United States of America v. Jay A. Liestman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 19, 2022
Decided June 16, 2023
Amended June 21, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE R. JACKSON-AKIWUMI, Circuit Judge
No. 21-3225
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAY A. LIESTMAN,
Defendant-Appellant.
Appeal from the United States
District Court for the Western
District of Wisconsin.
No. 3:20-cr-00006-jdp-1
James D. Peterson,
Chief Judge.
O R D E R
In case no. 21-3225, Defendant Jay A. Liestman pleaded guilty to violating
18 U.S.C. §§ 2252(a)(2)(A) and 2252A(a)(5)(B). The sentencing provisions
corresponding to those offenses are 18 U.S.C. §§ 2252(b)(1) and 2252A(b)(2).
Section 2252(b)(1) calls for an enhanced sentence for a person with “a prior
conviction under the laws of any State relating to … the … possession … of child
pornography[.]” (Emphasis added). The term “child pornography” is defined in a
neighboring provision in the statute. See 18 U.S.C. § 2256(8). Liestman has a prior
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-3225 Page 2
conviction under Wis. Stat. § 948.12(1m), a child pornography offense. On the one
hand, that statute addresses more conduct and encompasses more illicit content
than its federal counterpart, but on the other hand, the federal statute uses the term
“relating to,” as noted above.
In light of that background, counsel are requested to file supplemental
briefs addressing the following questions, in addition to any other points they
wish to raise:
(1) Must the State law to which section 2252(b)(1) refers cover no more
conduct than “possession of child pornography” and no more content
that “child pornography” as that term is defined in 18 U.S.C. §§
2252(b)(1), 2256(8), or does the prepositional phrase “relating to” signal
that an exact match is not necessary? Counsel should take note of the
fact that there is a split in the circuits on this question.
(2) Counsel should also address the question whether United States v.
Kaufmann, 940 F.3d 377 (7th Cir. 2019), and its predecessor United States
v. Kraemer, 933 F.3d 675 (7th Cir. 2019) properly applied the Supreme
Court’s decision in Mellouli v. Lynch, 575 U.S. 798 (2015) (rejecting a
broad interpretation of the words “relating to” because of an applicable
statutory definition), keeping in mind that Kraemer and Kaufmann
concern different clauses of section 2252(b)(1).
(3) Finally, counsel should address the Supreme Court’s decisions
regarding the categorical approach, including most recently Shular v.
United States, 140 S. Ct. 779 (2020).
The supplemental briefs are due by July 17, 2023.

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