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United States v. Simard

United States Court of Appeals, Second Circuit

September 10, 2013

UNITED STATES of America, Appellee,
v.
Shawn SIMARD, Defendant-Appellant.

Argued: June 20, 2013.

Page 157

[Copyrighted Material Omitted]

Page 158

Barclay T. Johnson, for Michael L. Desautels, Federal Public Defender, Office of the Federal Public Defender for the District of Vermont, Burlington, VT, for Shawn Simard.

Barbara A. Masterson (Gregory L. Waples, on the brief), Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney, United States Attorney's Office for the District of Vermont, Burlington, VT, for the United States of America.

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

PER CURIAM:

Defendant-appellant Shawn Simard appeals from an August 15, 2012 judgment of the United States District Court for the District of Vermont (William K. Sessions, III, Judge ) sentencing him to 121 months' imprisonment after he pleaded guilty to possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4). In sentencing Simard, the District Court considered whether Simard's prior conviction in Vermont state court for " lewd or lascivious conduct with a child," in violation of 13 Vt. Stat. Ann. § 2602, triggered a mandatory minimum sentence of ten years' imprisonment pursuant to 18 U.S.C. § 2252(b)(2).[1]

Page 159

The District Court ultimately concluded that the crime underlying Simard's conviction " relat[ed] to ... abusive sexual conduct involving a minor or ward," 18 U.S.C. § 2252(b)(2), under the " modified categorical approach," [2] and therefore that 18 U.S.C. § 2252(b)(2)'s sentencing enhancement applied.

In light of the District Court's conclusion, we must now consider (1) whether the District Court erred in using the modified categorical approach to decide whether a conviction under 13 Vt. Stat. Ann. § 2602 triggers 18 U.S.C. § 2252(b)(2)'s mandatory ten-year minimum; and, if so, (2) whether, under the correct approach, Simard's conviction under 13 Vt. Stat. Ann. § 2602 nonetheless triggers the sentencing enhancement because the Vermont statute " relate[s] to ... abusive sexual conduct involving a minor or ward," 18 U.S.C. § 2252(b)(2).

We conclude, pursuant to our recent decisions in United States v. Barker, 723 F.3d 315 (2d Cir.2013), and United States v. Beardsley, 691 F.3d 252 (2d Cir.2012), that the District Court should have applied the categorical approach— not the modified categorical approach— to decide whether Simard's conviction under 13 Vt. Stat. Ann. § 2602 triggered 18 U.S.C. § 2252(b)(2)'s sentencing enhancement. Despite this error, we also conclude that the District Court ultimately was correct to apply the mandatory ten-year minimum because, under the categorical approach, 13 Vt. Stat. Ann. § 2602 is a state law that " relat[es] to ... abusive sexual conduct involving a minor or ward," 18 U.S.C. § 2252(b)(2).

For these reasons, we affirm the August 15, 2012 judgment of the District Court.

BACKGROUND


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