New opinion: Third Circuit applies “looser” categorical approach to mandatory minimum triggered by prior related offense

U.S. v. Portanova—criminal—affirmance—Fuentes

A federal statute, 18 USC § 2252(a)(2), imposes a 15-year mandatory minimum sentence for child-pornography offenses when the defendant has a prior state conviction “relating to” possession of child pornography. The defendant here pleaded guilty to the federal offense had a prior Pennsylvania conviction for child-pornography possession, but he argued that the mandatory minimum did not apply to him because (1) the Pa. offense was broader than the federal offense, and (2) the phrase “related to” rendered the statute void for vagueness.

Today, the Third Circuit rejected both arguments. The court rejected the argument that formal categorical-approach matching of elements applied and instead applied what it called a “looser categorical approach.” This looser categorical approach considers how the statutes terms are understood generically, “as commonly understood and informed by its constituent terms, but not strictly cabined by them as under the formal categorical approach.” The court split with the Ninth Circuit on this point.

Joining Fuentes were Shwartz and Scirica. The case was decided without oral argument, which I view as unfortunate.