United States Court of Appeals For the First Circuit
No. 22-1190
UNITED STATES,
Appellee,
v.
JORDAN WINCZUK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Gelpí, Lynch, and Howard, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
May 2, 2023 LYNCH, Circuit Judge. Jordan Winczuk pleaded guilty on
October 27, 2021, to one count of attempted sexual exploitation of
a minor, see 18 U.S.C. § 2251(a), (e), and one count of committing
a felony involving a minor while required to register as a sex
offender, see id. § 2260A. The district court sentenced him to 45
years of imprisonment. This sentence was composed of a 35-year
mandatory minimum on the § 2251 count based on two prior state
convictions "relating to the sexual exploitation of children," id.
§ 2251(e), and a 10-year consecutive mandatory minimum on the
§ 2260A count.
On appeal, Winczuk agrees that § 2251(e)'s separate
25-year minimum and § 2260A's 10-year minimum both apply. However,
he argues that the district court erred in imposing § 2251(e)'s
35-year minimum because, he contends, the phrase "relating to the
sexual exploitation of children" refers only to the production of
child pornography. We reject his arguments and affirm. In doing
so, we join the views of the Third, Fourth, Sixth, and Eighth
Circuits. See United States v. Pavulak, 700 F.3d 651, 673-75 (3d
Cir. 2012); United States v. Mills, 850 F.3d 693, 696-99 (4th Cir.
2017); United States v. Sanchez, 440 F. App'x 436, 440 (6th Cir.
2011) (unpublished); United States v. Smith, 367 F.3d 748, 750-51
(8th Cir. 2004).
- 2 - I.
A.
The facts underlying Winczuk's federal guilty plea are
as follows. Because Winczuk pleaded guilty, "we draw the[se] facts
from the plea colloquy, the unchallenged portions of the
presentence investigation report, and the transcript of the
sentencing hearing." United States v. De la Cruz, 998 F.3d 508,
509 (1st Cir. 2021) (quoting United States v. Padilla-Colón, 578
F.3d 23, 25 (1st Cir. 2009)).
In January 2018, Winczuk (then 34) began messaging an
11-year-old boy on Instagram, using the alias "Joey Carson."
Winczuk began by grooming the boy, asking him about school and
complimenting his appearance. Winczuk's messages became
progressively more sexually explicit. He asked the child about
erections and masturbation, then repeatedly requested that the
child send pictures of his genitals. Winczuk proposed plans for
the child to visit him and described in detail the sex acts he
would perform on the boy.
About two weeks after Winczuk began messaging the child,
the child's mother became aware of the messages. She posed as her
son and continued the conversation. She elicited identifying
information from Winczuk, including his real name, a picture of
his driver's license, and pictures of his face and tattoos. She
then provided this information to the Worcester Police Department,
- 3 - which was able to identify Winczuk. On executing a search warrant
at Winczuk's New Jersey apartment, officers found multiple
internet-capable phones, including one tied to the "Joey Carson"
Instagram account. A search warrant for the contents of this
account revealed evidence that Winczuk had engaged in similarly
explicit conversations with other social media users who appeared
to be children.
At the time he was sentenced in this case, Winczuk had
two prior state convictions in New Jersey for sex offenses
involving minors. In 2008, he was charged in a 28-count indictment
with sexually assaulting four minors, several of them during a
sleepover when he was serving as the babysitter. He pleaded guilty
in 2010 to one count of sexual assault on a person between the
ages of 13 and 15 by a defendant at least four years older, in
violation of N.J. Stat. Ann. § 2C:14-2c(4) (West 2008).
In 2009, while Winczuk was on release pending resolution
of the 2008 charges, he was charged with file sharing child
pornography. He pleaded guilty in 2010 to one count of endangering
the welfare of a child by file sharing child pornography, in
violation of N.J. Stat. Ann. § 2C:24-4b(5)(a) (West 2009).
A New Jersey state court sentenced Winczuk to concurrent
5-year sentences for these two offenses and to lifetime parole
supervision. The convictions each triggered a requirement that
Winczuk register as a sex offender in New Jersey. As a condition
- 4 - of his parole, Winczuk was prohibited from possessing internet-
capable devices and from contacting minors.
B.
On April 4, 2019, a federal grand jury returned an
indictment charging Winczuk with one count of attempted sexual
exploitation of a minor, see 18 U.S.C. § 2251(a), (e), and one
count of committing a felony involving a minor while required to
register as a sex offender, see id. § 2260A. Winczuk pleaded
guilty to both counts on October 27, 2021.1
At sentencing, Winczuk argued that § 2251(e)'s 35-year
mandatory minimum did not apply on the theory that the phrase
"relating to the sexual exploitation of children" means only the
production of child pornography. He also cited to a Ninth Circuit
decision, United States v. Schopp, 938 F.3d 1053 (9th Cir. 2019),
in support of his position. The district court rejected this
argument and applied the 35-year minimum, for a total sentence of
45 years.
This timely appeal followed.
II.
The sole question presented in this appeal concerns the
interpretation of the phrase "relating to the sexual exploitation
1 Winczuk did not enter a plea agreement with the government.
- 5 - of children" in § 2251(e). We review this question of law de novo.
See United States v. Blodgett, 872 F.3d 66, 69 (1st Cir. 2017).
Section 2251(e) is § 2251's sentencing provision. It
states, in relevant part:
Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one 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, abusive sexual contact involving a minor or ward, or sex trafficking of children, 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 25 years nor more than 50 years, but if such person has 2 or more prior convictions 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 the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life.
18 U.S.C. § 2251(e) (emphasis added). The provision contains a
baseline 15-year mandatory minimum, a higher 25-year minimum for
recidivists with one federal or state predicate conviction, and a
higher 35-year minimum for recidivists with two or more federal or
state predicate convictions. See id.
- 6 - As said, Winczuk argues that his two prior state
convictions for sexual assault of a minor and file sharing child
pornography do not trigger the 35-year minimum because "relating
to the sexual exploitation of children" means only the production
of child pornography.2 The government's position is that "relating
to the sexual exploitation of children" means any "conduct through
which a person manipulates, or takes advantage of, a child to
sexual ends" and so captures Winczuk's prior convictions. We
conclude that the government has the better reading of the statute.
In order to analyze the issue before us, we set forth
the amendment history of both the substantive criminal
prohibitions in § 2251 and § 2251(e)'s recidivist sentencing
provision.
Section 2251 was originally enacted in 1978. See
Protection of Children Against Sexual Exploitation Act of 1977,
Pub. L. No. 95-225, § 2(a), 92 Stat. 7, 7 (1978). At that time,
its penalty provision provided for a recidivist enhancement if a
defendant had a prior conviction "under this section." Id. In
2 Winczuk implicitly concedes that his case is stronger as to the sexual assault conviction, presumably because even on his logic the conviction for file sharing child pornography could conceivably "relat[e] to" the production of child pornography. He emphasizes that the 35-year minimum is applicable only if both prior convictions meet the definition. See 18 U.S.C. § 2251(e) (predicating 35-year minimum on "2 or more prior convictions").
- 7 - 1986, Congress amended § 2251 to expand its substantive reach to,
inter alia, advertising related to child pornography. See Child
Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628,
§§ 1-3, 100 Stat. 3510, 3510. In 1994, Congress amended § 2251's
penalty provision by expanding the predicates for the recidivist
enhancement from prior convictions under "this section" to those
under "this chapter or chapter 109A," the latter of which addresses
sexual abuse. See Violent Crime Control and Law Enforcement Act
of 1994, Pub. L. No. 103-322, § 160001, 108 Stat. 1796, 2037; 18
U.S.C. ch. 109A.
In 1996, Congress adopted § 2251's current two-step
structure of recidivist minimums and broadened the list of
predicates to include state convictions. See Child Pornography
Prevention Act of 1996, Pub. L. No. 104-208, div. A, tit. I,
§ 121(4), 110 Stat. 3009-26, 3009-30. The 1996 amendments
introduced the language at issue here: both recidivist minimums
were triggered where a defendant had (either one or two) prior
convictions "under this chapter or chapter 109A, or under the laws
of any State relating to the sexual exploitation of children."
Id. (emphasis added). These amendments were accompanied by
findings detailing Congress's concern with the close connection
between child pornography and child sexual abuse. See id.
§ 121(1).
- 8 - Congress later added even more federal predicates. See
Protection of Children from Sexual Predators Act of 1998, Pub. L.
No. 105-314, § 201(c), 112 Stat. 2974, 2977 (adding convictions
under "chapter 117"); PROTECT Act, Pub. L. No. 108-21, § 507, 117
Stat. 650, 683 (2003) (adding convictions under "chapter 71" and
under "section 920 of title 10 (article 120 of the Uniform Code of
Military Justice)"). The 2003 amendments were accompanied by
congressional findings identifying "those who sexually exploit
[children]" as "including both child molesters and child
pornographers." PROTECT Act § 501(2).
While the statute stood in this form, two courts of
appeals interpreted the phrase "relating to the sexual
exploitation of children." In United States v. Randolph, 364 F.3d
118 (3d Cir. 2004), the Third Circuit rejected the argument that
this was "a term of art relating exclusively to crimes involving
the production of [child pornography]" and held that it encompassed
child molestation. Id. at 122 (citing United States v. Galo, 239
F.3d 572, 581-83 (3d Cir. 2001)). And in United States v. Smith,
the Eighth Circuit rejected the same argument and held that the
term "unambiguously refers to any criminal sexual conduct with a
child" because "[b]y its very nature, any criminal sexual conduct
with a child takes advantage of, or exploits, [the] child
sexually." 367 F.3d at 751. Thus, even before the next amendments
further broadened the substantive reach of § 2251 and its
- 9 - sentencing provisions, the phrase "relating to the sexual
exploitation of children" was understood as not being limited to
the production of child pornography.
Congress amended the penalty provision to its current
form in the Adam Walsh Child Protection and Safety Act of 2006
("Adam Walsh Act"). See Pub. L. No. 109-248, § 206(b)(1), 120
Stat. 587, 613-14. In an amendment titled "[i]ncreased penalties
for sexual offenses against children," Congress replaced the
phrase "sexual exploitation of children" "the first place it
appears" (i.e., the 25-year minimum) with the phrase "aggravated
sexual abuse, sexual abuse, abusive sexual contact involving a
minor or ward, or sex trafficking of children, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography."3 Id. Congress did not amend
the 35-year minimum, leaving the "relating to the sexual
exploitation of children" language unchanged. See id. In a
different section of this Act, Congress authorized additional
funding to prosecute offenses "relating to the sexual exploitation
of children." Id. § 704. Congress defined that term broadly, for
purposes of the section, as including "any offense" committed in
violation of 18 U.S.C. chs. 109B or 110, or of 18 U.S.C. chs. 71,
3 The Adam Walsh Act also amended the 25-year minimum by adding 18 U.S.C. § 1591, which addresses sex trafficking, as a federal predicate. § 206(b)(1).
- 10 - 109A, or 117 involving a victim who is a minor, or of 18 U.S.C.
§ 1591. Id.
Later amendments further expanded § 2251's substantive
scope. See Effective Child Pornography Prosecution Act of 2007,
Pub. L. No. 110-358, § 103, 122 Stat. 4001, 4002-03 (2008)
(clarifying types of covered transmissions); PROTECT Our Children
Act of 2008, Pub. L. No. 110-401, § 301, 122 Stat. 4229, 4242
(prohibiting broadcast of live images of child abuse). The PROTECT
Our Children Act of 2008 also defined "child exploitation," for
purposes of the Act, as "any conduct, attempted conduct, or
conspiracy to engage in conduct involving a minor that violates
section 1591, chapter 109A, chapter 110, and chapter 117 of title
18, United States Code, or any sexual activity involving a minor
for which any person can be charged with a criminal offense." § 2.
Section 2251(e) "does not expressly define ['sexual
exploitation of children,'] so we interpret that phrase using the
normal tools of statutory interpretation." Esquivel-Quintana v.
Sessions, 581 U.S. 385, 391 (2017); see also 18 U.S.C. § 2251; id.
§ 2256 (applicable definitions section).
We begin, as always, with the text of the statute. We
interpret the phrase "sexual exploitation of children" according
to its "plain meaning at the time of enactment." Tanzin v. Tanvir,
- 11 - 141 S. Ct. 486, 491 (2020); see also Sw. Airlines Co. v. Saxon,
142 S. Ct. 1783, 1788 (2022).
At the time this phrase was added to the statute in 1996,
see Child Pornography Prevention Act of 1996 § 121(4), Black's Law
Dictionary did not define "sexual exploitation," much less "sexual
exploitation of children." Black's Law Dictionary did, however,
define "exploitation" in relevant part as "[t]aking unjust
advantage of another for one's own advantage or benefit."
Exploitation, Black's Law Dictionary (6th ed. 1990). Contemporary
non-legal dictionaries reflect a similar understanding of the term
"exploitation." See Exploitation, Webster's Third New
International Dictionary, Unabridged (1993) ("[A]n unjust or
improper use of another person for one's own profit or
advantage . . . ."); Exploitation, Oxford English Dictionary (2d
ed. 1989) ("The action of turning to account for selfish purposes,
using for one's own profit.").4 These general definitions of
4 Black's Law Dictionary also defined "exploitation" as the: "Act or process of exploiting, making use of, or working up. Utilization by application of industry, argument, or other means of turning to account, as the exploitation of a mine or a forest." Exploitation, Black's Law Dictionary (6th ed. 1990). Webster's also noted the use of the term to mean the "utilization of the labor power of another person without giving a just or equivalent return." Exploitation, Webster's Third New International Dictionary, Unabridged (1993). And the Oxford English Dictionary also defined the term, in relevant part, as "[t]he action of exploiting or turning to account; productive working or profitable management." Exploitation, Oxford English Dictionary (2d ed. 1989).
- 12 - "exploitation" are not specifically geared to the special case of
"sexual exploitation of children." However, Webster's definition
as the "improper use of another person for one's own profit or
advantage" does encompass children.
In a later but roughly contemporary definition of
"sexual exploitation," Black's Law Dictionary defined that term as
"[t]he use of a person, esp. a child, in prostitution, pornography,
or other sexually manipulative activity that has caused or could
cause serious emotional injury." Sexual Exploitation, Black's Law
Dictionary (8th ed. 2004). This definition goes well beyond the
mere production of child pornography and specifically references
child prostitution "or other sexually manipulative activity" using
children. It reflects the special vulnerability of children and
captures additional criminal sexual conduct involving children.
We reject Winczuk's argument that dictionary definitions
of sexual exploitation "require not only that a sexual act occur,
but that the act enrich or benefit 'the perpetrator beyond sexual
gratification'" (quoting Schopp, 938 F.3d at 1062). The
definitions we have just cited, including those addressed to the
sexual exploitation of children, encompass all sexual uses of
children. See Mills, 850 F.3d at 697 (canvassing dictionary
definitions and concluding that this term means "to take advantage
of children for selfish and sexual purposes"); Smith, 367 F.3d at
751 ("By its very nature, any criminal sexual conduct with a child
- 13 - takes advantage of, or exploits, [the] child sexually."). We agree
with the government that "[p]rohibitions on sexual acts with
minors, even where purportedly consensual, rest on a recognition
that the potential for manipulation or coercion is always present."
We conclude that the plain text of "sexual exploitation of
children" unambiguously refers to any criminal sexual conduct
involving children.
The use of the language "relating to the sexual
exploitation of children" further expands the breadth of this
phrase. 18 U.S.C. § 2251(e) (emphasis added). "[W]hen asked to
interpret statutory language including the phrase 'relating
to,' . . . [the Supreme] Court has typically read the relevant
text expansively." Lamar, Archer & Cofrin, LLP v. Appling, 138 S.
Ct. 1752, 1760 (2018) (collecting cases); see also Silva v.
Garland, 27 F.4th 95, 102-03 (1st Cir. 2022).
Our reading also draws support from statutory context.
It is a "fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to their
place in the overall statutory scheme." King v. Burwell, 576 U.S.
473, 492 (2015) (quoting Util. Air Regul. Grp. v. E.P.A., 573 U.S.
302, 320 (2014)); see also Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012). Here, the phrase
"relating to the sexual exploitation of children" appears at the
end of a list of federal predicates. These federal predicates
- 14 - criminalize a broad range of sexual conduct related to minors.
See, e.g., 18 U.S.C. § 2252 (criminalizing the distribution and
possession of child pornography); id. § 2243 (chapter 109A
provision criminalizing sexual abuse of a minor).5 The breadth of
these neighboring predicates makes Winczuk's narrow interpretation
directly contrary to congressional intent. See Sanchez, 440 F.
App'x at 440 ("It is implausible that Congress intended to include
so many prior federal offenses, but chose to restrict qualifying
state offenses to child pornography production."); see also
Pavulak, 700 F.3d at 675 (similar).
Finally, the amendment history of the statute supports
our reading. Several points from the above discussion of this
history bear note. First, the state predicate trigger language in
the 25- and 35-year minimums was not enacted simultaneously. The
phrase "relating to the sexual exploitation of children," which is
the phrase at issue, was added to both minimums in 1996. That
phrase was judicially construed by every circuit which addressed
the issue as not being limited to the production of child
pornography. See Randolph, 364 F.3d at 122; Smith, 367 F.3d at
750-51; see also Ryan v. Gonzales, 568 U.S. 57, 66 (2013) ("We
5 As discussed above, Congress added additional federal predicates after the "relating to the sexual exploitation of children" language was enacted in 1996. But the list of federal predicates was already broad in 1996, encompassing any prior conviction under Code chapters 110 and 109A. See Child Pornography Prevention Act of 1996 § 121(4).
- 15 - normally assume that, when Congress enacts statutes, it is aware
of relevant judicial precedent." (quoting Merck & Co. v. Reynolds,
559 U.S. 633, 648 (2010))). Ten years later, Congress replaced
this phrase in the 25-year minimum but left the 35-year minimum
unchanged. Second, Congress has repeatedly amended § 2251 both to
expand its substantive reach and to add additional predicates for
the recidivist enhancements. Congress has broadened the statute,
not narrowed it. Third, Congress has on multiple occasions defined
"exploitation" (albeit not specifically for purposes of § 2251) as
encompassing a broad range of criminal sexual conduct related to
children. See Adam Walsh Act § 704; PROTECT Our Children Act of
2008 § 2.
These additional indicators of statutory meaning
reinforce our conclusion that the plain text of "relating to the
sexual exploitation of children" unambiguously refers to any
criminal sexual conduct involving children. We join four other
circuits in adopting a broad reading of this phrase. See Mills,
850 F.3d at 696-99 (interpreting § 2251(e) post-2006 amendment);
Pavulak, 700 F.3d at 673-75 (same); Sanchez, 440 F. App'x at 440
(interpreting § 2251(e) pre-2006 amendment); Smith, 367 F.3d at
750-51 (same).
- 16 - C.
Our prior analyses, employing the rules of statutory
interpretation, dispose of Winczuk's arguments. But we add the
following points as to why Winczuk's contrary arguments fail.
Winczuk relies heavily on the notion that the title of
§ 2251 operates to define the phrase "sexual exploitation of
children." Section 2251 is titled "[s]exual exploitation of
children." 18 U.S.C. § 2251. That title has been unchanged since
§ 2251's enactment in 1978. See Protection of Children Against
Sexual Exploitation Act of 1977 § 2(a). The offenses criminalized
by this section involve sexually explicit visual depictions of a
minor -- i.e., child pornography. See, e.g., 18 U.S.C. § 2251(a)
(criminalizing use of minor with intent that minor "engage in . . .
any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct"); id. § 2251(b) (imposing
liability on parent or guardian who knowingly permits minor to
engage in same); id. § 2251(d)(1) (criminalizing advertising
regarding same). Winczuk asserts that the section title is limited
by the section's content to mean the production of child
pornography, and that this also limits the meaning of "sexual
exploitation of children" as that phrase is used in § 2251(e)'s
recidivist penalty provision.
Winczuk's reliance on § 2251's title is misplaced. A
title is not the same as a formal definitional section. It has
- 17 - long been clear that section titles are "tools available" to "shed
light on . . . ambiguous words[s] or phrase[s]," but they "cannot
limit the plain meaning of the text." Bhd. of R.R. Trainmen v.
Balt. & O. R. Co., 331 U.S. 519, 528-29 (1947); see also Pa. Dep't
of Corr. v. Yeskey, 524 U.S. 206, 212 (1998); Scalia & Garner,
supra, at 221-24. "[S]exual exploitation of children"
unambiguously extends beyond the production of child pornography
to encompass other criminal sexual conduct involving children, and
§ 2251's title cannot limit this plain meaning.6
We also agree with the Fourth Circuit that the definition
of "exploitation" in 18 U.S.C. § 3509, the very different child
victims' and witnesses' rights statute, does not apply. See Mills,
850 F.3d at 699. Section 3509 defines "exploitation" as "child
pornography or child prostitution." Id. § 3509(a)(6). As § 3509
itself says, that definition applies only to § 3509. Id.
§ 3509(a). We reject the argument that this separate statute bears
on the meaning of § 2251(e). Cf. Erlenbaugh v. United States, 409
U.S. 239, 243-44 (1972) (discussing in pari materia canon of
statutory construction). Section 3509 was enacted six years before
6 Winczuk relies on Esquivel-Quintana, where the Supreme Court looked to the title of 18 U.S.C. § 2243 -- "[s]exual abuse of a minor or ward" -- as a "definition of that phrase." 581 U.S. at 394. But the Esquivel-Quintana Court looked to this title only as consistent "further evidence" of the conclusion it had already reached based on the text. Id.; see id. at 391-92. Here, Winczuk's title-based argument contradicts the plain text.
- 18 - the 1996 amendments to § 2251, see Crime Control Act of 1990, 1
Pub. L. 101-647, tit. II, § 225(a), 104 Stat. 4789, 4798; see also
Erlenbaugh, 409 U.S. at 244, and serves a distinct purpose. And
Congress has elsewhere defined the term "exploitation" to have a
much broader meaning. See Adam Walsh Act § 704; PROTECT Our
Children Act of 2008 § 2.
We further reject Winczuk's argument that the 2006 Adam
Walsh Act, which replaced the phrase "sexual exploitation of
children" in the 25-year minimum with an enumerated list of state
predicates but left the 35-year minimum unchanged, shows that
Congress understood this phrase to have a narrow meaning.
Winczuk's argument rests on a false premise. He contends
that the phrase "relating to the sexual exploitation of children"
in the 35-year minimum cannot be read broadly, because then it
would have the same meaning as the enumerated list of state
predicates in the 25-year minimum. See Scalia & Garner, supra, at
170 ("[A] material variation in terms suggests a variation in
meaning."); see also Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct.
691, 698 (2021). Winczuk is wrong. A broad reading of "relating
to the sexual exploitation of children" does not render this phrase
coterminous with the enumerated list of state predicates in the
25-year minimum. To count as a state predicate for the 35-year
minimum, an offense must "relat[e] to the sexual exploitation of
children," whereas the 25-year minimum can also be triggered by
- 19 - sexual abuse and aggravated sexual abuse offenses generally. 18
U.S.C. § 2251(e) (emphasis added). The different phrases have
different meanings.
If anything, the presumption that different language
indicates a different meaning cuts against Winczuk's position.
Winczuk contends that "sexual exploitation of children" means the
production of child pornography, but Congress explicitly
recognized "the production . . . of child pornography" as a
predicate offense for the 25-year minimum. Id. The fact that
Congress clearly named this offense in the 25-year minimum weighs
against giving different language in the 35-year minimum the same
precise meaning. See Pavulak, 700 F.3d at 674-75.
Further, the effect of the 2006 Adam Walsh Act amendment
was to broaden and not limit the mandatory minimum triggers. There
was no effort to make the punishment equivalent for one prior
conviction and two prior convictions. When the enumerated state
predicates were added to the 25-year minimum, Congress at the same
time defined "relating to the sexual exploitation of children"
broadly for appropriations purposes. See Adam Walsh Act § 704.
Congress is also presumed to know of prior judicial interpretations
of this phrase. See Gonzales, 568 U.S. at 66. Winczuk's argument
that Congress, aware of the broad construction previously given to
this language, meant to narrow the statute while saying it was
trying to expand its reach is simply untenable.
- 20 - We agree with the Third Circuit that it is "implausible"
that Congress in enacting the 2006 Adam Walsh Act amendment was
materially limiting the state predicates for the 35-year minimum
to the narrow category of production of child pornography.
Pavulak, 700 F.3d at 675 (quoting Sanchez, 440 F. App'x at 440).
The Fourth Circuit reached the same conclusion in Mills after
analyzing, as we have done, the ordinary meaning of "sexual
exploitation of children." See 850 F.3d at 697-98.
Winczuk is again wrong in his attempt to invoke the rule
of lenity. That rule applies "only when a criminal statute
contains a 'grievous ambiguity or uncertainty,' and 'only if, after
seizing everything from which aid can be derived,' the [c]ourt
'can make no more than a guess as to what Congress intended.'"
Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting
Muscarello v. United States, 524 U.S. 125, 138–39 (1998)). This
statute shows neither grievous ambiguity nor grievous uncertainty.
Congress intended to punish dual recidivists with two prior state
convictions more harshly than those with one prior conviction.
That is what deterrence is about. And Congress made clear its
concern about the inadequacy of prior law to provide the needed
deterrence.7
7 Winczuk's reliance on Esquivel-Quintana's reference to state criminal codes is also misplaced. See 581 U.S. at 395-97. The clear text and the usual rules of statutory interpretation end the matter here. See id. at 396 n.3.
- 21 - D.
Winczuk does not dispute that his prior convictions
count as predicates under the broader reading of "relating to the
sexual exploitation of children" that we adopt today. Given this
concession, we do not reach the parties' assumption that we should
assess prior convictions for purposes of § 2251(e)'s sentencing
enhancement using the categorical approach.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
- 22 -