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United States v. Leonard J. Allen



## In the 1



# United States Court of Appeals

2



## For the Second Circuit 3

________ 4

A UGUST T ERM 2013 5

No. 13

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7

U NITED S TATES OF A MERICA

, 8

Appellee

, 9

10

v. 11

12

L EONARD J. A LLEN

, 13

Defendant

‐ Appellant 14

________ 15

16

Appeal from the United States District Court 17

for the Northern District of New York. 18

No. 12

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‐ 81

― Norman A. Mordue, Judge

. 19

________ 20

21

S UBMITTED : D ECEMBER 11, 2013 22

D ECIDED : A PRIL 16, 2014 23

________ 24

25

26

27

28

29

Before: P OOLER

, P ARKER

, and W ESLEY

, Circuit Judges

. 30

________ 31No. 13

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2 Appeal from a judgment of the United States District Court 1

for the Northern District of New York (Mordue, J .) imposing a 2

sentencing enhancement to defendant’s child pornography 3

conviction pursuant to 18 U.S.C. § 2252A(b)(1) and (b)(2) based on 4

his prior state conviction for sexual abuse in the second degree 5

under N.Y. Penal Law § 130.60(2). AFFIRMED. 6

________ 7

8

James P. Egan and James F. Greenwald, Assistant 9

Public Defenders, for Lisa A. Peebles, Federal 10

Public Defender, Northern District of New York, 11

Syracuse, NY, for Defendant

‐ Appellant 12

13

Lisa M. Fletcher and Paul D. Silver, Assistant 14

United States Attorneys, for Richard Hartunian, 15

United States Attorney, Northern District of New 16

York, Syracuse, NY, for Appellee 17

________ 18

19

20

B ARRINGTON D. P ARKER

, C IRCUIT J UDGE : 21

22

Defendant

‐ Appellant Leonard J. Allen appeals from a 23

judgment of conviction in the United States District Court for the 24

Northern District of New York (Mordue, J .), following his plea of 25

guilty to charges of transporting, receiving, and possessing child 26

pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2)(A) and 27

(a)(5)(B). In sentencing Allen, the court determined that Allen’s 28

prior state court conviction for Sexual Abuse in the Second Degree in 29

violation of N.Y. Penal Law § 130.60(2) subjected him to increased 30

penalties pursuant to § 2252A(b)(1) and (b)(2) because it constituted 31

a prior conviction under a State law “relating to aggravated sexual 32No. 13

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3 abuse, sexual abuse, or abusive sexual conduct involving a minor or 1

ward.” We agree and, consequently, affirm. 2

3

I. 4

5

In July 2010, law enforcement officials in New Hampshire 6

began to investigate an individual with the screen name 7

CHRHYA2008 who was engaged in the posting, trading, and 8

collecting of child pornography and child erotica over various 9

internet fora. After the user sent email attachments containing 10

videos of child pornography to undercover officers, they were able 11

to trace the IP address to Allen in Fulton, New York. In November 12

2010, the officers executed a search at Allen’s residence and seized 13

images of child pornography. During the execution of the warrant, 14

Allen admitted that he used the screen name in question and, during 15

subsequent questioning, he acknowledged receiving and possessing 16

child pornography. An examination of computers and storage 17

devices seized during the search revealed over 1,000 image and 18

video files of child pornography and erotica. 19

In January 2012, the Government filed an information 20

charging Allen with transporting child pornography in violation of 21

18 U.S.C. § 2252A(a)(1), receiving child pornography in violation of 22

18 U.S.C. § 2252A(a)(2)(A), and possessing child pornography in 23

violation of 18 U.S.C. § 2252A(a)(5)(B). In addition, the government 24

filed, pursuant to 18 U.S.C. § 2252A(b), a special information 25

regarding a prior state court conviction. Section 2252A(b) provides 26

for substantially enhanced penalties if a person convicted under 27

certain child pornography provisions “has a prior conviction

. . . 28

under the laws of any State relating to aggravated sexual abuse, 29

sexual abuse, or abusive sexual conduct involving a minor or ward.” 30No. 13

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4 The special information alleged that Allen was convicted in 1

2000 of Sexual Abuse in the Second Degree, in violation of New 2

York Penal Law § 130.60, which provides that “[a] person is guilty 3

of sexual abuse in the second degree when he

. . . subjects another 4

person to sexual contact and when such other person is:

. . . 2. Less 5

than fourteen years old.” N.Y. Penal Law § 130.60. The conviction 6

resulted from Allen’s touching the genitalia of a thirteen

‐ year

‐ old 7

boy through the boy’s clothing. For this offense, Allen was 8

sentenced to nine months’ imprisonment. The special information 9

had the effect of raising his mandatory minimum term of 10

imprisonment from five years to fifteen years on the transportation 11

and receipt counts, and from no minimum to a mandatory 12

minimum of ten years for the possession count. 13

Allen subsequently pled guilty to the charges in the 14

information but objected to the application of the enhancements. 15

Allen argued that the terms “aggravated sexual abuse,” “sexual 16

abuse,” and “abusive sexual conduct involving a minor or ward” 17

should be defined by reference to the definitions of those terms 18

under federal law. See 18 U.S.C. §§ 2241

‐ 43. Specifically, he 19

contended that the New York statute under which he had been 20

convicted should not form the basis for enhancement because it 21

applied to a greater range of prohibited conduct than the federal 22

statute because it criminalized touching through clothing, while the 23

term “sexual act” has been defined under federal law as “intentional 24

touching, not through the clothing.” See 18 U.S.C. § 2246(2)(D). 25

Accordingly, Allen contended, his prior conviction was not under a 26

law “relating to” the offenses specified in 18 U.S.C. §§ 2241–43. 27

The district court rejected Allen’s arguments. The court noted 28

that both parties agreed that the court should take a categorical 29

approach in determining whether the prior conviction could serve as 30

a predicate offense for the federal enhancement and the court 31No. 13

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5 concluded that Allen’s state conviction qualified as a conviction 1

under a law relating to sexual abuse. The district court found the 2

conduct enumerated in New York’s definition of “[s]exual 3

contact[,]” which includes “any touching of the sexual or other 4

intimate parts of a person for the purpose of gratifying sexual desire 5

of either party” including “through clothing,” N.Y. Penal Law 6

§ 130.00(3) was conduct that fell within the “ordinary, contemporary 7

common meaning” of the term “sexual abuse

. . . of a minor” and 8

was consistent with Congress’s intention to define the offense of 9

sexual abuse expansively. Accordingly, the court found that Allen’s 10

prior conviction subjected him to enhanced penalties and 11

subsequently, sentenced him principally to a term of 240 months’ 12

imprisonment. 13

This appeal followed. We review de novo all questions of law 14

relating to the district court’s application of a sentencing 15

enhancement. United States v. Beardsley

, 691 F.3d 252, 257 (2d Cir. 16

2012). 17

18

II. 19

20

The issue on appeal is whether Allen’s state court conviction 21

triggers the enhanced federal penalties. As noted, Allen’s principal 22

argument is that to determine whether his state conviction is under a 23

law “relating to aggravated sexual abuse, sexual abuse, or abusive 24

sexual conduct involving a minor,” as required by 18 U.S.C. 25

§ 2252A(b), we look to how those terms are defined under federal 26

law. And under federal law, he contends, touching through clothing 27

is not covered by 18 U.S.C. § 2252A(b). See 18 U.S.C. § 2243. 28

As the parties acknowledge, in deciding whether Allen’s prior 29

conviction triggers a sentencing enhancement we apply the 30

categorical approach. See Descamps v. United States

, ––– U.S.

–––, 133 31No. 13

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6 S.Ct. 2276, 2283–86 (2013); United States v. Simard

, 731 F.3d 156 (2d 1

Cir. 2013); United States v. Barker

, 723 F.3d 315, 319–20 (2d Cir. 2013); 2

Beardsley

, 691 F.3d at 259. In so doing, we 3

consider [the defendant’s state] offense generically, that is to 4

say,

. . . [to] examine it in terms of how the law defines the 5

offense and not in terms of how an individual offender might 6

have committed it on a particular occasion

. . . . We then 7

consider whether [the defendant]’s state conviction meets the 8

elements of the applicable generic offense in section 9

2252(b)(2). 10

Barker

, 723 F.3d at 321 (internal quotation marks and citations 11

omitted). Specifically, “our task is to determine whether [New 12

York]’s

. . . statute, by its elements and nature, ‘relat[es] to 13

aggravated sexual abuse, sexual abuse, or abusive sexual conduct 14

involving a minor.’” Id

. 15

The conduct enumerated in New York’s definition of “sexual 16

contact,” includes “any touching of the sexual or other intimate 17

parts of a person for the purpose of gratifying sexual desire of either 18

party” including “through clothing,” N.Y. Penal Law § 130.00(3). 19

This is conduct that we conclude falls within the ordinary meaning 20

of the term sexual abuse of a minor. See Barker

, 723 F.3d at 324 21

(defining “abusive sexual conduct involving a minor” as the 22

“misuse or maltreatment of a minor for a purpose associated with 23

sexual gratification”). Accordingly, we have little trouble 24

concluding that Allen’s prior conviction subjects him to enhanced 25

sentencing. 26

Allen argues that the terms aggravated sexual abuse, sexual 27

abuse, and abusive sexual conduct involving a minor or ward refer 28

to several specified federal offenses listed in 18 U.S.C. §§ 2241

‐ 43. In 29

doing so, he relies principally on the Seventh Circuit’s decision in 30No. 13

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7 United States v. Osborne

, 551 F.3d 718 (7th Cir. 2009). There the 1

Seventh Circuit concluded that “sexual behavior is ‘abusive’ only if 2

it is similar to one of the crimes denominated as a form of ‘abuse’ 3

elsewhere in Title 18.” Id

. at 721. However, we recently rejected that 4

reasoning in Barker

. See Barker

, 723 F.3d at 322–23. 5

In Barker

, the defendant pleaded guilty to a charge of 6

possessing child pornography under 18 U.S.C. § 2252(a)(4)(B). He 7

had a previous state conviction for statutory rape for engaging in 8

sexual conduct with a boy under the age of 16 when he was 56 years 9

old. Barker

, 723 F.3d at 318. At sentencing, the district court 10

determined that Barker’s prior conviction was one under state law 11

“relating to aggravated sexual abuse, sexual abuse, or abusive sexual 12

conduct involving a minor or ward,” 18 U.S.C. § 2252(b), and 13

enhanced his sentence. Barker

, 723 F.3d at 318. On appeal, we 14

affirmed application of the enhanced penalty using the categorical 15

approach. Because the state statute criminalized sexual acts with 16

persons under the age of 16, we concluded that this conduct 17

“plainly” related to the “sexual abuse of a minor.” Id

. at 324. In 18

reaching that conclusion, we rejected Barker’s argument that 19

whether a prior conviction should qualify should be determined by 20

reference to the federal criminal code. Id

. at 318

‐ 22. In doing so, we 21

reasoned: 22

[S]ection 2252(b)(2) employs broader language when defining 23

state convictions that qualify as a predicate sex offense than it 24

does when defining predicate federal offenses, such as those 25

located in chapter 109A. While a sentencing enhancement for 26

a prior federal offense under section 2252(b)(2) requires 27

commission of specified crimes, including convictions under 28

chapter 109A, a defendant with a prior state conviction need 29

only have been convicted of a state offense “ relating to

. . . 30

sexual abuse [involving a minor or ward].” In the context of 31No. 13

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8 sentencing enhancements, “relating to” has been broadly 1

interpreted to apply not simply to state offenses that are 2

equivalent to sexual abuse, but rather to any state offense that 3

stands in some relation to, bears upon, or is associated with 4

the generic offense. 5

Id

. at 322

‐ 23 (internal quotation marks, citations, and alterations 6

omitted) (emphases in original). We further explained that broadly 7

interpreting the phrase “relating to” was appropriate because 8

“federal law defines the category of laws ‘relating to

. . . abusive 9

sexual conduct involving a minor,’ but that category is defined only 10

in general terms, recognizing diversity among the several states in 11

the specific elements of sexual misconduct laws.” Id

. at 323 (emphases 12

in original). Consequently, we found that in using the words 13

“conviction” and “relating to” in 18 U.S.C. § 2252(b)(2), Congress 14

was recognizing the “ variation in the diverse state sexual misconduct 15

laws that could lead to predicate offenses under section 2252(b)(2) 16

and, as relevant here, it left for states to define the relevant 17

boundary between consensual and nonconsensual sexual activity.” 18

Barker

, 723 F.3d at 324 (emphasis in original). 19

Nothing about our analysis of the section at issue here, 20

§ 2252A, counsels a different result from that reached in Barker when 21

examining 18 U.S.C. § 2252. Thus, even if New York’s sexual abuse 22

statute differs from the definition of sexual abuse found in 18 U.S.C. 23

§ 2243, it still triggers statutory enhancements because it “relat[es] 24

to” the “sexual abuse of a minor” as that phrase is ordinarily 25

understood. 26

CONCLUSION 27

We have carefully considered Allen’s remaining arguments 28

and find them to be without merit. For the foregoing reasons, the 29

judgment of the district court is AFFIRMED

. 30