California Penal Code § 311.11 Is Not a § 2252A(b)(2) Predicate: “Relating to” Still Requires a Close Resemblance to Federal Child Pornography

Introduction

In United States v. Griffin (10th Cir. Jan. 13, 2026), the Tenth Circuit vacated a ten-year mandatory-minimum sentence imposed under 18 U.S.C. § 2252A(b)(2), holding that the defendant’s prior California conviction under Cal. Penal Code § 311.11 does not categorically qualify as a predicate conviction “relating to … possession … of child pornography.”

Parties: The United States (Appellee) and Gregory James Griffin (Appellant).
Core issue: Whether § 311.11, as interpreted through California’s expansive definition of “lewd or lascivious” conduct under § 288, covers a broader range of images than the generic federal concept incorporated by § 2252A(b)(2), even accounting for the phrase “relating to.”

Summary of the Opinion

The court applied the categorical approach and concluded that California Penal Code § 311.11 sweeps more broadly than the generic federal predicate offense described by § 2252A(b)(2). Because California’s statute can criminalize possession of images depicting non-explicit, seemingly innocuous touching (e.g., hugging) so long as the adult actor has a sexual intent (imported via § 288 as construed by the California Supreme Court), it does not bear the “close resemblance” to federal “child pornography” necessary even under the broader “relating to” formulation. The Tenth Circuit therefore held the mandatory minimum did not apply, vacated the sentence, and remanded for resentencing.

Analysis

Precedents Cited

  • United States v. Hebert, 888 F.3d 470 (10th Cir. 2018) and United States v. Becker, 625 F.3d 1309 (10th Cir. 2010)
    Role: Established de novo review for the application of a mandatory minimum and framed the inquiry as one of legal interpretation under the categorical approach.
  • Taylor v. United States, 495 U.S. 575 (1990)
    Role: The foundational source for the categorical approach—focusing on statutory elements, not the defendant’s underlying conduct.
  • Descamps v. United States, 570 U.S. 254 (2013)
    Role: Reinforced that courts generally look to the fact of conviction and elements, not case-specific facts, unless the modified categorical approach applies (which the parties agreed it did not).
  • United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017)
    Role: Supplied the “elements must categorically fall within” formulation and the “sweeps more broadly” test used to disqualify overinclusive statutes.
  • Johnson v. United States, 559 U.S. 133 (2010) and United States v. Withrow, 49 F.4th 1372 (10th Cir. 2022)
    Role: Confirmed that the meaning and scope of a state statute is determined by its text and authoritative state-court interpretations, including decisions from the state’s highest court.
  • Mellouli v. Lynch, 575 U.S. 798 (2015) and Moncrieffe v. Holder, 569 U.S. 184 (2013)
    Role: Provided the “least of the acts criminalized” principle and articulated the “realistic probability” requirement when asserting overbreadth.
  • Gonzales v. Duenas-Alvarez, 549 U.S.183 (2007)
    Role: Warned against “legal imagination” and anchored the need for a realistic probability that the state applies the statute to nongeneric conduct.
  • United States v. Campbell, 156 F.4th 1019 (10th Cir. 2025)
    Role: Crucial to Griffin’s win: the court relied on Campbell for the proposition that realistic probability may be shown by the statute’s plain language and interpretive caselaw, not only by examples of prosecutions.
  • United States v. Bennett, 823 F.3d 1316 (10th Cir. 2016)
    Role: Interpreted “relating to” as expanding the generic offense beyond a strict one-to-one match with the federal definition of “child pornography,” but still requiring a meaningful connection. Griffin uses Bennett as both permission (broader-than-identical) and limitation (still must be close enough).
  • United States v. Wells, 843 F.3d 1251 (10th Cir. 2016); United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)
    Role: Provided the “Dost factors” commonly used to assess whether an image is a “lascivious exhibition” under federal law. The court used these factors to show the federal inquiry remains centered on the child’s intimate areas.
  • People v. Martinez, 903 P.2d 1037 (Cal. 1995)
    Role: The pivotal state-law gloss. Martinez interpreted § 288 broadly to cover “‘any touching’” with the requisite sexual intent and without requiring inherently lewd touching or contact with intimate body parts. That breadth, once imported into § 311.11’s definition of “sexual conduct,” drove the categorical mismatch.
  • United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018) and Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015)
    Role: Persuasive support. The Tenth Circuit noted it reached a similar conclusion to the Ninth Circuit that § 311.11 is overinclusive, even though the circuits may conceptualize the generic definition differently.
  • United States v. Taylor, 596 U.S. 845 (2022)
    Role: Rejected the notion that a defendant must prove the government’s prosecutorial habits to satisfy realistic probability; reinforced that statutory text may be enough.
  • United States v. Helton, 302 F. App'x 842 (10th Cir. 2008)
    Role: Used to rebut the government’s claim that federal law reaches broadly non-explicit images. The court distinguished Helton because the images there still focused on genitalia/pubic area (bathroom hidden-camera context), unlike the potentially innocuous-touch images covered by California law.
  • Mathis v. United States, 579 U.S. 500 (2016) and Quarles v. United States, 587 U.S. 645 (2019)
    Role: Cited in a footnote to acknowledge critiques of the categorical approach’s “all-or-nothing” abstraction. They did not drive the holding.

Legal Reasoning

  1. Define the generic federal predicate.

    Section 2252A(b)(2) enhances punishment for prior state convictions “relating to … possession … of child pornography.” The court—following United States v. Bennett—treated “relating to” as a broadening term, meaning the state offense need not match the federal definition with precision. But it still must “bear a close resemblance” to the federal concept of child pornography.

    Federal “child pornography” is defined in 18 U.S.C. § 2256(8) as a visual depiction of a minor engaging in “sexually explicit conduct,” and § 2256(2)(A) defines that conduct to include (among other things) “lascivious exhibition of the anus, genitals, or pubic area.” The court—citing United States v. Wells and the United States v. Dost factors—underscored that the federal inquiry, even when flexible, remains anchored to depictions that are sexually focused on intimate areas.

  2. Define the state offense elements in their broadest authoritative construction.

    California Penal Code § 311.11 prohibits possession of an image depicting a minor “personally engaging in or simulating sexual conduct.” “Sexual conduct” incorporates “any lewd or lascivious sexual act,” and the chain leads to § 288, construed by the California Supreme Court in People v. Martinez to include “‘any touching’” with sexual intent, without requiring inherently lewd conduct or touching of intimate parts.

  3. Compare breadth: least acts criminalized vs. the generic federal scope.

    Using the “least of the acts criminalized” principle from Mellouli v. Lynch and Moncrieffe v. Holder, the court concluded § 311.11 can reach possession of images depicting non-explicit contact—e.g., an adult hugging a fully clothed child—so long as the adult’s sexual intent is present. Such images can lack nudity, sexual posing, and any focus on genitalia/pubic area, placing them well outside the federal core.

    The opinion distinguished United States v. Bennett, where the overbreadth was comparatively modest (Colorado covered images of a female child’s breasts). That kind of explicit focus “undeniably” related to child pornography. In contrast, Griffin’s case involved state-law coverage of images that may appear innocuous on their face.

  4. Rejecting the government’s counterarguments.
    • Scienter does not cure overbreadth.

      The government argued that § 311.11’s knowledge requirements sufficiently tether the statute to child pornography. The court disagreed: once § 288’s breadth is incorporated, the scienter effectively asks whether the defendant knows the image depicts “any touching” plus sexual intent—still far from federal “lascivious exhibition” focused on intimate areas.

    • Realistic probability shown by authoritative interpretation, not prosecutorial statistics.

      The government suggested Griffin had to show California would actually prosecute the hugging-image scenario. The court—citing United States v. Taylor (2022) and United States v. Campbell—held that realistic probability can be demonstrated by statutory text and authoritative state caselaw. People v. Martinez supplied that proof by expressly adopting an “any touching” interpretation and collecting cases applying § 288 to seemingly innocuous contact.

    • Dost factors do not erase the federal requirement of intimate-area focus.

      Relying on United States v. Helton to argue federal law reaches non-explicit imagery, the government was rebuffed: Helton still involved images focused on genitalia/pubic area. The court treated that focus as the dividing line the California statute may not require.

Impact

  • Sentencing within the Tenth Circuit: Defendants with prior convictions under Cal. Penal Code § 311.11 may no longer be subject to the § 2252A(b)(2) ten-year mandatory minimum on the basis of that conviction alone, absent other qualifying predicates.
  • Sharper limits on “relating to”: While “relating to” expands the generic predicate beyond an exact match (per United States v. Bennett), Griffin clarifies the expansion is not boundless; the state offense must still meaningfully resemble federal child pornography concepts rather than merely share a label.
  • Realistic probability litigation: The opinion strengthens defendants’ ability to show overbreadth through statutory text plus authoritative state interpretation (per United States v. Campbell and United States v. Taylor (2022)), without producing “gotcha” examples of prosecutions in the precise hypothetical posture.
  • Inter-circuit alignment: The decision is consistent with the Ninth Circuit’s treatment of § 311.11 in United States v. Reinhart and Chavez-Solis v. Lynch, potentially reducing forum disparity for this specific statute.

Complex Concepts Simplified

Categorical approach
A method that compares statutory elements—not the defendant’s real-world conduct—to decide whether a prior conviction triggers a federal consequence. If the state statute covers any conduct outside the federal generic definition, it fails categorically.
Generic offense
The federally defined (or federally described) offense used as the benchmark for comparison—here, an offense “relating to … possession … of child pornography” under § 2252A(b)(2), informed by federal definitions in § 2256.
“Relating to”
A broadening phrase meaning the state offense need not mirror the federal definition perfectly. But Griffin holds the relationship must still be close enough that the state offense is genuinely about child-pornography-like depictions, not merely about sexual intent in otherwise non-explicit imagery.
Least of the acts criminalized
The court assumes the conviction could rest on the minimally culpable conduct that the statute reaches, then asks whether that minimal conduct fits within the federal generic offense.
Realistic probability
A constraint preventing purely fanciful hypotheticals. A defendant can satisfy it by showing the statute’s text and authoritative state-court decisions actually extend to nongeneric conduct—without necessarily producing a matching published prosecution.
Dost factors
Common considerations used to decide whether an image is a “lascivious exhibition” (e.g., whether the image’s focal point is genitalia/pubic area and whether it is intended to elicit a sexual response). Griffin emphasizes these factors still operate within a framework requiring intimate-area focus.

Conclusion

United States v. Griffin establishes a significant limit on federal sentencing enhancements under § 2252A(b)(2): even with the breadth conferred by “relating to,” a prior conviction under Cal. Penal Code § 311.11 is not a categorical predicate because, through California’s expansive interpretation in People v. Martinez, it can criminalize possession of images depicting non-explicit, seemingly innocuous touching driven by subjective sexual intent—conduct too remote from the federal conception of child pornography centered on sexually explicit depictions and “lascivious exhibition” of intimate areas. The decision both narrows the reach of mandatory minimums in this setting and reinforces that realistic probability may be shown through statutory text and authoritative judicial interpretation.