New York Conviction for Sexual Abuse in the Second Degree Qualified as Conviction "Relating to ... Sexual Abuse" of a Minor
United States v. Allen, No. 13-0296-cr (2d Cir. Apr. 16, 2014) (Pooler, Parker, and Wesley), available here
Allen pled guilty to transporting, receiving, and possessing child pornography. At sentencing, the district court ruled that Allen's prior New York State conviction for Sexual Abuse in the Second Degree, N.Y. Penal Law 130.60(2), subjected him to increased penalties 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." 18 U.S.C. 2252A(b)(1) and (b)(2). The Circuit agreed and, consequently, affirmed.
Penal Law 130.60(2) 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 ... [l]ess than fourteen years old." Allen's conviction under this provision resulted from his touching the genitalia of a thirteen-year-old boy through the boy's clothing.
The Circuit had no trouble concluding that this prior conviction qualified as a conviction under a law "relating to ... sexual abuse ... involving a minor," as required to trigger the enhanced penalties under 18 U.S.C. 2252A(b). Using a "categorical approach," the Court found that the conduct enumerated in New York's definition of "sexual contact" embraces "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." Accordingly, Allen's prior conviction qualified for the federal enhancement.
The Circuit explicitly rejected Allen's claim that the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor or ward" refer exclusively to several specified federal offenses listed in 18 U.S.C. 2241-43. Thus, even if New York's sexual abuse statute differs significantly from the definition of sexual abuse in 18 U.S.C. 2243, it still triggers the federal statutory enhancements because it "relate[s] to" the "sexual abuse of a minor" as that phrase is ordinarily understood.