United States v. Van Mead
| Decision Date | 08 December 2014 |
| Docket Number | No. 12–4054–cr.,12–4054–cr. |
| Parties | UNITED STATES of America, Appellee, v. Terry VAN MEAD, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
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.*
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.
The facts on appeal are not in dispute. In 2006, Mead was convicted of violating N.Y.P.L. § 130.40–2, which provides that “[a] person is guilty of criminal sexual act in the third degree when ... [b]eing twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old.” Mead, then thirty years old, had engaged in repeated sexual encounters with a fifteen-year-old girl. The conviction required Mead to register as a sex offenderboth prior to his release from prison and upon moving to another state, and to notify authorities if his address changed, conditions with which Mead initially complied. However, in June 2010, Mead was arrested in Vermont for assaulting his former girlfriend and sentenced to another term of imprisonment. Upon his release from prison in August 2010, Mead continued to reside in Vermont without notifying New York authorities of his change of address or registering as a sex offender in Vermont.
Following multiple additional confrontations with authorities, Mead was again arrested in Vermont in October 2010 for the instant offense conduct. At the time of his arrest, Mead was driving a stolen car carrying numerous firearms, hunting gear, a gaming system, and games, all of which had been reported stolen from two Vermont homes earlier that day. One of those firearms was found fully loaded and “jammed between the front driver and passenger seats with the barrel down and handle up.” In addition, officers found in Mead's wallet cash and a check made out to Mead that investigators traced to a local sporting goods store that had purchased ten firearms from Mead that day. Those firearms had also been reported stolen from the same two homes.
In August 2011, a federal grand jury indicted Mead for failing to register as a sex offender, possessing stolen firearms, and possessing firearms as a felon. Mead pled guilty to the first two counts, and the government dismissed the third. Following Mead's plea, a probation officer submitted a Presentence Report (“PSR”) to the district court recommending a sentencing range of 130 to 162 months, based on a final offense level of 27 and a criminal history category of VI. Pertinently, in calculating Mead's final offense level, the PSR asserted that two of Mead's prior convictions—including a 1996 conviction for attempted burglary in New York and the 2006 conviction for statutory rape—were for “crimes of violence” under § 2K2.1, as defined by § 4B1.2. Accordingly, the PSR stated that Mead's base offense level was 24, which, after the application of firearms enhancements and a reduction for acceptance of responsibility, resulted in a final offense level of 27.
Mead objected to the PSR's characterization of his statutory rape conviction as a conviction for a “crime of violence” under § 2K2.1 and § 4B1.2. 1 Following argument, the district court rejected Mead's objection and adopted the PSR's recommendation. In so ruling, the district court largely relied on United States v. Daye, 571 F.3d 225 (2d Cir.2009), in which this Court held that violation of a Vermont law prohibiting sexual contact with a minor aged fifteen or younger constituted a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). See United States v. Mead, No. 2:11–CR–87 (WKS), 2012 WL 3192670, at *2–5 (D.Vt. Aug. 2, 2012) (discussing United States v. Daye, 571 F.3d at 230–34). Noting the “identical” phrasing of the residual clauses of § 4B1.2 and the ACCA, the district court first determined that the provisions should be read coextensively. Id. at *3 (internal quotation marks omitted). The district court then compared N.Y.P.L. § 130.40–2 and the Vermont law and, finding that they reached similar conduct, read Daye to require a finding that violation of N.Y.P.L. § 130.40–2 constituted a “crime of violence” under § 2K2.1 and § 4B1.2. Id. at *4–5. In light of its ruling, the district court set Mead's base offense level at 24—resulting in an advisory sentencing range of 130 to 162 months—and sentenced Mead to 130 months' imprisonment, to be served in two consecutive sixty-five month terms. Mead appealed.
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 offensecovered 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...
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