The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:
United States v. Beardsley
Before: NEWMAN, STRAUB, and LYNCH, Circuit Judges.
Defendant-appellant challenges the district court's application of a fifteen-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." He argues that the district court erred in using the "modified categorical approach" to determine the facts underlying his prior state conviction for endangering the welfare of a child. He asserts that the district court should have used only the "categorical approach," under which his prior state conviction indisputably does not qualify as a § 2252A(b)(1) predicate offense. We agree, and therefore vacate his sentence and remand to the district court for resentencing.
Defendant-appellant Wayne Beardsley appeals from a judgment of conviction entered in the Northern District of New York (Glenn T. Suddaby, Judge) following his plea of guilty to knowingly receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B). The district court sentenced Beardsley to fifteen years in prison, the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." On appeal, Beardsley argues that the district court erred in employing the "modified categorical approach" to analyze the facts underlying his prior state conviction for endangering the welfare of a child, and that under the proper standard - the "categorical approach" - his prior state conviction does not qualify as a § 2252A(b)(1) predicate offense. We agree, and therefore vacate his sentence and remand to the district court for resentencing.
I. Federal Offense of Conviction
On December 14, 2009, Beardsley, then age 42, went to the library at the Cayuga Community College in Auburn, New York, where he was enrolled as a student. After he checked out one of the library's loaner laptop computers, #13, he took it to a library carrel and began searching the Internet for pornographic images of young girls. He visited several child pornography websites and saved links to some of them in a "favorites" folder on the computer labeled with his own name. When the battery in laptop #13 battery began to die, Beardsley exchanged that laptop for a different one, #8, which he used until the library closed for the day.
The following day, Beardsley returned to the library and asked to check out laptop #13 again so that he could visit the websites he had saved in his "favorites" folder. Once again, he used that laptop to search for and view pornographic images of young girls. When laptop #13's battery began to die, he exchanged it for another laptop, #7, and continued visiting child pornography websites.
While Beardsley was using laptop #7, library staff noticed that laptop #13, which Beardsley had just checked back in, was still running. In shutting down laptop #13, a library staff member saw images of naked children on the computer's screen and alerted campus police, who in turn called the town's police department and reported that Beardsley was viewing child pornography in the community college library. Police officers arrived at the library and approached Beardsley. He admitted that he had been looking at "porn" on the library's laptops. An on-the-scene forensic examination of laptop #13 established that it had been used to view numerous sexual images of girls who appeared to be under the age of 16. The police took laptops #13 and #7 into evidence and transported Beardsley to the Auburn Police Department to be interviewed. At the station, he provided a written statement admitting that he had used the library's laptops as described above. Subsequent forensic searches of both laptops confirmed Beardsley's statement.
Federal authorities arrested Beardsley in January 2010. A federal grand jury subsequently returned a two-count indictment charging him with one count each of knowingly receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A), and knowingly possessing and accessing child pornography with intent to view, 18 U.S.C. § 2252A(a)(5)(B). The indictment included a "Prior Conviction Allegation":
On or about May 11, 2006, in Auburn (New York) City Court, WAYNE BEARDSLEY entered a plea of guilty to the crime of Endangering the Welfare of a Child, a class A misdemeanor, in violation of New York Penal Law Section 260.10(1), which makes it unlawful to act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. The basis for the conviction, as stated in the accusatory instrument, is that the defendant did subject an 18 month old female child to sexual contact.
The indictment asserted that Beardsley's prior state conviction constituted a "prior final conviction relating to the aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" under § 2252A(b)(1), triggering that statute's mandatory sentence enhancement. In addition, on May 10, 2010, the government filed a "Special Information Regarding Prior Conviction," which again alleged that Beardsley's prior state conviction qualified as a predicate offense under § 2252A(b)(1), and "results in increased potential punishment" for Beardsley's federal offense. Beardsley moved to strike or dismiss the indictment's prior conviction allegation and the special information, arguing that "[b]ecause nothing in the New York statute" under which he had been previously convicted, N.Y. Penal Law § 260.10(1), "requires actual sexual activity, it does not categorically fall within the scope of § 2252A(b)," and thus the federal sentence enhancement should not apply.
The district court denied Beardsley's motion. The court agreed with Beardsley that his prior state conviction for endangering the welfare of a child was not categorically a qualifying offense under § 2252A(b)(1). However, the court concluded that because "the full range of conduct" covered by the state statute does not fall within the meaning of § 2252A(b)(1) - or, in other words, because "the state statute is broader than the federal definition of a predicate offense" - the court would employ the "modified categorical approach" to analyze Beardsley's state conviction. That approach would allow the district court to review certain documents from Beardsley's prior state conviction to determine whether the "conduct" underlying that conviction "fits within the federal definition of the offense" of "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor." 18 U.S.C. § 2252A(b)(1).
As discussed in the following section, the state-court documents available to the district court under the modified categorical approach established that Beardsley's conviction for endangering the welfare of a child was based on two incidents in 2001 when Beardsley had sexual contact with a victim who was "18 months of age at the time." After having reviewed these documents, the district court concluded that they "allow[ed] for no reasonable conclusion other than that" Beardsley's prior state conviction for endangering the welfare of a child was under a law "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor," and thus qualified as a federal predicate offense. See 18 U.S.C. § 2252A(b)(1).
Pursuant to a written plea agreement preserving his right to appeal the district court's denial of his motion to strike or dismiss the indictment's prior conviction allegation and the special information, Beardsley pled guilty to both counts of the indictment. The district court sentenced him to fifteen years in prison, the mandatory minimum sentence provided by § 2252A(b)(1), to be followed by a lifetime term of supervised release, and a $200 special assessment. Beardsley timely appealed.
The following facts are drawn from the state-court documents reviewed by the district court in connection with Beardsley's prior conviction for endangering the welfare of a child.
In 2005, when Beardsley's daughter was five years old, Child Protective Services in Seneca County, New York, received a hotline complaint that she had touched another child inappropriately, and that she had learned the behavior from her father. Beardsley agreed to be polygraphed by the sheriff's department about inappropriately touching his daughter. He failed the examination. He then agreed to a voluntary interview at the sheriff's station, where, in a written statement, he admitted to having inappropriately touched his daughter's clitoris on two occasions in 2001 while he was changing her diaper. The Cayuga County District Attorney's Office charged Beardsley with two counts of felony sexual abuse. However, in May 2006, in Auburn (New York) City Court, pursuant to a an agreement between Beardsley and the county, Beardsley pled guilty to the reduced charge of "Endangering the Welfare of a child, committed on or about May 17, 2001." The New York offense of endangering the welfare of a child, N.Y. Penal Law § 260.10, is a class A misdemeanor.
The accusatory instrument to which Beardsley pled guilty was an "Information/Complaint" filed in Auburn City Court that charged that on or about the 17th day of May, 2001, . . . DEFENDANT DID intentionally, knowingly, unlawfully COMMIT THE misdemeanor of ENDANGERING THE WELFARE OF A CHILD contrary to the provisions of Section 260.10, subdivision 1 of the PENAL Law of the State of New York. . .
To wit: [Beardsley] did subject the victim, 18 months of age at the time of the incident, to sexual contact. All contrary to the provisions of the statute in such case made and provided.
Basis for deponent's information and grounds for belief being the police investigation and the affidavits of the defendant . . . attached hereto and made a part thereof.
The state court, "after reviewing the complaints," made "a finding that the facts also support the misdemeanor offenses, and so amends the complaint - the complaints, to charge the Defendant with misdemeanor offenses." The subsequent plea colloquy was brief:
THE COURT: . . . I will read to you the complaint on a - read you the complaint, and ask you whether the allegations are accurate, to the best of your recollection. . .
The complaint alleges, Mr. Beardsley, that on or about May 17th, of 2001, you did engage in conduct which endangered the welfare of a young child by having ...