Submitted: September 27, 2019
from United States District Court for the Northern District
of Iowa - Cedar Rapids
LOKEN, COLLOTON, and KOBES, Circuit Judges.
jury convicted Christian Hansen of eight child pornography
offenses and one count of sexually exploiting a child while
required to register as a sex offender, the district
court sentenced Hansen to 600 months
imprisonment followed by a life term of supervised release.
Hansen appeals, arguing the district court erred in enhancing
his sentence on one count for a prior state conviction, and
in upholding his conviction on a child pornography possession
count that violates the Double Jeopardy Clause. Reviewing
these issues de novo, we affirm. See United States v.
Zigler, 708 F.3d 994, 996 (8th Cir. 2013) (sentence
enhancement issue); Padavich v. Thalacker, 162 F.3d
521, 522 (8th Cir. 1998) (double jeopardy issue).
Homeland Security investigation revealed that Hansen
possessed, received, and distributed child pornography, which
he did not deny at trial. The investigation uncovered twelve
photos Hansen took of his infant daughter, I.H., three of
which exposed her genitalia. Count 1 accused Hansen of sexual
exploitation of I.H. for the production and distribution of
child pornography in violation of 18 U.S.C. § 2251(a).
The trial centered on these photos, which Hansen contended he
took for non-pornographic reasons. There was evidence Hansen
distributed the images in order to receive child pornography.
The jury convicted him of Count 1, finding that two of the
three images were child pornography. He was also convicted of
Count 2, sexually exploiting the child while being required
to register as a sex offender in violation of 18 U.S.C.
§ 2260A, and seven additional uncontested counts: one
count of distributing and one count of receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2)
(Counts 3 and 4), and five counts of possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)
(Counts 5 to 9). Hansen moved for judgment of acquittal of
Count 5, possession of the two child pornography images of
I.H., arguing that conviction violates the Double Jeopardy
Clause because Count 5 is a lesser-included offense of the
Count 1 sexual exploitation offense.
district court denied Hansen's acquittal motion and
sentenced him to concurrent terms of 480 months for the
exploitation, distribution, and receipt offenses, a mandatory
consecutive term of 120 months for the
exploitation-while-required-to-register offense, and
concurrent terms of 240 months for each of the five
The Sentence Enhancement Issue.
child exploitation violation of 18 U.S.C. § 2251(a),
such as Hansen's conviction of Count 1, § 2251(e)
increases the authorized sentence range from 15 to 30 years,
to 25 to 50 years, if the defendant has a prior conviction
under an enumerated federal offense "or under the laws
of any State relating to . . . the production, possession,
receipt, mailing, sale, distribution, shipment or
transportation of child pornography." Overruling
Hansen's objection, the district court imposed this
enhancement based on its determination that Hansen's 2011
conviction for violating section 28-813.01(1) of the Nebraska
Revised Statutes "relat[ed] to the possession of child
pornography." Hansen renews this objection on appeal.
determine whether this Nebraska conviction qualifies as a
predicate § 2251(e) offense, a federal court applies the
familiar categorical approach, looking to "the statutory
definition of the prior offense" to determine
"whether the full range of conduct encompassed by the
state statute qualifies to enhance the sentence."
United States v. Sonnenberg, 556 F.3d 667, 670 (8th
Cir. 2009). Because § 2251(e) "incorporates state
offenses by language other than a reference to generic crimes
. . . the inquiry is focused on applying the ordinary meaning
of the words used in the federal law to the statutory
definition of the prior state offense." United
States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019).
Nebraska statutes define "sexually explicit
conduct" more broadly than the terms "child
pornography" and "sexually explicit conduct"
are defined in Chapter 110 of the United States Code.
Compare Neb. Rev. Stat. § 28-1463.02(5) (2009),
with 18 U.S.C. § 2256(2)(B) and (8). The
district court nonetheless determined that Hansen's
Nebraska conviction for three counts of "knowingly
possess[ing] any visual depiction of sexually explicit
conduct . . . which has a child . . . as one of its
participants or portrayed observers" was a conviction
"relating to the possession of child pornography"
within the meaning of § 2251(e) "under the
reasoning in" United States v. Mayokok, 854
F.3d 987 (8th Cir. 2017).
Mayokok, the defendant argued that his prior
conviction under Minnesota law for possessing a
"pornographic work" did not trigger the similarly
worded enhancement in 18 U.S.C. § 2252(b)(1) because the
Minnesota statute defined child pornography more broadly than
federal law. 854 F.3d at 992-93. Applying the categorical
approach, we held that the enhancement applied because
"the full range of conduct proscribed under [the
Minnesota statute] relates to the 'possession .
. . of child pornography' as that term is defined under
federal law," even though "one can conjure
scenarios that violate one statute but not the other."
Id. at 992-993; cf. Boleyn, 929 F.3d at
937-38 (it is irrelevant in applying the expansive term
"relating to" in 21 U.S.C. § 802(44) whether
state law defined aiding and abetting liability more broadly
than federal law).
appeal, Hansen argues that Mayokok is both
distinguishable -- because it dealt with a different
statutory enhancement -- and wrongly decided -- because it
failed to give proper heed to the Supreme Court's warning
that while the phrase "relating to" is broad and
indeterminate, courts cannot extend the term "to the
furthest stretch of  indeterminacy." Mellouli v.
Lynch, 135 S.Ct. 1980, 1990 (2015). This argument
exposes an apparent conflict among our sister circuits.
Compare United States v. Bennett, 823 F.3d 1316,
1322-25 (10th Cir. 2016), which reached the same decision as
Mayokok and distinguished the use of "relating
to" in 18 U.S.C. § 2252A(b)(2) from the entirely
different statute at issue in Mellouli, with
United States v. Reinhart, 893 F.3d 606, 615 & n.4
(9th Cir. 2018), which relied on Mellouli in
reaching a conclusion contrary to our decision in
conclude we need not enter this fray, or even decide whether
Mayokok is a controlling precedent for our panel,
because our careful review of the sentencing record
establishes that any error by the district court in imposing
the § 2251(e) enhancement was harmless. Hansen's
Presentence Investigation Report determined, without
objection, that his advisory guidelines range for Counts 1
and 3 through 9 is life, based on a total offense level of 43
and Criminal History Category II. Because the statutory
maximum for each count was less than life, this determination
triggered the multiple-count consecutive sentencing
provisions of USSG § 5G1.2(d): "[I]f the highest
statutory maximum is less than the total punishment . . .
then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to
produce a combined sentence equal to the total