Court has returned frequently 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); Stokeling v. United States,

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

States, 589 U.S. 154 (2020); Pereida v. Wilkinson, 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 necessary 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 defendant with prior convictions for a

“serious drug offense.” 589 U.S. at 156. This was a

trickier problem than the one addressed 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

30a

identified in section 924(e) (that is, the “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance,” id.); the

second, advanced by Shular, regarded 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 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 categorical 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 unrecognized) 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 criterion focuses

on the elements of an offense: the court must determine 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, arson, or extortion. The Court

31a

rejected the idea that something “involving” the designated activities necessarily described separate

crimes. Wrapping up the opinion, the Court concluded

that Shular’s prior Florida conviction for selling cocaine and possessing that drug with the intent to sell

it “involved” precisely the conduct covered by the federal statute, and thus the enhancement was proper.

With this general background about the categorical approach, I now turn to the particular statutes involved in Liestman’s case.

My first step is to look carefully at the statute of

conviction, 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 conviction, 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 sexually explicit conduct; and

(B) such visual depiction is of such conduct;

…

32a

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 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 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.

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,

photographic negative, photograph, motion

picture, videotape, or other recording of a

child engaged in sexually explicit conduct under all of the following circumstances may be

penalized under sub. (3):

(a) The person knows that he or she possesses or has accessed the material.

33a

(b) The person knows, or reasonably

should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.

know that the child depicted in the material

who is engaged in sexually explicit conduct

has not attained the age of 18 years.

Liestman offers two reasons why his prior state conviction under section 948.12(1m) does not qualify as a

predicate 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 different

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

earlier 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 categorical approach. The phrase, as

34a

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 enhancer

under section 2252(b)(1). In so doing, they rely on several cases from this court, and they then turn to guidance from the Supreme Court. My analysis of those

materials, however, leads me to a different conclusion, as I now explain.

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

mystified 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. Ascertaining the proper prison

term for a transporter of child pornography seems to

be a far cry from an effort by state attorneys general

to attack certain airline pricing stratagems as deceptive trade practices. For that matter, child pornography seems to have little to do with the regulation of

pension plans under federal law pursuant to the Employee Retirement Income Security Act (ERISA), 29

U.S.C. § 1144(a), an analogy on which the Morales

Court leaned heavily. My own examination of Morales

35a

(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 before 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. § 1301 et seq., carried

out that decision. The Act contained two provisions

relevant here: first, it included a broad preemption

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 instead 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

36a

edition of Black’s Law Dictionary, the Court observed

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

Something “relates to” another thing if it “stand[s] in

some relation; [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 employee benefit

plan.”

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 liability 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 differentiation 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

37a

measures as advertising, frequent flier programs (a

form of discount from the customer’s perspective), 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 regulatory one.

In short, there is inevitably a zone within which

the deregulatory 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 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 designed 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

38a

from structuring their employee 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 connection with or reference to such a plan.” Id. In order to see whether the

state law has that type of connection to an ERISA

plan, it is necessary to determine what laws Congress

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, sometimes Congress has

no such intent. The state law there was not

preempted for several reasons: it did not have a “connection with” ERISA plans, and it did not “reference”

ERISA plans because its requirements applied to both

apprenticeship 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 legislative context. Neither airline deregulation nor the ERISA scheme operates in a vacuum. It

39a

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 attention 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

immigration cases. In 2010, Moones Mellouli, a lawful

permanent resident of the United States, pleaded

guilty to a misdemeanor 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 Adderall pills, which contain a

mixture of amphetamine and dextroamphetamine.

Adderall is used to treat narcolepsy 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 Enforcement on the ground that the state

misdemeanor rendered him removable pursuant to 8

U.S.C. § 1227(a)(2)(B)(i). Using words that should by

now be familiar to us, that statute authorizes the removal of a foreigner “convicted of a violation of … any

law … of a State … relating to a controlled 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

concealing unnamed pills in his sock did not

trigger removal under § 1227(a)(2)(B)(i). The

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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 “related to” a controlled substance. But that

was not enough to support the use of that conviction

for removal, for the simple 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 misdemeanor

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of which Mellouli was convicted at least related to the

federal controlled substance laws, and that (the government 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 instead 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 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 Government must connect an element of the alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 813.

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 sentence 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” approach? And how

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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 violation 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

convictions 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 Probation 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 district court turned to the

definition of sexual abuse in 18 U.S.C. § 2246(3),

which specifically says that it provides definitions for

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

found four offenses that used the section 2246(3) definition: 18 U.S.C. §§ 2241, 2242, 2243, and 2244. 933

F.3d at 677. Kraemer’s Wisconsin offenses (from a categorical perspective, of course) covered more conduct

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than that identified 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 … incapable of appraising the nature of the conduct.” See id. at 678 (quoting

18 U.S.C. § 2242(2)). Finding this to be a categorical

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 differed subtly from that of the district court.

We emphasized that the prior conviction supporting

an enhancement needed 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 binding us, since

chapter 110 (unlike chapter 109A) has no definition 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

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 history.” 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 direction 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

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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 statutory definition in Kraemer, the opposite

was true in Kaufmann. 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 contains the definitions

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

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“[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 difference existed (a

question on which I take no position), the enhancement would have been improper.

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 government notified him

that it intended to use a 2006 Illinois conviction for

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 image, or computer-generated image that is, or

is indistinguishable from, that of a minor engaging in

sexually explicit conduct; or

adapted, or modified to appear that an identifiable

minor is engaging in sexually explicit conduct.

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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, because 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 imprisonment for more than one year under any

law of the United States or of a State or foreign country that prohibits or restricts 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 correctly, we compared the federal definition of the term

“narcotic 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 “relating to” in

the definition of “felony drug offense.” We held, following Shular’s guidance, that the variant of the categorical approach that applied was the one that relied on

conduct, 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.

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

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it is always necessary to conjure 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 conduct, 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

“related to” obstruction of justice if there was no pending investigation 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 50state surveys may be appropriate in cases involving

the generic categorical approach where Congress

leaves a term undefined, they cannot take precedence

when Congress tethers the comparison to a defined

term in federal law. We should presume that Congress knows what it is doing, 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,” because

the definition in section 2256 tells us exactly what

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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 pornography. 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

substance. When Congress specifies that a definition

applies throughout a certain chapter, it should not

also have to insert a cross-reference to the defined

term every time it arises. 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

violate, 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 relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor (as defined in section 2256 of this title) or ward, or

the production, possession, receipt, mailing,

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sale, distribution, shipment, or transportation of child pornography (as defined in section 2256 of this title), 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.

The first line of section 2256 already does the work of

the italicized parentheticals. Liestman’s case is thus

indistinguishable from Mellouli.

The proper comparison, using the conduct-based

categorical approach, is between the conduct defined

to be child pornography by the governing federal statute, and the conduct 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.

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WISCONSIN

UNITED STATES OF

AMERICA,

Plaintiff,

JAY LIESTMAN,

Defendant.

ORDER ON

SENTENCE

ENHANCEMENT

20-CR-06-jdp

Defendant Jay Liestman pleaded guilty to one

count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(1). In the plea agreement, Dkt. 76, and at the plea hearing, the parties

assumed that defendant would be subject to the enhanced penalties provided in § 2252(b)(1), based on

defendant’s previous Wisconsin conviction for possession of child pornography. Defendant now challenges the sentencing enhancement, and the matter

is fully briefed. Dkt. 90 (defendant’s opening brief);

Dkt. 95 (government opposition); Dkt. 96 (defendant’s reply).

Defendant was convicted in 2014 of attempted

child enticement, in violation of Wis. Stat.

§ 948.07(1) and possession of child pornography, in

violation of Wis. Stat § 948.12(1m). The government

contends that the child pornography conviction

qualifies as a predicate conviction under

§ 2252(b)(1). (The government does not rely on the

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attempted child enticement conviction, which does

not appear to qualify as a predicate offense.)

The pertinent part of § 2252(b)(1) provides for a

sentence of 15 to 40 years if the defendant

Has a prior conviction . . . under the laws of

any State relating to . . . the production, possession, receipt, mailing, sale, distribution,

shipment, or transportation of child pornography[.]

At first blush, defendant’s Wisconsin conviction for

possession of child pornography certainly appears to

be one relating to the possession of child pornography. But questions about federal predicate offenses

generally require categorical analysis, in which the

statutory definition of the predicate offense must be

compared to the statute under which the defendant

was convicted to ensure that there is a categorical

match. With some exceptions, the defendant’s actual offense conduct doesn’t matter. The question in

this case is not whether the court should take a categorical approach, but how the court should conduct

the categorical analysis.

Defendant makes a good argument that I should

follow more recent categorical precedent, particularly Shular v. United States, 140 S. Ct. 779 (2020)

and United States v. Ruth, 966 F.3d 642 (7th Cir.

2020), applying what is now called the “conductbased” categorical approach. The conduct-based approach contrasts with the “generic crime” approach,

which requires the court to begin by positing the elements of a generic crime, such as burglary, and

then matching the generic elements to those of the

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state statute. Under the conduct-based categorical

approach, there is no need to posit any generic

crime. But the court must find a precise match between the conduct required under federal definition

of the predicate offense and the state statute under

which the defendant was convicted. If the state statute criminalizes a range of conduct that is at all

broader than the federal definition, the prior offense

is not a predicate. For example, in Ruth, an Illinois

conviction for possession with intent to deliver cocaine was not a federal “felony drug offense” which

would have triggered an enhanced sentence. The Illinois statute covered cocaine and its optical, positional, and geometric isomers. But the definition of

felony drug offense incorporated the definitions in

the federal Controlled Substances Act, which covered only cocaine and its optical and geometric isomers, not the positional isomers. Under the conduct-based approach, unlike the generic-crime approach, there is no “margin of inconsequential discrepancy.” Ruth, at 647–48.

If I took the strict Ruth approach, I would conclude that Wisconsin child pornography law is

broader than the federal definition. Wisconsin’s

child pornography statute would criminalize a lewd

photo of a topless minor, but the federal definition

of child pornography would not.1 If there is no margin of inconsequential discrepancy, that difference

is enough.

1 Compare Wisconsin’s definition of “sexually explicit conduct,”

§ 948.01(7e), and “intimate parts,” § 939.22(19), with the federal

definition of “sexually explicit conduct,” 18 U.S.C. § 2256(2)(A).

Wisconsin’s definition of intimate parts includes the breasts and

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But, as the government points out, I’ve got another Seventh Circuit case that’s right on point:

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

2019), cert. denied, 141 S. Ct. 137 (2020). Kaufmann

rejected the very argument defendant makes here.

Because § 2252(b)(2) uses the phrase “relating to,”

the court of appeals held that it does not require a

precise match between the federal definition of

“child pornography” and the Indiana statute at issue. The court of appeals reasoned that “relating to”

has a broad meaning, demonstrating that Congress

did not intend to limit predicate offenses to those

that are precise equivalents of the federal child pornography offenses. Kaufmann illustrates a categorical analysis in that it does not consider actual offense conduct, only the underlying state statute.

But the court of appeals expressly declined to adopt

the stricter style of categorical analysis that it

would soon apply in Ruth.

Defendant here asks, essentially, that I deem

Kaufmann to have been overruled by Ruth. But

that’s not so clear. Kaufmann relied critically on the

phrase “relating to,” which also appears in the federal definition of felony drug offense. 21 U.S.C.

§ 802(44). But Ruth did not discuss whether that

phrase had any effect at all. Ruth and Kaufmann

apparently pull in opposite directions, but if Kaufmann is to be overruled, the court of appeals will

have to do it.

buttocks; federal child pornography law is limited to the genitals, anus, and public area.

54a

For now, I am compelled to follow the analysis of

18 U.S.C. § 2252(b) by the Seventh Circuit Court of

Appeals in Kaufmann. A Wisconsin conviction for

possession of child pornography is a predicate conviction that enhances the statutory sentencing

range to 15 to 40 years.

Entered October 5, 2021.

BY THE COURT:

/s/

JAMES D. PETERSON

District Judge

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APPENDIX C

Relevant Statutory Provisions

18 U.S.C. § 2252. Certain activities relating to

material involving the sexual exploitation of

minors.

(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 sexually

explicit conduct; and

(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual

depiction using any means or facility of interstate or foreign commerce or that has been

mailed, or has been shipped or transported in or

affecting interstate or foreign commerce, or

which contains materials which have been

mailed or so shipped or transported, by any

means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign

commerce or in or affecting interstate or foreign

commerce or through the mails, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually

explicit conduct; and

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(B) such visual depiction is of such conduct;

(3) either—

(A) in the special maritime and territorial jurisdiction of the United States, or on any land

or building owned by, leased to, or otherwise

used by or under the control of the Government of the United States, or in the Indian

country as defined in section 1151 of this title,

knowingly sells or possesses with intent to

sell any visual depiction; or

(B) knowingly sells or possesses with intent

to sell any visual depiction that has been

mailed, shipped, or transported using any

means or facility of interstate or foreign commerce, or has been shipped or transported in

or affecting interstate or foreign commerce, or

which was produced using materials which

have been mailed or so shipped or transported using any means or facility of interstate or foreign commerce, including by computer, if—

(i) the producing of such visual depiction

involves the use of a minor engaging in

sexually explicit conduct; and

(ii) such visual depiction is of such conduct; or

(4) either—

(A) in the special maritime and territorial jurisdiction of the United States, or on any land

or building owned by, leased to, or otherwise

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used by or under the control of the Government of the United States, or in the Indian

country as defined in section 1151 of this title,

knowingly possesses, or knowingly accesses

with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other

matter which contain any visual depiction; or

(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books,

magazines, periodicals, films, video tapes, or

other matter which contain any visual depiction that has been mailed, or has been

shipped or transported using any means or

facility of interstate or foreign commerce or in

or affecting interstate or foreign commerce, or

which was produced using materials which

have been mailed or so shipped or transported, by any means including by computer,

if—

(i) the producing of such visual depiction

involves the use of a minor engaging in

sexually explicit conduct; and

(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection

(b) of this section.

(b)

(1) Whoever violates, or attempts or conspires to

violate, paragraph (1), (2), or (3) of subsection (a)

shall be fined under this title and imprisoned not

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

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if such person has a prior conviction under this

chapter, section 1591, 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

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.

(2) Whoever violates, or attempts or conspires to

violate, paragraph (4) of subsection (a) shall be

fined under this title or imprisoned not more

than 10 years, or both, but if any visual depiction

involved in the offense involved a prepubescent

minor or a minor who had not attained 12 years

of age, such person shall be fined under this title

and imprisoned for not more than 20 years, or if

such person has a prior conviction 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 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, such person shall be fined under this

title and imprisoned for not less than 10 years

nor more than 20 years.

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defense to a charge of violating paragraph (4) of subsection (a) that the defendant—

(1) possessed less than three matters containing

any visual depiction proscribed by that paragraph; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law

enforcement agency, to access any visual depiction or copy thereof—

(A) took reasonable steps to destroy each such

visual depiction; or

(B )reported the matter to a law enforcement

agency and afforded that agency access to

each such visual depiction.

18 U.S.C. § 2256. Definitions for chapter.

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of

eighteen years;

(2)

(A) Except as provided in subparagraph (B),

“sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,

whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

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(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus, genitals,

or pubic area of any person;

(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or

oral-anal, whether between persons of the

same or opposite sex, or lascivious simulated

sexual intercourse where the genitals, breast,

or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any

person;

(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) “organization” means a person other than an individual;

(5) “visual depiction” includes undeveloped film and

videotape, data stored on computer disk or by electronic means which is capable of conversion into a

visual image, and data which is capable of conversion into a visual image that has been transmitted

by any means, whether or not stored in a permanent

format;

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(6) “computer” has the meaning given that term in

section 1030 of this title;

(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(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 image, or computer-generated image that

is, or is indistinguishable from, that of a minor

engaging in sexually explicit conduct; or

adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—

(i)

(I) who was a minor at the time the visual

depiction was created, adapted, or modified; or

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(II) whose image as a minor was used in

creating, adapting, or modifying the visual

depiction; and

(ii) who is recognizable as an actual person by

the person’s face, likeness, or other distinguishing characteristic, such as a unique

birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the

actual identity of the identifiable minor.

(10) “graphic”, when used with respect to a depiction

of sexually explicit conduct, means that a viewer

can observe any part of the genitals or pubic area of

any depicted person or animal during any part of

the time that the sexually explicit conduct is being

depicted; and

(11) the term “indistinguishable” used with respect

to a depiction, means virtually indistinguishable, in

that the depiction is such that an ordinary person

viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or

paintings depicting minors or adults.

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