United States v. Barker
2013 WL 3388381
2d Cir.2013Background
- Barker pleaded guilty to one count of possession of child pornography in federal court; government dismissed other charges.
- Barker was on Vermont probation for a 2002 statutory rape conviction under VT. Stat. Ann. tit. 13, § 3252(a)(3).
- The Vermont statute criminalizes sexual acts with a minor under 16 where not married, without requiring significant age disparity.
- District court treated Barker’s prior state conviction as a predicate under 18 U.S.C. § 2252(b)(2) via a modified categorical approach.
- Beardsley (2012) held the modified approach is inappropriate for indivisible statutes; Descamps (2013) refined limits on modified approach.
- Court held Barker’s Vermont statute is non-divisible and, under a categorical approach, relates to abusive sexual conduct involving a minor, triggering § 2252(b)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barker's Vermont conviction triggers §2252(b)(2) | Government: conviction relates to abusive conduct and triggers minimum | Barker: statute not abusive; apply categorical approach without reliance on state facts | Yes; applying categorical approach, statute relates to abusive minor conduct and triggers minimum |
Key Cases Cited
- Beardsley v. United States, 691 F.3d 252 (2d Cir. 2012) (court must use categorical, not modified, approach for indivisible statutes)
- Descamps v. United States, 133 S. Ct. 2276 (Supreme Court 2013) (modified categorical approach unavailable for indivisible statutes)
- Rood v. United States, 679 F.3d 95 (2d Cir. 2012) (initial endorsement of modified categorical approach in certain contexts)
- Sonnenberg v. United States, 556 F.3d 667 (8th Cir. 2009) (broad interpretation of "sexual abuse of a minor" in §2252(b)(2))
- Beardsley (Beardsley v. United States), 691 F.3d 252 (2d Cir. 2012) (discusses divisible vs non-divisible statutes in predicate offenses)