United States v. Allen

750 F.3d 209, 2014 WL 1465388, 2014 U.S. App. LEXIS 7195
CourtCourt of Appeals for the Second Circuit
DecidedApril 16, 2014
DocketNo. 13-296-CR
StatusPublished
Cited by8 cases

This text of 750 F.3d 209 (United States v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allen, 750 F.3d 209, 2014 WL 1465388, 2014 U.S. App. LEXIS 7195 (2d Cir. 2014).

Opinion

BARRINGTON D. PARKER, Circuit Judge:

Defendant-Appellant Leonard J. Allen appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Mordue, J.), following his plea of guilty to charges of transporting, receiving, and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2)(A) and (a)(5)(B). In sentencing Allen, the court determined that Allen’s prior state court conviction for Sexual Abuse in the Second Degree in violation of N.Y. Penal Law § 130.60(2) subjected him to increased penalties pursuant to § 2252A(b)(1) and (b)(2) because it constituted a prior conviction under a State law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” We agree and, consequently, affirm.

I.

In July 2010, law enforcement officials in New Hampshire began to investigate an individual with the screen name CHRHYA2008 who was engaged in the posting, trading, and collecting of child pornography and child erotica over various [211]*211internet fora. After the user sent email attachments containing videos of child pornography to undercover officers, they were able to trace the IP address to Allen in Fulton, New York. In November 2010, the officers executed a search at Allen’s residence and seized images of child pornography. During the execution of the warrant, Allen admitted that he used the screen name in question and, during subsequent questioning, he acknowledged receiving and possessing child pornography. An examination of computers and storage devices seized during the search revealed over 1,000 image and video files of child pornography and erotica.

In January 2012, the Government filed an information charging Allen with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(l), receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In addition, the government filed, pursuant to 18 U.S.C. § 2252A(b), a special information regarding a prior state court conviction. Section 2252A(b) provides for substantially enhanced penalties if a person convicted under certain child pornography provisions “has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

The special information alleged that Allen was convicted in 2000 of Sexual Abuse in the Second Degree, in violation of New York Penal Law § 130.60, which provides that “[a] person is guilty of sexual abuse in the second degree when he ... subjects another person to sexual contact and when such other person is: ... 2. Less than fourteen years old.” N.Y. Penal Law § 130.60. The conviction resulted from Allen’s touching the genitalia of a thirteen-year-old boy through the boy’s clothing. For this offense, Allen was sentenced to nine months’ imprisonment. The special information had the effect of raising his mandatory minimum term of imprisonment from five years to fifteen years on the transportation and receipt counts, and from no minimum to a mandatory minimum of ten years for the possession count.

Allen subsequently pled guilty to the charges in the information but objected to the application of the enhancements. Allen argued that the terms “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct involving a minor or ward” should be defined by reference to the definitions of those terms under federal law. See 18 U.S.C. §§ 2241-43. Specifically, he contended that the New York statute under which he had been convicted should not form the basis for enhancement because it applied to a greater range of prohibited conduct than the federal statute because it criminalized touching through clothing, while the term “sexual act” has been defined under federal law as “intentional touching, not through the clothing.” See 18 U.S.C. § 2246(2)(D). Accordingly, Allen contended, his prior conviction was not under a law “relating to” the offenses specified in 18 U.S.C. §§ 2241-43.

The district court rejected Allen’s arguments. The court noted that both parties agreed that the court should take a categorical approach in determining whether the prior conviction could serve as a predicate offense for the federal enhancement and the court concluded that Allen’s state conviction qualified as a conviction under a law relating to sexual abuse. The district court found the conduct enumerated in New York’s definition of “[sjexual contact,]” which includes “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” including “through clothing,” N.Y. Penal Law [212]*212§ 130.00(8) was conduct that fell within the “ordinary, contemporary common meaning” of the term “sexual abuse ... of a minor” and was consistent with Congress’s intention to define the offense of sexual abuse expansively. Accordingly, the court found that Allen’s prior conviction subjected him to enhanced penalties and subsequently, sentenced him principally to a term of 240 months’ imprisonment.

This appeal followed. We review de novo all questions of law relating to the district court’s application of a sentencing enhancement. United States v. Beardsley, 691 F.3d 252, 257 (2d Cir.2012).

II.

The issue on appeal is whether Allen’s state court conviction triggers the enhanced federal penalties. As noted, Allen’s principal argument is that to determine whether his state conviction is under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” as required by 18 U.S.C. § 2252A(b), we look to how those terms are defined under federal law. And under federal law, he contends, touching through clothing is not covered by 18 U.S.C. § 2252A(b). See 18 U.S.C. § 2243.

As the parties acknowledge, in deciding whether Allen’s prior conviction triggers a sentencing enhancement we apply the categorical approach. See Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2283-86, 186 L.Ed.2d 438 (2013); United States v. Simard,

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Bluebook (online)
750 F.3d 209, 2014 WL 1465388, 2014 U.S. App. LEXIS 7195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allen-ca2-2014.