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Case 1:20-cr-00330-PAE Document 207 Filed 04/16/21 Page 10 of 34 for example, it is possible to transport a minor with intent to engage in criminal sexual activity and not follow through with the planned sexual abuse, and so sexual abuse is not an essential ingredient of the offense. Maxwell makes the same argument for the enticement and related conspiracy charges. This approach is analogous to the “categorical approach” employed by courts to evaluate prior convictions for immigration and sentencing purposes. See Taylor v. United States, 495 U.S. 575, 602 (1990). Generally speaking, the “categorical approach” requires that courts “look only to the statutory definitions—i.e., the elements” of the relevant offense to determine if the provision applies “and not to the particular facts underlying those convictions.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks omitted). Whether a statute requires a categorical or case-specific approach is a question of statutory interpretation. To determine whether Congress used the word “offense” in a statute to refer to an offense in the abstract or to the facts of each individual case, the Court must examine the statute’s “text, context, and history.” United States v. Davis, 139 S. Ct. 2319, 2327 (2019). Though it has not authoritatively settled the question, the Second Circuit has strongly suggested that Maxwell’s approach is the wrong one. In Weingarten v. United States, 865 F.3d 48, 58-60 (2d Cir. 2017), the Second Circuit discussed at length how the text, context, and history of § 3283 show that Congress intended courts to apply the statute using a case-specific approach. The Third Circuit reached the same conclusion in United States v. Schneider, 801 F.3d 186, 196 (3d Cir. 2015). The Court sees no reason to depart from the reasoning in Weingarten. First, “[t]he Supreme Court’s modern categorical approach jurisprudence is confined to the post-conviction contexts of criminal sentencing and immigration deportation cases.” Weingarten, 865 F.3d at 58. 10 DOJ-OGR-00003684