13‐296‐cr
United States v. Leonard J. Allen
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4 ________
5 AUGUST TERM 2013
6 No. 13‐296‐cr
7
8 UNITED STATES OF AMERICA,
9 Appellee,
10
11 v.
12
13 LEONARD J. ALLEN,
14 Defendant‐Appellant
15 ________
16
17 Appeal from the United States District Court
18 for the Northern District of New York.
19 No. 12‐cr‐81 ― Norman A. Mordue, Judge.
20 ________
21
22 SUBMITTED: DECEMBER 11, 2013
23 DECIDED: APRIL 16, 2014
24 ________
25
26
27
28
29
30 Before: POOLER, PARKER, and WESLEY, Circuit Judges.
31 ________
No. 13‐296‐cr
1 Appeal from a judgment of the United States District Court
2 for the Northern District of New York (Mordue, J.) imposing a
3 sentencing enhancement to defendant’s child pornography
4 conviction pursuant to 18 U.S.C. § 2252A(b)(1) and (b)(2) based on
5 his prior state conviction for sexual abuse in the second degree
6 under N.Y. Penal Law § 130.60(2). AFFIRMED.
7 ________
8
9 James P. Egan and James F. Greenwald, Assistant
10 Public Defenders, for Lisa A. Peebles, Federal
11 Public Defender, Northern District of New York,
12 Syracuse, NY, for Defendant‐Appellant
13
14 Lisa M. Fletcher and Paul D. Silver, Assistant
15 United States Attorneys, for Richard Hartunian,
16 United States Attorney, Northern District of New
17 York, Syracuse, NY, for Appellee
18 ________
19
20
21 BARRINGTON D. PARKER, CIRCUIT JUDGE:
22
23 Defendant‐Appellant Leonard J. Allen appeals from a
24 judgment of conviction in the United States District Court for the
25 Northern District of New York (Mordue, J.), following his plea of
26 guilty to charges of transporting, receiving, and possessing child
27 pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2)(A) and
28 (a)(5)(B). In sentencing Allen, the court determined that Allen’s
29 prior state court conviction for Sexual Abuse in the Second Degree in
30 violation of N.Y. Penal Law § 130.60(2) subjected him to increased
31 penalties pursuant to § 2252A(b)(1) and (b)(2) because it constituted
32 a prior conviction under a State law “relating to aggravated sexual
2
No. 13‐296‐cr
1 abuse, sexual abuse, or abusive sexual conduct involving a minor or
2 ward.” We agree and, consequently, affirm.
3
4 I.
5
6 In July 2010, law enforcement officials in New Hampshire
7 began to investigate an individual with the screen name
8 CHRHYA2008 who was engaged in the posting, trading, and
9 collecting of child pornography and child erotica over various
10 internet fora. After the user sent email attachments containing
11 videos of child pornography to undercover officers, they were able
12 to trace the IP address to Allen in Fulton, New York. In November
13 2010, the officers executed a search at Allen’s residence and seized
14 images of child pornography. During the execution of the warrant,
15 Allen admitted that he used the screen name in question and, during
16 subsequent questioning, he acknowledged receiving and possessing
17 child pornography. An examination of computers and storage
18 devices seized during the search revealed over 1,000 image and
19 video files of child pornography and erotica.
20 In January 2012, the Government filed an information
21 charging Allen with transporting child pornography in violation of
22 18 U.S.C. § 2252A(a)(1), receiving child pornography in violation of
23 18 U.S.C. § 2252A(a)(2)(A), and possessing child pornography in
24 violation of 18 U.S.C. § 2252A(a)(5)(B). In addition, the government
25 filed, pursuant to 18 U.S.C. § 2252A(b), a special information
26 regarding a prior state court conviction. Section 2252A(b) provides
27 for substantially enhanced penalties if a person convicted under
28 certain child pornography provisions “has a prior conviction . . .
29 under the laws of any State relating to aggravated sexual abuse,
30 sexual abuse, or abusive sexual conduct involving a minor or ward.”
3
No. 13‐296‐cr
1 The special information alleged that Allen was convicted in
2 2000 of Sexual Abuse in the Second Degree, in violation of New
3 York Penal Law § 130.60, which provides that “[a] person is guilty
4 of sexual abuse in the second degree when he . . . subjects another
5 person to sexual contact and when such other person is: . . . 2. Less
6 than fourteen years old.” N.Y. Penal Law § 130.60. The conviction
7 resulted from Allen’s touching the genitalia of a thirteen‐year‐old
8 boy through the boy’s clothing. For this offense, Allen was
9 sentenced to nine months’ imprisonment. The special information
10 had the effect of raising his mandatory minimum term of
11 imprisonment from five years to fifteen years on the transportation
12 and receipt counts, and from no minimum to a mandatory
13 minimum of ten years for the possession count.
14 Allen subsequently pled guilty to the charges in the
15 information but objected to the application of the enhancements.
16 Allen argued that the terms “aggravated sexual abuse,” “sexual
17 abuse,” and “abusive sexual conduct involving a minor or ward”
18 should be defined by reference to the definitions of those terms
19 under federal law. See 18 U.S.C. §§ 2241‐43. Specifically, he
20 contended that the New York statute under which he had been
21 convicted should not form the basis for enhancement because it
22 applied to a greater range of prohibited conduct than the federal
23 statute because it criminalized touching through clothing, while the
24 term “sexual act” has been defined under federal law as “intentional
25 touching, not through the clothing.” See 18 U.S.C. § 2246(2)(D).
26 Accordingly, Allen contended, his prior conviction was not under a
27 law “relating to” the offenses specified in 18 U.S.C. §§ 2241–43.
28 The district court rejected Allen’s arguments. The court noted
29 that both parties agreed that the court should take a categorical
30 approach in determining whether the prior conviction could serve as
31 a predicate offense for the federal enhancement and the court
4
No. 13‐296‐cr
1 concluded that Allen’s state conviction qualified as a conviction
2 under a law relating to sexual abuse. The district court found the
3 conduct enumerated in New York’s definition of “[s]exual
4 contact[,]” which includes “any touching of the sexual or other
5 intimate parts of a person for the purpose of gratifying sexual desire
6 of either party” including “through clothing,” N.Y. Penal Law
7 § 130.00(3) was conduct that fell within the “ordinary, contemporary
8 common meaning” of the term “sexual abuse . . . of a minor” and
9 was consistent with Congress’s intention to define the offense of
10 sexual abuse expansively. Accordingly, the court found that Allen’s
11 prior conviction subjected him to enhanced penalties and
12 subsequently, sentenced him principally to a term of 240 months’
13 imprisonment.
14 This appeal followed. We review de novo all questions of law
15 relating to the district court’s application of a sentencing
16 enhancement. United States v. Beardsley, 691 F.3d 252, 257 (2d Cir.
17 2012).
18
19 II.
20
21 The issue on appeal is whether Allen’s state court conviction
22 triggers the enhanced federal penalties. As noted, Allen’s principal
23 argument is that to determine whether his state conviction is under a
24 law “relating to aggravated sexual abuse, sexual abuse, or abusive
25 sexual conduct involving a minor,” as required by 18 U.S.C.
26 § 2252A(b), we look to how those terms are defined under federal
27 law. And under federal law, he contends, touching through clothing
28 is not covered by 18 U.S.C. § 2252A(b). See 18 U.S.C. § 2243.
29 As the parties acknowledge, in deciding whether Allen’s prior
30 conviction triggers a sentencing enhancement we apply the
31 categorical approach. See Descamps v. United States, ––– U.S. –––, 133
5
No. 13‐296‐cr
1 S.Ct. 2276, 2283–86 (2013); United States v. Simard, 731 F.3d 156 (2d
2 Cir. 2013); United States v. Barker, 723 F.3d 315, 319–20 (2d Cir. 2013);
3 Beardsley, 691 F.3d at 259. In so doing, we
4 consider [the defendant’s state] offense generically, that is to
5 say, . . . [to] examine it in terms of how the law defines the
6 offense and not in terms of how an individual offender might
7 have committed it on a particular occasion . . . . We then
8 consider whether [the defendant]’s state conviction meets the
9 elements of the applicable generic offense in section
10 2252(b)(2).
11 Barker, 723 F.3d at 321 (internal quotation marks and citations
12 omitted). Specifically, “our task is to determine whether [New
13 York]’s . . . statute, by its elements and nature, ‘relat[es] to
14 aggravated sexual abuse, sexual abuse, or abusive sexual conduct
15 involving a minor.’” Id.
16 The conduct enumerated in New York’s definition of “sexual
17 contact,” includes “any touching of the sexual or other intimate
18 parts of a person for the purpose of gratifying sexual desire of either
19 party” including “through clothing,” N.Y. Penal Law § 130.00(3).
20 This is conduct that we conclude falls within the ordinary meaning
21 of the term sexual abuse of a minor. See Barker, 723 F.3d at 324
22 (defining “abusive sexual conduct involving a minor” as the
23 “misuse or maltreatment of a minor for a purpose associated with
24 sexual gratification”). Accordingly, we have little trouble
25 concluding that Allen’s prior conviction subjects him to enhanced
26 sentencing.
27 Allen argues that the terms aggravated sexual abuse, sexual
28 abuse, and abusive sexual conduct involving a minor or ward refer
29 to several specified federal offenses listed in 18 U.S.C. §§ 2241‐43. In
30 doing so, he relies principally on the Seventh Circuit’s decision in
6
No. 13‐296‐cr
1 United States v. Osborne, 551 F.3d 718 (7th Cir. 2009). There the
2 Seventh Circuit concluded that “sexual behavior is ‘abusive’ only if
3 it is similar to one of the crimes denominated as a form of ‘abuse’
4 elsewhere in Title 18.” Id. at 721. However, we recently rejected that
5 reasoning in Barker. See Barker, 723 F.3d at 322–23.
6 In Barker, the defendant pleaded guilty to a charge of
7 possessing child pornography under 18 U.S.C. § 2252(a)(4)(B). He
8 had a previous state conviction for statutory rape for engaging in
9 sexual conduct with a boy under the age of 16 when he was 56 years
10 old. Barker, 723 F.3d at 318. At sentencing, the district court
11 determined that Barker’s prior conviction was one under state law
12 “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
13 conduct involving a minor or ward,” 18 U.S.C. § 2252(b), and
14 enhanced his sentence. Barker, 723 F.3d at 318. On appeal, we
15 affirmed application of the enhanced penalty using the categorical
16 approach. Because the state statute criminalized sexual acts with
17 persons under the age of 16, we concluded that this conduct
18 “plainly” related to the “sexual abuse of a minor.” Id. at 324. In
19 reaching that conclusion, we rejected Barker’s argument that
20 whether a prior conviction should qualify should be determined by
21 reference to the federal criminal code. Id. at 318‐22. In doing so, we
22 reasoned:
23 [S]ection 2252(b)(2) employs broader language when defining
24 state convictions that qualify as a predicate sex offense than it
25 does when defining predicate federal offenses, such as those
26 located in chapter 109A. While a sentencing enhancement for
27 a prior federal offense under section 2252(b)(2) requires
28 commission of specified crimes, including convictions under
29 chapter 109A, a defendant with a prior state conviction need
30 only have been convicted of a state offense “relating to . . .
31 sexual abuse [involving a minor or ward].” In the context of
7
No. 13‐296‐cr
1 sentencing enhancements, “relating to” has been broadly
2 interpreted to apply not simply to state offenses that are
3 equivalent to sexual abuse, but rather to any state offense that
4 stands in some relation to, bears upon, or is associated with
5 the generic offense.
6 Id. at 322‐23 (internal quotation marks, citations, and alterations
7 omitted) (emphases in original). We further explained that broadly
8 interpreting the phrase “relating to” was appropriate because
9 “federal law defines the category of laws ‘relating to . . . abusive
10 sexual conduct involving a minor,’ but that category is defined only
11 in general terms, recognizing diversity among the several states in
12 the specific elements of sexual misconduct laws.” Id. at 323 (emphases
13 in original). Consequently, we found that in using the words
14 “conviction” and “relating to” in 18 U.S.C. § 2252(b)(2), Congress
15 was recognizing the “variation in the diverse state sexual misconduct
16 laws that could lead to predicate offenses under section 2252(b)(2)
17 and, as relevant here, it left for states to define the relevant
18 boundary between consensual and nonconsensual sexual activity.”
19 Barker, 723 F.3d at 324 (emphasis in original).
20 Nothing about our analysis of the section at issue here,
21 § 2252A, counsels a different result from that reached in Barker when
22 examining 18 U.S.C. § 2252. Thus, even if New York’s sexual abuse
23 statute differs from the definition of sexual abuse found in 18 U.S.C.
24 § 2243, it still triggers statutory enhancements because it “relat[es]
25 to” the “sexual abuse of a minor” as that phrase is ordinarily
26 understood.
27 CONCLUSION
28 We have carefully considered Allen’s remaining arguments
29 and find them to be without merit. For the foregoing reasons, the
30 judgment of the district court is AFFIRMED.
8