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

2 

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
No. 13‐296‐cr

3 

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.”
No. 13‐296‐cr

4 

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
No. 13‐296‐cr

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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
No. 13‐296‐cr

6 

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
No. 13‐296‐cr

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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
No. 13‐296‐cr

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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.