Monday, October 08, 2012

One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the receipt of child pornography, there is a five-year mandatory minimum. 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,” the mandatory minimum is fifteen years. § 2252A(b)(1). Beardsley’s prior was a New York conviction for endangering the welfare of a child under N.Y. Penal Law § 260.10. While the charging instrument in that case specified that the conduct involved “sexual contact” with an 18-month-old child, the statute itself does not mention sexual activity. It simply makes it a crime to “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

The district court employed a modified categorical approach; by looking at the charging instrument, it concluded that Beardsley was subject to the enhanced sentence. On appeal, the circuit agreed with Beardsley that this was error. The state statute is “merely broad, not divisible.” Since it was not, itself, a state law “relating to aggravated sexual abuse,” etc., of a minor, Beardsley was not subject to the fifteen-year mandatory minimum.

The circuit took the lead from the Supreme Court’s precedents, concluding that the categorical approach - a simple examination of the way the statute defines the offense - is the preferred method. The modified categorical approach applies only where the “statute of prior conviction covers multiple subjects,” and is “the exception” to the “general rule.” The modified approach “is available only where a statute of prior conviction is divisible into predicate and non-predicate offenses.” 

The circuit has adhered to this distinction in ACCA and immigration cases “at least in practice,” and has applied the modified categorical approach “only to situations where the statute of prior conviction described qualifying and non-qualifying offenses in distinct subsections or elements of a list.” While not having had occasion to consider the enhancement in § 2252A(b)(1), the court also noted that every circuit save one has “applied the modified categorical approach only where the state statute of conviction was divisible into predicate and non-predicate offenses, and not where the state statute was merely broad.” 

The court accordingly adopted that approach here. The district court “should have limited itself to the categorical approach, because the New York statute of conviction is not divisible into predicate and non-predicate offenses, listed in separate subsections or a disjunctive list.” That the statute was “merely broadly worded, so as to encompass conduct that might match the federal predicate offenses, does not suffice.”

In fact, the language of § 2252A(b)(1) itself strongly suggests “some version of the categorical approach,” since it is predicated on “the laws of any State,” and not on the defendant’s particular actions that led to the conviction. Accordingly, the “statute underlying the prior conviction must itself relate to sexual abuse of minors for the enhancement to apply.”  Since the statute here was not a “law dealing with sexual misconduct, evidence establishing that the defendant violated that statute by a sexual act would demonstrate only how he committed the crime, but not what crime he committed.”