United States of America v. Jay A. Liestman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Issued June 23, 2023
By the Court:
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
On September 19, 2022, a panel of this court heard oral argument in Case
No. 21-3225, United States v. Liestman. The full court has now determined that the
case should be reheard en banc, following a vote of the judges in regular active
service pursuant to Circuit Rule 40(e). The court has also decided that
supplemental briefs would assist in its consideration of the case, as we now
explain.
Appellant 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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1

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No. 21-3225 Page 2
the statute. See 18 U.S.C. § 2256(8). Liestman has a prior 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).
Thirty (30) copies of the supplemental briefs must be submitted to the
Clerk’s Office by July 17, 2023. Counsel must also re-submit to the Clerk’s Office
thirty (30) copies of all briefs, appendices, supplemental authority, and any other
materials filed for the original argument by that date.
By separate order, the court will set a date for oral argument en banc.

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