UNITED STATES v. CHERRY (2020)

MEMORANDUM*

Jeremy James Cherry appeals from the district court's judgment and challenges the 120-month sentence imposed following his guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cherry contends that, because his prior Washington state conviction for first-degree rape of a child did not require proof of intent, it does not constitute a state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” and the district court should not have applied the 10-year mandatory minimum under 18 U.S.C. § 2252(b)(2). As Cherry concedes, this claim is foreclosed by United States v. Sullivan, 797 F.3d 623, 640 (9th Cir. 2015) (prior state offenses were offenses “relating to” sexual abuse of a minor under § 2252(b)(2) even though they lacked the mens rea requirement of the generic federal offense). Because Cherry has not shown that Sullivan is “clearly irreconcilable” with intervening higher authority, Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), we are bound to follow Sullivan. See United States v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017).

In light of this disposition, we need not reach the government's arguments that Cherry's prior conviction is a categorical match for the generic federal offense of abusive sexual conduct even without reliance on the “relating to” provision of § 2252(b)(2), or that any error in the district court's application of the mandatory minimum was harmless.

AFFIRMED.