Wednesday, January 7, 2015

Second Circuit Rules NY Statutory Rape Law Not a Crime of Violence Under the Guidelines

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).