NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 19-30127

                Plaintiff-Appellee,             D.C. No. 2:18-cr-00146-JCC-1

 v.

JEREMY JAMES CHERRY,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                           Submitted October 26, 2020**

Before:      McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

      Jeremy James Cherry appeals from the district court’s judgment and

challenges the 120-month sentence imposed following his guilty-plea conviction

for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Cherry contends that, because his prior Washington state conviction for first-

degree rape of a child did not require proof of intent, it does not constitute a state

conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward,” and the district court should not have applied

the 10-year mandatory minimum under 18 U.S.C. § 2252(b)(2). As Cherry

concedes, this claim is foreclosed by United States v. Sullivan, 

, 640

(9th Cir. 2015) (prior state offenses were offenses “relating to” sexual abuse of a

minor under § 2252(b)(2) even though they lacked the mens rea requirement of the

generic federal offense). Because Cherry has not shown that Sullivan is “clearly

irreconcilable” with intervening higher authority, Miller v. Gammie, 

,

900 (9th Cir. 2003) (en banc), we are bound to follow Sullivan. See United States

v. Arriaga-Pinon, 

, 1199 (9th Cir. 2017).

      In light of this disposition, we need not reach the government’s arguments

that Cherry’s prior conviction is a categorical match for the generic federal offense

of abusive sexual conduct even without reliance on the “relating to” provision of

§ 2252(b)(2), or that any error in the district court’s application of the mandatory

minimum was harmless.

      AFFIRMED.




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