NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 21-1647 __________
UNITED STATES OF AMERICA
v.
JACK ULRICH, Appellant __________
On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2:19-cr-00202-001) Honorable Marilyn J. Horan, U.S. District Judge __________
Submitted Under Third Circuit L.A.R. 34.1(a) on March 15, 2022
Before: JORDAN, KRAUSE, and PORTER, Circuit Judges
(Filed: March 16, 2022)
__________
OPINION* __________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Having pleaded guilty to possession of material depicting the sexual exploitation
of a minor, Jack Ulrich now appeals his sentence, claiming that his prior conviction did
not qualify him as a prior offender for purposes of triggering the ten-year mandatory
minimum prison sentence required under 18 U.S.C. § 2252(b)(2). We discern no error
and will affirm.
I. DISCUSSION1
A defendant who is found guilty of possessing child pornography under 18 U.S.C.
§ 2252(a)(4)(B) is subject to an enhanced mandatory minimum penalty of ten years’
imprisonment if he has previously been convicted “under the laws of any State relating to
. . . the production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography.” 18 U.S.C. § 2252(b)(2). To determine whether a
prior state conviction qualifies under this sentencing enhancement, we apply the
categorical approach, see United States v. Portanova, 961 F.3d 252, 255 (3d Cir. 2020),
which requires that we “focus[] [our] attention on the statutory definition of [the] prior
conviction” to see if it resembles the state laws described in the provision, United States
v. Galo, 239 F.3d 572, 582 (3d Cir. 2001). We “look only to the fact of conviction and
the statutory definition of the prior offense,” not “the conduct giving rise to the
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review of the District Court’s statutory interpretation. United States v. Portanova, 961 F.3d 252, 254 n.7 (3d Cir. 2020).
2 [defendant’s] conviction.” Id. at 577 (citing Taylor v. United States, 495 U.S. 575, 600–
02 (1990)).
The categorical approach may be “formal” or “loose[]” depending on the
sentencing enhancement at issue. Portanova, 961 F.3d at 255–56. Under the formal
approach, “we line up the elements of the state crime of conviction with the federal
generic offense, that is, ‘the offense as commonly understood,’ and determine if they
match.” Id. (citing Mathis v. United States, 136 S. Ct. 2243, 2247, 2249 (2016)). But
under the looser approach, we do “not require a precise match between the federal
generic offense and state offense elements” but read the state offense “as commonly
understood[,] informed by its constituent terms, but not strictly cabined by them.” Id. at
255–57.
Here, Ulrich pleaded guilty to possession of child pornography in violation of 18
U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), having previously been convicted of possession
of child pornography under 18 Pa. C.S.A. § 6312(d). At sentencing, the District Court
applied the looser categorical approach to determine whether Ulrich’s prior conviction
qualified him for the mandatory minimum sentence under § 2252(b)(2). In doing so, the
Court followed Portanova, where we concluded, on the basis of the looser categorical
approach, that a conviction for possession of child pornography under the same
Pennsylvania statute triggered an enhanced mandatory minimum sentence under
§ 2252(b)(1), which, like § 2252(b)(2), covers prior state convictions “relating to . . . the
production, possession, receipt, mailing, sale, distribution, shipment, or transportation of
child pornography.” Portanova, 961 F.3d at 254 (quoting 18 U.S.C. § 2252(b)(1)).
3 Reading the term “relating to” broadly, we held that a conviction under 18 Pa. C.S.A.
§ 6312(d) triggers the “§ 2252(b) mandatory minimum,” as it “stands in some relation
and pertains to ‘the . . . possession . . . of child pornography.’” Id. at 262. The District
Court applied this binding precedent to hold that Ulrich’s prior conviction under the
identical Pennsylvania statute stood “in relation to . . . the . . . possession . . . of child
pornography,” subjecting him to § 2252(b)(2)’s “enhanced mandatory minimum
penalty.” Appx. 164.
Ulrich challenges this judgment on two bases, neither of which is persuasive.
First, Ulrich contends that the District Court should have applied the formal categorical
approach in determining whether his prior Pennsylvania conviction triggered the
mandatory minimum sentence under § 2252(b)(2). He acknowledges that Portanova is
facially controlling but claims it is a nullity under I.O.P 9.1 because it conflicts with our
prior precedential opinion in Galo, where we applied the categorical approach to
conclude that three Pennsylvania statutes did not qualify as “laws . . . relating to the
sexual exploitation of children” for purposes of a sentencing enhancement because they
covered a wide variety of non-sexual conduct. Galo, 239 F.3d at 582–84.
But Portanova is consistent with Galo and remains binding precedent. Indeed, we
rooted our decision to apply the categorical approach in Portanova on Galo’s application
of that approach to an “analogous [sentencing] enhancement under 18 U.S.C. § 2251(d)”
that similarly employed the term, “relating to.” Portanova, 961 F.3d at 255 n.10 (citing
Galo, 239 F.3d at 576). Moreover, in applying a looser categorical approach, we drew on
Galo’s reasoning that the analogous enhancement did “not require a sentencing court to
4 determine if the prior conviction satisfie[d] the generic elements of a crime,” as typically
required by the formal approach. Id. at 256 (quoting Galo, 239 F.3d at 581). Portanova
is simply a logical extension of our holding in Galo, and it applies on all fours to the
present dispute.
Next, Ulrich argues that the District Court’s application of § 2252(b)(2) violated
his constitutional rights, namely, his Fifth Amendment right to due process and his Sixth
Amendment right to trial by jury.2 In his Fifth Amendment claim, Ulrich contends that
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________
No. 21-1647 __________
UNITED STATES OF AMERICA
v.
JACK ULRICH, Appellant __________
On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2:19-cr-00202-001) Honorable Marilyn J. Horan, U.S. District Judge __________
Submitted Under Third Circuit L.A.R. 34.1(a) on March 15, 2022
Before: JORDAN, KRAUSE, and PORTER, Circuit Judges
(Filed: March 16, 2022)
__________
OPINION* __________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Having pleaded guilty to possession of material depicting the sexual exploitation
of a minor, Jack Ulrich now appeals his sentence, claiming that his prior conviction did
not qualify him as a prior offender for purposes of triggering the ten-year mandatory
minimum prison sentence required under 18 U.S.C. § 2252(b)(2). We discern no error
and will affirm.
I. DISCUSSION1
A defendant who is found guilty of possessing child pornography under 18 U.S.C.
§ 2252(a)(4)(B) is subject to an enhanced mandatory minimum penalty of ten years’
imprisonment if he has previously been convicted “under the laws of any State relating to
. . . the production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography.” 18 U.S.C. § 2252(b)(2). To determine whether a
prior state conviction qualifies under this sentencing enhancement, we apply the
categorical approach, see United States v. Portanova, 961 F.3d 252, 255 (3d Cir. 2020),
which requires that we “focus[] [our] attention on the statutory definition of [the] prior
conviction” to see if it resembles the state laws described in the provision, United States
v. Galo, 239 F.3d 572, 582 (3d Cir. 2001). We “look only to the fact of conviction and
the statutory definition of the prior offense,” not “the conduct giving rise to the
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review of the District Court’s statutory interpretation. United States v. Portanova, 961 F.3d 252, 254 n.7 (3d Cir. 2020).
2 [defendant’s] conviction.” Id. at 577 (citing Taylor v. United States, 495 U.S. 575, 600–
02 (1990)).
The categorical approach may be “formal” or “loose[]” depending on the
sentencing enhancement at issue. Portanova, 961 F.3d at 255–56. Under the formal
approach, “we line up the elements of the state crime of conviction with the federal
generic offense, that is, ‘the offense as commonly understood,’ and determine if they
match.” Id. (citing Mathis v. United States, 136 S. Ct. 2243, 2247, 2249 (2016)). But
under the looser approach, we do “not require a precise match between the federal
generic offense and state offense elements” but read the state offense “as commonly
understood[,] informed by its constituent terms, but not strictly cabined by them.” Id. at
255–57.
Here, Ulrich pleaded guilty to possession of child pornography in violation of 18
U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2), having previously been convicted of possession
of child pornography under 18 Pa. C.S.A. § 6312(d). At sentencing, the District Court
applied the looser categorical approach to determine whether Ulrich’s prior conviction
qualified him for the mandatory minimum sentence under § 2252(b)(2). In doing so, the
Court followed Portanova, where we concluded, on the basis of the looser categorical
approach, that a conviction for possession of child pornography under the same
Pennsylvania statute triggered an enhanced mandatory minimum sentence under
§ 2252(b)(1), which, like § 2252(b)(2), covers prior state convictions “relating to . . . the
production, possession, receipt, mailing, sale, distribution, shipment, or transportation of
child pornography.” Portanova, 961 F.3d at 254 (quoting 18 U.S.C. § 2252(b)(1)).
3 Reading the term “relating to” broadly, we held that a conviction under 18 Pa. C.S.A.
§ 6312(d) triggers the “§ 2252(b) mandatory minimum,” as it “stands in some relation
and pertains to ‘the . . . possession . . . of child pornography.’” Id. at 262. The District
Court applied this binding precedent to hold that Ulrich’s prior conviction under the
identical Pennsylvania statute stood “in relation to . . . the . . . possession . . . of child
pornography,” subjecting him to § 2252(b)(2)’s “enhanced mandatory minimum
penalty.” Appx. 164.
Ulrich challenges this judgment on two bases, neither of which is persuasive.
First, Ulrich contends that the District Court should have applied the formal categorical
approach in determining whether his prior Pennsylvania conviction triggered the
mandatory minimum sentence under § 2252(b)(2). He acknowledges that Portanova is
facially controlling but claims it is a nullity under I.O.P 9.1 because it conflicts with our
prior precedential opinion in Galo, where we applied the categorical approach to
conclude that three Pennsylvania statutes did not qualify as “laws . . . relating to the
sexual exploitation of children” for purposes of a sentencing enhancement because they
covered a wide variety of non-sexual conduct. Galo, 239 F.3d at 582–84.
But Portanova is consistent with Galo and remains binding precedent. Indeed, we
rooted our decision to apply the categorical approach in Portanova on Galo’s application
of that approach to an “analogous [sentencing] enhancement under 18 U.S.C. § 2251(d)”
that similarly employed the term, “relating to.” Portanova, 961 F.3d at 255 n.10 (citing
Galo, 239 F.3d at 576). Moreover, in applying a looser categorical approach, we drew on
Galo’s reasoning that the analogous enhancement did “not require a sentencing court to
4 determine if the prior conviction satisfie[d] the generic elements of a crime,” as typically
required by the formal approach. Id. at 256 (quoting Galo, 239 F.3d at 581). Portanova
is simply a logical extension of our holding in Galo, and it applies on all fours to the
present dispute.
Next, Ulrich argues that the District Court’s application of § 2252(b)(2) violated
his constitutional rights, namely, his Fifth Amendment right to due process and his Sixth
Amendment right to trial by jury.2 In his Fifth Amendment claim, Ulrich contends that
§ 2252(b)(2) is void-for-vagueness in that it conditions a sentencing enhancement on a
defendant’s prior conviction “relating to . . . the . . . possession . . . of child pornography.”
But again, this argument was considered and rejected in Portanova, where we held that
identical language in “§ 2252(b)(1)’s sentencing enhancement provision is not
unconstitutionally vague,” as “there is no question that a person of ordinary intelligence
would have fair warning that a conviction pursuant to 18 U.S.C. § 2252 could expose him
to greater penalties if such a person has a prior state conviction ‘relating to . . . the . . .
possession . . . of child pornography.’” Portanova, 961 F.3d at 263.
2 The Government claims that Ulrich’s failure to raise these precise constitutional arguments during his sentencing hearing resulted in waiver under United States v. Flores- Mejia, where we held that a party challenging a procedural error at sentencing “must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal.” 759 F.3d 253, 255 (3d Cir. 2014) (en banc). But Ulrich thoroughly briefed these issues in his reply to the Government’s sentencing memorandum, and he specifically referenced the arguments raised in his “sentencing memorandum and [] reply” when he objected to the District Court’s tentative findings at sentencing. Appx. 173. Preservation is therefore satisfied.
5 Ulrich’s final argument fares no better. He contends that, by applying the looser
categorical approach, the District Court usurped the jury’s fact-finding role in violation of
the Sixth Amendment. However, the District Court merely concluded, as a categorical
matter, that the statute of Ulrich’s prior conviction “related to” the possession of child
pornography. This was a “legal, rather than factual determination that depends only on
the ‘fact of prior conviction,’” which is an explicit exception to the principle that “any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Portanova, 961 F.3d at
255 n.11 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
II. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment.