PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4556

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY SCOTT HARDIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:18-cr-00025-KDB-DCK-1)

Argued: March 10, 2021 Decided: May 25, 2021

Before WYNN, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, vacated in part and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker joined. Judge Wynn wrote a dissenting opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. QUATTLEBAUM, Circuit Judge:

Appellant Timothy Hardin pled guilty to a single count of receiving child

pornography in violation of 18 U.S.C. § 2252A(a)(2). On appeal, he asks us to vacate his

sentence on two grounds. First, Hardin contends his prior conviction for Tennessee

statutory rape does not categorically qualify under the federal child pornography statute for

the recidivist enhancement as “relating to . . . abusive sexual conduct involving a minor or

ward . . . .” 18 U.S.C. § 2252A(b)(1). 1 As such, he argues the district court incorrectly

applied the recidivist enhancement to his sentence. We disagree. Tennessee statutory rape

categorically qualifies, and the district court’s sentence properly applied the statutory

recidivist enhancement.

Second, Hardin asserts that we should vacate the district court’s imposition of a life

term of supervised release and associated conditions because the court failed to explain its

reasoning. On this argument, we agree. As such, we affirm in part, vacate in part and

remand for further proceedings.

I.

The statutory penalty range for a § 2252A(a)(2) violation is ordinarily a minimum

term of five years and a maximum term of twenty years. 18 U.S.C. § 2252A(b)(1). If,

however, a defendant has a prior conviction “under the laws of any State relating to

1 For clarity, we will hereinafter refer to this phrase of the enhancement statute as “relating to abusive sexual conduct involving a minor.” We acknowledge, however, that this simplification omits some text.

2 aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or

ward . . . ,” the penalty increases to a minimum of fifteen years and a maximum of forty

years. Id. Central to this appeal is the fact that Hardin had a prior conviction for statutory

rape in Tennessee from decades earlier.

The probation office’s Presentence Investigation Report (“PSR”) applied the

enhanced penalty based on Hardin’s prior statutory rape conviction and recommended a

supervised release term of five years to life. Moreover, in addition to the mandatory and

standard conditions of supervision, the PSR identified that the Standard Sex Offender

Conditions adopted by the Western District of North Carolina may apply.

At his sentencing hearing, Hardin first objected to application of the statutory

enhancement, arguing the Tennessee statute swept more broadly than the generic federal

definition, and as such, captured conduct not “relat[ed] to abusive sexual conduct involving

a minor.” See 18 U.S.C. § 2252A(b)(1). The district court disagreed, relying on United

States v. Colson,

(4th Cir. 2012), to find that Tennessee statutory rape

qualified as a predicate offense because it related to “the perpetrator’s physical or

nonphysical misuse or maltreatment of a minor for a purpose associated with sexual

gratification.” J.A. 73–74 (internal quotation marks omitted). According to the district

court, while the guidelines’ range without the enhancement would be 135 to 168 months,

the statutory enhancement resulted in an increase to the statutory mandatory minimum to

180 months. Accordingly, the district court imposed a sentence of 180 months of

incarceration.

3 Additionally, the district court imposed the maximum supervised release term

authorized under the statute—a lifetime term—and a variety of conditions, including

“standard sex offender conditions of supervised release that have been adopted by the Court

in this district.” J.A. 99–100. Hardin objected to both the length of the term and several

conditions. The district court overruled Hardin’s objection to the length of the supervised

release term, indicating it could later terminate supervised release if appropriate. In

response to Hardin’s objections to various standard sex offender conditions, first, regarding

conditions limiting contact with children and prohibiting loitering or being in places where

children may be present, the district court acknowledged Hardin’s arguments. But it elected

to leave those conditions in place, indicating it could address any modifications at Hardin’s

release. As to the conditions prohibiting Hardin’s use of internet-enabled devices without

permission or knowledge of the probation department, the district court acknowledged

Hardin’s objection. But it overruled it given this was not a per se ban. Finally, as to the

employment condition prohibiting Hardin from working in a position or volunteering in

any activity that involves direct or indirect contact with children, the district court

acknowledged Hardin’s argument. But again, the district court elected to leave the

condition in place without explanation.

After the district court entered judgment, Hardin timely appealed. We have

jurisdiction to hear his appeal under

and

.

4 II.

We first evaluate whether Hardin’s conviction for Tennessee statutory rape properly

qualifies under the federal child pornography statute’s recidivist enhancement as “relating

to abusive sexual conduct involving a minor.” 18 U.S.C. § 2252A(b)(1). This requires us

to look at Tennessee statutory rape through the lens of the categorical approach. See

Colson, 683 F.3d at 509–10. Under that approach, we look “‘only to the statutory definition

of the state crime and the fact of conviction to determine whether the conduct criminalized

by the statute, including the most innocent conduct, qualifies’ as an offense ‘relating to’

the predicate offenses listed in 18 U.S.C. § 2252A(b)(1).” Id. at 510 (quoting United States

v. Diaz-Ibarra,

(4th Cir. 2008)).

To determine the most innocent conduct under the Tennessee statutory rape statute,

we review its text:

(a) Statutory rape is sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four (4) years older than the victim.

(1993). 2 The Supreme Court has told us that the most

innocent conduct under a statutory rape statute looks not to conduct, but to age of the

individuals. See Esquivel-Quintana v. Sessions,

(2017) (defining the

2

(7) defines “sexual penetration” to include “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.”

5 most innocent conduct under the categorical approach of a California law which

criminalized “unlawful sexual intercourse with a minor who is more than three years

younger than the perpetrator and define[d] a minor as someone under age 18,” as

“consensual sexual intercourse between a victim who is almost 18 and a perpetrator who

just turned 21” (internal quotation marks omitted)). Here, under the Tennessee statute, the

most innocent conduct covered would be consensual sex between a seventeen-year-old

victim and a twenty-one-year-old defendant.

With that information in hand, we examine whether this conduct qualifies for the

recidivist enhancement under 18 U.S.C. § 2252A(b)(1). The recidivist enhancement

provides that:

if such person [who is in violation of Section 2252A(a)(2)] 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 . . . such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

18 U.S.C. § 2252A(b)(1) (emphasis added). Thus, if consensual sex between a seventeen-

year-old victim and a twenty-one-year-old defendant “relat[es] to abusive sexual conduct

involving a minor,” such conduct qualifies under the enhancement, and Hardin’s sentence

should be affirmed. On the other hand, if such conduct does not qualify under the

enhancement, the sentence must be vacated. 3

3 We review legal questions, including whether a state conviction qualifies as a predicate offense under a statutory enhancement, de novo. United States v. Spence,

(4th Cir. 2011).

6 To answer this question, we must interpret § 2252A(b)(1)’s phrase “relating to

abusive sexual conduct involving a minor.” Fortunately, to do so, we need not create or

interpret anything new. Rather, we need only substitute words and phrases contained in

§ 2252A(b)(1) with the proper meanings provided by both Congress and our binding

precedent. We analyze this phrase in two composite parts—“abusive sexual conduct

involving a minor” and “relating to.”

We begin with the phrase “abusive sexual conduct involving a minor.” Congress

expressly defined “minor” for this enhancement statute. The defining statute states, “[f]or

the purposes of [Chapter 110. Sexual Exploitation and Other Abuse of Children], . . .

‘minor’ means any person under the age of eighteen years.”

(1). Thus,

after substituting the term “minor” with the statutory definition, the enhancement statute

reads that a previous state conviction, like Tennessee statutory rape, qualifies under

§ 2252A(b)(1) if it relates to abusive sexual conduct involving a person under the age of

eighteen.

Unpacking our phrase further, we turn to “abusive sexual conduct.” Our decision in

Colson squarely interprets that language. There, Colson had a prior conviction under

Virginia law for “Production, Publication, Sale, or Possession, etc. of Obscene Items

Involving Children.” 4 Colson,

(internal quotation marks omitted). We were

4 At the time of Colson’s state-law conviction, Virginia law provided, “[a] person shall be guilty of a Class 5 felony who . . . [p]roduces or makes or attempts to prepare or prepares to produce or make sexually explicit visual material which utilizes or has as a subject a person less than 18 years of age.” Colson,

(quoting

.2–374.1(B)(2) (1984)).

7 asked whether his prior state conviction qualified for the § 2252A(b)(1) enhancement as

“relating to abusive sexual conduct involving a minor.” See id. at 510 (quoting 18 U.S.C.

§ 2252A(b)(1)). In response, we defined the phrase “abusive sexual conduct involving a

minor” in § 2252A(b)(1) to mean a “perpetrator’s physical or nonphysical misuse or

maltreatment of a minor for a purpose associated with sexual gratification.” 5 Id. at 510

(quoting Diaz-Ibarra,

). Additionally, we gave no consideration to the

impact of consent on our understanding of either the term “minor” or what conduct

amounted to “misuse or maltreatment.” With that additional clarification, § 2252A(b)(1)

reads that a previous state conviction, like Tennessee statutory rape, qualifies if it relates

to physical or nonphysical misuse or maltreatment of a person under the age of eighteen

for a purpose associated with sexual gratification. 6

We now turn to our second phrase, “relating to.” For that, Colson is again

instructive. There, we explained that § 2252A(b)(1), viewed through the lens of the

5 While we did not address more specifically the meaning of “involving a minor,” our decision appears to support our importation of “minor” from

(1). See Colson,

(“[W]e have little difficulty concluding that Colson’s 1984 conviction for ‘[p]roduc[ing] or mak[ing] or attempt[ing] to prepare . . . to produce or make sexually explicit visual material which utilizes or has as a subject a person less than 18 years of age’ under Virginia law ‘stands in some relation to,’ ‘pertains to,’ ‘concerns,’ or has a ‘connection’ with the sexual abuse of children, as well as the production of child pornography.”). 6 Up to this point, our good colleague in dissent agrees. Dissenting Op. at 23. On application, however, our paths diverge. While we seek to measure the Tennessee statute against our agreed-upon definition, the dissent seeks to revisit the term “abusive” and redefine it to mean something different than that upon which we already agreed. But our role here is limited. It does not include giving our opinions on the merits and policy of the recidivist enhancement.

8 categorical approach, “does not require that the predicate conviction amount to ‘sexual

abuse’ or ‘abusive sexual conduct involving a minor.’ Rather, a conviction qualifies as a

predicate conviction merely if it relates to sexual abuse or abusive sexual conduct

involving a minor, or indeed, even to child pornography.”

; see also United States

v. Spence,

(4th Cir. 2011) (explaining that, in light of the “relating to”

language, “the nature of the crime . . . does not need to satisfy a narrow definition of sexual

abuse in order to qualify as a predicate offense” under § 2252A(b)(2)).

“Relating to” calls for a different application of the categorical approach. In the

typical application, we look to see if the state conviction matches the federal counterpart.

But because of the use of “relating to,” the match need not be perfect. This is because

“Congress chose the expansive term ‘relating to’ in § 2252A(b)(1) to ensure that

individuals with a prior conviction bearing some relation to sexual abuse, abusive conduct

involving a minor, or child pornography receive enhanced minimum or maximum

sentences.” Id. at 511–12. A different way of saying this is that the inclusion of “relating

to” means we apply the categorical approach “and then some.” 7 But even so, we still need

7 Although we use “and then some” colloquially, the phrase is consistent with how our sister circuits have interpreted the same language. See United States v. Jaycox,

(9th Cir. 2020) (“[W]hen a federal statute includes the phrase ‘relating to,’ our inquiry does not end even if a state offense is not a categorical match. The Supreme Court has held that this ‘key phrase’ has a broadening effect.”); United States v. Mateen,

(6th Cir. 2015) (“[A] prior state conviction requires only that the defendant have been convicted of a state offense ‘relating to . . . sexual abuse.’ Other circuits have broadly interpreted the phrase ‘relating to’ as triggering sentence enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.” (internal citation and quotation marks omitted)); United States v. Barker,

, 322–23 (2d Cir. 2013) (“In the context of sentencing

9 to understand the parameters of “and then some.” Colson provides those parameters. In

defining “relating to,” Colson held that the conduct only needs “to stand in some relation;

to have bearing or concern; to pertain; refer; to bring into association with or connection

with” abusive sexual conduct involving a minor. Id. at 511 (internal quotation marks

omitted). 8

Putting these pieces together, we now have our inquiry: Does consensual sex

between a seventeen-year-old victim and a twenty-one-year-old defendant stand in some

relation to a perpetrator’s physical or nonphysical misuse or maltreatment of a person under

the age of eighteen for a purpose associated with sexual gratification?

Plainly, it does. First, statutory rape, even by its most innocent conduct, involves a

person under the age of eighteen. Second, the most innocent conduct here stands in some

relation to physical misuse or maltreatment for a purpose associated with sexual

enhancements, ‘relating to’ has been broadly interpreted . . . to apply not simply to state offenses that are equivalent to sexual abuse, but rather to any state offense that stands in some relation [to], bears upon, or is associated with [the] generic offense.” (alteration in original and internal quotation marks omitted)); United States v. Sonnenberg,

(8th Cir. 2009) (“We must assume that Congress chose the words ‘relating to’ for a purpose. The phrase ‘relating to’ carries a broad ordinary meaning, i.e., to stand in some relation to; to have bearing or concern to pertain; refer; to bring into association or connection with.” (internal citations and quotation marks omitted)). 8 Against this understanding of “relating to abusive sexual conduct involving a minor,” we concluded in Colson that a prior conviction of production of child pornography categorically related to a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification. See Colson,

(internal quotation marks omitted). The production of child pornography was categorically connected with using a person under the age of eighteen for sexual gratification. See

.

10 gratification. 9 The fact that a seventeen-year-old victim and a twenty-one-year-old

defendant may be engaging in a consensual activity is of no moment for purposes of the

Tennessee statute. Consent, by definition, is no defense to statutory rape. It is illogical,

therefore, for consent to now, in the context of the enhancement, render statutory rape not

related to misuse or maltreatment of someone under the age of eighteen. In fact, such a

result seems inconsistent with the entire premise behind statutory rape—that regardless of

circumstances, it is wrong to have sex with someone, a child, under a proscribed age

because they are legally incapable of consent.

To this point, Colson gave no indication consent would mean that the production of

child pornography did not relate to misuse or maltreatment for purposes of the

enhancement. In other words, a seventeen-year-old victim consenting to have a nude

photograph taken would still relate to misuse or maltreatment of a person under eighteen.

Our use of the word “misuse,” in fact, suggests such conduct need not be based on a

colloquial understanding of “abusive.” Rather, “misuse” merely means “incorrect or

careless use” or “wrong or improper use.” Misuse, WEBSTER’S NEW INTERNATIONAL

DICTIONARY (3d ed. 2002). And pursuant to the Tennessee statute, sex with a seventeen-

9 It cannot be contested that Tennessee statutory rape is “for a purpose associated with sexual gratification.” In fact, this is even more so than the production of child pornography at issue in Colson because here, sexual gratification is necessarily bound up in the defendant and involves sexual penetration of a minor. Hardin does not argue, nor could he, that Tennessee statutory rape is committed for some purpose other than one associated with sexual gratification.

11 year-old victim, even if consensual, falls within either definition of “misuse.” For all these

reasons, Hardin’s prior conviction qualifies under the enhancement.

Hardin, however, claims this interpretation ignores the word “abusive,” such that it

renders the term meaningless. For support, Hardin directs us to Esquivel-Quintana v.

Sessions. There, the Supreme Court considered whether statutory rape amounted to “sexual

abuse of a minor,” thus making Esquivel-Quintana deportable for a prior conviction of an

aggravated felony under the Immigration and Nationality Act (“INA”). Esquivel-Quintana,

. Critically, however, unlike § 2252A(b)(1), the INA contained no

statutory definition of the term “minor” to guide the Supreme Court’s analysis. Id. at 1569.

In the absence of a statutory definition of “minor,” the Supreme Court had to ascertain the

meaning of “sexual abuse of a minor” utilizing principles of statutory interpretation. See

id. Based on the language of the statute and the term “minor” as ordinarily understood and

defined, 10 the Court held “the general consensus from state criminal codes points to the

same generic definition as dictionaries and federal law: Where sexual intercourse is abusive

solely because of the ages of participants, the victim must be younger than 16.” Id. at 1572.

10 “[T]o qualify as sexual abuse of a minor, the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim.” Esquivel-Quintana,

. Statutory rape laws are an example because they prohibit “sexual intercourse with a younger person under a specified age, known as ‘the age of consent.’”

The generic age of consent is usually sixteen. See

And “[a] closely related federal statute,

, provides further evidence that the generic federal definition of sexual abuse of a minor incorporates an age of consent of 16, at least in the context of statutory rape offenses predicated solely on the age of the participants.”

.

12 Esquivel-Quintana, however, does not control our analysis of the § 2252A(b)(1)

enhancement. Esquivel-Quintana was interpreting an entirely different statute—the INA,

which does not define “minor.” We see no reason to substitute the definition Congress

provided for the term “minor” in § 2252A(b)(1) with a definition reached in interpreting

an entirely different statute which did not define that term.

Further, in addition to not defining “minor” as a person under eighteen, the INA

differs from § 2252A(b)(1) in another important way. The INA makes an alien deportable

for conduct that, in fact, amounts to “sexual abuse of a minor.” See

(a)(43)(A). Section 2252A(b)(1), in contrast, applies to conduct that relates to

abusive sexual conduct involving a minor. As described above, by using “relating to,”

Congress cast a wider net in § 2252A(b)(1) than it did in the INA.

The other authority on which Hardin relies to argue that “abusive” means a victim

younger than sixteen is not applicable for the same reasons as Esquivel-Quintana. First, he

directs us to the federal criminal statute defining conduct amounting to “sexual abuse of a

minor” at

. There, Congress did provide a definition: “sexual abuse of a

minor” amounts to “knowingly engag[ing] in a sexual act with another person who—(1)

has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least

four years younger than the person so engaging.”

(a). But that statute

hardly supports his position. To the contrary, § 2243(a) indicates Congress knows how to

limit sexual abuse of a minor to victims under sixteen. Despite that, it defined “minor” in

§ 2256(1) as persons under eighteen. The fact that Congress elected to define “minor”

differently in statutes, if anything, suggests that Congress knowingly cast a wider net for

13 the recidivist enhancement than it did for the statute codifying a direct offense. It is not our

job to narrow Congress’s net or compel definitional consistency across unrelated

legislation. Additionally, like the INA,

describes conduct that amounts

to sexual abuse of a minor, not conduct that relates to sexual abuse of a minor. Thus, its

reach is narrower than § 2252A(b)(1).

Finally, Hardin claims our decision in United States v. Rangel-Castaneda,

(4th Cir. 2013), supports his argument that “‘sexual abuse of a minor’ does not cover

consensual sexual ‘actions that involve only individuals who are above age sixteen.’”

Appellant’s Br. at 14 (quoting Rangel-Castaneda,

). There, we were first

asked whether a defendant’s conviction for Tennessee statutory rape categorically

amounted to a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and, more

specifically, as “sexual abuse of a minor” under Application Note 1(B)(iii) of that guideline

provision. Rangel-Castaneda,

. But again, that crime of violence

enhancement neither defined “minor” nor contained “relating to” language. Thus, we had

to use principles of statutory interpretation to define “sexual abuse of a minor.” See

at

380–81. Based on principles similar to those in Esquivel-Quintana, we found “sexual abuse

of a minor” required statutory rape of a victim under the age of sixteen. See

at 380–81.

In Rangel-Castaneda, we also considered whether the defendant’s same conviction

alternatively qualified under the aggravated felony enhancement at U.S.S.G.

§ 2L1.2(b)(1)(C) and cmt.n.3(A). Id. at 381. “Sexual abuse of a minor” from

(a)(43) triggers the enhancement.

Like the crime-of-violence enhancement,

however, neither §1101(a)(43) nor the aggravated felony enhancement define “minor.”

14 Further, neither contain “relating to” language. Thus, although we determined Tennessee

statutory rape was categorically overbroad and did not qualify for the aggravated felony

enhancement, Rangel-Castaneda does not help Hardin because the federal statutes at issue

neither defined minor as under eighteen nor covered conduct relating to abusive sexual

conduct involving a minor.

In short, none of the authority to which Hardin, and now the dissent, direct our

attention defines “minor” as our statute does, a person under the age of eighteen, or captures

conduct “relating to” abusive sexual conduct involving a minor. Rather, the authority either

does not define “minor” or defines “minor” as someone under sixteen and captures only

conduct that “amounts to” abusive sexual conduct involving a minor. Given § 2252A(b)(1),

§ 2256(1) and our binding precedent directly answer our inquiry, we decline Hardin’s

invitation to look elsewhere to interpret relating to abusive sexual conduct involving a

minor. Based on § 2256(1)’s definition of a minor as a person under eighteen, consensual

sex involving a seventeen-year-old victim and a twenty-one-year-old defendant “relat[es]

to abusive sexual conduct involving a minor.” Therefore, the most innocent conduct

criminalized under the Tennessee statutory rape statute qualifies under § 2252A(b)(1)’s

enhancement, and we affirm the district court’s application of the enhancement to Hardin’s

sentence.

15 III.

We next turn to Hardin’s argument that the district court failed to adequately explain

its imposition of a life term of supervised release and associated conditions. For the reasons

set forth below, we hold the district court’s explanations are insufficient. 11

First, as to length of the supervised release term, “[w]hen a defendant offers non-

frivolous reasons for imposing a sentence outside of the Guidelines range, ‘a district judge

should address the party’s arguments and explain why he has rejected those arguments.’”

United States v. Arbaugh,

(4th Cir. 2020) (quoting United States v.

Carter,

(4th Cir. 2009)). But a court need not “address every argument

a defendant makes,” focusing instead on the whole of defendant’s argument.

“Instead,

‘[t]he adequacy of the sentencing court’s explanation depends on the complexity of each

case . . . [and] [t]he appropriateness of brevity or length, conciseness or detail, when to

write, what to say, depends upon the circumstances.’”

(alterations in original) (quoting

United States v. Blue,

(4th Cir. 2017)). This requires, at bottom, that

“the sentencing court has said ‘enough to satisfy’ us that the court ‘has considered the

parties’ arguments and has a reasoned basis for exercising [its] own legal decision-making

authority.’”

(alteration in original) (quoting Blue,

). “[I]n a routine case,

where the district court imposes a within-Guidelines sentence, the explanation need not be

elaborate or lengthy.”

at 174–75 (internal quotation marks omitted).

11 We review a district court’s explanation of the sentence it imposed for abuse of discretion. United States v. Lynn,

(4th Cir. 2010).

16 Here, the district court imposed a life term of supervised release. Under the statute,

the authorized term of supervised relief for an offense involving a minor is not less than

five years to life,

(k), and a life term of supervised release was expressly

recommended. Hardin objected, his essential argument being that “he is among the least

culpable of child pornography offenders and presents the lowest risk of committing a future

offense.” Appellant’s Reply Br. at 13 (internal quotation marks omitted); J.A. 113–15. And

while we do not doubt that the district court heard and understood Hardin on his

objection, 12 its explanation was insufficient. The district court responded specifically to

Hardin’s objection to the life term of supervised release as follows: “I think the best way

to handle that, the way we will handle it in this case is, if appropriate at any time while he

is under supervised release, that they can come back to the Court, either party, and ask that

the supervised release be terminated or the conditions be altered. So we will leave it like

that.” J.A. 115. While the district court’s explanation for a within-Guidelines sentence need

not be lengthy, see Arbaugh, 951. F.3d at 174–75, simply stating that Hardin’s term may

be modified at a later date is insufficient.

As to the district court’s explanations for the conditions imposed, United States v.

McMiller,

(4th Cir. 2020), controls. In McMiller, we considered the same

12 The district court stated at the outset of the hearing, “I know that there are some objections to the presentence report. I have studied your very lengthy explanations of those objections so you can assume that I am familiar with your arguments, but I would like to hear from you on them.” J.A. 61. The record reveals that the district court specifically heard and considered Hardin’s overarching argument—that he was lower risk and thus, merited a shorter term than the sentencing recommendation. J.A. 113–15.

17 standard sex offender conditions at issue here, with the district court imposing “[w]ithout

additional explanation, . . . the standard sex offender conditions of supervised release that

have been adopted by the Court in the Western District of North Carolina.”

(internal quotation marks omitted). On appeal, this Court found the imposition of two of

the same conditions, without individualized explanation, plain error.

at 675–76. The

Court emphasized that the district court had a duty “to explain to [defendant] ‘why he faces

special conditions that will forever modify the course of his life.’”

at 676 (quoting

United States v. Ross,

(4th Cir. 2019)). This duty cannot be satisfied by

reference to a standing order.

13

Here, the district court first appeared to do precisely what the district court did in

McMiller—order compliance with standard sex offender conditions by reference to a

standing order. Compare McMiller,

(The court “summarily order[ed]

McMiller to comply with the ‘standard sex offender conditions of supervised release that

have been adopted by the Court in the Western District of North Carolina.’”), with J.A. 100

(“While on supervised release the defendant . . . shall comply with the standard conditions

of supervised release, and the standard sex offender conditions of supervised release that

have been adopted by the Court in this district . . . .”).

Turning next to what the district court said above and beyond its mere reference to

the standing order, we hold these individualized explanations also fail under McMiller.

13 In fairness to the district court, our McMiller decision had not been issued at the time of Hardin’s sentencing. Therefore, it did not have the benefit of its guidance.

18 Even under our deferential standard of review, the district court’s explanations fail to

provide adequate explanation sufficient for meaningful appellate review. Most contain, at

most one or two sentences that, rather than explain the condition, indicate a determination

to keep the condition in place. While the district court may have wide discretion to impose

conditions such as these, the district court has a duty to explain its imposition of life-

altering conditions of supervised release. McMiller,

.

McMiller also instructs us as to our disposition of Hardin’s case in light of the

district court’s insufficient explanations. There, facing facts very similar to those presented

here, we vacated the specific conditions imposed and remanded for further proceedings on

those issues.

(“[W]e vacate special conditions 9 and 13 as procedurally

unreasonable and remand to the district court for further explanation. We affirm the balance

of McMiller’s sentence.”); see also Arbaugh,

(“We therefore vacate

Arbaugh’s sentence only as to the challenged special conditions of release. We remand for

resentencing so that the district court can decide whether to impose those conditions and,

if so, to provide an individualized assessment of its reasons . . . .”). Following that

approach, we vacate the district court’s imposition of a life term of supervised release and

special conditions 7, 8, 9, 13 and 15 and remand to the district court for further

proceedings. 14

14 In United States v. Singletary,

(4th Cir. 2021), and United States v. Rogers,

(4th Cir. 2020), we vacated sentences in their entirety when the district court failed to pronounce discretionary conditions orally at sentencing hearings but later imposed them in written judgments. In McMiller and Arbaugh, as here, the district court pronounced these conditions, but failed to explain them. In response to that error, we

19 IV.

In conclusion, we affirm the district court’s application of the recidivist

enhancement, holding that Tennessee statutory rape categorically qualifies as “relating to

abusive sexual conduct involving a minor.” We do, however, vacate the portion of the

district court’s sentence imposing a life term of supervised release and related sex-offender

conditions and remand for further proceedings.

AFFIRMED IN PART, VACATED IN PART AND REMANDED

did not vacate the sentence in its entirety but only the portions that were inadequately explained.

20 WYNN, Circuit Judge, dissenting: 15

In 1993, Tennessee law criminalized consensual sexual activities between

individuals who were seventeen years old and those who were twenty-one years old. The

issue on appeal is whether Timothy Hardin’s prior conviction under that law qualifies as

one “relating to . . . abusive sexual conduct involving a minor” under the federal child-

pornography statute’s recidivist enhancement. 18 U.S.C. § 2252A(b)(1). While I agree

with my colleagues that the Tennessee law is a categorical match for “sexual conduct

involving a minor,” I disagree that it categorically “relat[es] to” “abusive” sexual conduct

involving a minor.

In my view, the majority’s expansive interpretation of § 2252A misreads binding

case law, creates a circuit split, misapplies the categorical approach, and adopts a definition

of the phrase “relating to abusive sexual conduct involving a minor” that triples mandatory-

minimum sentences based on prior convictions for conduct that is not criminal in forty-two

states. I respectfully dissent.

I.

For over thirty years, federal courts have evaluated the applicability of sentencing

enhancements based on predicate convictions using the categorical approach—that is, by

determining whether the most innocent conduct criminalized under the predicate state

Because I would vacate Hardin’s sentence on the basis that the district court should 15

not have applied the § 2252A enhancement, I would not reach his objections to the length and terms of his supervised release. Accordingly, my dissent is limited to the § 2252A enhancement issue.

21 offense would also be unlawful under the corresponding generic federal offense. If not, the

state offense is broader than the generic federal definition of the offense, and the state

conviction cannot serve as a predicate for federal sentencing purposes. See Taylor v. United

States,

, 599–602 (1990); United States v. Johnson,

(4th

Cir. 2019) (“We look to the elements of the offense to resolve ‘whether the conduct

criminalized by the statute, including the most innocent conduct, qualifies’ as a predicate.”

(quoting United States v. Diaz-Ibarra,

(4th Cir. 2008))).

One of the Supreme Court’s reasons for adopting the categorical approach was that,

absent clear congressional direction, “the meaning of the federal statute should not be

dependent on state law.” Taylor,

(quoting United States v. Turley,

(1957)). In other words, a situation in which “conduct that is perfectly legal for

some people . . . subject[s] many others in neighboring states to years upon years in federal

prison” would be precisely “the sort of unjust and ‘odd result[ ]’ that Taylor intended to

preclude” when it adopted the categorical approach. United States v. Rangel-Castaneda,

(4th Cir. 2013) (quoting Taylor,

).

As the majority notes, the most innocent conduct criminalized by the Tennessee law

under which Hardin was convicted is consensual sexual activity between a seventeen-year-

old and a twenty-one-year-old. 16 Majority Op. at 6; see

(a)

(1993). This conduct does not categorically “relat[e] to . . . abusive sexual conduct

16 As the majority notes, the Tennessee statute covers a wider range of sexual activities than just intercourse. See

(7), -506(a) (1993).

22 involving a minor,” and thus cannot support Hardin’s enhanced sentence. 18 U.S.C. §

2252A(b)(1).

II.

Like the majority, I begin with the phrase “abusive sexual conduct involving a

minor.” Congress defined “minor” as used in § 2252A to include all persons under the age

of eighteen.

(1). And we have previously defined “abusive sexual conduct

involving a minor” as the “physical or nonphysical misuse or maltreatment of a minor for

a purpose associated with sexual gratification.” United States v. Colson,

(4th Cir. 2012) (quoting Diaz-Ibarra,

). 17 Combining these definitions, the

majority correctly reads “abusive sexual conduct involving a minor” in § 2252A(b)(1) to

mean the “physical or nonphysical misuse or maltreatment of a person under the age of

eighteen for a purpose associated with sexual gratification.” Majority Op. at 8. So far, so

good.

Further, there is no dispute that the Tennessee statute reaches only conduct that is

“sexual” and involves victims who are “minors,” as Congress defined that term for the

purposes of § 2252A (that is, those under age eighteen). In other words, it is obviously true

that if the Tennessee statute criminalized nonsexual conduct or covered victims up to the

While Colson involved the interpretation of the phrase “abusive sexual conduct 17

involving a minor” in 18 U.S.C. § 2252A(b)(1), Diaz-Ibarra interpreted the phrase “sexual abuse of a minor” in the sentencing guidelines. See Colson,

; Diaz-Ibarra,

. Thus, Colson made clear that we may rely on precedent interpreting “sexual abuse of a minor” when seeking to understand “abusive sexual conduct involving a minor.” Colson, 683 F.3d at 510–11.

23 age of, say, twenty, it would be categorically broader than § 2252A’s phrase, “abusive

sexual conduct involving a minor.” My friends in the majority and I are in full agreement

that the Tennessee statute is a categorical match for “sexual conduct involving a minor.”

18 U.S.C. § 2252A(b)(1).

But § 2252A speaks not of all sexual conduct involving a minor, but of abusive

sexual conduct involving a minor. Id. And “[t]he phrase ‘abusive sexual conduct involving

a minor or ward’ must be a subset of all ‘sexual conduct involving a minor or ward’”;

otherwise, the word “abusive” is superfluous. United States v. Osborne,

(7th Cir. 2009). In other words, the key question is not just whether the sexual conduct

involves a minor, but whether it involves a minor and is abusive (that is, involves “physical

or nonphysical misuse or maltreatment”). To be a categorical match, we need both.

Accordingly, I find the majority’s footnoted assertion that my view does anything

other than “measure the Tennessee statute against our agreed-upon definition” rather

perplexing. Majority Op. at 8 n.6. The recidivist enhancement requires “abuse,” which, we

agree, requires “physical or nonphysical misuse or maltreatment” of the minor in question.

Nothing in my analysis seeks to redefine that term. My point is that the majority’s view

fails to apply this definition because it inappropriately assumes there is categorically

misuse or maltreatment involved in a violation of the Tennessee statute. But as I discuss

below, the majority’s analysis cannot withstand scrutiny in light of Supreme Court and

Fourth Circuit precedent.

Turning to the question of abuse, there is no doubt that much sexual conduct

involving minors is inherently abusive. For example, we held in United States v. Colson

24 that a Virginia child-pornography-production offense categorically related to the misuse or

maltreatment of individuals under the age of eighteen. Colson,

. This is

unsurprising, given the Supreme Court’s longstanding recognition that the production and

distribution of child pornography is inherently abusive. See New York v. Ferber,

, 758–59 & nn.9–10 (1982). Similarly, we have held that a conviction for the

molestation of a child under the age of fourteen categorically qualifies as “misuse or

maltreatment” of that child. See Diaz-Ibarra,

.

Nevertheless, Congress did not define “abusive” for purposes of § 2252A. Further,

our definition—that “abuse” means “physical or nonphysical misuse or maltreatment”—is

of little assistance because Tennessee’s statute undisputedly covers even consensual sexual

conduct. State v. Collier,

(Tenn. 2013) (“Consent is not a defense to

any form of statutory rape.”). And normally, consensual sexual conduct is not abusive. Cf.

United States v. Jaycox,

(9th Cir. 2020) (“We have consistently

recognized that consensual sexual intercourse with individuals over the age of sixteen is

not necessarily physically or psychologically abusive.” (internal quotation marks

omitted)). Rather, there must be some aggravating factor that renders otherwise consensual

sexual conduct abusive, such as the permanence of the child pornography at issue in

Colson. See Ferber,

(“[T]he materials produced are a permanent record of

the children’s participation and the harm to the child is exacerbated by their circulation.”).

I fully concur with the majority that the legal impossibility of a victim’s consent due to

their age renders sexual conduct abusive—sex without consent is abuse. Majority Op. at

11. Where we differ is on how to determine the relevant age of consent.

25 The majority appears to offer two related explanations for why the most innocent

conduct criminalized by Tennessee’s statute is “abusive,” that is, involves “physical or

nonphysical misuse or maltreatment”: first, that it involves a minor, as defined by § 2252A;

and second, that it is criminalized by Tennessee law. But neither explanation is sufficient

under applicable precedent. The first conflates the age used to define “minor” (indisputably

eighteen under § 2252A) with the age at which otherwise consensual sexual conduct

becomes criminal or “abusive” solely because the younger participant is too young to

legally consent (eighteen under the Tennessee statute, but undefined in § 2252A),

ultimately leading the majority to erroneously disregard the Supreme Court’s decision in

Esquivel-Quintana v. Sessions. The second misapplies the categorical approach. I will

elaborate on each error in turn.

A.

Because § 2252A does not define “abusive,” the categorical approach instructs us

to look to its generic federal definition. Specifically, we must determine what constitutes

“generic” “abusive sexual conduct involving a minor” in the context of statutes

criminalizing sexual conduct solely based on the ages of the participants.

Luckily, a unanimous Supreme Court spoke clearly to this point in 2017. After

evaluating dictionaries, related federal law, and state criminal provisions, the Court

concluded that, “in the context of statutory rape offenses that criminalize sexual intercourse

based solely on the age of the participants, the generic federal definition of sexual abuse of

a minor requires that the victim be younger than 16.” Esquivel-Quintana v. Sessions, 137

, 1568 (2017) (emphasis added). The Tennessee statute is categorically broader

than this definition because it sets the age of consent at eighteen.

Certainly, Esquivel-Quintana involved a different statute, the Immigration and

Nationality Act. 18 But the same evidence mandates the same conclusion here: dictionaries,

related federal law, and state criminal provisions continue to point toward sixteen as the

generic age of consent.

Today, “a robust majority of American jurisdictions”—some thirty-two states and

the District of Columbia—set their age of consent at sixteen, and ten others define statutory

rape so as to exclude consensual intercourse between a seventeen-year-old and a twenty-

one-year-old. 19 Rangel-Castaneda,

. “Bolstering this consensus, both the

Model Penal Code and Black’s Law Dictionary recognize sixteen as the default age of

18 See

(a)(43)(A), 1227(a)(2)(A)(iii). 19 See Rangel-Castaneda, 709 F.3d at 377–78 & nn.1–2. In addition to the thirty- two states that set the age of consent to sexual activity at sixteen, seven states set the age of consent at seventeen.

at 378 n.2. The remaining eleven states set the age of consent at eighteen,

, but three of those would not criminalize consensual sexual activity between a seventeen-year-old and a twenty-one-year-old, see

(a)(2) (2021) (setting a minimum age of prosecution of thirty for sexual acts with an individual who is at least sixteen);

(1) (2021) (setting the minimum age of prosecution for “engag[ing] in sexual activity with a person 16 or 17 years of age” at 24);

(2) (2021) (setting the minimum age differential for “[u]nlawful sexual conduct with a 16- or 17-year-old” at seven years if the defendant “knew or reasonably should have known the age of the minor,” and otherwise at ten years). Thus, the most innocent conduct criminalized under Tennessee’s 1993 statute would not be criminal today in forty-two states or the District of Columbia. See also Esquivel-Quintana,

, 1573–76 (collecting statutes showing that, in 1996—the year § 2252A was enacted—forty states and the District of Columbia set the age of consent at seventeen or younger).

27 consent.” Id. at 378 (citing Model Penal Code § 213.3(1)(a); Statutory Rape, Black’s Law

Dictionary (9th ed. 2009); Age of Consent, Black’s Law Dictionary (9th ed. 2009)).

Further, a federal statute,

(a), prohibits “[s]exual abuse of a minor” in the

form of “knowingly engag[ing] in a sexual act” with a minor who is at least twelve but not

yet sixteen and is at least four years younger than the perpetrator. 20

Reviewing the same evidence as the Supreme Court did in Esquivel-Quintana must

lead us to the same conclusion: that “consensual sexual conduct involving a younger

partner who is at least 16 years of age does not qualify as” abusive sexual conduct involving

a minor pursuant to § 2252A(b)(1). Esquivel-Quintana,

. No surprise,

then, that the Ninth Circuit recently held that a similar California statute, which (like

Tennessee’s) criminalizes “consensual intercourse between a twenty-one-year-old and

someone nearly eighteen,” is “not a categorical match to the generic federal definition of

sexual abuse of a minor.” Jaycox,

(interpreting

(c) (2000) for purposes of the enhancement under

(b)(1), which

includes the same relevant language as § 2252A(b)(1)).

Seeking to avoid this conclusion, the majority dismisses Esquivel-Quintana’s clear

language as turning on the meaning of the word “minor,” which was undefined in the

statute at issue in Esquivel-Quintana and which, we all agree, is set at under eighteen by

§ 2256(1). Majority Op. at 12–13. But that simply misreads the Court’s opinion. In noting

20 Another statute,

, prohibits sexual acts against a person of any age by force or threat, and also prohibits sexual acts involving children under the age of twelve.

28 that, “[w]here sexual intercourse is abusive solely because of the ages of the participants,

the victim must be younger than 16,” the Court also explained that “the generic crime of

sexual abuse of a minor may include a different age of consent where the perpetrator and

victim are in a significant relationship of trust.” Esquivel-Quintana,

(emphasis added). Plainly, the Court did not mean that the word “minor” would have a

different meaning if the perpetrator had a significant relationship of trust with the victim.

Instead, the question was whether the relevant conduct constituted “sexual abuse of a

minor” because one participant was legally unable to consent—which could occur because

the younger party was under the age of sixteen, or under a different age, depending on other

circumstances such as the relationship between the parties.

So Esquivel-Quintana cannot be distinguished on the basis that it sought to define

“minor” in the absence of a statutory definition of that term. Rather, the Court in Esquivel-

Quintana was tasked with defining the full phrase “sexual abuse of a minor”—a phrase

that, like “abusive sexual conduct involving a minor” in § 2252A(b)(1), was undefined by

the statute in question. See id. at 1567 (noting that the Immigration and Nationality Act

“does not expressly define sexual abuse of a minor” and that the key question the Supreme

Court was analyzing was “whether a conviction under a state statute criminalizing

consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual

abuse of a minor under” that Act (emphases added)). And the most innocent conduct

criminalized by the Tennessee statute simply does not constitute “sexual abuse of a minor”

under Esquivel-Quintana’s articulation of the generic federal meaning of that phrase for

29 offenses rendering “sexual intercourse . . . abusive solely because of the ages of the

participants.” Id. at 1572.

The majority also implicitly distinguishes Esquivel-Quintana because the Supreme

Court relied on

in defining “sexual abuse of a minor,” a statute the

majority finds unhelpful to Hardin’s case here. “To the contrary,” the majority writes,

§ 2243 “indicates Congress knows how to limit sexual abuse of a minor to victims under

sixteen” when it wants to—whereas § 2252A(b)(1) uses a definition of “minor” that

includes all those under the age of eighteen. Majority Op. at 13.

I disagree. The statutes can more plausibly be read together to support the view that

this form of abusive sexual conduct requires a victim under the age of sixteen. Section

2252A(b)(1) refers to “abusive sexual conduct involving a minor,” that is, someone under

age eighteen. Section 2243 provides one form of such abusive sexual conduct: “knowingly

engag[ing] in a sexual act” with someone who is at least twelve but not yet sixteen, and

who is at least four years younger than the perpetrator. Another statute, § 2241, provides

another form: “knowingly engag[ing] in a sexual act” with a child who is not yet twelve.

In other words, § 2243 merely suggests one type of “abusive sexual conduct” covered by

the § 2252A(b)(1) enhancement. There is no contradiction because § 2243 does not seek

to define all forms of “abusive sexual conduct” covered by § 2252A(b)(1), some of which

will cover victims older than sixteen but not yet eighteen.

This view of the two statutes is supported by their shared history. Notably, in

Esquivel-Quintana, the Supreme Court emphasized that Congress expanded § 2243 to

30 cover all those under the age of sixteen 21 “in the same [1996] omnibus law that added

sexual abuse of a minor to the [Immigration and Nationality Act].” Esquivel-Quintana,

. Congress enacted our provision, § 2252A, in that very same omnibus law.

See Omnibus Consolidated Appropriations Act,

121(3), 121(7),

321, 110 Stat. 3009–28, 3009–31, 3009–627 (1996). Plainly, Congress was worried about

all sexually abusive conduct involving children under the age of eighteen. But just as

plainly, in Congress’ view, one form of such abuse was otherwise consensual sexual

conduct with children under the age of consent—which it set at sixteen.

Of course, the Supreme Court concluded that it was not necessary or advisable to

“import[] [§ 2243(a)] wholesale” into the Immigration and Nationality Act, and I would

hold the same to be true here. Esquivel-Quintana,

. Still, I would follow

the Supreme Court in “rely[ing] on § 2243(a) for evidence of the meaning of sexual abuse

of a minor, but not as providing the complete or exclusive definition.” Id. (emphasis

added). In other words, § 2243 provides one piece of evidence about the generic federal

meaning of “abusive sexual conduct involving a minor” in § 2252A(b)(1); as in Esquivel-

Quintana, dictionaries and state criminal codes constitute other relevant evidence. And all

of that evidence points to the same conclusion: “Where sexual intercourse is abusive solely

because of the ages of the participants, the victim must be younger than 16.” Id. at 1572.

21 As the Court also noted, “[t]o eliminate a redundancy, Congress later amended § 2243(a) to revert to the pre-1996 language,” but “[t]hat amendment does not change Congress’ understanding in 1996.” Esquivel-Quintana,

n.2.

31 In sum, the fact that there is a statutory definition provided for the word “minor” in

§ 2252A does not render Esquivel-Quintana irrelevant. We all agree that the Tennessee

statute’s inclusion of victims up to the age of eighteen does not render it overbroad as to

the definition of “minor.” But, of course, consensual sexual conduct is only “misuse or

maltreatment” so as to be “abusive” if there is something abusive about the conduct. In the

context of statutory rape statutes premised solely on the ages of the parties, that

“something” is the legal inability of the minor to consent. And the generic federal definition

of the age of consent is sixteen. Thus, the Tennessee statute covers more conduct than does

§ 2252A(b)(1), and it cannot serve as a predicate.

B.

The majority’s logic also suffers from a second fatal flaw: it centers the analysis on

what Tennessee defines as criminal, rather than on the generic federal definition of

“abusive sexual conduct.” See Majority Op. at 11–12. But our obligation under the

categorical approach is to ensure that Tennessee’s law does not sweep more broadly than

the generic federal definition. See Esquivel-Quintana,

(“Under [the

categorical] approach, we ask whether ‘the state statute defining the crime of conviction

categorically fits within the generic federal definition of a corresponding [enumerated

offense].’” (quoting Moncrieffe v. Holder,

(2013) (internal quotation

marks omitted))).

As it happens, Tennessee’s law does sweep unusually broadly. The majority asserts

that “statutory rape, even by its most innocent conduct, involves a person under the age of

eighteen.” Majority Op. at 10. While technically true, this statement is misleading: as

32 discussed above, in most states, statutory rape requires a victim under the age of sixteen.

And more to the point, § 2252A(b)(1) does not name “statutory rape” as a qualifying

predicate; it speaks of “abusive sexual conduct involving a minor.” 22 So even if all states’

statutory-rape statutes swept as broadly as Tennessee’s does, we would still have to

determine whether the minimum conduct criminalized by those statutes constituted abusive

sexual conduct. And the Supreme Court has answered that question in the negative.

In this light, it becomes clear that the majority’s argument about the effect of consent

is beside the point. The majority contends that since consent is no defense to statutory rape,

it would be “illogical” for consent to exclude a statutory-rape offense from the realm of

“abusive” conduct. Majority Op. at 11. But this argument responds to the wrong question,

which is not whether Tennessee considers consent relevant to criminality or abusiveness,

but whether Tennessee’s statutory-rape law criminalizes more conduct than qualifies as

abusive under the generic federal definition of “abusive sexual conduct involving a minor.”

It may be true that this Court’s definition of “misuse or maltreatment” sweeps more broadly

than “a colloquial understanding of ‘abusive[,]’” but the majority provides no support for

its bare conclusion that “sex with a seventeen-year-old victim, even if consensual,”

22 What’s more, this Court has already interpreted the phrase “statutory rape” in the federal sentencing guidelines—and concluded that statutory rape under Tennessee law is not a categorical match, because the “‘generic, contemporary meaning’ of statutory rape sets the general age of consent at sixteen years old.” Rangel-Castaneda,

(quoting Taylor,

). The majority’s interpretation thus leads to an oddity: if Congress had specifically listed “statutory rape” as a predicate offense in § 2252A, our precedent would compel the conclusion that Hardin’s prior conviction would not qualify. And yet the majority reaches the opposite conclusion where Congress has declined to enumerate “statutory rape.” That can’t be right.

33 automatically constitutes “incorrect or careless use” or “wrong or improper use,” or for its

similar assertion that “the most innocent conduct here stands in some relation to physical

misuse or maltreatment for a purpose associated with sexual gratification.” Id. at 10–11.

No support, that is, except for its state-law illegality. See id. (noting that consent “is

of no moment for purposes of the Tennessee statute” and concluding that “pursuant to the

Tennessee statute, sex with a seventeen-year-old victim, even if consensual,” constitutes

misuse (emphases added)). But such reliance is improper under the categorical approach.

In suggesting the incorrectness or illegality of a course of conduct for federal sentencing-

enhancement purposes arises from its proscription under Tennessee law, the majority

“turns the categorical approach on its head by defining the generic federal offense of

[abusive sexual conduct involving a minor] as whatever is illegal under the particular law

of the State where the defendant was convicted.” Esquivel-Quintana,

.

The “unjust and odd result” of the majority’s view is that “conduct that is perfectly legal

for some people”—that is, twenty-one-year-olds in forty-two states and the District of

Columbia—“could subject many others in neighboring states to years upon years in federal

prison.” Rangel-Castaneda,

(internal quotation marks and alterations

omitted). As noted, this is precisely the kind of nonuniformity in federal sentencing that

the categorical approach is meant to avoid.

(citing Taylor, 495 U.S. at 591–92).

C.

To be clear, I voice no opinion as to the appropriate age of consent that ought to

apply under criminal law. Nor do I express any “opinion[] on the merits and policy of the

recidivist enhancement.” Majority Op. at 8 n.6. Those are questions for legislatures to

34 answer. My point is only that legislatures, both state and federal, have spoken—and so did

the Supreme Court, when, taking account of that near-unanimous legislative action, it

interpreted the generic federal definition of “sexual abuse of a minor.” Tennessee is, of

course, within its rights to consider sexual acts between seventeen-year-olds and twenty-

one-year-olds criminal. 23 And Congress would be within its rights to permit a conviction

under that Tennessee law to serve as a predicate for federal sentencing purposes. It simply

has not done so under the current iteration of § 2252A(b)(1), as properly understood in

light of the categorical approach. Accordingly, “[w]e simply [should] not accept the

government’s attempt to justify imposition of a steep . . . sentencing enhancement [tripling

the mandatory minimum sentence] for actions that are entirely lawful in [forty]-two states

and the District of Columbia, as well as under federal law.” Id. at 381.

III.

That brings us to the second disputed aspect of § 2252A: its use of the words

“relating to.” See 18 U.S.C. § 2252A(b)(1) (sentencing enhancement applies to those with

a prior conviction “under the laws of any State relating to . . . abusive sexual conduct

involving a minor” (emphasis added)). Those words admittedly have a “broadening effect”

that alters the categorical-approach analysis, Jaycox,

, such that a state

crime “does not need to satisfy a narrow definition of sexual abuse in order to qualify as a

23 See Rangel-Castaneda,

(“Tennessee retains the ability to define the state crime of statutory rape in the manner it desires. And yet, when it comes to the common meaning of that offense for federal sentencing enhancement purposes, the gap between an age of consent of sixteen versus eighteen is simply too consequential to disregard, and the majority of states adopting the former age is too extensive to reject.”).

35 predicate offense,” United States v. Spence,

(4th Cir. 2011) (emphasis

added). Nevertheless, as the Supreme Court has emphasized, the words “relating to” are

not limitless. Mellouli v. Lynch,

, 811–12 (2015). And here, the majority’s

interpretation of “relating to” contains no apparent limiting principle, as it sweeps so

broadly that it deprives the statutory term “abusive” of any meaning.

The majority looks to this Court’s decision in United States v. Colson for the

“parameters” of what it terms “the categorical approach ‘and then some.’” Majority Op. at

9. The problem is that Colson involved a very different predicate conviction. And in the

years since Colson, the Supreme Court has noted that context “may tug in favor of a

narrower reading” of the words “relating to.” Mellouli,

(internal quotation

marks and alterations omitted). Such context exists here.

Colson involved a conviction under a Virginia child-pornography-production

statute that forbade, among other things, depictions of “lewd exhibitions of nudity” of

minors. Colson,

. As the Supreme Court recognized long ago, the

production of child pornography “is harmful to the physiological, emotional, and mental

health of the child.” Ferber,

; see also Paroline v. United States,

, 439–40 (2014) (noting that child-pornography production “involves child abuse”);

United States v. McCauley,

(4th Cir. 2020) (noting “the deeply harmful

effects that [child-pornography] production can wreak on individual lives and on our social

fabric”); cf. Ferber,

(“The distribution of photographs and films depicting

sexual activity by juveniles is intrinsically related to the sexual abuse of children[.]”

(emphasis added)). Thus, Colson was not a close case. Indeed, this Court “ha[d] little

36 difficulty concluding” that the defendant’s conviction, while not “equivalent to the

production of child pornography under federal law,” was related to the sexual abuse of

minors. Colson,

& n.2.

By contrast, statutory rape, by its nature, avoids the blurry twilight zone of conduct

that plausibly “relates to” sexual abuse. By grounding illegality solely in the ages of the

participants, statutory rape creates a sharp binary between conduct that is punishable (and,

therefore, presumably abusive in the eyes of the legislature) and conduct that is perfectly

legal and non-abusive (consensual sexual conduct between parties legally capable of

consenting). Moreover, many statutory-rape laws, including Tennessee’s, are strict-

liability crimes. The sole determinates of criminal liability under such laws are the

birthdates of the victim and the perpetrator.

This distinguishes statutory rape from other sexual crimes, which may involve

gradations of culpability along either the actus reus or mens rea dimensions. They might

ask about the intent of the perpetrator. Or they might involve complex evaluations of

whether what happened constitutes a crime—such as, under the statute at issue in Colson,

whether photographs involved “lewd” depictions of nudity. For that reason, this Court has

noted that “[t]here are good reasons to treat statutory rape differently from other crimes.”

Thompson v. Barr,

(4th Cir. 2019) (distinguishing Esquivel-Quintana

because Esquivel-Quintana, like the case before us now, involved a statutory-rape offense).

Outside the statutory-rape context, then, it makes perfect sense for the words

“relating to” to, effectively, blur the edges of the categorical approach—or, as the Ninth

Circuit put it, to “allow certain flexibility at the margins.” Jaycox,

. In

37 other words, for most sexual crimes, conduct that might not squarely constitute sexual

abuse for federal purposes may still relate to sexual abuse. Congress presumably included

the words “relating to” in order to capture such conduct—like the psychologically

damaging, if not federally criminal, production of “lewd exhibitions of nudity” at issue in

Colson. Colson,

; cf. Ferber,

& n.9.

But statutory rape presents clear lines: the most innocent conduct it criminalizes is

conduct that would definitively be neither criminal nor abusive if both participants were

legally able to consent. Put differently, the age of consent creates a clear division between

criminal and noncriminal conduct. To hold that “relating to” encompasses conduct across

even that line divests the phrase of any real meaning. The statute might as well say that

any conviction for any “sexual conduct involving minors” can serve as a predicate.

But it doesn’t. And because it doesn’t, “the Government’s construction of [§ 2252A]

stretches to the breaking point, reaching state-court convictions, like [Hardin]’s, in which

[Supreme Court precedent establishes that no ‘abusive’ conduct categorically] figures as

an element of the offense.” Mellouli,

(declining to adopt a meaning of

“relating to” that would read words out of the statute); see also United States v. Schopp,

(9th Cir. 2019) (interpreting Mellouli as holding that “relating to”

“does not permit an expansion beyond the substantive linchpin element of the federal

generic crime . . . [,] although it does permit inclusion of various kinds of conduct involving

that generic crime”); Jaycox, 962 F.3d at 1070–71 (applying Schopp to § 2252(b)(1)); cf.

Rangel-Castaneda,

(“[T]he disparity between the predicate state crime[,

Tennessee’s statutory-rape provision, which sets the age of consent at eighteen,] and the

38 defendant’s contended generic offense here[, which sets the age of consent at sixteen,]

simply cannot be considered insignificant. . . . [T]he contrast between age sixteen and age

eighteen is highly consequential[.]”). In other words, the fact that the majority’s

interpretation of the words “relating to” would functionally erase “abusive” from the statute

provides context “tug[ging] . . . in favor of a narrower reading” of the words “relating to,”

at least when it comes to statutory-rape laws like Tennessee’s. 24 Mellouli,

(quoting Yates v. United States,

, 539 (2015)).

For that reason, I would join our sister circuit in concluding that the most innocent

conduct criminalized by a statute like Tennessee’s 1993 statutory-rape provision does not

categorically relate to abusive sexual conduct involving a minor. Jaycox, 962 F.3d at 1070–

71 (explaining that California’s statutory-rape law did not “relate to” abusive sexual

conduct involving a minor because the state crime and generic federal definition differed

as to a “core substantive element” of the offense—the age at which otherwise consensual

sex became unlawful).

IV.

Because the Tennessee law under which Hardin was convicted does not

categorically relate to abusive sexual conduct involving a minor, I would vacate Hardin’s

sentence and remand for resentencing without application of the § 2252A(b)(1)

enhancement. Because the majority holds otherwise, I respectfully dissent.

24 Further, to the extent § 2252A(b)(1) is ambiguous, the rule of lenity counsels in favor of Hardin’s interpretation.

39