United States v. Van Mead, 773 F.3d 429

Terry Van Mead pleaded guilty to failing to register as a sex offender (18 U.S.C. § 2250(a)) and to possession of stolen firearms; sentenced to 130 months.
Mead had a 2006 New York conviction under N.Y.P.L. § 130.40(2) for criminal sexual act in the third degree (oral/anal sex by a person 21+ with a person under 17); the conviction required sex-offender registration.
The Presentence Report treated Mead’s § 130.40(2) conviction (and a prior attempted burglary) as "crimes of violence" under U.S.S.G. § 4B1.2, triggering a § 2K2.1 base offense level of 24 and increasing his Guidelines range.
Mead objected; the district court relied on this Court’s decision in United States v. Daye and concluded the New York statute qualified as a "crime of violence," rejected Mead’s objection, and imposed the 130-month sentence.
On appeal the Second Circuit applied the categorical approach for § 4B1.2(a)(2)’s residual clause and reversed: it held N.Y.P.L. § 130.40(2) is not categorically a "crime of violence" because it principally covers 15– and 16‑year‑old victims (many jurisdictions set age of consent at 16), and the statute is the least serious grade in an escalating scheme.
The court vacated the judgment and remanded for resentencing, explaining that Daye (which involved a broader Vermont statute covering younger children) is distinguishable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conviction under N.Y.P.L. § 130.40(2) is a “crime of violence” under U.S.S.G. § 4B1.2	Government: statute categorically involves a serious potential risk of physical injury and is therefore a crime of violence (district court relied on Daye).	Mead: conviction covers older teens (15–16), lacks physical‑force element, and thus is not categorically a crime of violence.	The Second Circuit held § 130.40(2) is not categorically a crime of violence under § 4B1.2; vacated and remanded for resentencing.

United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (held Vermont statute criminalizing sexual contact with minors under 16 was a "violent felony" under ACCA)
Begay v. United States, 553 U.S. 137 (2008) (categorical inquiry; strict‑liability/negligence offenses must be similar in kind and degree to exemplar crimes)
James v. United States, 550 U.S. 192 (2007) (ordinary‑case inquiry for residual clause risk assessment)
Sykes v. United States, 564 U.S. 1 (2011) (limiting Begay’s framework to strict‑liability/negligence/recklessness crimes; comparison to exemplar crimes required)
Gray v. United States, 535 F.3d 128 (2d Cir. 2008) (look to ACCA precedent when interpreting § 4B1.2 due to identical language)
Descamps v. United States, 570 U.S. 254 (2013) (statutory divisibility and categorical approach guidance)