Saturday, December 13, 2014

16 Is the Magic Number

We discussed yesterday the recent success of challenges to recidivist sentencing enhancements. We continue the theme today, with this recent decision from the Second Circuit:
United States v. Mead  (Judge Livingston, with Judges Lohier and Stein (S.D.N.Y))
New York's statutory rape law provides different penalties depending on the age of the victim. The lightest penalty applies to conduct with a 15 or 16-year old. Other categories cover younger victims and carry stiffer penalties (5 categories in all).
Terry Van Mead had one of these convictions. When he was 30 years old, he had sex with a 15 year old. So, when he went to sentencing for, inter alia, a federal firearms offense, an issue arose: was his prior conviction a crime of violence under USSG 2K2.1 (which provides increased base offense levels for those with prior crimes of violence) and USSG 4B1.2 (which defines the term "crime of violence"). The district court said that it was. The Second Circuit reversed.
The Second Circuit surveyed how it and other Circuits have dealt with similar statutes. It also surveyed the age of consent in various jurisdictions. It learned that the age of 16 is the age of consent in most jurisdictions. And it also learned that most statutory rape provisions that govern 16 year olds have not qualified as crimes of violence (or violent felonies, the statutory sister to the Guidelines' crime of violence provision, found in the Armed Career Criminal Act; the Court noted that the provisions are interpreted similarly). Because the New York provision at issue in this appeal reached only 15 and 16 year olds, thus criminalizing conduct with 16 year olds in many cases, the Court held that it did not qualify as a crime of violence.
Simple enough. If you have a client with a prior statutory rape conviction, you'll want to do a few things: (1) determine whether the state's penalty scheme turns on the age of the victim; and (2) if so, whether your client's conviction falls within the provision punishing contact with 16 year olds (or older). If so, you have a very good argument that the conviction does not qualify as a crime of violence (or a violent felony).
A few more points:
  1. A conviction can qualify as a crime of violence if it involves physical force or if it "otherwise involves conduct that presents a serious potential risk of physical injury to another" (this is the infamous residual clause). The analysis centered on the residual clause; the Court dismissed the idea that statutory rape involved physical force early in its decision.
  2. The Court's decision did not necessarily turn on the strict liability nature of statutory rape (although that was obviously a factor). In a footnote, the Court noted that a strict liability offense might qualify as a crime of violence in "particular circumstances" (of which the Court did not define).
  3. The Second Circuit mentioned a Tenth Circuit case, United States v. Dennis, which held that a statute criminalizing "indecent liberties" with anyone 18 years or younger was not a crime of violence.
  4. The Second Circuit was unconcerned with the age differential in the statute (it punished only those offenders 21 and older) 
The Vermont Federal Public Defender successfully litigated this issue.

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