12-3968-cr
United States v. Simard


                                In the
   United States Courts of Appeals
                  For the Second Circuit
                               ________

                            No. 12-3968-cr

                   UNITED STATES OF AMERICA,
                            Appellee,

                                   v.

                           SHAWN SIMARD,
                          Defendant-Appellant.
                               ________

     Appeal from the United States District Court
               for the District of Vermont.
    No. 2:10-cr-47-1 ― William K. Sessions, III, Judge.
                        ________

                    ARGUED: JUNE 20, 2013
                  DECIDED: SEPTEMBER 10, 2013
                           ________

Before: CALABRESI, CABRANES, and SACK, Circuit Judges.
                      ________
2                                          No. 12-3968-cr




       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).
This sentence was based on the application of a
mandatory ten-year minimum triggered, according to
the District Court, by Simard’s prior conviction in
Vermont state court for “lewd or lascivious conduct
with a child,” in violation of 13 Vt. Stat. Ann. § 2602.

       This appeal requires us to decide (1) whether the
District Court erred in using the “modified categorical
approach” to determine whether a conviction under 13
Vt. Stat. Ann. § 2602 triggers the mandatory ten-year
minimum contained in 18 U.S.C. § 2252(b)(2); 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 aggravated sexual abuse,
sexual abuse, or 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, --- F.3d ----, 2013 WL 3388381 (2d Cir. July 9,
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 determine 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 18 U.S.C. § 2252(b)(2)’s
3                                          No. 12-3968-cr




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).

      Affirmed.

                        ________

                   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.

                        ________

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
4                                                         No. 12-3968-cr




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 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.



    1   Title 18 U.S.C. § 2252(b)(2) provides:
    Whoever violates, or attempts or conspires to violate, paragraph
    (4) of subsection (a) shall be fined under this title or imprisoned
    not more than 10 years, or both, but if . . . such person 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, or the production, possession, receipt, mailing,
    sale, distribution, shipment, or transportation of child
    pornography, such person shall be fined under this title and
    imprisoned for not less than 10 years nor more than 20 years.
    2 As described at greater length below, courts have employed two
approaches for determining whether a state conviction “relate[s] to
aggravated sexual abuse sexual abuse, or abusive sexual conduct
involving a minor or ward.” 18 U.S.C. § 2252(b)(2). As we have
explained, “[u]nder 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.” United States v. Barker, -
-- F.3d ----, 2013 WL 3388381, at *2 (2d Cir. July 9, 2013). “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 are based upon adequate judicial
record evidence.” Id. (internal quotations marks omitted). In other
words, the “categorical approach” only takes into account the language
of the underlying state statute, while the “modified categorical
5                                                     No. 12-3968-cr




      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, --- F.3d ----, 2013 WL 3388381 (2d
Cir. July 9, 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.



approach” permits courts to probe, to a limited extent, the actual nature
of the defendant’s prior crime.
6                                          No. 12-3968-cr




                   BACKGROUND

                           A.

       In 2009, while Simard was on probation for a
prior offense that involved lewd or lascivious conduct
with a child, two probation officers went with Simard to
his residence and discovered a laptop containing a
video file depicting child pornography. Investigators
later discovered that the laptop had fourteen additional
images of child pornography stored on it.

       On May 25, 2010, a federal grand jury in
Burlington, Vermont, returned an Indictment charging
Simard with one count of receipt of child pornography,
in violation of 18 U.S.C. § 2252(a)(2), and one count of
possession of child pornography, in violation of 18
U.S.C. § 2252(a)(4). On May 12, 2011, Simard pleaded
guilty to the child pornography possession count
(Count Two). In exchange for Simard’s plea of guilty,
the government agreed to move to dismiss Count One
of the Indictment.

       As noted, the appropriate sentence for a
conviction based on the possession of child
pornography depends, in part, on whether the
defendant has previously been convicted of a crime
“relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” 18
U.S.C. § 2252(b)(2). If he has no such prior conviction, a
defendant convicted of possession of child pornography
may be imprisoned for up to ten years, but if he does
have such a prior conviction, he must be imprisoned for
at least ten, and up to as many as twenty, years. Id.
7                                                      No. 12-3968-cr




       In 2004, Simard pleaded guilty to violating 13 Vt.
Stat. Ann. § 2602, which, at that time, provided that
“[n]o person shall willfully and lewdly commit any
lewd or lascivious act upon or with the body, or any
part or member thereof, of a child under the age of 16
years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of such
person or of such child.”3 13 Vt. Stat. Ann. § 2602 (2004).
In light of Simard’s prior conviction, the District Court
was confronted with the following question: Does 13 Vt.
Stat. Ann. § 2602 “relat[e] to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a
minor or ward,” 18 U.S.C. § 2252(b)(2), such that Simard
was subject to 18 U.S.C. § 2252(b)(2)’s mandatory ten-
year minimum sentence when he pleaded guilty to
possessing child pornography?

       Although the parties initially agreed that
Simard’s 2004 conviction under 13 Vt. Stat. Ann. § 2602
triggered 18 U.S.C. § 2252(b)(2)’s sentencing
enhancement, the District Court asked the parties to
brief this issue. Thereafter, Simard changed his earlier
position regarding 13 Vt. Stat. Ann. § 2602 and, in
presenting the issue to the District Court, claimed that
his prior conviction did not trigger 18 U.S.C.
§ 2252(b)(2)’s sentencing enhancement. The government
continued to contend that Simard’s prior conviction was
a “predicate offense” under 18 U.S.C. § 2252(b)(2).


    3 In 2005, after Simard pleaded guilty to violating 13 Vt. Stat. Ann.
§ 2602, the statute was amended to include the following provision:
“This section shall not apply if the person is less than 19 years old, the
child is at least 15 years old, and the conduct is consensual.”
8                                          No. 12-3968-cr




       On September 1, 2001, Judge Sessions filed a
Memorandum and Order holding that Simard’s prior
conviction for lewd or lascivious conduct with a child
triggered     18   U.S.C.     § 2252(b)(2)’s   sentencing
enhancement. In doing so, Judge Sessions considered
the question under both the categorical and modified
categorical approaches. First, he concluded that a
conviction under 13 Vt. Stat. Ann. § 2602 did not trigger
the enhancement under the categorical approach,
stating that “although all of the conduct covered by [13
Vt. Stat. Ann. § 2602] is for a purpose associated with
sexual gratification, it is not necessarily abusive,”
insofar as the statute would also criminalize non-
abusive conduct such as “exploratory touching between
students in high school.” United States v. Simard, No.
2:10-cr-47-1, 2011 WL 3862300, at *4 (D. Vt. Sept. 1, 2011)
(internal quotation marks and citations omitted).
Second, Judge Sessions determined that, under the
modified categorical approach, Simard’s prior
conviction did trigger the sentencing enhancement in
light of certain “explicit factual findings by the trial
judge to which the defendant assented.” Id. at *6
(internal quotations marks and alterations omitted).
Accordingly, Judge Sessions ultimately held that
Simard was subject to a mandatory ten-year minimum
sentence.

     On August 13, 2012, Judge Sessions sentenced
Simard to 121 months’ imprisonment―one month
above the applicable mandatory minimum. Judgment
was entered on August 15, 2012. This appeal followed.
9                                            No. 12-3968-cr




                      DISCUSSION

       “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 also note
that “we are free to affirm a decision on any grounds
supported in the record, even if it is not one on which
the trial court relied.” Thyroff v. Nationwide Mut. Ins. Co.,
460 F.3d 400, 405 (2d Cir. 2006).

                             A.

       Whether courts should apply the categorical
approach or the modified categorical approach in
deciding whether a prior conviction triggers a federal
mandatory minimum sentencing enhancement has been
discussed in several recent opinions by the Supreme
Court and by this Court. See Descamps v. United States,
133 S. Ct. 2276, 2283-86 (2013); Barker, 2013 WL 3388381,
at *2; Beardsley, 691 F.3d at 259. In describing the two
approaches, we recently stated in Barker that

      [u]nder 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. 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
      are based upon adequate judicial record
      evidence.
10                                                  No. 12-3968-cr




2013 WL 3388381, at *2 (internal quotation marks
and citations omitted).

       These recent cases have clarified many aspects of
this area of law. As relevant here, we held in Beardsley
(and reaffirmed in Barker) 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 . . . the
definition of the federal predicate offense . . . as well as
other conduct that does not.” Beardsley, 691 F.3d at 258.
In light of this holding in Beardsley―which the Supreme
Court approved of in Descamps, 133 S. Ct. at 2283 &
n.1―the first question raised in this appeal becomes
straightforward. Indeed, because Simard pleaded guilty
to violating 13 Vt. Stat. Ann. § 2602, which criminalizes
a single, non-divisible offense―“willfully and lewdly
commit[ing] any lewd or lascivious act upon or with the
body, or any part or member thereof, of a child under
the age of 16 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of such person or of such child”―the District
Court should have applied the categorical approach to
determine whether Simard’s prior conviction triggered
18 U.S.C. § 2252(b)(2)’s sentencing enhancement.4 See
Barker, 2013 WL 3388381, at *4. Accordingly, the District
Court erred in applying the modified categorical
approach.

     We are mindful that the District Court did not have the benefit of
     4

Descamps, Barker, or Beardsley when it decided that Simard’s prior
conviction triggered 18 U.S.C. § 2252(b)(2)’s sentencing enhancement
using the modified categorical approach.
11                                           No. 12-3968-cr




                             B.

       Although these recent precedents answer the first
question presented in this appeal, the second question
presented―whether 18 U.S.C. § 2252(b)(2)’s sentencing
enhancement applies―requires some additional
analysis. As noted, the District Court held that 13 Vt.
Stat. Ann. § 2602 did not trigger the mandatory ten-year
minimum sentence under the categorical approach, and
Simard contends that the District Court’s conclusion in
that regard was correct. The government argues,
however, that, even under the categorical approach, a
prior conviction for lewd or lascivious conduct with a
child, pursuant to 13 Vt. Stat. Ann. § 2602, triggers 18
U.S.C. § 2252(b)(2)’s sentencing enhancement.

        As we discussed in Barker, this inquiry―under
the categorical approach―requires us to “consider [the
defendant’s state] offense generically, that is to say, . . .
[to] 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. . . .
We then consider whether [the defendant]’s state
conviction meets the elements of the applicable generic
offense in section 2252(b)(2).” Barker, 2013 WL 3388381,
at *4 (internal quotation marks and citations omitted). In
other words, we must determine whether, by its
elements, 13 Vt. Stat. Ann. § 2602 “satisfies the
predicate-offense criteria in section 2252(b)(2) because it
is a law dealing with sexual misconduct involving a
minor, defined generically as misuse or maltreatment of
a minor for a purpose associated with sexual
12                                          No. 12-3968-cr




gratification.” Barker, 2013 WL 3388381, at *7 (internal
quotation marks, citations, and brackets omitted).

       In deciding that Simard’s prior conviction was
not a “predicate offense” under the categorical
approach, the District Court appears to have been
concerned that 13 Vt. Stat. Ann. § 2602 might
criminalize conduct that “is not necessarily abusive.”
Simard, 2011 WL 3862300, at *4 (internal quotations
marks omitted). Indeed, relying on the Seventh Circuit’s
decision in United States v. Osborne, 551 F.3d 718 (7th
Cir. 2009), the District Court stated its view that 13 Vt.
Stat. Ann. § 2602 would criminalize “‘exploratory
touching between students in high school,’” Simard,
2011 WL 3862300, at *5 (quoting Osborne, 551 F.3d at
720), and therefore concluded that the state statute did
not “categorically ‘relat[e] to . . . abusive sexual conduct
involving a minor or ward.’” Id. at *5 (quoting 18 U.S.C.
§ 2252(b)(2)); see also Osborne, 551 F.3d at 719 (vacating a
district court’s imposition of the § 2252(b)(1) sentencing
enhancement where the state statute at issue
criminalized “perform[ing] or submit[ing] to any
fondling or touching, of either the child [any person age
14 or 15] or the older person, with intent to arouse or to
satisfy the sexual desires of either the child or the older
person” because nothing suggested that the conduct
was necessarily “abusive”).

      The Vermont Supreme Court’s authoritative
interpretation of 13 Vt. Stat. Ann. § 2602, however,
makes clear that this Vermont statute would not
criminalize “exploratory touching between students in
high school,” Simard, 2011 WL 3862300, at *5. Indeed,
13                                         No. 12-3968-cr




“[i]n determining what constitutes lewd or lascivious
conduct,” the Vermont Supreme Court “has deferred to
common-sense community standards.” In re P.M., 156
Vt. 303, 308 (1991); see State v. Squiers, 179 Vt. 388, 393
(2006) (noting that whether an act is lewd “depends on
the nature and quality of the contact, judged by
community standards of morality and decency in light
of all the surrounding circumstances, accompanied by
the requisite, specific lewd intent on the part of the
defendant”). Thus, in order for conduct to come under
§ 2602’s proscription, it must run counter to § 2602’s
purpose of “protect[ing] children from sexual
exploitation by any form of physical contact initiated for
that purpose.” See Squiers, 179 Vt. at 393. This inquiry
into whether an act is “lewd” is also informed, at least
in part, by “the relationship of the parties, and any
coercion, bribery, or deceit used to obtain the victim’s
cooperation or avoid detection.” Id. at 394 (citation
omitted). In other words, § 2602 does not criminalize
non-abusive “exploratory” touching. Rather, it targets
exploitation and coercion, or the “misuse or
maltreatment of a minor for a purpose associated with
sexual gratification,” which is how we have previously
defined “abusive sexual conduct involving a minor,”
Barker, 2013 WL 3388381, at *8.

       Finally, although we are mindful that, under
Vermont law, “lewd and lascivious conduct does not
necessarily require physical contact between the
perpetrator and victim,” State v. Wiley, 181 Vt. 300, 305
(2007), we are not persuaded that physical contact is
required to make an act sexually abusive, see, e.g., United
States v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009)
14                                         No. 12-3968-cr




(“[T]he phrase sexual abuse of a minor means a
perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with
sexual gratification.” (internal quotation marks
omitted)); United States v. Diaz-Ibarra, 522 F.3d 343, 350
(4th Cir. 2008); United States v. Padilla-Reyes, 247 F.3d
1158, 1163 (11th Cir. 2001) (“The conclusion that ‘sexual
abuse of a minor’ is not limited to physical abuse also
recognizes an invidious aspect of the offense: that the
act, which may or may not involve physical contact by
the perpetrator, usually results in psychological injury
for the victim, regardless of whether any physical injury
was incurred.”).

      Accordingly, after reviewing how the Vermont
Supreme Court has construed and interpreted the
various elements of 13 Vt. Stat. Ann. § 2602, we
conclude that that state statute does not criminalize
non-abusive conduct. Instead, these precedents of the
Vermont Supreme Court make clear that only certain
conduct―conduct that, in our view, rises to the level of
being “abusive”―would violate 13 Vt. Stat. Ann.
§ 2602. Accordingly, Vermont’s lewd or lascivious
conduct with a child statute criminalizes acts that relate
to sexually abusive conduct involving a minor. See
Barker, 2013 WL 3388381, at *4, 7.

       Our conclusion is reinforced by the fact that two
of our sister Circuits have held in precedential opinions
that virtually identical state statutes trigger the same or
similar sentencing enhancements. See Sonnenberg, 556
F.3d at 671 (“By the terms of the statute, Sonnenberg
either physically or nonphysically misused or
15                                                      No. 12-3968-cr




maltreated a minor with the intent to seek libidinal
gratification. We hold that a conviction for lascivious
acts with children in violation of section 725.2 of the
1966 Code of Iowa categorically qualifies to enhance
Sonnenberg’s sentence.”); United States v. Hubbard, 480
F.3d 341, 345-50 (5th Cir. 2007) (similar).5 Additionally,
the Fourth Circuit has reached the same result in a non-
precedential summary order. United States v. Gilbert, 425
F. App’x 212, 215-16 (4th Cir. 2011) (non-precedential
summary        order)   (applying     the     § 2252(b)(2)
enhancement where the previous conviction was for
“[w]illfully commit[ting] or attempt[ing] to commit any
lewd or lascivious act upon or with the body or any part
or member of the body of any child of either sex under
the age of 16 years”).6

     5Although the Seventh Circuit reached the opposite conclusion in
Osborne, we note that the Seventh Circuit’s reasoning in that case
depended on the fact that it held that “sexual behavior is ‘abusive’ only if
it is similar to one of the crimes denominated as a form of ‘abuse’
elsewhere in Title 18.” 551 F.3d at 721. We rejected that reasoning in
Barker. See Barker, 2013 WL 3388381, at *6 (“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. 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.”
(internal quotation marks, citations, and alterations omitted)).
     6We observe that the state statutes at issue in Sonnenberg, Hubbard,
and Gilbert contained provisions requiring an age disparity between the
perpetrator and the victim, but we think that this difference between the
statutes in those cases and the Vermont law at issue here is immaterial,
insofar as the Vermont Supreme Court has limited the application of 13
Vt. Stat. Ann. § 2602 to abusive conduct.
16                                          No. 12-3968-cr




      In sum, in light of the fact that the Vermont
Supreme Court has cabined the scope of 13 Vt. Stat.
Ann. § 2602 to include only acts which “relat[e] to
abusive sexual conduct involving a minor or ward,” 18
U.S.C. § 2252(b)(2), we hold that the District Court
ultimately was correct to apply 18 U.S.C. § 2252(b)(2)’s
mandatory ten-year minimum to Simard’s sentence.

                    CONCLUSION

      To summarize, we hold that:

      (1) Because 13 Vt. Stat. Ann. § 2602 is not a
      divisible statute, the District Court erred in
      applying the “modified categorical approach,”
      and should have applied the “categorical
      approach” in determining whether a prior
      conviction under that statute triggered 18 U.S.C.
      § 2252(b)(2)’s sentencing enhancement; and

      (2) Despite this error, the District Court’s ultimate
      conclusion to apply 18 U.S.C. § 2252(b)(2)’s
      sentencing enhancement was correct 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 the reasons stated, we AFFIRM the District
Court’s August 15, 2012 judgment of conviction.
