Child Porn Mandatory Minimums: Think Before You Plead - U.S. Second Circuit
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Child Porn Mandatory Minimums: Think Before You Plead

Want to help your client turn a possible five-year sentence into twenty? You can do it in two easy steps. First, forget about federal sentencing enhancements. Second, let him plead guilty without an agreed-upon sentence.

For an excellent demonstration, take a look at this case

The facts

In January 2012, the federal government charged appellant Leonard J. Allen with transporting child pornography, receiving child pornography, and possessing child pornography.

The government also filed a special information based on Allen's prior state conviction pursuant to 18 U.S.C. § 2252A(b). This triggered a sentencing enhancement. The mandatory minimum for the transportation and receipts counts was five years; the enhancement made it fifteen. The possession count had no mandatory minimum; the enhancement gave it a minimum of ten. Allen's state conviction resulted from his touching a thirteen-year-old boy's genitals through the boy's clothing. He was only sentenced to nine months for that.

Allen pled guilty to all the charges, but objected to the enhancements. He contends that his state conviction cannot form the basis for the enhancement because New York statute criminalizes a broader range of conduct than the federal statute.

He raised two issues.

1. Did Allen's conduct under his state conviction fall under the definition of sexual abuse of a minor?

Under the federal statute, an enhancement is triggered by a state conviction "relating to aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor." Allen argued that the enhancement statute was not applicable because his conduct did not amount to a "sexual act" because "sexual act" has been defined under federal law as intentional touching, not through clothing according to 18 U.S.C. §2246(2)(D). He pointed out that New York's definition of "sexual contact" includes any touching of a sexual nature including through clothing.

The court rejected this argument. Relying on United States v. Barker, it looked at the state statute generically and did not consider how the individual offender violated it on a particular occasion. It did not look at the particular conduct that resulted in Allen's conviction, but merely looked to the statute under which he was convicted and determined that it prohibits conduct that "falls within the ordinary meaning of the term sexual abuse of a minor." Allen was convicted of violating that statute, and the court therefore concluded that the sentencing enhancement was valid.

2. Do the terms "aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor" in 18 U.S.C. §2252A(b) refer to specific federal offenses?

Allen relied on United States v. Osborne to argue that "aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor" are terms that refer to specific federal offenses. In that case, the Seventh Circuit stated 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."

The Second Circuit rejected that argument as well. It stated that a sentencing enhancement for a prior federal offense would require a conviction of specified crimes. In this case, the enhancement was based on a state conviction.

Conclusion

The public defender told the court Allen's sad history and asked for a sentence of five years. Unfortunately, by allowing Allen to plead guilty with the state conviction on his record, the public defender guaranteed him a fifteen-year sentence. The judge sentenced him to twenty.

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