United States v. Van Mead, No. 12-4054 (2d Cir. 2014)
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Defendant plead guilty to failing to register as a sex offender and possession of stolen firearms. On appeal, defendant challenged his sentence, contending that the district court erroneously applied an enhancement under U.S.S.G. 2K2.1. The court vacated the judgment and remanded for resentencing, concluding that defendant's conviction for statutory rape under New York Penal Law 130.40-2 was not categorically a "crime of violence" under U.S.S.G. 4B1.2.
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12 4054 cr United States v. Van Mead UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 August Term, 2013 4 5 (Argued: December 4, 2013 Decided: December 8, 2014) 6 7 No. 12 4054 cr _____________________________________ 8 9 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. 15 16 TERRY VAN MEAD, 17 18 Defendant Appellant. _____________________________________ 19 20 21 22 Before: LIVINGSTON and LOHIER, Circuit Judges; STEIN, District Judge.* 23 24 25 26 27 28 29 30 Defendant Appellant Terry Van Mead (“Mead”) pleaded guilty 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). At Mead’s sentencing, the district court concluded that Mead had sustained two felony convictions for “crimes of violence” prior to committing the firearms offense – one for attempted burglary and one for statutory rape in violation of New York Penal Law § 130.40 2 – and, * The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. 1 2 3 4 5 6 7 accordingly, calculated Mead’s base offense level pursuant to the United States Sentencing Guidelines (“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. Because we conclude that the conduct prohibited by New York Penal Law § 130.40 2 is not categorically a “crime of violence” under U.S.S.G. § 4B1.2, we VACATE the district court’s judgment and REMAND for resentencing. 8 9 10 11 12 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. 13 14 15 16 17 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. 18 19 DEBRA ANN LIVINGSTON, Circuit Judge: 20 Defendant Terry Van Mead (“Mead”) appeals from a judgment of the United 21 States District Court for the District of Vermont (Sessions, J.), sentencing him to 130 22 months’ imprisonment following his guilty plea to one count of failing to register 23 as a sex offender in violation of the Sex Offender Registration and Notification Act, 24 18 U.S.C. § 2250(a), and one count of possession of stolen firearms pursuant to 18 25 U.S.C. §§ 922(j), 924(a)(2). On appeal, Mead argues that the district court erred in 26 calculating his sentence under the United States Sentencing Guidelines 27 (“Guidelines” or “U.S.S.G.”). Specifically, Mead contends that the district court 2 1 incorrectly applied the enhancement in U.S.S.G. § 2K2.1, which sets a base offense 2 level of 24 for defendants who have committed certain firearms offenses after 3 “sustaining at least two felony convictions of . . . a crime of violence,” as that term 4 is defined in U.S.S.G. § 4B1.2. Mead asserts that, contrary to the district court’s 5 ruling, his conviction for statutory rape under New York Penal Law (“N.Y.P.L.”) 6 § 130.40 2 was not a “crime of violence.” Because we conclude that the conduct 7 prohibited by N.Y.P.L. § 130.40 2 is not categorically a “crime of violence” under 8 § 4B1.2, we vacate the judgment and remand for resentencing. 9 BACKGROUND 10 The facts on appeal are not in dispute. In 2006, Mead was convicted of 11 violating N.Y.P.L. § 130.40 2, which provides that “[a] person is guilty of criminal 12 sexual act in the third degree when . . . [b]eing twenty one years old or more, he or 13 she engages in oral sexual conduct or anal sexual conduct with a person less than 14 seventeen years old.” Mead, then thirty years old, had engaged in repeated sexual 15 encounters with a fifteen year old girl. The conviction required Mead to register as 16 a sex offender both prior to his release from prison and upon moving to another 17 state, and to notify authorities if his address changed, conditions with which Mead 3 1 initially complied. However, in June 2010, Mead was arrested in Vermont for 2 assaulting his former girlfriend and sentenced to another term of imprisonment. 3 Upon his release from prison in August 2010, Mead continued to reside in Vermont 4 without notifying New York authorities of his change of address or registering as 5 a sex offender in Vermont. 6 Following multiple additional confrontations with authorities, Mead was 7 again arrested in Vermont in October 2010 for the instant offense conduct. At the 8 time of his arrest, Mead was driving a stolen car carrying numerous firearms, 9 hunting gear, a gaming system, and games, all of which had been reported stolen 10 from two Vermont homes earlier that day. One of those firearms was found fully 11 loaded and “jammed between the front driver and passenger seats with the barrel 12 down and handle up.” In addition, officers found in Mead’s wallet cash and a check 13 made out to Mead that investigators traced to a local sporting goods store that had 14 purchased ten firearms from Mead that day. Those firearms had also been reported 15 stolen from the same two homes. 16 In August 2011, a federal grand jury indicted Mead for failing to register as 17 a sex offender, possessing stolen firearms, and possessing firearms as a felon. Mead 4 1 pled guilty to the first two counts, and the government dismissed the third. 2 Following Mead’s plea, a probation officer submitted a Presentence Report (“PSR”) 3 to the district court recommending a sentencing range of 130 to 162 months, based 4 on a final offense level of 27 and a criminal history category of VI. Pertinently, in 5 calculating Mead’s final offense level, the PSR asserted that two of Mead’s prior 6 convictions – including a 1996 conviction for attempted burglary in New York and 7 the 2006 conviction for statutory rape – were for “crimes of violence” under § 2K2.1, 8 as defined by § 4B1.2. Accordingly, the PSR stated that Mead’s base offense level 9 was 24, which, after the application of firearms enhancements and a reduction for 10 acceptance of responsibility, resulted in a final offense level of 27. 11 Mead objected to the PSR’s characterization of his statutory rape conviction 12 as a conviction for a “crime of violence” under § 2K2.1 and § 4B1.2.1 Following 13 argument, the district court rejected Mead’s objection and adopted the PSR’s 14 recommendation. In so ruling, the district court largely relied on United States v. 15 Daye, 571 F.3d 225 (2d Cir. 2009), in which this Court held that violation of a 16 Vermont law prohibiting sexual contact with a minor aged fifteen or younger 1 Mead also challenged the categorization of his conviction for attempted burglary as being for a “crime of violence,” an argument he does not renew on appeal. 5 1 constituted a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 2 U.S.C. § 924(e)(2)(B). See United States v. Mead, No. 2:11 CR 87 (WKS), 2012 WL 3 3192670, at *2 5 (D. Vt. Aug. 2, 2012) (discussing United States v. Daye, 571 F.3d at 4 230 34). Noting the “identical” phrasing of the residual clauses of § 4B1.2 and the 5 ACCA, the district court first determined that the provisions should be read 6 coextensively. Id. at *3 (internal quotation marks omitted). The district court then 7 compared N.Y.P.L. § 130.40 2 and the Vermont law and, finding that they reached 8 similar conduct, read Daye to require a finding that violation of N.Y.P.L. § 130.40 2 9 constituted a “crime of violence” under § 2K2.1 and § 4B1.2. Id. at *4 5. In light of 10 its ruling, the district court set Mead’s base offense level at 24 – resulting in an 11 advisory sentencing range of 130 to 162 months – and sentenced Mead to 130 12 months’ imprisonment, to be served in two consecutive sixty five month terms. 13 Mead appealed. 14 DISCUSSION 15 Mead argues on appeal that violation of N.Y.P.L. § 130.40 2 does not 16 constitute a “crime of violence” under § 4B1.2, and that the district court’s finding 17 to the contrary resulted in the application of an inflated base offense level. We 6 1 review de novo a district court’s determination as to whether a prior offense was a 2 “crime of violence” under the Guidelines. See United States v. Savage, 542 F.3d 959, 3 964 (2d Cir. 2008). 4 Section 2K2.1 requires that defendants who have committed certain firearms 5 offenses receive a base offense level of 24 “if the defendant committed any part of 6 the [firearms] offense subsequent to sustaining at least two felony convictions of 7 either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). 8 Section 2K2.1 defines “crime of violence” by reference to § 4B1.2(a), which states: 9 10 The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that – 11 12 13 (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or 14 15 16 17 (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. 18 19 Section 4B1.2(a)(1) is referred to as the “physical force clause.” The first half of 20 § 4B1.2(a)(2) contains the “exemplar crimes,” and the second half the “residual 21 clause.”2 2 An application note to § 4B1.2 contains additional interpretive material not at issue in this case. See U.S.S.G. § 4B1.2 app. n.1. 7 1 N.Y.P.L. § 130.40 2 prohibits a person aged twenty one or older from 2 engaging in oral or anal sexual conduct with a minor aged sixteen or younger. 3 Because the law lacks a physical force element, it cannot be deemed a “crime of 4 violence” under § 4B1.2(a)(1)’s “physical force” clause. Similarly, because the law 5 does not concern any of the exemplar crimes, it cannot be deemed a “crime of 6 violence” under § 4B1.2(a)(2)’s list of “exemplar crimes.” Instead, violation of 7 N.Y.P.L. § 130.40 2 may be deemed a “crime of violence” only under § 4B1.2(a)(2)’s 8 “residual clause,” which reaches crimes that “otherwise involve[] conduct that 9 presents a serious potential risk of physical injury to another.” 10 In interpreting the reach of § 4B1.2(a)(2)’s residual clause, we employ a 11 categorical approach, with an eye to case law interpreting an identical clause in the 12 ACCA that defines “violent felony.” See United States v. Gray, 535 F.3d 128, 130 (2d 13 Cir. 2008) (looking to ACCA precedent to interpret § 4B1.2 due to the provisions’ 14 “identical” operative language); Taylor v. United States, 495 U.S. 575, 602 (1990) 15 (requiring “categorical” approach to interpreting ACCA). The categorical approach 16 requires a court to consider an offense “in terms of how the law defines the offense 17 and not in terms of how an individual offender might have committed it on a 8 1 particular occasion.” Begay v. United States, 553 U.S. 137, 141 (2008) (citing Taylor, 2 495 U.S. at 602). Under this approach, “every conceivable factual offense covered 3 by a statute . . . [need not] necessarily present a serious potential risk of injury before 4 the offense can be deemed a violent felony,” or, as it were, a crime of violence. James 5 v. United States, 550 U.S. 192, 208 (2007). Instead, “the proper inquiry is whether the 6 conduct encompassed by the elements of the offense, in the ordinary case, presents 7 a serious potential risk of injury to another.” Id. 8 In applying the categorical approach, the Supreme Court has distinguished 9 between offenses that have “a stringent mens rea requirement,” demanding that a 10 defendant act knowingly, intentionally, or the like as to the core element or elements 11 of the offense, and those offenses commonly characterized as sounding in strict 12 liability, negligence, or recklessness. See Sykes v. United States, 131 S. Ct. 2267, 2275 13 76 (2011). For the former, an offense must pose a risk “similar in degree” to its 14 “closest analog” among the exemplar crimes to qualify as a “violent felony” under 15 the residual clause. Id. at 2273 (deeming vehicular flight to be a “violent felony” 16 because it poses a risk similar to that of burglary or arson). By contrast, a strict 17 liability, negligence, or recklessness offense must be similar in kind and pose a risk 9 1 similar in degree to qualify as a “violent felony” under the residual clause. Begay, 2 553 U.S. at 145; see Sykes, 131 S. Ct. at 2275 76 (limiting Begay to strict liability, 3 negligence, and recklessness offenses). That is, to be deemed a “violent felony,” an 4 offense lacking a stringent mens rea requirement must not only “involve[] conduct 5 presenting a serious potential risk of physical injury to another” but must also be 6 “roughly similar” to the exemplar crimes by typically consisting of “purposeful, 7 violent, and aggressive conduct” such that commission of the offense makes it 8 “more likely that an offender, later possessing a gun, will use that gun deliberately 9 to harm a victim.” Begay, 553 U.S. at 143, 145 (holding that driving under the 10 influence is not a “violent felony” because the offense conduct is not “purposeful, 11 violent, and aggressive”).3 3 Given this distinction, we reject Mead’s argument that § 4B1.2 does not reach strict liability offenses. Sykes limited Begay’s “purposeful, violent, and aggressive” approach to strict liability, negligence, and recklessness crimes, strongly implying that such crimes may qualify as predicate offenses under the ACCA and § 4B1.2. See Sykes, 131 S. Ct. at 2277 (Thomas, J., concurring) (criticizing majority for maintaining “purposeful, violent, and aggressive” test for strict liability crimes). We conclude, as in Daye, that the ACCA – and, by extension, § 4B1.2 – reaches offenses commonly characterized as strict liability offenses in appropriate circumstances, regardless of the absence of a stringent mens rea requirement as to particular elements. See Daye, at 571 F.3d at 233 34 (applying ACCA to Vermont statutory rape law because of the “deliberate and affirmative conduct” at issue). 10 1 Against essentially this landscape, we held that violation of a Vermont law 2 that imposed strict liability for sexual contact with any minor under the age of 3 sixteen constituted a “violent felony” under the ACCA.4 Daye, 571 F.3d at 234 4 (discussing 13 Vt. Stat. Ann. § 3252(3) (1986) (since amended)). First, we found that 5 sexual contact with a child – the crime contemplated by Vermont’s law – posed a 6 “serious potential risk of injury to another.” Id. at 230. In so ruling, we cited 7 multiple circuit court opinions detailing the risk of injury to young victims of sexual 8 crimes, id. at 230 31 (quoting, inter alia, United States v. Cadieux, 500 F.3d 37, 45 (1st 9 Cir. 2007) (“[C]rimes involving indecent sexual contact with a child typically occur 10 in close quarters, and are generally perpetrated by an adult upon a victim who is not 11 only smaller, weaker, and less experienced, but is also generally susceptible to 12 acceding to the coercive power of adult authority figures.”) (emphasis added and 13 internal quotation marks omitted)), while distinguishing opinions that noted the 14 reduced risk to older teens on the ground that Vermont’s statute “applie[d] only to 15 children and young teens,” defined in the law as those under sixteen. See id. at 231 16 (citing United States v. Sawyers, 409 F.3d 732, 742 (6th Cir. 2005) and United States v. 4 Though we issued Daye prior to the publication of Sykes, that Sykes limited Begay to strict liability, negligence, and recklessness offenses has no effect on our ruling there. 11 1 Thomas, 159 F.3d 296, 299 300 (7th Cir. 1998), which discussed the reduced risk 2 sexual contact posed to sixteen year olds as compared to young children). We also 3 noted that sexual contact with minors who are deemed legally unable to consent 4 “for reasons of physical or emotional immaturity . . . inherently involves a 5 substantial risk that physical force may be used in the course of committing the 6 offense.” Id. at 232 (internal quotation marks and emphasis omitted). 7 We next concluded that violation of the Vermont law required “purposeful, 8 violent, and aggressive” conduct. We deemed the violation to be purposeful in the 9 ordinary case on the ground that engaging in sexual contact with a child aged fifteen 10 or younger necessitated “deliberate and affirmative conduct,” and we deemed such 11 conduct violent and aggressive on the ground that it “create[d] a substantial 12 likelihood of forceful, violent, and aggressive behavior . . . because a child has 13 essentially no ability to deter an adult from using . . . force to coerce the child into 14 a sexual act.” Id. at 233 34. This likely use of force assured us that, “[a]t a minimum, 15 . . . a typical instance of this crime will involve conduct that is at least as 16 intentionally aggressive and violent as a typical instance of burglary.” Id. at 234. In 17 reaching this conclusion, we distinguished a Tenth Circuit opinion that came to a 12 1 contrary result on the ground that, inter alia, the law at issue there “criminalized 2 conduct involving substantially older victims.” Id. at 235 (discussing United States 3 v. Dennis, 551 F.3d 986, 990 (10th Cir. 2008) (holding that violation of law 4 criminalizing “indecent liberties” with a person under the age of eighteen was not 5 a violent felony)). 6 Like the Vermont law at issue in Daye, N.Y.P.L. § 130.40 2 imposes strict 7 liability with regard to the age of the victim, and is therefore subject to Begay’s 8 requirement that the prohibited conduct be similar in kind and in degree of risk to 9 § 4B1.2’s exemplar crimes in order to be deemed a “crime of violence.” See People 10 v. Newton, 8 N.Y.3d 460, 464, 867 N.E.2d 397, 399 (2007) (holding that a violation of 11 § 130.40 2 is a strict liability offense). But unlike the Vermont law in Daye, N.Y.P.L. 12 § 130.40 2 s focus is not on all children from infancy to age fifteen, but principally on 13 those minors who are fifteen and (pertinently) sixteen years old.5 Under New York’s 14 statutory scheme, oral or anal sexual conduct with a child under the age of eleven 15 (or under the age of thirteen, if the perpetrator is eighteen or older) constitutes the 5 The all inclusive Vermont statutory scheme addressed in Daye has since been amended to create a staggered scheme that accounts for age of the victim, age of the perpetrator, and, in the case of fifteen year old victims, the presence or absence of consent. See 13 Vt. Stat. Ann. § 3252; 13 Vt. Stat. Ann. § 3253. 13 1 most serious grade of New York’s “criminal sexual act” offense involving children, 2 and is a Class B felony. Id. § 130.50. Such contact with a child under the age of 3 fifteen (provided the perpetrator is at least eighteen) is a Class D felony, a less 4 serious grade. Id. § 130.45. Finally, section 130.40 2, the provision at issue here, 5 extends to minors who are fifteen and sixteen (provided the perpetrator is at least 6 twenty one), and bears the lowest grade of criminal liability, constituting a Class E 7 felony. Id. § 130.40 2. Thus, while offenders who engage in sexual contact with 8 children and with young teens may also be charged pursuant to § 130.40 2, this 9 provision, in the context of the larger statutory scheme, focuses on fifteen and 10 sixteen year old minors, as sexual conduct involving younger victims can be 11 charged as one of the higher graded offenses. 12 It is understandable that the district court viewed our decision in Daye as 13 controlling. But we deem the differences between the Vermont provision at issue in 14 Daye and the provision before us now to be material for purposes of § 2K2.1 and 15 § 4B1.2. As an initial matter, courts considering the intersection of statutory rape 16 laws and the ACCA or § 4B1.2 have routinely noted the difficulty presented by the 17 “categorical” approach in this context. Statutory rape laws frequently encompass a 14 1 wide range of behavior, potentially criminalizing some conduct “in respect to which 2 the offender need not have had any criminal intent at all,” Begay, 553 U.S. at 145, but 3 also reaching conduct – such as sexual contact with a toddler – that is almost 4 invariably purposeful, violent, and aggressive. It is therefore difficult to determine 5 what kind of conduct and degree of risk is present in the “ordinary” case, because 6 it is difficult to determine what constitutes an “ordinary” case under such statutes. 7 See James, 550 U.S. at 208 (noting that “proper inquiry” focuses on “the conduct 8 encompassed by the elements of the offense, in the ordinary case”). Accordingly, 9 courts deciding whether violation of a statutory rape law is “categorically” violent 10 have often looked, inter alia, to the age of the protected minors to assess the typical 11 character of the prohibited conduct, reasoning that laws penalizing sexual contact 12 with young children will in the “ordinary” case present a risk of injury, whereas 13 laws criminalizing such conduct with older, more mature minors may not. Compare, 14 e.g., Sawyers, 409 F.3d at 741 42 (holding that violation of Tennessee’s statutory rape 15 law, covering victims aged thirteen to seventeen, did not present a categorical risk 16 of physical injury because, inter alia, “more mature victims” – that is, older teens – 17 were included in the statute), with United States v. Howard, 754 F.3d 608, 610 (8th Cir. 15 1 2014) (holding violation of prohibition on sexual contact with a child “of a tender 2 age (younger than fourteen years)” to be a violent felony but citing cases in which 3 conviction for sexual abuse under statutes involving victims aged at least fourteen 4 did not qualify). 5 As the Fourth Circuit recently recognized in United States v. Rangel Castaneda, 6 709 F.3d 373, 377 (4th Cir. 2013), “the age of consent is central to the conception of 7 statutory rape in every jurisdiction,” but that age is not everywhere the same. 8 Indeed, in interpreting U.S.S.G. § 2L1.2, which governs sentencing enhancements in 9 illegal reentry cases, that court observed that the disagreement among states as to 10 the age at which a minor is legally capable of consenting to sexual relations 11 “engenders dramatically different crimes” from one jurisdiction to the next. Id. “In 12 other words, conduct that is perfectly legal for some people could subject many 13 others in neighboring states to years upon years in federal prison.” Id. Surveying 14 state and federal statutes, however, the court found that “a robust majority of 15 American jurisdictions – the federal government, thirty two states, and the District 16 of Columbia – ha[ve] set the general age of consent precisely at sixteen years old.” 17 Id. at 377 78. The Model Penal Code and Black’s Law Dictionary similarly recognize 16 1 sixteen as “the default age of consent.” Id. at 378. In light of this consensus, and 2 citing the need for “some degree of uniformity in applying the . . . Guidelines across 3 the nation,” the court held that sixteen was the “generic” age of consent for purposes 4 of § 2L1.2.6 Id. at 375, 378; accord United States v. Rodriguez Guzman, 506 F.3d 738, 5 745–46 (9th Cir. 2007). Similarly, the Seventh Circuit, in holding that violation of a 6 law prohibiting sexual conduct with persons aged thirteen to sixteen was not 7 categorically a violent crime, noted that “in a majority of states [sixteen] is the age 8 of consent” and therefore “it is difficult to maintain on a priori grounds that sex is 9 physically dangerous to [sixteen] year old girls.” Thomas, 159 F.3d at 299. 10 Such reasoning sufficiently distinguishes the statute at bar, N.Y.P.L. 11 § 130.40 2, from the broader Vermont law in Daye that we are unable to conclude 12 that violation of the New York law would, in the “ordinary” case, pose a “serious 13 potential risk of physical injury to another” and require “purposeful, violent, and 14 aggressive” conduct. The Vermont law in Daye criminalized sexual contact with any 6 While we find the Fourth Circuit’s analysis of § 2L1.2 instructive insofar as it surveys ages of consent across the country, we decline Mead’s invitation to give § 2L1.2 s commentary interpretive weight in analyzing § 4B1.2, in no small part because § 2L1.2 and § 4B1.2 are structured differently, phrased differently, and concern penalties for different types of crimes. See, e.g., United States v. Folkes, 622 F.3d 152, 157 (2d Cir. 2010) (distinguishing § 2L1.2 and § 4B1.2); United States v. Wynn, 579 F.3d 567, 574 75 (6th Cir. 2009) (same); United States v. Houston, 364 F.3d 243, 247 n.5 (5th Cir. 2004) (same). 17 1 minor aged fifteen or younger, see 13 Vt. Stat. Ann. § 3252(3) (1986), and constituted 2 Vermont’s primary prohibition on sexual contact with children. The focus of 3 § 130.40 2, by contrast, is not the universe of all children potentially victimized by 4 adults, but fifteen or sixteen year olds, specifically. In addition, N.Y.P.L. § 130.40 2 5 is structured as the least serious in a series of separate, escalating crimes penalizing 6 sexual contact with minors. See Sykes, 131 S. Ct. at 2276 (suggesting that the 7 existence of graded offenses in a statutory scheme may be relevant to the question 8 whether prohibited conduct constitutes a violent felony for ACCA purposes); id. at 9 2293 (Kagan, J., dissenting) (advocating that “a State’s decision to divide a generic 10 form of conduct . . . into separate, escalating crimes may make a difference under 11 ACCA”); cf. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (permitting 12 consideration of whether violation of one subset of a “divisible” statute that “creates 13 several different . . . crimes” constitutes a violent crime under the ACCA). 14 Considering the structure of New York’s statutory scheme as a whole, and given 15 that consensual sexual contact with sixteen year olds (who constitute a major 16 portion of those minors protected by N.Y.P.L. § 130.40 2) would be lawful in many 17 American jurisdictions, we are hard pressed to conclude that the conduct at issue 18 1 would necessarily, in the “ordinary” case, pose a serious potential risk of physical 2 injury to another or be generally purposeful, violent, and aggressive in character. 3 See Sykes, 131 S. Ct. at 2279 (noting that “[c]ommon experience and statistical 4 evidence” may be used to support intuition that offense does – or does not – rise to 5 the level of “violent felony”). 6 This remains so, moreover, despite the presence in New York’s law of a 7 requisite age difference between the victim and perpetrator – a provision so 8 common in statutory rape laws that many of our sister circuits have declined even 9 to mention such provisions when analyzing statutory rape statutes for purposes of 10 § 4B1.2 or the ACCA. See, e.g., United States v. Christensen, 559 F.3d 1092, 1093–95 (9th 11 Cir. 2009) (concluding that violation of Wash. Rev. Code § 9A.44.079, criminalizing 12 sexual intercourse with a fourteen or fifteen year old child, was not categorically 13 a violent felony, without any discussion of the statutory forty eight month age gap); 14 United States v. Thornton, 554 F.3d 443, 445 n.2 (4th Cir. 2009) (holding that 15 defendant’s conviction under Va. Code § 18.2 63, which prohibits sexual contact 16 with a thirteen or fourteen year old child, did not constitute a “violent felony,” but 17 declining to mention that the same statute would have graded defendant’s conduct 19 1 as a misdemeanor in the event of an age gap of less than three years). The 2 government alludes to this requirement and argues that “the justification for 3 concluding that Mead’s statute of conviction is categorically a crime of violence is, 4 if anything, stronger than for the statutory rape law analyzed in Daye.” But we are 5 unpersuaded by this reasoning, considered in light of the counsel of cases from our 6 sister circuits, the interest in “some degree of uniformity in applying the . . . 7 Guidelines across the nation,” see Rangel Castaneda, 709 F.3d at 375, and the absence 8 of any sufficiently compelling argument as to why this age differential is enough to 9 establish, categorically, that N.Y.P.L. § 130.40 2 is a “crime of violence” pursuant to 10 § 4B1.2, given the differences between the New York provision and the Vermont law 11 in Daye. 12 This reluctance is reinforced by the fact that N.Y.P.L. § 130.40 2 s narrow focus 13 on older children and its inclusion of sixteen year olds – who have reached the 14 typical age of consent – among its protected class renders immaterial here many of 15 the factors that supported our ruling in Daye. For instance, in determining that 16 violation of the Vermont law posed a “serious potential risk of physical injury” to 17 minors, Daye relied in large part on circuit opinions discussing the risk that sexual 20 1 contact posed to children and young teens. However, those rulings are of limited 2 use where, as here, we must consider the risk to older teens. Daye additionally 3 relied on the legal inability of children to consent to sexual contact, noting that such 4 legal incapacity reflected the children’s “physical [and] emotional immaturity” and 5 supported the intuition that violation of the Vermont law would “inherently 6 involve[] a substantial risk that physical force may be used.” 571 F.3d at 232 7 (emphasis and internal quotation mark omitted). But many of the minors protected 8 by N.Y.P.L. § 130.40 2 are deemed capable of consent in a majority of jurisdictions, 9 rendering Daye’s reliance on legal incapacity inapt here. 10 Thus, lacking any substantial basis on which to conclude that violation of 11 N.Y.P.L. § 130.40 2 categorically poses “a serious potential risk of physical injury to 12 another” and involves “purposeful, violent, and aggressive conduct,” we decline to 13 extend our holding in Daye to encompass this provision. This conclusion does not 14 minimize either the seriousness of the risks associated with sexual relations between 15 adults and older teens or the gravity of Mead’s own violation of N.Y.P.L. § 130.40 2. 16 We conclude only that, for purposes of the particular statutory provision before us, 17 a conviction pursuant to N.Y.P.L. § 130.40 2 falls outside the scope of § 4B1.2 as 21 1 § 130.40 2 is not categorically a “crime of violence” pursuant to that Guidelines 2 provision. See Descamps, 133 S. Ct. at 2282 (holding that violation of broad burglary 3 statute is not categorically a violent crime because “[i]n sweeping so widely, the 4 state law goes beyond the normal, ‘generic’ definition of burglary”).7 CONCLUSION 5 6 7 For the foregoing reasons, we VACATE the judgment of the district court and REMAND for resentencing. 8 9 10 11 12 13 14 15 16 7 Finally, we reject Mead’s argument that § 4B1.2(a)(2)’s residual clause is unconstitutionally vague, noting that this argument has been implicitly repudiated by the Supreme Court on more than one occasion. See, e.g., Sykes, 131 S.Ct. at 2277 (observing that ACCA’s identical residual clause “states an intelligible principle and provides guidance that allows a person to conform his or her conduct to the law”) (internal quotation mark omitted). See also United States v. Martin, 753 F.3d 485, 494 n.3 (4th Cir. 2014) (citing Sykes in rejecting vagueness attack on § 4B1.2(a)(2)); United States v. Spencer, 724 F.3d 1133, 1145 46 (9th Cir. 2013) (same); United States v. Cowan, 696 F.3d 706, 708 (8th Cir. 2012) (same). 22
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