United States v. Van Mead, No. 12-4054-cr (2d Cir. Dec. 8, 2014) (Livingston, Lohier, and Stein), available here
Section 130.40-2 of New York’s Penal Law 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.”
The question presented by this appeal was whether the conduct prohibited by this statute qualified categorically as a “crime of violence” under Sections 2K2.1 and 4B1.2 of the Sentencing Guidelines. The Circuit said no.
The Court distinguished this case from its earlier ruling in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which the Circuit held that violation of a Vermont law barring sexual contact with a minor aged fifteen or younger constituted a “violent felony” under the Armed Career Criminal Act. The Court noted that the New York statute lacked a “physical force element,” and therefore could not be deemed a “crime of violence” under Section 4B1.2(a)(1)’s “physical force” clause. Similarly, because the law did not concern any of the “exemplar crimes,” it could not be deemed a “crime of violence” under Section 4B1.2(a)(2)’s list of “exemplar crimes.”
Finally, the Court held that, under Section 4B1.1(a)(2)’s “residual clause,” the New York statute did not “otherwise involve conduct that presents a serious potential risk of physical injury to another.” The Court noted that, because the statute imposed strict liability with respect to the age of the victim, the conduct prohibited by the statute had to be similar in kind and in degree of risk to Section 4B1.2’s exemplar crimes to be deemed a “crime of violence.” But unlike the Vermont law in Daye, the New York statute did not focus on all children through age 15, but principally on minors who were 15 and 16 years old. Given that difference, the Court was unable to conclude that violation of the New York law would, in the “ordinary” case, pose a “serious potential risk of physical injury to another” and involve “purposeful, violent, and aggressive” conduct. Thus, the conduct prohibited by the statute did not qualify categorically as a “crime of violence.”