918 F.3d 47
2d Cir.2019Background
- Defendant Jay Kroll pleaded guilty in federal court to two counts of sexual exploitation of a child (18 U.S.C. § 2251), possession of child pornography, and an offense as a registered sex offender; district court imposed concurrent life sentences on the § 2251 counts based on a statutory mandatory life provision, 18 U.S.C. § 3559(e)(1).
- The government sought life under § 3559(e)(1) because Kroll had a 1993 New York conviction for sodomy in the second degree (N.Y. Penal Law § 130.45), which the district court treated as a qualifying “prior sex conviction” in which a minor was the victim.
- The New York statute in 1993 criminalized deviate sexual intercourse with persons under 14; the closest federal analogue, 18 U.S.C. § 2241(c), criminalizes sexual acts with persons under 12 (with other provisions for ages 12–15 only under certain force/incapacity conditions).
- At plea and sentencing Kroll stipulated the 1993 victim was eleven; the district court nonetheless relied on that conviction as triggering mandatory life and stated it had no authority to impose less.
- On appeal, Kroll argued the district court erred by not applying the categorical approach (comparing statutory elements, not underlying conduct) to determine whether the 1993 conviction qualified under § 3559(e); the Second Circuit agreed and vacated the life sentences.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Kroll) | Held |
|---|---|---|---|
| Does § 3559(e) require the categorical approach to determine whether a prior state conviction is a qualifying “prior sex conviction”? | § 3559(e) refers to the defendant’s "conduct," so the court may examine the underlying conduct (conduct-specific approach). | The categorical approach applies; compare the elements of the state statute to the federal statute. | Categorical approach applies; compare statutory elements, not underlying conduct. |
| Did Kroll waive his challenge by stipulating his 1993 victim’s age? | Stipulation showing the prior victim was under 12 amounted to waiver of challenge to § 3559(e) applicability. | The stipulation did not show knowing, intentional waiver of the right to challenge statutory applicability. | No waiver; Kroll did not knowingly relinquish the right to challenge the enhancement. |
| Did the district court plainly err by treating the 1993 conviction as a qualifying prior sex conviction and imposing mandatory life? | Even if the categorical approach applies, the court’s sentence reflects that it would have imposed life regardless. | The court plainly erred by using underlying conduct rather than the categorical comparison; the error affected Kroll’s substantial rights. | Plain error found: the state statute is broader than the federal statute, so the 1993 conviction does not qualify; sentence vacated and remanded. |
| What relief is appropriate? | Life sentence affirmed or harmless because court would have imposed life anyway. | Vacatur and remand for resentencing without treating the 1993 conviction as a categorical predicate. | Vacate the mandatory life sentences on Counts One and Two and remand for resentencing; district court retains discretion to impose a severe sentence. |
Key Cases Cited
- United States v. Rood, 679 F.3d 95 (2d Cir. 2012) (applied categorical approach to § 3559(e) analysis)
- Stuckey v. United States, 878 F.3d 62 (2d Cir. 2017) (describing the categorical inquiry as whether the least conduct criminalized by the state statute falls within the federal statute)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct. 2016) (ACCA precedent endorsing categorical approach and limiting inquiry to convictions' elements)
- Descamps v. United States, 570 U.S. 254 (Sup. Ct. 2013) (clarified and limited the modified categorical approach to divisible statutes)
- Taylor v. United States, 495 U.S. 575 (Sup. Ct. 1990) (established categorical approach foundations)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (Sup. Ct. 2016) (explaining prejudice when sentencing depends on incorrect legal conclusion)
- United States v. Dantzler, 771 F.3d 137 (2d Cir. 2014) (district court erred by relying on sentencing-time facts to classify prior convictions)
- United States v. Barker, 723 F.3d 315 (2d Cir. 2013) (explaining limits of modified categorical approach)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (Sup. Ct. 2017) (example where a broader state statute failed categorical match with federal counterpart)