United States v. Barker

• Decision Date: 09 July 2013
• Docket Number: Docket No. 12–2553–cr.
• Citation: 723 F.3d 315
• Parties: UNITED STATES of America, Appellee, v. Richard BARKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

723 F.3d 315

UNITED STATES of America, Appellee,

v.Richard BARKER, Defendant–Appellant.

Docket No. 12–2553–cr.

United States Court of Appeals, Second Circuit.

Submitted: May 6, 2013.

Decided: July 9, 2013.

Lisa B. Shelkrot, Langrock Sperry & Wool, LLP, Burlington, VT, for Defendant–Appellant.

Christina E. Nolan, Gregory L. Waples, Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: CABRANES, WESLEY, AND WALLACE,^* Circuit Judges.

PER CURIAM:

Defendant–Appellant Richard Barker (Barker) appeals from a June 15, 2012 judgment of the United States District Court for the District of Vermont (Reiss, C.J.) sentencing him to 120 months' imprisonment after he pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court applied a modified categorical approach in determining that Barker's prior state-court conviction under Vermont's former statutory rape law, Vt. Stat. Ann. tit. 13, § 3252(a)(3) (1990), triggered the mandatory minimum ten-year sentence found in 18 U.S.C. § 2252(b)(2) as a prior conviction under a state law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” We conclude that the district court should have applied the categorical approach in accordance with United States v. Beardsley, 691 F.3d 252 (2d Cir.2012). Under the categorical approach, however, we agree that Barker's state-court conviction subjects him to section 2252(b)(2)'s mandatory minimum sentence. AFFIRMED.

I.

On January 12, 2012, a federal grand jury indicted Barker on one count of distribution of child pornography under 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography under 18 U.S.C. § 2252(a)(4)(b). Barker eventually pleaded guilty to one count of possession of child pornography. As part of the plea agreement, the Government agreed to dismiss the additional charges against Barker and recommend that he receive a sentence no longer than 144 months.

At the time of his child pornography offense, Barker was on probation in Vermont for a 2002 felony conviction under Vermont's former statutory rape law, Vt. Stat. Ann. tit. 13, § 3252(a)(3). That provision requires no significant age difference between the minor victim and the offender. ¹Id. The Information in Barker's state case, however, charged that Barker, age 56, engaged in a sexual act with a minor under the age of 16 who was not married to Barker.

In the present federal case, Barker's Presentence Report assigned Barker a Sentencing Guideline offense level and criminal-history category that corresponded to a 121 to 151-month sentence. In its sentencing memorandum, the Government argued that Barker's prior Vermont state conviction categorically qualified as a predicate offense under section 2252(b)(2)'s recidivist provision, triggering that section's mandatory minimum ten-year sentence. Based on additional factors relevant to Barker's crime, the Government ultimately recommended a sentence of 144 months.

In his sentencing memorandum, Barker argued that his prior Vermont state-court conviction did not constitute a conviction for “abusive sexual conduct” under either a categorical or modified categorical approach. Specifically, Barker contended that Vermont's statute lacked “abusiveness” as an element because, among other things, it did not require a significant age disparity between the victim and offender. Barker thus argued that section 2252(b)(2)'s mandatory minimum ten-year sentence did not apply to him and asked for a ninety-six month prison term.

Based on United States v. Rood, 679 F.3d 95 (2d Cir.2012), the district court determined that it should apply a modified categorical approach to determine whether Barker's state court conviction met the requirements of section 2252(b)(2). The district court then reviewed the charging document in Barker's Vermont case and concluded that the document established a significant age disparity between Barker and his victim and met the abusiveness requirement of section 2252(b)(2). Accordingly, the district court imposed the mandatory ten-year sentence. Barker now appeals.

II.

Barker contends that the district court erred in concluding that his Vermont felony conviction for statutory rape, Vt. Stat. Ann. tit. 13, § 3252(a)(3), triggered the mandatory minimum ten-year sentence provided by 18 U.S.C. § 2252(b)(2). “We review de novo all questions of law relating to the district court's application of a federal sentence enhancement.” Beardsley, 691 F.3d at 257. “We are free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.” United States v. Yousef, 327 F.3d 56, 156 (2d Cir.2003) (internal quotation marks omitted). While we conclude that the district court should have applied a categorical approach to determine whether Barker's state-court conviction triggered section 2252(b)(2)'s sentence enhancement, we nevertheless affirm the district court's determination that section 2252(b)(2)'s ten-year mandatory minimum sentence applied.

A.

An offender sentenced under section 2252(b)(2) generally faces a maximum punishment of no more than ten years' imprisonment. Section 2252(b)(2) provides, however, that offenders with certain prior convictions are subject to a mandatory ten-year minimum sentence. Relevant here, section 2252(b)(2) subjects offenders who have previously been convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” to a mandatory minimum ten-year sentence.

To determine whether a state offense qualifies as a predicate offense for a federal mandatory minimum sentence, “courts generally take a categorical or modified categorical approach.” Beardsley, 691 F.3d at 259. Under a categorical approach, courts compare the statute forming the basis of the defendant's prior conviction with the applicable generic offense in the federal sentencing statute. Id. In contrast, under the modified categorical approach, courts may, to a limited extent in order to discover the elements of the prior conviction, “consider facts underlying the prior conviction if they are based upon adequate judicial record evidence.” Id. at 259, 270–71 & n. 12 (internal quotation marks omitted).

The district court, based on our decision in Rood, applied what it identified as a modified categorical approach and looked to the charging document, which established the significant age disparity between Barker and his victim. Given this age disparity, the district court concluded that Barker's state-court conviction for statutory rape involved abuse and therefore triggered section 2252(b)(2)'s mandatory minimum sentence.

The district court imposed its sentence, however, without the benefit of this court's decision in Beardsley, which was decided two months after Barker's sentencing. Beardsley makes clear that the district court should have applied a categorical approach.

In Beardsley, we reviewed whether a defendant's conviction under New York's Endangering the Welfare of a Child statute qualified as a state crime “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” under 18 U.S.C. § 2252A(b)(1). Id. at 268–69. We explained that

the modified categorical approach is appropriate only where a statute is divisible into qualifying and non-qualifying offenses, and not where the statute is merely worded so broadly to encompass conduct that might fall within with the definition of the federal predicate offense—here, “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252A(b)(1)—as well as other conduct that does not.

Id. at 258. Accordingly, because the New York statute under which the defendant was charged was “merely broad, not divisible,” we held that the district court should have applied a categorical approach in determining whether the federal sentencing enhancement applied. Id.

The Supreme Court has now affirmed Beardsley 's rule. In Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the Supreme Court resolved a split among the circuit courts as to the use of the modified categorical approach, id. at 2283 & n. 1 (identifying Beardsley 's place among the circuits), and held that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements,” id. at 2282.

It is clear from Descamps and Beardsley that the modified categorical approach “serves a limited function.” Id. at 2283. The modified categorical approach is merely a tool for district courts to use to “determine which alternative element in a divisible statute formed the basis of the defendant's conviction.” Id. at 2293;see also Beardsley, 691 F.3d at 274. Once the district court has identified the particular provision of state law under which the defendant was convicted, the district court must then compare the elements of that provision to the generic federal sentencing enhancement to determine its applicability just as it would under a categorical approach. Descamps, 133 S.Ct. at 2285;Beardsley, 691 F.3d at 270–71 & n. 12. Thus, neither the categorical nor modified categorical approach permits the district court to examine documents from a defendant's state-court conviction to determine whether the context and facts of the defendant's crime fit the generic offense in the sentencing enhancement statute. Descamps, 133 S.Ct. at 2287.

Given the standard identified in Beardsley and confirmed by Descamps, the district court erred in its approach to determining whether section 2252(b)(2)'s sentencing enhancement applied. Vermont's former statutory rape law, in effect at the time of Barker's 2002 conviction, provides...