Several sections
of the United States Sentencing Guidelines Manual provide for increased offense
levels when the defendant has prior convictions for crimes of violence or drug
trafficking offenses. The Career Offender
Guideline -- USSG § 4B1.1, is perhaps the most well-known of these. A less well-known example is § 2K1.1, the
offense guideline for the unlawful receipt, possession, or transportation for
firearms or ammunition. USSG § 2K1.1(a)(2)
provides for a base offense level of 24 “if the defendant committed any part of
the instant offense subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense.” Whether a prior conviction counts as a crime
of violence does not necessarily depend on whether the crime involved
violence. The Guideline definition of
“crime of violence” covers two types of offense. The first type “has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” The second type
involves “burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.”
§ 4B1.2(a). Recently the
Second Circuit ruled that a prior conviction under New York’s statutory rape
law does not count as a crime of violence under this definition. The Court easily found that New York’s
statutory rape law did not meet the first definition since it lacks a physical
force element. The more serious question
was whether it “involve[d] conduct that presents a serious potential risk of
physical injury to another.” The Court
took a “categorical approach” in determining the answer to that question. That is, it did not look to the facts that supported
the defendant’s prior conviction.
Instead, it looked to “whether the conduct encompassed by the elements
of the offense, in the ordinary case, presents a serious potential risk of
injury to another.” The Court first
noted that it had previously found a Vermont law which outlawed sexual
contact by an adult with a child aged 15 or younger to be a crime of violence based on the
risk of injury sexual acts pose to young victims. United States v. Daye, 571 F.3d 225 (2d Cir.
209). The Court distinguished the New
York from the Vermont law in one important respect. While the Vermont law applied to all
children – from infants through age 15, the New York law focused primarily on
children aged 15 and 16. The Court
refused to find that sexual contact with children of that age necessarily
presents a potential risk of physical injury since, as the court noted, in many states consensual sexual contact with a
16-year-old is not even a crime. The
Court remanded for resentencing. UnitedStates v. Van Mead, 2014 WL 6863679 (2d Cir. Dec. 8, 2014).
