United States v. Van Mead

Citations: 773 F.3d 429; 2014 U.S. App. LEXIS 23030; 2014 WL 6863679Docket: No. 12-4054-cr

Court: Court of Appeals for the Second Circuit; December 7, 2014; Federal Appellate Court

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Defendant Terry Van Mead appeals a 130-month sentence imposed by the U.S. District Court for Vermont after pleading guilty to failing to register as a sex offender and possession of stolen firearms. Mead argues the court erred in applying a sentencing enhancement under U.S.S.G. § 2K2.1, which applies to defendants with prior felony convictions classified as "crimes of violence." He contests that his statutory rape conviction under New York law does not meet this definition. The court finds that the conduct prohibited by N.Y.P.L. § 130.40-2 is not categorically a "crime of violence" under the relevant guideline, leading to a decision to vacate the judgment and remand for resentencing. The background includes Mead's prior conviction for engaging in sexual acts with a minor, his failure to register as a sex offender after moving to Vermont, and his arrest while in possession of stolen firearms. A Presentence Report had recommended a sentencing range based on Mead's prior convictions being classified as "crimes of violence," which Mead contested.

The district court rejected Mead’s objection to the Presentence Report (PSR) and adopted its recommendation, primarily relying on the precedent set in United States v. Daye, which classified a Vermont law prohibiting sexual contact with minors as a "violent felony" under the Armed Career Criminal Act (ACCA). The district court found that the language of the residual clauses in both the sentencing guidelines and the ACCA were "identical," leading to a coextensive interpretation. It compared New York Penal Law (N.Y.P.L.) § 130.40-2, which forbids sexual conduct with minors, to Vermont law and concluded that violations of N.Y.P.L. § 130.40-2 also constituted a "crime of violence" under the applicable guidelines, resulting in a base offense level of 24 and an advisory sentencing range of 130 to 162 months. Mead was ultimately sentenced to 130 months in prison.

On appeal, Mead contended that the violation of N.Y.P.L. § 130.40-2 should not be classified as a "crime of violence," arguing that this misclassification led to an inflated base offense level. The court reviews such determinations de novo. Section 2K2.1 of the Guidelines mandates a base offense level of 24 for defendants with previous felony convictions involving a "crime of violence" or controlled substance offense. "Crime of violence" is defined in reference to § 4B1.2(a), which includes offenses punishable by over a year of imprisonment that involve physical force or present a serious potential risk of physical injury. The court found N.Y.P.L. § 130.40-2 lacking a physical force element, ruling it does not meet the criteria under § 4B1.2(a)(1) or the exemplar crimes in § 4B1.2(a)(2). It could only potentially qualify as a "crime of violence" under the residual clause, which requires a categorical approach akin to that used in ACCA interpretations.

The categorical approach mandates that courts evaluate offenses based on their legal definitions rather than the specific circumstances of individual cases. An offense does not need to demonstrate a serious potential risk of injury to be classified as a violent felony; instead, the focus is on whether the conduct typically associated with the offense presents such a risk. The Supreme Court differentiates between offenses requiring a stringent mens rea, which must pose a risk similar to that of established violent felonies, and those characterized by strict liability, negligence, or recklessness, which need to be similar in kind and degree of risk. For offenses lacking a stringent mens rea, they must involve conduct that presents a serious potential risk of physical injury and be comparable to exemplar violent crimes, typically involving aggressive and purposeful actions.

In the context of Vermont's strict liability law concerning sexual contact with minors under sixteen, the court determined this offense qualifies as a violent felony under the Armed Career Criminal Act (ACCA). The court recognized that such conduct poses a serious potential risk of injury to young victims, citing multiple circuit court opinions regarding the inherent risks associated with sexual crimes against children. The ruling emphasized that these offenses generally involve adults exploiting vulnerable minors, and the likelihood of coercive dynamics suggests a substantial risk of physical force being used during the commission of the crime.

Violation of Vermont law necessitates "purposeful, violent, and aggressive" conduct for sexual contact with a child aged fifteen or younger, requiring "deliberate and affirmative conduct" and creating a substantial likelihood of forceful behavior, as children cannot deter adults. The typical instance of this crime is deemed at least as intentionally aggressive and violent as a burglary. This conclusion distinguishes it from a Tenth Circuit ruling regarding a law involving older victims, where the conduct was not classified as a violent felony. New York Penal Law (N.Y.P.L.) § 130.40-2 similarly imposes strict liability regarding the victim's age and must align with Begay's requirement for "crimes of violence." However, § 130.40-2 focuses primarily on minors aged fifteen and sixteen, while more severe offenses apply to younger victims. The statutory scheme categorizes offenses based on the victim’s age, with the most serious crimes involving children under eleven classified as Class B felonies, and those under fifteen as Class D felonies. § 130.40-2 constitutes a Class E felony for conduct involving fifteen- and sixteen-year-olds, indicating a lower grade of criminal liability. The district court viewed the prior decision as controlling, but the material differences between the Vermont and New York provisions are significant in assessing the applicability of § 2K2.1 and § 4B1.2. Courts have noted the challenges posed by the "categorical" approach in statutory rape laws, which can criminalize a wide range of behaviors, complicating the determination of "ordinary" cases and associated risks.

Judicial evaluation of whether a statutory rape law constitutes a "categorical" violent crime often hinges on the age of the minors involved, as this impacts the typical risk of injury associated with the prohibited conduct. Courts have differentiated between laws targeting younger children, which generally present a higher risk of injury, and those concerning older, more mature minors, which may not. For example, the Sixth Circuit found that Tennessee's law, covering victims aged thirteen to seventeen, did not categorically present a risk of physical injury due to the inclusion of older teens. Conversely, the Eighth Circuit ruled that laws against sexual contact with younger children (under fourteen) are violent felonies, as cases involving older minors did not qualify.

The Fourth Circuit highlighted that variations in the age of consent across jurisdictions lead to significantly different legal consequences for similar conduct. It established that a majority of jurisdictions, including the federal government and thirty-two states, set the age of consent at sixteen, thus considering it the "generic" age for legal purposes. This consensus was emphasized to promote uniformity in applying federal guidelines. The Seventh Circuit echoed this sentiment, asserting that the age of consent in most states complicates claims that sexual conduct with sixteen-year-olds is inherently dangerous.

In distinguishing New York's N.Y.P.L. § 130.40-2 from Vermont's broader law, which criminalizes sexual contact with minors aged fifteen and younger, it was concluded that violations of the New York statute would not, in the ordinary case, pose a serious potential risk of physical injury. The New York law specifically targets fifteen- or sixteen-year-olds and is part of a graded system of offenses, which is relevant to determining whether the conduct constitutes a violent felony under the Armed Career Criminal Act (ACCA).

Justice Kagan's dissent emphasizes that a state's classification of conduct into distinct, escalating crimes can impact its categorization under the Armed Career Criminal Act (ACCA). The dissent references *Descamps v. United States*, which allows for the examination of whether an offense stemming from a divisible statute constitutes a violent crime under the ACCA. Focusing on New York’s statutory framework, it argues that consensual sexual contact with sixteen-year-olds, who are protected under N.Y.P.L. § 130.40-2, is legal in many jurisdictions and thus does not inherently present a serious potential risk of physical injury or a violent character in typical situations. 

The dissent highlights that other circuit courts have similarly found statutory rape laws not to be categorically violent felonies, even when age differentials are present. It critiques the government’s reliance on the age difference as a basis for categorization as a violent crime, arguing that the uniqueness of New York's statute, particularly its protection of older minors, undermines the claim. The dissent further distinguishes the current case from *Daye*, where the court identified substantial risks to younger minors, arguing that such reasoning does not apply to older teenagers who are capable of consent. Thus, the dissent concludes that the arguments for categorizing N.Y.P.L. § 130.40-2 as a "crime of violence" under § 4B1.2 are unconvincing in light of the differences between the statutes and the nature of the conduct involved.

Minors protected under N.Y.P.L. § 130.40-2 can consent in many jurisdictions, making the argument of legal incapacity inapplicable to Daye’s case. The court found no substantial basis to categorize violations of N.Y.P.L. § 130.40-2 as posing a "serious potential risk of physical injury to another" or involving "purposeful, violent, and aggressive conduct," thus excluding it from being classified as a "crime of violence" under § 4B1.2. Although the risks of sexual relations between adults and older teens are acknowledged, the conviction under § 130.40-2 does not meet the criteria set out in § 4B1.2. The court vacated the district court's judgment and remanded for resentencing. Mead's challenge to the categorization of his attempted burglary conviction as a "crime of violence" was not renewed on appeal. The discussion included an analysis of strict liability offenses, affirming that such offenses can qualify under the ACCA and § 4B1.2 under certain circumstances, as previously established in Daye. The amendment of Vermont's statutory rape law is noted, which now considers factors such as the ages of both victim and perpetrator. The court declined to interpret § 4B1.2 through the lens of § 2L1.2 due to their different structures and purposes. Finally, Mead's argument regarding the vagueness of § 4B1.2(a)(2)'s residual clause was rejected, referencing Supreme Court precedents affirming its intelligibility and guidance for compliance with the law.