UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10077 Plaintiff-Appellee, D.C. No. v. 2:14-cr-00010-GEB-1

CHAD CARL JAYCOX, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding

Submitted April 17, 2020* San Francisco, California

Filed June 16, 2020

Before: Michael Daly Hawkins and Richard A. Paez, Circuit Judges, and Jane A. Restani, ** Judge.

Opinion by Judge Restani

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 UNITED STATES V. JAYCOX

SUMMARY ***

Criminal Law

The panel reversed the district court’s application of a sentencing enhancement in a case in which the defendant pleaded guilty to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), and remanded for resentencing.

Based on the defendant’s prior conviction under California Penal Code § 261.5(c), which criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” the district court applied 18 U.S.C. § 2252(b)(1), which increases the mandatory minimum sentence from five to fifteen years if a 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.”

The panel wrote that because the minimum conduct required for a conviction includes consensual sexual intercourse between an individual a day shy of eighteen and an individual who is 21 years of age, § 261.5(c) is not a categorical match to the general federal definition of sexual abuse of a minor. And although the “relating to” language in § 2252(b)(1) has a broadening effect and will allow certain flexibility at the margins, the panel could not say that the minimum conduct criminalized under § 261.5(c) relates to abusive sexual conduct involving a minor, where the California statute criminalizes conduct that is not necessarily

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. JAYCOX 3 abusive or against those ordinarily considered minors for age of consent purposes.

The panel held that in evaluating the need to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a), the district court did not abuse its discretion by focusing on national parity rather than giving definitive weight to the defendant’s proffered regional data.

Because the district court determined the sentence in view of the incorrect statutory and Guidelines ranges, the panel concluded that the district court’s weighing of the § 3553(a) factors was potentially affected and must be redone.

COUNSEL Heather E. Williams, Federal Defender; Carolyn M. Wiggin, Assistant Federal Defender; Office of the Federal Defender, Sacramento, California; for Defendant-Appellant. McGregor W. Scott, United States Attorney; Camil A. Skipper, Appellate Chief; Matthew G. Morris, Assistant United States Attorney; United States Attorney’s Office, Sacramento, California; for Plaintiff-Appellee. 4 UNITED STATES V. JAYCOX

OPINION RESTANI, Judge:

Chad Carl Jaycox appeals the district court’s imposition of a 240-month sentence following his conviction fo