United States v. Simard
2013 U.S. App. LEXIS 18818
| 2d Cir. | 2013Background
- Shawn Simard pleaded guilty in federal court to possession of child pornography (18 U.S.C. § 2252(a)(4)); sentencing raised the question whether a prior Vermont conviction for lewd or lascivious conduct with a child (13 Vt. Stat. Ann. § 2602) triggered the § 2252(b)(2) mandatory 10-year minimum.
- Simard’s 2004 Vermont conviction involved § 2602 (2004), which criminalized willful, lewd or lascivious acts with a child under 16 with the requisite sexual intent; the statute was later amended in 2005 to add a consensual teen exception.
- The District Court applied the modified categorical approach and relied on trial-court factual findings to conclude Simard’s prior conviction triggered the § 2252(b)(2) enhancement and imposed a 121-month sentence (one month above the mandatory minimum).
- On appeal, the Second Circuit addressed (1) whether the modified categorical approach was properly used for § 2602, and (2) whether § 2602 nonetheless categorically “relates to . . . abusive sexual conduct involving a minor or ward” under § 2252(b)(2).
- The Second Circuit held that § 2602 is indivisible, so the modified categorical approach was inappropriate; but, applying the categorical approach and construing Vermont precedent, the court concluded § 2602 criminalizes abusive sexual conduct and therefore qualifies as a predicate under § 2252(b)(2).
- The Second Circuit affirmed the District Court’s imposition of the mandatory ten-year minimum despite the District Court’s use of the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which approach governs determination whether a prior § 2602 conviction qualifies under 18 U.S.C. § 2252(b)(2): categorical or modified categorical? | Government: modified categorical approach appropriate to consult record facts to show the prior conviction related to abusive sexual conduct. | Simard: § 2602 is indivisible; only categorical approach applies. | The statute is indivisible; the categorical approach applies; using the modified categorical approach was error. |
| Does § 2602, viewed categorically, "relate to . . . abusive sexual conduct involving a minor or ward" under § 2252(b)(2)? | Government: Vermont § 2602 targets misuse/maltreatment for sexual gratification and thus qualifies categorically. | Simard: § 2602 is broad and could cover non‑abusive acts (e.g., exploratory touching), so it does not categorically relate to abusive sexual conduct. | Vermont Supreme Court precedent narrows § 2602 to conduct that is lewd/abusive (exploitation, coercion, relationship context); accordingly § 2602 categorically qualifies as relating to abusive sexual conduct, so § 2252(b)(2) enhancement applies. |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (categorical vs. modified categorical approach rule for divisible statutes)
- United States v. Beardsley, 691 F.3d 252 (2d Cir. 2012) (modified categorical approach limited to divisible statutes)
- United States v. Sonnenberg, 556 F.3d 667 (8th Cir. 2009) (lascivious‑acts statute categorically qualifies as sexual abuse of a minor)
- United States v. Osborne, 551 F.3d 718 (7th Cir. 2008) (statute construed as not necessarily "abusive" — discussed and distinguished)
- United States v. Hubbard, 480 F.3d 341 (5th Cir. 2007) (similar statute held to qualify for enhancement)