United States v. Van Mead
| Decision Date | 08 December 2014 |
| Docket Number | No. 12–4054–cr.,12–4054–cr. |
| Citation | 773 F.3d 429 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | UNITED STATES of America, Appellee, v. Terry VAN MEAD, Defendant–Appellant. |
OPINION TEXT STARTS HERE
Sentence vacated and remanded. David L. McColgin (Steven L. Barth, on the brief), Assistant Federal Public Defenders, for Michael L. Desautels, Federal Public Defender, District of Vermont, Burlington, VT, for Defendant–Appellant.
Christina E. Nolan (Gregory L. Waples, on the brief), Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney, District of Vermont, Burlington, VT, for Appellee.
Before: LIVINGSTON and LOHIER, Circuit Judges; STEIN, District Judge.*DEBRA ANN LIVINGSTON, Circuit Judge:
Defendant Terry Van Mead (“Mead”) appeals from a judgment of the United States District Court for the District of Vermont (Sessions, J.), sentencing him to 130 months' imprisonment following his guilty plea to one count of failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a), and one count of possession of stolen firearms pursuant to 18 U.S.C. §§ 922(j), 924(a)(2). On appeal, Mead argues that the district court erred in calculating his sentence under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Specifically, Mead contends that the district court incorrectly applied the enhancement in U.S.S.G. § 2K2.1, which sets a base offense level of 24 for defendants who have committed certain firearms offenses after “sustaining at least two felony convictions of ... a crime of violence,” as that term is defined in U.S.S.G. § 4B1.2. Mead asserts that, contrary to the district court's ruling, his conviction for statutory rape under New York Penal Law (“N.Y.P.L.”) § 130.40–2 was not a “crime of violence.” Because we conclude that the conduct prohibited by N.Y.P.L. § 130.40–2 is not categorically a “crime of violence” under § 4B1.2, we vacate the judgment and remand for resentencing.
Mead argues on appeal that violation of N.Y.P.L. § 130.40–2 does not constitute a “crime of violence” under § 4B1.2, and that the district court's finding to the contrary resulted in the application of an inflated base offense level. We review de novo a district court's determination as to whether a prior offense was a “crime of violence” under the Guidelines. See United States v. Savage, 542 F.3d 959, 964 (2d Cir.2008).
Section 2K2.1 requires that defendants who have committed certain firearms offenses receive a base offense level of 24 “if the defendant committed any part of the [firearms] offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 defines “crime of violence” by reference to § 4B1.2(a), which states:
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Section 4B1.2(a)(1) is referred to as the “physical force clause.” The first half of § 4B1.2(a)(2) contains the “exemplar crimes,” and the second half the “residual clause.” 2
N.Y.P.L. § 130.40–2 prohibits a person aged twenty-one or older from engaging in oral or anal sexual conduct with a minor aged sixteen or younger. Because the law lacks a physical force element, it cannot be deemed a “crime of violence” under § 4B1.2(a)(1)'s “physical force” clause. Similarly, because the law does not concern any of the exemplar crimes, it cannot be deemed a “crime of violence” under § 4B1.2(a)(2)'s list of “exemplar crimes.” Instead, violation of N.Y.P.L. § 130.40–2 may be deemed a “crime of violence” only under § 4B1.2(a)(2)'s “residual clause,” which reaches crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.”
In interpreting the reach of § 4B1.2(a)(2)'s residual clause, we employ a categorical approach, with an eye to case law interpreting an identical clause in the ACCA that defines “violent felony.” See United States v. Gray, 535 F.3d 128, 130 (2d Cir.2008) (); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (). The categorical approach requires a court to consider an offense “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Under this approach, “every conceivable factual offense covered by a statute ... [need not] necessarily present a serious potential risk of injury before the offense can be deemed a violent felony,” or, as it were, a crime of violence. James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Instead, “the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Id.
In applying the categorical approach, the Supreme Court has distinguished between offenses that have “a stringent mens rea requirement,” demanding that a defendant act knowingly, intentionally, or the like as to the core element or elements of the offense, and those offenses commonly characterized as sounding in strict liability, negligence, or recklessness. See Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2275–76, 180 L.Ed.2d 60 (2011). For the former, an offense must pose a risk “similar in degree” to its “closest analog” among the exemplar crimes to qualify as a “violent felony” under the residual clause. Id. at 2273 (). By contrast, a strict liability, negligence, or recklessness offense must be similar in kind and pose a risk similar in degree to qualify as a “violent felony” under the residual clause. Begay, 553 U.S. at 145, 128 S.Ct. 1581; see Sykes, 131 S.Ct. at 2275–76 (). That is, to be deemed a “violent felony,” an offense lacking a stringent mens rea requirement must not only “involve[ ] conduct presenting a serious potential risk of physical injury to another” but must also be “roughly similar” to the exemplar crimes by typically consisting of “purposeful, violent, and aggressive conduct” such that commission of the offense makes it “more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Begay, 553 U.S. at 143, 145, 128 S.Ct. 1581 ().3
Against essentially this landscape, we held that violation of a Vermont law that imposed strict liability for sexual contact with any minor under the age of sixteen constituted a “violent felony” under the ACCA.4 Daye, 571 F.3d at 234 (discussing 13 Vt. Stat. Ann. § 3252(3) (1986) (since amended)). First, we found that sexual contact with a child—the crime contemplated by Vermont's law—posed a “serious potential risk of injury to another.” Id. at 230. In so ruling, we cited multiple circuit court opinions detailing the risk of injury to young victims of sexual crimes, id. at 230–31 , while distinguishing opinions that noted the reduced risk to older teens on the ground that Vermont's statute “applie[d] only to children and young teens,” defined in the law as those under sixteen. See id. at 231 (). We also noted that sexual contact with minors who are deemed legally unable to consent “for reasons of physical or emotional immaturity ... inherently involves a substantial risk that physical force may be used in the course of committing the offense.” Id. at 232 (internal quotation marks and emphasis omitted).
We next concluded that violation of the Vermont law required “purposeful, violent, and aggressive” conduct. We deemed the violation to be purposeful in the ordinary case on the ground that engaging in sexual contact with a child aged fifteen or younger necessitated “deliberate and affirmative conduct,” and we deemed such conduct violent and aggressive on the ground that it “create[d] a substantial likelihood of forceful, violent, and aggressive behavior ... because a child has essentially no ability to deter an adult from using ... force to coerce the child into a sexual act.” Id. at 233–34. This likely use of force assured us that, “[a]t a minimum, ... a typical instance of this crime will involve conduct that is at least as intentionally aggressive and violent as a typical instance of burglary.” Id. at 234. In reaching this conclusion, we distinguished a Tenth Circuit opinion that came to a contrary result on...
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