Tuesday, September 6th, 2022

A prior conviction under N.Y. Penal Law § 130.50(3) (1965) categorically “relates to” the sexual abuse of a minor, justifying the sentencing enhancements (for child pornography offenses) of 18 U.S.C. § 2252A(b)(1) and (b)(2) — which aren’t unconstitutionally vague. United States v. Ragonese, No. 20-3371-cr, __F.4th__ , 2022 WL 3903437 (2d Cir. Aug. 31, 2022) (Sack, Lynch, and Bianco, Circuit Judges).

  1.  The sentencing enhancements of 18 U.S.C.§ 2252A(b)(1) and (b)(2)

This case concerns the recidivist sentencing enhancements of the child pornography statute, 18 U.S.C. § 2252A. For offenses involving “possession” of child pornography, the penalty is 0 to 10 years’ imprisonment. For “receipt,” there’s a 5-year mandatory minimum prison sentence. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the minimum penalties are significantly enhanced: for possession, the minimum prison sentence increases from 0 years to 10 years; for receipt, the minimum increases from a 5-year prison term to 15 years. See18 U.S.C. § 2252A(b)(1) (receipt),  (b) (2) (possession). (The maxima also increase:  from 10 years to 20 years for possession, and from 20 years to 40 years for receipt).

In this case, Appellant pleaded guilty to one count of possessing child pornography (18 U.S.C.  § 2252A(a)(5)(B)), and one count of receiving it (id.  § 2252A(a)(2)(B)). See Ragonese, 2022 WL 3903437 at *1. But he had a prior N.Y. conviction that the district court concluded “related to” the sexual abuse of a minor. And the court sentenced him  to concurrent terms of 15 years’ imprisonment. Ragonese, 2022 WL 3903437 at *2.

Appellant’s prior was a 1996 conviction for attempted sodomy in the first degree, involving an eight-year-old, under N.Y. Penal Law § 130.50 (1965), which prohibited “‘engag[ing] in deviate sexual intercourse with another person: (1) By forcible compulsion; or (2) Who is incapable of consent by reason of being physically helpless; or (3) Who is less than eleven years old.’” Ragonese, 2022 WL 3903437 at *2 (quoting N.Y. Penal Law § 130.50 (1965)). (Section 130.50 was subsequently amended in 2001).  Id. at *2 n.1.

The Circuit notes that the parties did not dispute that the “modified categorical approach applie[d]” because the  New York statute was a “divisible statute that listed potential offense elements in the alternative.” Id. at *3 (emphasis added). Nor did the parties dispute that Appellant’s conviction “was under Section 130.50(3), which criminalized deviate sexual intercourse with a child who is less than eleven years old.” Ragonese, 2022 WL 3903437 at *3.

  1. The Modified Categorical Approach

Under the “modified categorical approach,” the district court can “consider facts underlying the prior conviction [but] only to the extent necessary to determine the particular provision of state law” under which the defendant was convicted. Id.  Once the district court has “identified the particular provision of state law” under which the defendant was convicted, “[it] 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.”  Id. at *3 (emphasis added).

Appellant argued that the “the generic federal offense of ‘abusive sexual conduct involving a  minor,’ … require[s] misuse or maltreatment of a minor sexual contact ‘for a purpose associated with sexual gratification.’” Appellant’s opening brief (ECF No. 24) at 14 (citations omitted). Thus, “his 1996 conviction does not ‘relat[e] to’ the sexual abuse of a minor, because Section 130.50 does not require that the crime be committed ‘for the purpose of sexual gratification.’ According to Ragonese, the district court ‘circumvented’ the modified categorical approach by treating his state conviction as a predicate offense ‘even though its elements were materially different’ from the generic federal crime.”  Ragonese, 2022 WL 3903437 at *3 (citation omitted).

  1. The “relating to” language, of § 2252A(b)(1) and (b)(2), sweeps in state laws that are broader than the “generic” federal crime.

The Second Circuit holds, however, that “the specific sentencing enhancements” at issue here “provide a twist.” Id. at *3 (emphasis added).  They’re triggered “not only when the prior conviction matches an enumerated offense in the federal penalty provision  – ‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’ – but also when the prior conviction ‘relate[s] to’ such offenses.” Id. (emphasis and brackets in original).

So, although the categorical approach “typically calls for a strict comparison between the elements of the state offense and the elements of the generic offense, Congress loosened that comparison in the context of sexual abuse laws, such that the sentencing enhancements apply not simply to state offenses that are equivalent to sexual abuse, but rather to ‘any state offense that stands in some relation [to], bears upon, or is associated with [the] generic offense.’” Id.  at *3 (emphasis added) (citations omitted).

The Circuit acknowledged that this “is indeed a broad definition of ‘relating to.’”Id. But it didn’t try to define ‘the outer bounds of when a state offense ‘relat[es] to’ the sexual abuse of a  minor.’” It simply stated: “We have no trouble concluding that this particular state offense – ‘deviate sexual intercourse’ with a victim under eleven years old – relates to the sexual abuse of a minor” because “‘[d]eviate sexual intercourse,’” as defined by the N.Y. statute (“as ‘sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva’”), “is a quintessentially sexual act, and when the victim is less than eleven years old, that conduct ‘relates to’ the sexual abuse of a minor.” Id.

Thus, “a sexual abuse law can qualify as a predicate offense even if it is ‘materially different’ from the federal offense, as long as it ‘stands in some relation [to], bears upon, or is associated with [the] generic offense.’ Section 130.50 falls well within those parameters.” Id. at *4 (citation omitted).

  1. The “related to” language isn’t unconstitutionally vague “as applied” here

The Circuit also rejected Appellant’s argument that the “related to” language was unconstitutionally vague.  Plain error review applied because the issue hadn’t been raised in the district court. The Circuit, however, found that no binding precedent had declared the sentence enhancements of § 2252A(b)(1),  (b) (2) unconstitutionally vague and said: “For that reason alone, we find no plain error.”Id. at *4.

But even under a lower standard of review, the Circuit wouldn’t find the enhancements unconstitutionally vague. The Circuit typically evaluates “vagueness challenges to statutes not threatening First Amendment interests … only on an as-applied basis.” Id. at *5 (citations omitted).  The Circuit held that, “as applied” in this case, “[a]n ordinary person could certainly understand” that engaging in the sexual conduct prohibited by the N.Y. statute “with a child under the age of eleven ‘relat[es] to’ the sexual abuse of a minor.” Id. at *5.

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