12-2553
United States of America v. Barker

                                         UNITED STATES COURT OF APPEALS

                                               FOR THE SECOND CIRCUIT



                                                    August Term, 2012

                            (Submitted: May 6, 2013                      Decided: July 9, 2013)

                                                 Docket No. 12-2553-cr


                                                United States of America,

                                                                     Appellee,
                                                           — v.—

                                                      Richard Barker,

                                                                     Defendant-Appellant.



                            Before: CABRANES, WESLEY, AND WALLACE,* Circuit Judges



Appeal from a June 15, 2012 judgment of the United States District Court for the District of
Vermont (Reiss, C.J.) sentencing Defendant-Appellant to 120 months’ imprisonment. We hold that
under a categorical approach, Defendant-Appellant’s prior state conviction triggered 18 U.S.C.
§ 2252(b)(2)’s mandatory minimum ten-year sentence. AFFIRMED.


                              Lisa B. Shelkrot, Langrock Sperry & Wool, LLP, Burlington,
                                      VT, for Defendant-Appellant.

                              Christina E. Nolan, Gregory L. Waples, Assistant United States Attorneys, for
                                      Tristram J. Coffin, United States Attorney for the District of
                                      Vermont, Burlington, VT, for Appellee.




*Judge   J. Clifford Wallace, of the United States Court of Appeals for the 9th Circuit, sitting by designation.



                                                               1
PER CURIAM:

       Defendant-Appellant Richard Barker (Barker) appeals from a June 15, 2012 judgment of the

United States District Court for the District of Vermont (Reiss, C.J.) sentencing him to 120 months’

imprisonment after he pleaded guilty to possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B). The district court applied a modified categorical approach in determining that

Barker’s prior state-court conviction under Vermont’s former statutory rape law, Vt. Stat. Ann.

tit. 13, § 3252(a)(3) (1990), triggered the mandatory minimum ten-year sentence found in 18 U.S.C.

§ 2252(b)(2) as a prior conviction under a state law “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward.” We conclude that the district court

should have applied the categorical approach in accordance with United States v. Beardsley, 691 F.3d

252 (2d Cir. 2012). Under the categorical approach, however, we agree that Barker’s state-court

conviction subjects him to section 2252(b)(2)’s mandatory minimum sentence. AFFIRMED.

                                                 I.

       On January 12, 2012, a federal grand jury indicted Barker on one count of distribution of

child pornography under 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography

under 18 U.S.C. § 2252(a)(4)(b). Barker eventually pleaded guilty to one count of possession of child

pornography. As part of the plea agreement, the Government agreed to dismiss the additional

charges against Barker and recommend that he receive a sentence no longer than 144 months.

       At the time of his child pornography offense, Barker was on probation in Vermont for a

2002 felony conviction under Vermont’s former statutory rape law, Vt. Stat. Ann. tit. 13,

§ 3252(a)(3). That provision requires no significant age difference between the minor victim and the




                                                 2
offender.1 Id. The Information in Barker’s state case, however, charged that Barker, age 56, engaged

in a sexual act with a minor under the age of 16 who was not married to Barker.

         In the present federal case, Barker’s Presentence Report assigned Barker a Sentencing

Guideline offense level and criminal-history category that corresponded to a 121 to 151 month

sentence. In its sentencing memorandum, the Government argued that Barker’s prior Vermont state

conviction categorically qualified as a predicate offense under section 2252(b)(2)’s recidivist

provision, triggering that section’s mandatory minimum ten-year sentence. Based on additional

factors relevant to Barker’s crime, the Government ultimately recommended a sentence of 144

months.

         In his sentencing memorandum, Barker argued that his prior Vermont state-court conviction

did not constitute a conviction for “abusive sexual conduct” under either a categorical or modified

categorical approach. Specifically, Barker contended that Vermont’s statute lacked “abusiveness” as

an element because, among other things, it did not require a significant age disparity between the

victim and offender. Barker thus argued that section 2252(b)(2)’s mandatory minimum ten-year

sentence did not apply to him and asked for a ninety-six month prison term.

         Based on United States v. Rood, 679 F.3d 95 (2d Cir. 2012), the district court determined that it

should apply a modified categorical approach to determine whether Barker’s state court conviction

met the requirements of section 2252(b)(2). The district court then reviewed the charging document

in Barker’s Vermont case and concluded that the document established a significant age disparity

between Barker and his victim and met the abusiveness requirement of section 2252(b)(2).

Accordingly, the district court imposed the mandatory ten-year sentence. Barker now appeals.




1Vermont has since amended its statutory rape provision to require greater age disparity between the victim and the
offender. See Vt. Stat. Ann. tit. 13, § 3252(c) (2006).


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                                                  II.

       Barker contends that the district court erred in concluding that his Vermont felony

conviction for statutory rape, Vt. Stat. Ann. tit. 13, § 3252(a)(3), triggered the mandatory minimum

ten-year sentence provided by 18 U.S.C. § 2252(b)(2). “We review de novo all questions of law

relating to the district court’s application of a federal sentence enhancement.” Beardsley, 691 F.3d at

257. “We are free to affirm an appealed decision on any ground which finds support in the record,

regardless of the ground upon which the trial court relied.” United States v. Yousef, 327 F.3d 56, 156

(2d Cir. 2003) (internal quotation marks omitted). While we conclude that the district court should

have applied a categorical approach to determine whether Barker’s state-court conviction triggered

section 2252(b)(2)’s sentence enhancement, we nevertheless affirm the district court’s determination

that section 2252(b)(2)’s ten-year mandatory minimum sentence applied.

                                                  A.

       An offender sentenced under section 2252(b)(2) generally faces a maximum punishment of

no more than 10 years’ imprisonment. Section 2252(b)(2) provides, however, that offenders with

certain prior convictions are subject to a mandatory ten-year minimum sentence. Relevant here,

section 2252(b)(2) subjects offenders who have previously been convicted “under the laws of any

State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor

or ward” to a mandatory minimum ten-year sentence.

       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.” Beardsley,

691 F.3d at 259. Under a categorical approach, courts compare the statute forming the basis of the

defendant’s prior conviction with the applicable generic offense in the federal sentencing statute. Id.

In contrast, under the modified categorical approach, courts may, to a limited extent in order to

discover the elements of the prior conviction, “consider facts underlying the prior conviction if they


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are based upon adequate judicial record evidence.” Id. at 259, 270–71 & n.12 (internal quotation

marks omitted).

       The district court, based on our decision in Rood, applied what it identified as a modified

categorical approach and looked to the charging document, which established the significant age

disparity between Barker and his victim. Given this age disparity, the district court concluded that

Barker’s state-court conviction for statutory rape involved abuse and therefore triggered section

2252(b)(2)’s mandatory minimum sentence.

       The district court imposed its sentence, however, without the benefit of this court’s decision

in Beardsley, which was decided two months after Barker’s sentencing. Beardsley makes clear that the

district court should have applied a categorical approach.

       In Beardsley, we reviewed whether a defendant’s conviction under New York’s Endangering

the Welfare of a Child statute qualified as a state crime “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor” under 18 U.S.C. § 2252A(b)(1). Id. at 268–69.

We explained that

       the modified categorical approach is appropriate only where a statute is divisible into
       qualifying and non-qualifying offenses, and not where the statute is merely worded
       so broadly to encompass conduct that might fall within with the definition of the
       federal predicate offense—here, “aggravated sexual abuse, sexual abuse, or abusive
       sexual conduct involving a minor or ward,” 18 U.S.C. § 2252A(b)(1)—as well as
       other conduct that does not.

Id. at 258. Accordingly, because the New York statute under which the defendant was charged was

“merely broad, not divisible,” we held that the district court should have applied a categorical

approach in determining whether the federal sentencing enhancement applied. Id.

       The Supreme Court has now affirmed Beardsley’s rule. In Descamps v. United States, 133 S. Ct.

2276 (2013), the Supreme Court resolved a split among the circuit courts as to the use of the

modified categorical approach, id. at 2283 & n.1 (identifying Beardsley’s place among the circuits), and




                                                   5
held that “sentencing courts may not apply the modified categorical approach when the crime of

which the defendant was convicted has a single, indivisible set of elements,” id. at 2282.

        It is clear from Descamps and Beardsley that the modified categorical approach “serves a

limited function.” Id. at 2283. The modified categorical approach is merely a tool for district courts

to use to “determine which alternative element in a divisible statute formed the basis of the

defendant’s conviction.” Id. at 2293; see also Beardsley, 691 F.3d at 274. Once 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. Descamps,

133 S. Ct. at 2285; Beardsley, 691 F.3d at 270–71 & n.12. Thus, neither the categorical nor modified

categorical approach permit the district court to examine documents from a defendant’s state court

conviction to determine whether the context and facts of the defendant’s crime fit the generic

offense in the sentencing enhancement statute. Descamps, 133 S. Ct. at 2287.

        Given the standard identified in Beardsley and confirmed by Descamps, the district court erred

in its approach to determining whether section 2252(b)(2)’s sentencing enhancement applied.

Vermont’s former statutory rape law, in effect at the time of Barker’s 2002 conviction, provides that

a person is guilty of “sexual assault” where

        [the] person . . . engages in a sexual act with another person and . . . [t]he other
        person is under the age of 16, except where the persons are married to each other
        and the sexual act is consensual.

Vt. Stat. Ann. tit. 13, § 3252(a)(3). The law criminalizes a single offense: an unlawful sexual act with a

person under the age of 16 to whom the offender is not married. It is not “divisible into predicate

and non-predicate offenses—i.e., divided into disjunctive subsections, or separately listed within a

single provision.” Beardsley, 691 F.3d at 275. In other words, the Vermont law is not one “listing

potential offense elements in the alternative.” Descamps, 133 S. Ct. at 2283. As a result, consistent


                                                    6
with the teaching of Descamps and Beardsley, the district court should have used a categorical approach

in determining whether Vermont’s former statutory rape provision qualified as a predicate offense

under section 2252(b)(2), without any recourse to documents underlying Barker’s state conviction.2

         The district court’s error is understandable given our statement in Rood that where “the

congruency of the [state] and federal statutes [cannot] be determined from their text alone, the

district court [is] required to analyze whether the facts underlying the state conviction satisfied the

elements of the federal statute.” Rood, 679 F.3d at 98, citing United States v. Walker, 595 F.3d 411, 443-

44 (2d Cir. 2010). As both the Supreme Court and this court have since clarified, however, this

statement was erroneous in two respects. First, the modified categorical approach is “applicable only

to divisible statutes,” Descamps, 133 S. Ct. at 2284; see also Beardsley, 691 F.3d at 264, and does not

apply merely because “the congruency of the [state] and federal statutes [cannot] be determined

from their text alone.” Second, “the modified approach merely helps implement the categorical

approach when a defendant was convicted of violating a divisible statute,” Descamps, 133 S. Ct. at

2285, and therefore a court employing that approach may not “analyze whether the facts underlying

the state conviction satisfied the elements of the federal statute.” Rather, the modified categorical

approach simply provides a tool enabling courts to discover the elements of the defendant’s prior

conviction. Descamps, 133 S. Ct. at 2285; Beardsley, 691 F.3d at 270–72 & n.12. These principles apply

to any prior conviction, whether stemming from a jury verdict or a guilty plea. See, e.g., Shepard v.

United States, 544 U.S. 13, 19–23 (2005).

                                                           B.

         Barker agrees that the district court should have applied a categorical approach. Barker

argues, however, that even under the categorical approach, his conviction under Vermont’s former

2 Moreover, if Vermont’s statute was divisible, the district court should have only looked to appropriate documents for
the purpose of ascertaining under “which statutory phrase” Barker was convicted in state court. Descamps, 133 S. Ct. at
2285 (internal quotation marks omitted). The district court should not have looked to whether the facts of Barker’s state
crime, specifically his age, triggered the generic sentencing enhancement. Id.


                                                            7
statutory rape provision does not trigger the mandatory minimum sentence in section 2252(b)(2)

because it is not inherently “abusive.”

        Under a categorical approach, “‘we consider [Barker’s state] offense generically, that is to say,

we examine it in terms of how the law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.’” Beardsley, 691 F.3d at 259, quoting Begay

v. United States, 553 U.S. 137, 141 (2008); see also United States v. Ivezaj, 568 F.3d 88, 95 (2d Cir. 2009)

(explaining that in applying a categorical approach, the court focuses on “the intrinsic nature” of the

potentially predicate offense) (internal quotation marks omitted). We then consider whether Barker’s

state conviction meets the elements of the applicable generic offense in section 2252(b)(2). See

Descamps, 133 S. Ct. at 2281. Section 2252(b)(2) imposes a mandatory ten-year sentence on any

defendant who “has a prior conviction . . . under the laws of any State relating to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a minor.” Thus, our task is to determine

whether Vermont’s statutory rape statute, by its elements and nature, “relat[es] to aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a minor.”

        Barker first argues that “aggravated sexual abuse, sexual abuse, [and] abusive sexual conduct

involving a minor” constitute three separate types of predicate offenses. Barker further suggests that

the phrase “involving a minor” modifies only the last category, “abusive sexual conduct.” As a

result, Barker contends, “abusive sexual conduct” is the only category that may apply where a statute

contemplates a minor victim; “aggravated sexual abuse” and “sexual abuse,” on the other hand,

necessarily apply only to convictions for crimes against adults.

        While it appears from the text of section 2252(b)(2) that “aggravated sexual abuse, sexual

abuse, [and] abusive sexual conduct involving a minor” are distinct types of predicate offenses, we

need not delineate in detail their contours here. In Beardsley, our only decision addressing the same

type of sentencing enhancement at issue in this case, we explained that to qualify as a state


                                                     8
conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a

minor,” the state conviction “must be under a law that relates to the sexual abuse of minors.” 691

F.3d at 269. We did not expressly identify in Beardsley that the three types of predicate offenses are

distinct, nor did we address whether the phrase “involving a minor or ward” modifies only “abusive

sexual conduct” as other Courts of Appeals have done. See United States v. Spence, 661 F.3d 194, 197

(4th Cir. 2011) (concluding that “involving a minor” modifies only “abusive sexual conduct”); United

States v. Hubbard, 480 F.3d 341, 350 (5th Cir. 2007) (same); United States v. Rezin, 322 F.3d 443, 448

(7th Cir. 2003) (same). We need not determine whether Barker is correct that “involving a minor”

modifies only “abusive sexual conduct,” nor do we need to address Barker’s contention that because

Vermont’s statutory rape law applies only to minor victims it cannot relate to “aggravated sexual

abuse” or “sexual abuse.” Instead, we conclude that if a conviction under Vermont’s statute

necessarily involves “sexual abuse of a minor,” see Beardsley, 691 F.3d at 269, at the least, it fits

section 2252(b)(2) as “abusive sexual conduct involving a minor.”

       Barker contends that Vermont’s statute is broader than the applicable generic offense in the

sentencing enhancement because the Vermont law lacks “some aggravating factor” element

requiring that the defendant’s prior criminal conduct was “abusive.” Barker turns to chapter 109A of

title 18 to argue that Vermont’s statute lacks such an “abusiveness” element. As Barker identifies,

18 U.S.C. § 2243(a), part of chapter 109A, titled “sexual abuse of a minor or ward,” requires a four-

year age difference between the minor victim and the offender. Barker argues that because

Vermont’s former statutory rape provision does not contain a similar age disparity requirement or

some other “aggravating factor” such as force, fraud, or threats, a conviction under that provision

does not categorically evince “abusive” sexual conduct involving a minor.

       We reject Barker’s argument that we should gauge whether Vermont’s former statutory rape

provision meets section 2252(b)(2)’s “abusiveness” requirement by reference to chapter 109A or


                                                  9
otherwise in a narrow manner. As stated by our sister circuit, “[section] 2252[(b)(2)] employs

broader language when defining state convictions that qualify as a predicate sex offense[] than it

does when defining predicate federal offenses, such as those located in chapter 109A.” United States

v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007). While a sentencing enhancement for a prior federal

offense under section 2252(b)(2) requires commission of specified crimes, including convictions

under chapter 109A, a defendant with a prior state conviction “need only [have been] convicted of a

state offense ‘relating to . . . sexual abuse [involving a minor or ward].’” Id. In the context of

sentencing enhancements, “relating to” has been “broadly interpreted . . . to apply not simply to

state offenses that are equivalent to sexual abuse, but rather to ‘any state offense that stands in some

relation [to], bears upon, or is associated with [the] generic offense.’” United States v. Strickland, 601

F.3d 963, 967 (9th Cir. 2010), quoting Sinerius, 504 F.3d at 743; see also United States v. Colson, 683 F.3d

507, 511 (4th Cir. 2012); United States v. McGarity, 669 F.3d 1218, 1262 (11th Cir. 2012); United States

v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009); Hubbard, 480 F.3d at 347. By contrast, the recidivism

provision in 18 U.S.C. § 2247(b) provides that prior convictions triggering the mandatory minimum

include any conviction “under State law for an offense consisting of conduct that would have been an

offense under” “chapter [117], chapter 109A, chapter 110, or section 1591” if such offense had been

committed in federal territorial jurisdiction. 18 U.S.C. § 2426(b) (referenced in 18 U.S.C. § 2247(b))

(emphasis added). Therefore, Vermont’s statutory rape provision need not mirror section 18 U.S.C.

§ 2243 or otherwise criminalize comparable conduct to fall within section 2252(b)(2)’s broad

language.

        In sum, federal law defines the category of laws “relating to . . . abusive sexual conduct

involving a minor,” but that category is defined only in general terms, recognizing diversity among

the several states in the specific elements of sexual misconduct laws.




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        We have taken a similar approach in the immigration context. In Mugalli v. Ashcroft, 258 F.3d

52 (2d Cir. 2001), we addressed a provision of the immigration laws referring to federal or state

convictions for “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), and explained:

        What varies from state to state is statutory rape laws. We are confident that Congress
        intended that behavior criminalized in one state and not another can constitute
        [sexual abuse of a minor] if committed in the first state and not the second, even
        though the result would be that identical behavior may result in an alien being
        subject to removal from the United States in the first instance and not in the second.
        The disparate results necessarily follow from the dependence of removal on a
        conviction for [sexual abuse of a minor] rather than on performance of specified
        misconduct. Congress was plainly aware that the substance of criminal law would
        vary from jurisdiction to jurisdiction. . . . Congress therefore surely understood that
        whether conduct would result in removal would depend on the laws of the state in
        which it occurred and would therefore differ from state to state.

Id. at 59–60; see also Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 798 (3d Cir. 2010) (“Congress

eschewed cross references [sic] for crimes identified only by common parlance, such as . . . sexual

abuse of a minor . . . because these terms are not clearly defined and cannot be clearly defined by a

simple cross-reference. To the contrary, Congress purposefully did not employ cross-references for

these generic crimes to ensure the incorporation of a broad range of diverse state statutory

definitions.”). Thus, as in the immigration context, we conclude that rather than require a narrow

formulation, Congress intended that the category of prior convictions under state laws “relating

to . . . abusive sexual conduct involving a minor” potentially encompass convictions under a variety

of state laws, such as the various statutory rape provisions.

        As a result, even if the various state statutory rape laws, and Vermont’s in particular, are

materially different from section 2243 or otherwise lack certain “aggravating factors” that Barker

identifies, they may still trigger section 2252(b)(2) if they “relat[e] to” the “sexual abuse of a minor”

as that phrase is ordinarily understood. See Sonnenberg, 556 F.3d at 671 (applying a broad formulation

of “sexual abuse of a minor” to determine whether the state statute fell within 18 U.S.C.

§ 2252(b)(1)’s sentencing enhancement); but see United States v. Osborne, 551 F.3d 718, 721 (7th Cir.


                                                   11
2009) (construing the provisions of 18 U.S.C. § 2251(b)(1)’s sentencing enhancement with respect to

chapter 109A to determine whether the defendant’s state conviction triggered the sentencing

enhancement). In other words, rather than having to meet a precise federal statutory formula, the

Vermont statute satisfies the predicate-offense criteria in section 2252(b)(2) because it is “a law

dealing with sexual misconduct [involving a minor],” Beardsley, 691 F.3d at 252, defined generically as

“misuse or maltreatment of a minor for a purpose associated with sexual gratification,” Sonnenberg,

556 F.3d at 671 (internal quotation marks omitted).

        Unlike the New York child endangerment statute at issue in Beardsley that, while referencing

minors, was not “a law dealing with sexual misconduct,” 691 F.3d at 269, Vermont’s law plainly

“relat[es] to” the “sexual abuse of a minor.” By its terms, Vermont’s statutory rape provision, under

the broad title of “sexual assault,” criminalizes sexual acts, defined as oral, genital, or anal

contact/penetration, with a person under the age of 16 to whom the offender is not married. Vt.

Stat. Ann. tit. 13, §§ 3251, 3252(a)(3). The Vermont Supreme Court has explained that this provision

is set against the common law rule that “an underage child cannot consent to sex.” State v. Hazelton,

915 A.2d 224, 233–34 (Vt. 2006). Section 3252(a)(3) altered the common law prohibition to “extend

the incapacity to consent . . . to sixteen years of age . . . , with an exception for married minors.” Id.

at 234 (citations omitted).

        We conclude that a law that proscribes non-consensual sexual acts with a minor victim

addresses, by its nature, “abusive sexual conduct involving a minor,” defined ordinarily as “misuse

or maltreatment of a minor for a purpose associated with sexual gratification,” Sonnenberg, 556 F.3d

at 671 (internal quotation marks omitted); see also Beardsley, 691 F.3d at 269 (identifying in a

hypothetical situation that “statutory rape [is] an offense unquestionably relating to the sexual abuse

of a minor”). Contrary to Barker’s assertion, it makes no difference that federal law would not

consider as non-consensual the same sexual acts covered by Vermont’s law; after all, by including


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the terms “conviction” and “laws . . . relating to” in section 2252(b)(2), Congress recognized variation

in the diverse state sexual misconduct laws that could lead to predicate offenses under section

2252(b)(2), and, as relevant here, it left for states to define the relevant boundary between

consensual and non-consensual sexual activity. Thus, even if the relevant state statute lacks some

significant age disparity or other “aggravating factor” identified elsewhere in federal law, we

conclude that a conviction for statutory rape in Vermont, by its nature, qualifies categorically as an

offense “relating to . . . abusive sexual conduct involving a minor” within the meaning of section

2252(b)(2).

       Therefore, although the district court applied a modified categorical approach, there was no

prejudice to Barker because the record permits us to conclude under a categorical approach that

Barker’s Vermont conviction triggers section 2252(b)(2)’s sentencing enhancement.

                                                  III.

       We conclude that

       (1) because Vermont’s statutory rape provision under which Barker was convicted is non-

divisible, the district court should have applied a categorical approach, without recourse to the

underlying facts of Barker’s state conviction; and

       (2) under a categorical approach, Vermont’s statutory rape provision is “relat[ed] to . . .

abusive sexual conduct involving a minor” within the meaning of section 2252(b)(2), thereby

triggering that section’s sentencing enhancement.

       AFFIRMED.




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