Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding D.C. No. 2:08-cr-00516
The opinion of the court was delivered by: BYBEE,Circuit Judge
Argued and Submitted May 7, 2010-Pasadena, California
Before: John T. Noonan, Richard R. Clifton and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee; Concurrence by Judge Bybee
We are asked to decide whether Defendant-Appellant Tyler George
Farmer's conviction under California Penal Code
288(a), for lewd and lascivious acts involving a child,
categorically qualifies as "a prior conviction . . . relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward." 18 U.S.C. § 2252A(b)(2). Although the
answer is more complicated that it at first appears, we are convinced
that the answer is yes, and we affirm the judgment of the district
On November 3, 2008, Farmer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The Presentence Investigation Report ("PSR") noted that, in 1987, Farmer pleaded guilty to a violation of California Penal Code § 288(a), which prohibits lewd and lascivious acts upon a child younger than fourteen. The PSR explained that Farmer's conviction likely triggered § 2252A(b)(2)'s mandatory minimum sentence provision, which requires a district court to impose a sentence of "not less than 10 years" if a person convicted under § 2252A(a)(5) "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." 18 U.S.C. § 2252A(b)(2). According to the PSR, § 2252A(b)(2)'s ten-year mandatory minimum applied here because, under United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), the conduct prohibited under California Penal Code § 288(a) categorically qualifies as "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A). The district court, relying primarily on our decision in United States v. Sinerius, 504 F.3d 737 (9th Cir. 2007), agreed with the PSR's recommendation and sentenced Farmer to ten years in prison. Farmer timely appealed.
Farmer's only argument is that the district court erred by imposing a
ten-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(2),
because his prior conviction under Cal-ifornia Penal Code § 288(a) does
not categorically fit within any of
the predicate offenses contained in § 2252A(b)(2). Our methodology in
these cases is by now familiar. Under the Supreme Court's opinion in
Taylor v. United States, 495 U.S. 575 (1990), we begin by defining the
federal generic offense. See id. at 599. We then compare the conduct
prohibited under the state statute to the generic definition to
determine whether "the full range of conduct covered by the [state]
statute falls within the meaning of" the federal definition. Sinerius,
504 F.3d at 740.*fn1
 Section 2252A(b)(2) of Title 18 imposes a ten-year mandatory minimum sentence if the defendant "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." As its text makes clear, § 2252A(b)(2) refers to three separate offenses: " 'aggravated sexual abuse, sexual abuse, and abusive sexual conduct involving a minor [or ward].' " United States v. Strickland, 601 F.3d 963, 967 (9th Cir. 2010) (en banc) (quoting 18 U.S.C. § 2252A(b)(2)). We will start (and, as it turns out, stop) with § 2252A(b)(2)'s "sexual abuse" offense.
This is not our first attempt to define § 2252A(b)(2)'s "sexual abuse" offense. In Sinerius, we addressed whether Montana Code Annotated § 45-5-502, which prohibits "knowingly subjecting 'another person to any sexual contact without consent,' " categorically constitutes a state law related to "sexual abuse" under § 2252A(b)(2). Sinerius, 504 F.3d at 741 (quoting MONT. CODE ANN. § 45-5-502(1)). "[F]ollow[ing] our common practice in cases involving non-traditional offenses," we "defin[ed] [§ 2252A(b)(2)'s 'sexual abuse'] offense based on the ordinary, contemporary, and common meaning of the statutory words." Id. at 740 (quotation marks omitted). Consistent with that approach, we noted that "sexual" should be given its "ordinary and commonsense meaning." Id. at 741. Then, relying on a case that had defined "abuse" in a different context,*fn2 we said that "abuse" means to "misuse . . . or treat so as to injure, ...