United States District Court, S.D. New York
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
At issue here is whether defendant Matthew Vado's 2011 conviction for the New Jersey offense of criminal sexual contact in the fourth degree, N.J. Stat. Ann. § 2C:14-3, triggers the sentence enhancement provisions of three federal child-pornography statutes. Vado is charged in this Court with the production, receipt, and possession of child pornography, in violation of, respectively, 18 U.S.C. §§ 2251(a), 2252A(a)(2)(B), and 2252A(a)(5)(B). Each statute contains a mandatory penalty provision which applies where the defendant has a prior conviction under, inter alia, state law "relating to" either "aggravated sexual abuse, " "sexual abuse, " or, depending on the provision, "abusive sexual contact involving a minor" or "abusive sexual conduct involving a minor" (together, "abusive sexual contact/conduct involving a minor"). If Vado's 2011 conviction is such an offense, these penalty provisions will (1) impose (or raise) a mandatory minimum sentence on each count, and (2) raise the maximum sentence on that count.
To determine whether a state conviction triggers these provisions, the Court utilizes a categorical, or elements-based, analysis, asking whether the state offense, however committed, necessarily meets the requirements of the federal penalty provision. Here, therefore, the Court must determine whether a violation of the New Jersey criminal sexual contact statute necessarily "relat[es] to" sexual abuse or to abusive sexual contact/conduct involving a minor within the meaning of those federal statutory terms. Vado argues that the New Jersey statute applies to conduct outside the scope of the federal penalty provisions. Specifically, he argues that although the New Jersey statute and the federal penalty provisions both apply where a defendant touches his or another's intimate parts for the purpose of sexual arousal or gratification, New Jersey's statute applies-but the federal penalty provisions do not-where such touching is "for the purpose of degrading or humiliating the victim." N.J. Stat. Ann. § 2C:14-1. The Government counters that such conduct does, in fact, qualify as-or in any event "relat[es] to"- "sexual abuse" or "abusive sexual contact/conduct involving a minor."
The parties have jointly asked the Court to resolve, prior to trial or other disposition of the charges against Vado, whether the federal penalty provisions apply here. The Court has agreed to do so-because the question is close; because the penalty provisions, if triggered, dramatically affect the sentencing consequences for Vado of a plea or trial conviction to any of the charged offenses; and because the parties have represented that resolving this issue will facilitate their plea negotiations.
For the following reasons, the Court grants Vado's motion. The Court holds that his prior conviction does not trigger the sentence enhancements in § 2251 or § 2252A.
On October 6, 2014, Vado was indicted by a Grand Jury, which charged him, in 10 counts, of violating federal child pornography statutes. Dkt. 13. Eight counts charged production of child pornography, in violation of 18 U.S.C. § 2251(a); another charged receipt of child pornography, in violation of § 2252A(a)(2)(B); and a tenth charged possession of child pornography, in violation of § 2252A(a)(5)(B).
On January 6, 2015, Vado moved to suppress statements he had made during a search of his home, pursuant to a warrant, on June 17, 2014. Dkt. 24-26. On January 20, 2015, following a suppression hearing, the Court denied Vado's motion. Dkt. 30.
On January 30, 2015, Vado filed a second pretrial motion, seeking a determination that his 2011 conviction for criminal sexual contact in the fourth degree under New Jersey law does not qualify as a predicate offense so as to trigger the sentence enhancements in § 2251 and § 2252A. Dkt. 34. Vado also filed a memorandum of law, Dkt. 36 ("Def. Br."), and a declaration, Dkt. 35 ("Def. Decl."). On February 20, 2015, the Government submitted its opposition. Dkt. 37 ("Gov. Br.").
On February 25, 2015, the Court heard argument. See Dkt. 42 ("Tr."). At argument, both sides urged the Court, to facilitate their plea discussions, to resolve whether Vado's 2011 conviction under New Jersey law would trigger the federal sentence enhancements. See Tr. 4-5. The Court was persuaded to do so. On the merits, argument focused on whether, as Vado argued, his prior conviction was for an offense not "relating to" sexual abuse or abusive sexual contact/conduct involving a minor.
In the course of argument, the Court raised with counsel whether the definition of "sexual contact, " as used in a different statute, 18 U.S.C. § 2246, bears on the definition of that term as used in one of the penalty provisions at issue here, id. § 2251(e), and on the definition of "sexual conduct" as that term is used in the other two penalty provisions at issue, id. §§ 2252A(b)(1), (b)(2). See Tr. 9-22. On March 6, 2015, at the Court's direction, the parties submitted supplemental briefing on that point. Dkt. 40 ("Gov. Supp. Br."); Dkt. 41 ("Def. Supp. Br.").
II. Applicable Legal Principles
A. Relevant Federal Sentencing Enhancement Provisions
Vado stands charged with production, receipt, and possession of child pornography. Each of the three statutes under which he is charged contains a sentencing enhancement provision triggered by a state conviction "relating to" (1) "aggravated sexual abuse, " (2) "sexual abuse, " or (3) in the case of one statute, "abusive sexual contact involving a minor, " and in the case of the other two, "abusive sexual conduct involving a minor." Specifically:
Under 18 U.S.C. § 2251, which prohibits production of child pornography:
Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter... or under the laws of any State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor... such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years[.]
Id. § 2251(e).
Under 18 U.S.C. § 2252A(b)(1), the penalty provision applicable to violations of 18 U.S.C. § 2252A(a)(2)(B), which prohibits receipt of child pornography:
Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter... or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor... such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.
And, under 18 U.S.C. § 2252A(b)(2), the penalty provision applicable to violations of 18 U.S.C. § 2252A(a)(5)(b), which prohibits possession of child pornography:
Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, but... if such person has a prior conviction under this chapter... or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor... such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.
A defendant's prior conviction under a state law that meets these penalty provisions thus has serious implications for his federal sentence. It increases the prison term (1) for producing child pornography from 15-30 years to 25-50 years imprisonment, id. § 2251(e), (2) for receiving child pornography from 5-20 years to 15-40 years imprisonment, id. § 2252A(b)(1), and (3) for possessing child pornography from 0-10 to 10-20 years imprisonment, id. § 2252A(b)(2).
B. Legal Framework for Evaluating Whether a State Offense Qualifies as a Predicate Offense under the Federal Sentencing Enhancement Provisions
"To determine whether a state offense qualifies as a predicate offense for a federal mandatory minimum sentence, courts generally take a categorical or modified categorical approach.'" United States v. Barker, 723 F.3d 315, 319 (2d Cir. 2013) (quoting United States v. Beardsley, 691 F.3d 252, 259 (2d Cir. 2012)). Under these approaches, sentencing courts do not examine the facts underlying a defendant's prior conviction. Instead, courts "look only to the statutory definitions-i.e., the elements-of a defendant's prior offense, and not to the particular facts underlying th[at] conviction." Descamps v. United States, 133 S.Ct. 2276, 2283 (2013).
The categorical approach applies where a state offense has a "single, indivisible set of elements": The sentencing court simply "compare[s] the statute forming the basis of the defendant's prior conviction with the applicable generic offense in the federal sentencing statute." Barker, 723 F.3d at 319-20 (citation omitted).
The modified categorical approach, in turn, applies "when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps, 133 S.Ct. at 2283. Where a statute is "divided into disjunctive subsections" or is otherwise "divisible" into alternative sets of elements, "courts may, to a limited extent in order to discover the elements of the prior conviction, consider facts underlying the prior conviction if they are based upon adequate judicial record evidence.'" Barker, 723 F.3d at 319-20 (citations omitted). By permitting a court to isolate the portion of a divisible statute under which a defendant was prosecuted, the modified categorical approach facilitates review under the categorical approach. Importantly, however, "[o]nce the district court has identified the particular provision of state law under which the defendant was convicted, the district court must then compare the elements of that provision to the generic federal sentencing enhancement to determine its applicability just as it would under a categorical approach." Id. at 320. There is, in other words, no charter under the modified categorical approach for inquiring into the facts of an individual defendant's prior offense.
Ordinarily, in performing this analysis, the sentencing court simply inquires whether the state law in question can, in any application, cover conduct outside the scope of the generic federal offense. For example, the Armed Career Criminal Act ("ACCA") provides for an enhanced sentence if the defendant has a prior conviction for a "violent felony, " defined to include a crime punishable by a year or more imprisonment that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B). If the state statute ...