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United States v. Allen

United States Court of Appeals, Second Circuit

April 16, 2014

UNITED STATES OF AMERICA, Appellee,
v.
LEONARD J. ALLEN, Defendant-Appellant

Submitted, December 11, 2013

Appeal from the United States District Court for the Northern District of New York. No. 12-cr-81 -- Norman A. Mordue, Judge. Appeal from a judgment of the United States District Court for the Northern District of New York (Mordue, J.) imposing a sentencing enhancement to defendant's child pornography conviction pursuant to 18 U.S.C. § 2252A(b)(1) and (b)(2) based on his prior state conviction for sexual abuse in the second degree under N.Y. Penal Law § 130.60(2).

James P. Egan and James F. Greenwald, Assistant Public Defenders, for Lisa A. Peebles, Federal Public Defender, Northern District of New York, Syracuse, NY, for Defendant-Appellant.

Lisa M. Fletcher and Paul D. Silver, Assistant United States Attorneys, for Richard Hartunian, United States Attorney, Northern District of New York, Syracuse, NY, for Appellee.

Before: POOLER, PARKER, and WESLEY, Circuit Judges.

OPINION

Page 210

Barrington D. Parker, Circuit Judge

Defendant-Appellant Leonard J. Allen appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Mordue, J .), following his plea of guilty to charges of transporting, receiving, and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2)(A) and (a)(5)(B). In sentencing Allen, the court determined that Allen's prior state court conviction for Sexual Abuse in the Second Degree in violation of N.Y. Penal Law § 130.60(2) subjected him to increased penalties pursuant to § 2252A(b)(1) and (b)(2) 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." We agree and, consequently, affirm.

I.

In July 2010, law enforcement officials in New Hampshire began to investigate an individual with the screen name CHRHYA2008 who was engaged in the posting, trading, and collecting of child pornography and child erotica over various

Page 211

internet fora. After the user sent email attachments containing videos of child pornography to undercover officers, they were able to trace the IP address to Allen in Fulton, New York. In November 2010, the officers executed a search at Allen's residence and seized images of child pornography. During the execution of the warrant, Allen admitted that he used the screen name in question and, during subsequent questioning, he acknowledged receiving and possessing child pornography. An examination of computers and storage devices seized during the search revealed over 1,000 image and video files of child pornography and erotica.

In January 2012, the Government filed an information charging Allen with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1), receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In addition, the government filed, pursuant to 18 U.S.C. § 2252A(b), a special information regarding a prior state court conviction. Section 2252A(b) provides for substantially enhanced penalties if a person convicted under certain child pornography provisions " has 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."

The special information alleged that Allen was convicted in 2000 of Sexual Abuse in the Second Degree, in violation of New York Penal Law § 130.60, which 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: . . . 2. Less than fourteen years old." N.Y. Penal Law § 130.60. The conviction resulted from Allen's touching the genitalia of a thirteen-year-old boy through the boy's clothing. For this offense, Allen was sentenced to nine months' imprisonment. The special information had the effect of raising his mandatory minimum term of ...


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