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United States of America v. Flay Rood

May 15, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
FLAY ROOD, DEFENDANT-APPELLANT.



Per curiam.

11-2174-cr

United States v. Rood

(Submitted: April 27, 2012

Before: CALABRESI, CABRANES, and CHIN, Circuit Judges.

Defendant-appellant Flay Rood appeals from the judgment of conviction and sentence entered by the United States District Court for the Northern District of New York (David N. Hurd, J.) on May 26, 2011. We hold that the District Court erred when it imposed a mandatory sentence of life imprisonment pursuant to 18 U.S.C. § 3559(e) in the apparent absence of judicial record evidence regarding the age of the victim of his prior state offense. We accordingly REMAND solely for resentencing.

Defendant-appellant Flay Rood appeals from the judgment of conviction and sentence entered by the United States District Court for the Northern District of New York (David N. Hurd, J.) on May 26, 2011. We hold that the District Court erred when it imposed a mandatory sentence of life imprisonment pursuant to 18 U.S.C. § 3559(e)*fn1 in the apparent absence of judicial record evidence regarding the age of the victim of his prior state offense. We accordingly remand solely for resentencing.

This appeal arises from Rood's conviction, after a guilty plea, on three separate counts of producing child pornography, in violation of 18 U.S.C. § 2251(a) (Counts One, Two, and Three); distributing and attempting to distribute child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count Four); receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count Five); and attempting to possess, and attempting to access with intent to view, material that contained images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Six).

The indictment to which Rood pleaded guilty included an allegation that he had previously, in 1991, been convicted in Ohio state court of Gross Sexual Imposition, a felony. The indictment alleged that the basis of the 1991 conviction was his alleged sexual abuse of a two-year-old child. Rood moved to dismiss or strike the prior conviction allegation from the indictment. Finding the motion premature and denying it without prejudice, the District Court thereafter accepted a plea of guilty permitting the defendant to reserve the right to challenge on appeal the applicability of 18 U.S.C. § 3559(e), which imposes a mandatory sentence of life imprisonment on repeat sex offenders whose crimes were against children, to his prior conviction. Accordingly, while Rood pleaded guilty to the six substantive counts of the indictment and acknowledged the fact of the 1991 conviction, he did not admit any facts underlying the 1991 offense.

At sentencing, the District Court found that Rood had previously been convicted of a sexual offense involving a two-year-old child and imposed a statutory minimum term of life imprisonment, pursuant to 18 U.S.C. § 3559(e), on each of the first three counts.*fn2 The Court then imposed sentences of fifteen years imprisonment on Counts Four and Five and ten years imprisonment on Count Six, to be served concurrently with the three life sentences.

On appeal, Rood argues that the District Court erred in determining that his prior Ohio conviction triggered the application of the mandatory life sentence provision of Section 3559(e), for two reasons: (1) the Ohio statute does not have the same mens rea requirement as the federal statute; and (2) the Ohio statute proscribes a greater range of conduct than does the relevant federal statute.

DISCUSSION

Pursuant to a federal mandatory sentencing regime for repeat sexual offenders, any individual convicted of a federal sex offense who has previously been convicted of either a federal sexual offense or an equivalent state-law sexual offense is subject to a statutory minimum term of life imprisonment. See 18 U.S.C. § 3559(e)(1). In order to determine whether a state offense is equivalent to a federal offense, courts must compare the elements of the state offense to the elements of the federal offense. See id. § 3559(e)(2)(B). Where the state offense "consists of conduct that would [constitute] a Federal sex offense" if the federal jurisdictional requirement were satisfied, the state conviction is sufficient to trigger the mandatory sentence. Id.

Rood argues that the District Court erroneously determined that the Ohio crime of Gross Sexual Imposition was a state sex offense within the meaning of the federal mandatory sentencing regime. We agree that the ...


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