United States of America v. Davey Wayne Hudson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVEY W AYNE HUDSON,
Defendant-Appellant.
No. 19-10227
D.C. No.
4:18-cr-00232-
JST-1
OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted October 21, 2020
San Francisco, California
Filed January 29, 2021
Before: Michael Daly Hawkins, N. Randy Smith, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Hawkins

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2 UNITED STATES V. HUDSON
SUMMARY*
Criminal Law
The panel affirmed a sentence for possession of child
pornography in a case in which the district court determined
that the defendant was subject to a ten-year mandatory
minimum sentence under 18 U.S.C. § 2252(b)(2), which
applies if, among other things, a defendant 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.”
The district court applied the § 2252(b)(2) ten-year
minimum as a result of the defendant’s prior conviction
under California Penal Code § 288(a), which criminalizes
lewd and lascivious conduct with a minor under the age of
fourteen.
Rejecting the defendant’s constitutional challenge, the
panel held that § 2252(b)(2)’s reference to state crimes
“relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor” is not
unconstitutionally vague, because the language neither fails
to give ordinary people notice of its scope nor poses a risk
of arbitrary enforcement.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HUDSON 3
COUNSEL
Hanni M. Fakhoury (argued), Assistant Federal Public
Defender; Steven G. Kalar, Federal Public Defender; Office
of the Federal Public Defender, Oakland, California; for
Defendant-Appellant.
Matthew M. Yelovich (argued), Assistant United States
Attorney; Merry Jean Chan, Chief, Appellate Section,
Criminal Division; David L. Anderson, United States
Attorney; United States Attorney’s Office, San Francisco,
California; for Plaintiff-Appellee.
OPINION
HAWKINS, Circuit Judge:
Individuals convicted of possessing child pornography,
in violation of 18 U.S.C. § 2252(a)(4), face a ten-year
mandatory minimum sentence if, among other things, they
have 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.” 18 U.S.C.
§ 2252(b)(2). As a result of a prior conviction under
California Penal Code § 288(a), which criminalizes lewd
and lascivious conduct with a minor under the age of
fourteen, appellant Davey Hudson received the ten-year
mandatory minimum sentence for his guilty-plea conviction
on one count of possessing child pornography. On appeal,
Hudson contends that his sentence must be vacated because
the statutory provision “relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor
or ward” is unconstitutionally vague. We hold that it is not
and affirm the sentence.

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4 UNITED STATES V. HUDSON
BACKGROUND
In 2017, federal agents and local police executed a search
warrant for Hudson’s apartment after determining that
Hudson was sharing child pornography on a peer-to-peer file
sharing network. The agents unlocked several files
contained on a laptop found in the residence and identified
at least 135,156 images and 1,158 videos of child
pornography.
Hudson was indicted on a single count of possession of
child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). At the time of the indictment, Hudson had
a prior conviction under California Penal Code § 288(a)1 for
engaging in a lewd and lascivious act with a minor under the
age of fourteen, and the government gave notice that Hudson
was subject to an enhanced sentence under 18 U.S.C.
§ 2252(b)(2) as a result of that prior conviction.
Hudson entered a plea of guilty and proceeded to
sentencing. At sentencing, the district court determined that
Hudson was subject to the enhanced ten-year mandatory
1 At the time of Hudson’s state conviction, that statute provided:
Any person who willfully and lewdly commits
any lewd or lascivious act, including any of the acts
constituting other crimes provided for in Part 1, upon
or with the body, or any part or member thereof, of a
child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight
years.
California Penal Code § 288(a) (1998).

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UNITED STATES V. HUDSON 5
minimum sentence under § 2252(b)(2). The district court
relied on our decision in United States v. Farmer, 627 F.3d
416, 418, 420 (9th Cir. 2010), which held that a conviction
under California Penal Code § 288(a) is a conviction
categorically “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or
ward.” Although Farmer interpreted the sentencing
enhancement under 18 U.S.C. § 2252A, the district court
determined Farmer’s holding was applicable equally to
§ 2252(b)(2), which contains identical language.
Hudson did not dispute that Farmer applied but argued
instead that he was not subject to an enhanced mandatory
minimum because § 2552(b)(2) is unconstitutionally vague.
Hudson advocated for a sentence of 87 months—the low end
of the otherwise applicable Guidelines range of 87 to 108
months. Although the district court rejected Hudson’s
constitutional argument and determined it was bound by
Farmer to impose a minimum ten-year sentence, the district
court explained that it would have imposed the requested 87-
month sentence but for the application of § 2252(b)(2).
Hudson now appeals.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We
review de novo whether a prior conviction supports the
statutory mandatory minimum enhancement under
§ 2252(b)(2), United States v. Sullivan, 797 F.3d 623, 635
(9th Cir. 2015), and whether a statute is unconstitutionally
vague, United States v. Hungerford, 465 F.3d 1113, 1116
(9th Cir. 2006).

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6 UNITED STATES V. HUDSON
DISCUSSION
In this appeal, we must determine whether the statutory
language “relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor or ward” is
unconstitutionally vague. “[T]he Government violates [the
Fifth Amendment’s due process] guarantee by taking away
someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Johnson v. United States, 576 U.S. 591, 595
(2015) (citing Kolender v. Lawson, 461 U.S. 352, 357–58
(1983)). Hudson contends that the challenged provision fails
on both grounds. We disagree.
I. Case Law Interpreting § 2252(b)(2) and Related
Provisions.
“Section 2252(b)(2) is a recidivist penalty and
sentencing enhancement for those . . . convicted federally of
possession of child pornography under § 2252(a)(4), and
who have certain prior offenses.” United States v. Reinhart,
893 F.3d 606, 609 (9th Cir. 2018). In relevant part, the
statute provides:
Whoever violates, or attempts or conspires to
violate, paragraph (4) of subsection (a) shall
be fined under this title or imprisoned not
more than 10 years, or both, but . . . if such
person 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, or the
production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of
child pornography, such person shall be fined

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UNITED STATES V. HUDSON 7
under this title and imprisoned for not less
than 10 years nor more than 20 years.
18 U.S.C. § 2252(b)(2). To determine whether a prior
conviction triggers the sentencing enhancement, the court
begins with the categorical approach set forth in Taylor v.
United States, 495 U.S. 575 (1990). Sullivan, 797 F.3d at
635. Under that familiar test, we first define the federal
generic offense, and “[w]e then compare the conduct
prohibited under the state statute to the generic definition to
determine whether ‘the full range of conduct covered by the
[state] statute falls within the meaning of’ the federal
definition.” Farmer, 627 F.3d at 418 (quoting United States
v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007)).
Hudson’s arguments center on two lines of precedent:
(1) our case law interpreting the phrase “abusive sexual
conduct involving a minor or ward,” and (2) our case law
determining how the phrase “relating to” affects our
application of the categorical approach.
A. “Aggravated Sexual Abuse, Sexual Abuse, or
Abusive Sexual Conduct Involving a Minor or
Ward.”
We have interpreted the phrase “aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward” as it is used in § 2252(b)(2) and related
statutes on several occasions. See, e.g., United States v.
Jaycox, 962 F.3d 1066 (9th Cir. 2020) (interpreting
18 U.S.C. § 2252(b)(1)); Sullivan, 797 F.3d at 636–37
(§ 2252(b)(2)); Farmer, 627 F.3d at 418–21
(§ 2252A(b)(2)); Sinerius, 504 F.3d at 740–41 (§ 2252A(b)).
Because the terms “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual conduct involving a minor or

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8 UNITED STATES V. HUDSON
ward” are not defined in § 2252 or anywhere else in Chapter
110 of Title 18, we have “follow[ed] our common practice
in cases involving non-traditional offenses by defining the
offense based on the ordinary, contemporary, and common
meaning of the statutory words.” Sullivan, 797 F.3d at 636
(quoting Sinerius, 504 F.3d at 740). We began with the
terms “sexual” and “abuse,” which are common to all three
predicates; we used the ordinary, commonsense meaning of
“sexual” and looked to other contexts addressing the
meaning of “abuse,” notably cases defining the word to
mean to “misuse . . . to use or treat so as to injure, hurt, or
damage . . . to commit indecent assault on,” including
“behavior that is harmful emotionally and physically.” Id.
(internal quotation marks and citations omitted).
We have rejected the argument that we should define
§ 2252(b)(2)’s predicate sexual abuse offenses—
“aggravated sexual abuse,” “sexual abuse,” and “abusive
sexual conduct involving a minor or ward”—exclusively in
relation to three similarly titled federal statutes—18 U.S.C.
§ 2241 (aggravated sexual abuse), 18 U.S.C. § 2242 (sexual
abuse), and 18 U.S.C. § 2243 (sexual abuse of a minor or
ward). See Sullivan, 797 F.3d at 637; see also Farmer, 627
F.3d at 420–21 (interpreting identical terms in § 2252A).
However, these federal statutes are relevant to our § 2252(b)
analysis, and “a statutory rape offense constitutes the generic
offense of ‘sexual abuse of a minor’ if it includes the
elements set forth in 18 U.S.C. § 2243, specifically: (1) a
mens rea level of knowingly; (2) a sexual act; (3) with a
minor between the ages of 12 and 16; and (4) an age
difference of at least four years between the defendant and
the minor.” Id. at 637 (internal quotation marks and citation
omitted).

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UNITED STATES V. HUDSON 9
In Farmer, we considered whether a prior conviction
under California Penal Code § 288(a), Hudson’s prior statute
of conviction, triggers a sentencing enhancement.2 We had
little trouble determining that, under our existing precedent,
a conviction under § 288(a) categorically involves sexual
abuse. We explained:
Section 288(a) has two elements: (a) the
touching of an underage child's body (b) with
a sexual intent. . . . [O]ur cases have
established that sexual touching of children
younger than fourteen—the precise conduct
prohibited by California Penal Code
§ 288(a)—invariably involves “sexual
abuse.” This would appear to make this case
easy: because California Penal Code § 288(a)
categorically involves sexual touching of
children under fourteen, and because sexual
touching of children under fourteen always
involves abuse, California Penal Code
§ 288(a) must constitute a state law “relating
to . . . sexual abuse” for purposes of 18
U.S.C. § 2252A(b)(2). That we have
repeatedly held that California Penal Code
§ 288(a) categorically involves “sexual abuse
of a minor” [in other contexts] . . . further
supports this conclusion.
2 Although Farmer involved the sentencing enhancement under 18
U.S.C. § 2252A(b)(2), its analysis is equally applicable here as the
operative language of the statute is identical to § 2252(b)(2). Hudson
does not contest that his prior conviction is a qualifying predicate under
§ 2252(b)(2) in light of Farmer.

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10 UNITED STATES V. HUDSON
Id. at 419–20 (internal quotation marks and citations
omitted).
A special concurrence in Farmer expressed “concerns
with our current approach to defining ‘abusive sexual
conduct involving a minor’ for purposes of determining
whether to apply a sentencing enhancement.” Id. at 422–23
(Bybee, J., concurring). The concurrence faulted earlier
precedent for “adopt[ing] uncritically the definition of
‘sexual abuse of a minor’ we had used to interpret an
unrelated immigration statute, without regard for the
distinctive structure of § 2252A,” which parallels the crimes
listed in 18 U.S.C. §§ 2241–43. Id. The concurrence
advocated for defining “abusive sexual conduct involving a
minor or ward” by reference to its federal counterpart in
§ 2243 and argued that adhering to that definition
exclusively would “eliminate the surplusage” and awkward
result created by instead defining the terms both according
to their ordinary meaning and by reference to § 2243. Id.
Nevertheless, the concurrence recognized that a three-judge
panel was not empowered to alter the statutory
interpretation, and our precedent clearly dictated that a
conviction under California Penal Code § 288(a)
categorically involves “abusive sexual conduct involving a
minor.” Id. at 426.
Subsequent case law has not altered our interpretation of
“abusive sexual conduct involving a minor or ward,” and, in
fact, we have reiterated that, although relevant to analysis,
we are not limited to the elements of § 2243 when
determining whether a crime constitutes “abusive sexual
conduct involving a minor or ward” under § 2252(b)(2).
Sullivan, 797 F.3d at 637 (“[W]e are not limited to looking
to federal statutes to define federal generic offenses where
the federal statute uses the same name as a federal generic

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UNITED STATES V. HUDSON 11
offense, [but] such federal statutes nevertheless are relevant
to our consideration of whether a particular state statute is
one ‘relating to’ abusive sexual conduct.” (internal
quotation marks and citations omitted)). Thus, we have
continued to define “abusive sexual conduct involving a
minor” both in accordance with its ordinary meaning and in
reference to the elements of § 2243. Id.
B. “Relating to.”
We have long recognized that the phrase “relating to”
has a broadening effect. Jaycox, 962 F.3d at 1069. For
purposes of § 2252(b)(2), it means that “our inquiry does not
end even if a state offense is not a categorical match” to the
generic definitions of “aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or
ward.” Id. Instead, the prior conviction may trigger the
enhancement if it “stands in some relation, bears upon, or is
associated with that generic offense.” Sullivan, 797 F.3d at
638 (quoting Sinerius, 504 F.3d at 743). A prior conviction
will not trigger the sentencing enhancement, however, if its
core substantive element is too far removed from the generic
federal offense. Jaycox, 962 F.3d at 1070–71.
For example, we have held that a conviction under
California Penal Code § 261.5(d), which proscribes any
person who is 21 years of age or older from engaging in an
act of unlawful sexual intercourse with a minor who is under
16 years of age, is one categorically “relating to . . . abusive
sexual conduct involving a minor.” Sullivan, 797 F.3d at
637–38. The California statute did not include as an element
the same mens rea level as its federal counterpart and thus
was not a categorical match. Id. at 637. We explained,
however, that the mens rea element related to the culpability
of the defendant rather than the impact on the victim. Id. at

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12 UNITED STATES V. HUDSON
640. “The elements relating to the effect of the offense on
the minor indicate that under our generic federal statutory
rape definition, sexual conduct is abusive when the minor is
under 16 and the defendant is four or more years older.” Id.
Because the California statute also contained those elements,
we concluded that the crime was categorically related to
abusive sexual conduct involving a minor. Id.
Several years later, we reached the opposite conclusion
when considering a prior conviction under California Penal
Code § 261.5(c), which proscribes sexual intercourse with a
person under the age of eighteen, who is at least three years
younger than the defendant and is not the defendant’s
spouse. Jaycox, 962 F.3d at 1070–71. We determined that
statute does not categorically relate to abusive sexual
conduct involving a minor because the statute “criminalizes
conduct not necessarily abusive nor against those ordinarily
considered minors for age of consent purposes.” Id. at 1070
(internal citations omitted). We determined that “a core
substantive element of the state crime—the age of the
participants—is too far removed from the relevant federal
generic definitions to be ‘related to’ them.” Id. at 1070–71.
We have adopted a slightly different interpretation of
“relating to” when determining whether a child-
pornography-related prior conviction triggers the sentencing
enhancement. Reinhart, 893 F.3d at 613. Reinhart
recognized that “the language of the statute and any related
textual restrictions may favor a narrower reading” of the
phrase “relating to.” Id. Because the relevant terms “child
pornography” and “sexually explicit conduct,” unlike the
terms “aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward,” are defined in
the same statutory chapter as § 2252(b)(2), Reinhart
determined that the statutory text “tug[s] . . . in favor of a

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UNITED STATES V. HUDSON 13
narrower reading” of “relating to.” Id. at 615 (quoting
Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015)). Thus, a
child-pornography-related prior conviction must be a
categorial match to the federal definition to trigger
§ 2252(b)(2)’s enhancement. Id.
With this precedent as our backdrop, we turn to
Hudson’s specific contentions.
II. Whether § 2252(b)(2) Is Unconstitutionally Vague.
Hudson posits that § 2252(b)(2) fails to give fair notice
of the conduct it proscribes and risks arbitrary enforcement
for two reasons: First, employing two definitions of “sexual
abuse of a minor” and two interpretations of “relating to”
prevents an ordinary person from having fair notice of the
conduct that triggers § 2252(b)(2)’s sentence enhancement;
second, the “competing definitions” lead to arbitrary and
discriminatory application of the statute.3
3 “In assessing whether a statute is impermissibly vague, ‘the
touchstone is whether the statute, either standing alone or as construed,
made it reasonably clear at the relevant time that the defendant’s conduct
was criminal.’” United States v. Kuzma, 967 F.3d 959, 967 (2020)
(quoting United States v. Lanier, 520 U.S. 259, 267 (1997) (emphasis
removed)). Absent exceptional circumstances, “a defendant who cannot
sustain an as-applied vagueness challenge to a statute cannot be the one
to make a facial vagueness challenge to the statute.” Keshem v. Barr,
941 F.3d 358, 375 (9th Cir. 2019). Although Keshem held that a recent
line of Supreme Court cases did not alter this general rule, id. at 375–76,
we later addressed a facial vagueness challenge to two criminal statutes,
noting that the same Supreme Court cases “refute[d] the Government’s
assertion that outside the First Amendment context, only as applied
vagueness challenges may be considered,” Kuzma, 967 F.3d at 971 n.10.
Because Hudson’s challenge fails whether facial or as applied, we do not
decide that issue here.

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14 UNITED STATES V. HUDSON
Hudson is correct that our precedent interpreting “sexual
abuse of a minor” has created a two-part definition—one
covering the crime of statutory rape proscribed by § 2243
and the other covering sexual abuse crimes in the ordinary
sense—both of which inform our analysis under
§ 2252(b)(2). See Sullivan, 797 F.3d at 636–37. Our
approach has been the subject of criticism. Cf. Farmer, 627
F.3d at 422–26 (Bybee, J., concurring) (arguing that
Congress intended solely the definition set forth in § 2243 to
define “abusive sexual conduct involving a minor” as it is
used in § 2252A(b)(2)). Yet, that criticism does not reveal a
constitutional infirmity. Indeed, the two definitions
ultimately are “complementary, not inconsistent.” Farmer,
627 F.3d at 421; see also Sullivan, 797 F.3d at 637 (“This
definition of ‘sexual abuse of a minor’ [i.e., the elements of
§ 2243,] also comports with the ordinary, contemporary, and
common meaning of the words sexual abuse of a minor.”
(internal quotation marks and citation omitted)). And
“[w]hether the terms in § 2252(b)(2) are given their generic
meaning or are defined in light of their federal counterparts
. . . they are unlikely to sweep in the bizarre or unexpected
state offenses . . . .” Lockhart v. United States, 136 S. Ct.
958, 968 (2016) (internal citations omitted). Absent such
risk, the phrase “abusive sexual conduct involving a minor”
provides ordinary people with fair notice of the statute’s
reach and does not raise a constitutional vagueness concern.
The same is true of the phrase “relating to.” As we
recently explained, “the ‘relating to’ language . . . has a
broadening effect [that] will allow certain flexibility at the
margins,” but it is not without limits. Jaycox, 962 F.3d at
1070. To trigger the sentencing enhancement, the state
offense must share a core substantive element of the generic
federal definition. Id. at 1070–71; cf. United States v.
Schopp, 938 F.3d 1053, 1066 (9th Cir. 2019) (“relating to”

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UNITED STATES V. HUDSON 15
phrase “does not permit an expansion beyond the substantive
linchpin element of the federal generic crime”). Thus, even
if that flexibility at the margins could be “an indicator” of an
as-applied challenge, it is not an indicator that the statute is
impermissibly vague on its face, see Kuzma, 967 F.3d at 971,
and certainly not as applied to Hudson, see United States v.
Medina-Villa, 567 F.3d 507, 512–16 (9th Cir. 2009)
(California Penal Code § 288(a) is a categorical match to the
generic definition of “sexual abuse of a minor”).
We are also unpersuaded by Hudson’s argument that the
definitions of “sexual abuse of a minor” and the broadening
effect of the phrase “relating to” risk arbitrary application of
§ 2252(b)(2). In support of his argument, Hudson relies on
a recent line of Supreme Court cases that invalidated on
vagueness grounds the so-called residual clauses of several
statutory definitions of “violent felony” and “crime of
violence,” but Hudson fails to show that § 2252(b)(2)
presents the same problems as the statutes at issue in those
cases.
Johnson addressed the residual clause of the Armed
Career Criminal Act’s (“ACCA”) definition of “violent
felony,” which provided that, in addition to several
enumerated felonies, a “violent felony” was any other felony
that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 576 U.S. at 594
(quoting 18 U.S.C. § 924(e)(2)(B) (emphasis removed)). To
determine whether a particular crime fell under the residual
clause, a court was required “to picture the kind of conduct
that the crime involves in ‘the ordinary case’ and to judge
whether that abstraction presents a serious potential risk of
physical injury.” Id. at 596.
Johnson explained that “[t]wo features of the residual
clause conspire to make it unconstitutionally vague.” Id. at

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16 UNITED STATES V. HUDSON
597. First, the clause “leaves grave uncertainty about how
to estimate the risk posed by a crime.” Id. Second, the
clause “leaves uncertainty about how much risk it takes for
a crime to qualify as a violent felony.” Id. at 598. In
reaching its conclusion, the Court noted that “the failure of
‘persistent efforts . . . to establish a standard’ can provide
evidence of vagueness” and recounted the various, failed
attempts to create a workable standard under which to
analyze whether a crime fell under the residual clause. Id.
(quoting United States v. L. Cohen Grocery Co., 255 U.S.
81, 91 (1921)). The “repeated attempts and repeated failures
to craft a principled and objective standard out of the residual
clause confirm[ed] its hopeless indeterminacy.” Id.
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), reached the
same conclusion regarding the nearly identical residual
clause of 8 U.S.C. § 16’s definition of “crime of violence.”
Dimaya held that § 16’s residual clause contained the same
two elements that conspired to render ACCA’s residual
clause unconstitutionally vague. Id. at 1214–15. Like the
uncertainty in ACCA’s residual clause, the uncertainty in
§ 16’s residual clause also required courts “to picture the
kind of conduct that the crime involves in the ordinary case,
and to judge whether that abstraction presents some not-
well-specified-yet-sufficiently-large degree of risk.” Id. at
1216 (internal quotation marks omitted).
The Court applied the same rationale once more to strike
down the residual clause of 18 U.S.C. § 924(c)(3)(B)’s
definition of “crime of violence.” United States v. Davis,
139 S. Ct. 2319, 2326–27 (2019). Davis explained that
Johnson and Dimaya “teach that the imposition of criminal
punishment can’t be made to depend on a judge’s estimation
of the degree of risk posed by a crime’s imagined ‘ordinary
case.’” Id. at 2326.

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UNITED STATES V. HUDSON 17
Here, § 2252(b)(2)’s sexual abuse provision does not
contain the elements that conspired to render the residual
clauses at issue in Johnson, Dimaya, and Davis
unconstitutionally vague. The phrases “abusive sexual
conduct involving a minor” and “relating to” do not require
the court to imagine an ordinary case or assess an
unspecified degree of risk posed by that imagined, ordinary
case. Nor have courts struggled to create a workable,
objective standard for applying § 2252(b)(2). Our analysis
is rooted in an elements-based categorical approach and
adherence to the ordinary meaning of the statutory words.
See Sullivan, 797 F.3d at 636–38; see also Johnson, 576 U.S.
at 597 (explaining that assessing whether a crime fell under
ACCA’s residual clause went “beyond deciding whether
creation of risk is an element of the crime”). Because the
elements of the state statutes of conviction are at the core of
this court’s analysis, there also is no risk of arbitrary
enforcement stemming from consideration of the prior
conviction’s underlying facts, as Hudson contends. See
Jaycox, 962 F.3d at 1069.
The Third Circuit recently rejected a similar
constitutional challenge to § 2252(b)(2). See United States
v. Portanova, 961 F.3d 252, 262–63 (3d Cir. 2020) (holding
phrase “relating to” does not render statute
unconstitutionally vague). We join our sister circuit and
hold that § 2252(b)(2)’s reference to state crimes “relating to
. . . abusive sexual conduct involving a minor” is not
unconstitutionally vague.
CONCLUSION
Section 2252(b)(2)’s application to state crimes “relating
to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor” neither fails to give ordinary
people notice of its scope nor poses a risk of arbitrary

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18 UNITED STATES V. HUDSON
enforcement. We, therefore, reject Hudson’s constitutional
challenge and affirm his sentence.
AFFIRMED.

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