U.S. v. Kroll

918 F.3d 47

UNITED STATES of America, Appellee,

v.Jay KROLL, Defendant-Appellant.

No. 16-4310

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: May 3, 2018

Decided: March 5, 2019

Saritha Komatireddy, Assistant United States Attorney (Amy Busa, Artie McConell, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Robert A. Culp, Garrison, NY, for Defendant-Appellant.

Before: Leval, Lynch, and Droney, Circuit Judges.

Droney, Circuit Judge:

Defendant-Appellant Jay Kroll appeals his sentence of life imprisonment based on his guilty plea to two counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and § 2251(e). At sentencing, the district court concluded that a life sentence was mandatory based on its determination that Kroll’s prior conviction from 1993 for sodomy in the second degree under New York law was a "prior sex conviction" under 18 U.S.C. § 3559(e). Kroll contends that the district court plainly erred in that determination by failing to apply the "categorical approach," which requires comparing the New York statute under which he was convicted with its equivalent federal criminal statute.

We agree. We held in United States v. Rood that the categorical approach applies to 18 U.S.C. § 3559(e). 679 F.3d 95, 98 (2d Cir. 2012) (per curiam) ("In order to determine whether a state offense is equivalent to a federal offense, courts must compare the elements of the state offense to the elements of the federal offense."). Under the categorical approach, a prior state conviction qualifies as a "prior sex conviction" under § 3559(e) only if "the least of conduct made criminal by the state statute [of conviction] falls within the scope of activity" punishable under one of the statutes constituting a "Federal sex offense." Stuckey v. United States , 878 F.3d 62, 67 (2d Cir. 2017). Accordingly, the district court erred in considering Kroll’s underlying conduct to determine whether his 1993 conviction constituted a "prior sex conviction." Applying the categorical approach, Kroll’s 1993 conviction does not qualify as a "prior sex conviction" under § 3559(e) because the state statute under which he was convicted sweeps more broadly than its federal equivalent.

BACKGROUND

On multiple occasions from June to December 2011, Kroll sexually abused a twelve-year-old boy in New York and Pennsylvania and produced sexually explicit photographs and video of himself and the child. Kroll was indicted by a grand jury in the United States District Court for the Eastern District of New York for two counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and § 2251(e) ("Count One" and "Count Two"), possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and § 2252(b)(2) ("Count Three"), and committing Counts One and Two as a registered sex offender in violation of 18 U.S.C. § 2260A ("Count Four").¹

Because Kroll had a particular prior New York state sex offense conviction, the government sought a life sentence for Counts One and Two pursuant to 18 U.S.C. § 3559(e)(1). Section 3559(e)(1) mandates a life sentence upon conviction for certain sex offenses (including those charged under Counts One and Two) if the defendant has a "prior sex conviction" in which a minor was the victim. 18 U.S.C. § 3559(e)(1).

The circumstances of Kroll’s prior New York state conviction are as follows. On March 8, 1993, Kroll pleaded guilty in the County Court of the State of New York, Sullivan County, to sodomy in the second degree in violation of New York Penal Law § 130.45. In 1993, New York Penal Law § 130.45 applied to conduct with a minor under the age of fourteen. N.Y. Penal Law § 130.45 (1965) (amended 2000, 2003).²

At a hearing on September 22, 2014, shortly before the federal trial was scheduled to begin, Kroll moved to proceed pro se . As part of the district court’s colloquy with Kroll to determine if he knowingly and voluntarily waived his right to counsel, the court asked Kroll if he knew that the court "must impose life imprisonment" if Kroll were found guilty of either Count One or Count Two. Joint App’x at 40. Kroll responded that he did know. The court granted Kroll’s motion, appointed his former counsel as standby counsel, and adjourned the trial date.

Kroll ultimately pleaded guilty to all four counts of the indictment.³ At his guilty plea hearing on May 15, 2015, he stipulated that the prior New York state conviction involved an eleven-year-old boy. The United States Magistrate Judge informed Kroll that a life sentence was "both the minimum and the maximum" sentence for Counts One and Two, and Kroll stated that he understood. Joint App’x at 60–61. The district court accepted Kroll’s guilty plea, as the magistrate judge had recommended, and on December 14, 2016, the district court sentenced him to concurrent life sentences on Counts One and Two; twenty years on Count Three, concurrent with Counts One and Two; and ten years on Count Four, to be served consecutively to the life sentences.

At the sentencing proceeding, Kroll’s standby counsel argued that a life sentence was not justified. The district court disagreed, stating:

Normally, I agree that giving someone a life sentence who didn’t kill somebody seems irrational. Th[is is] one of the exceptions. Based upon what I have heard and what I have read, the torture [to Kroll’s victims] is lifetime. The punishment is equal to that. The sentence of the court[:] Count One, life. Count Two, life. Both to run concurrently. And that is the law. I have no authority to go under that, even if I wanted to, which I don’t.

Joint App’x at 139. The district court gave no further explanation for the life sentences on Counts One and Two.

Notwithstanding the request for a lesser sentence by his standby counsel, Kroll did not object at his sentencing to the legal applicability of the mandatory life sentence provided by 18 U.S.C. § 3559(e). On appeal, however, Kroll contends that the district court erred in concluding that his 1993 conviction was a "prior sex conviction" within the meaning of § 3559(e)(1) because the New York statute under which he was convicted in 1993 punishes a broader range of conduct than the most comparable federal sex offense.

DISCUSSION

We first address whether, as Kroll contends, the categorical approach applies to determine whether his 1993 state conviction triggered the mandatory life sentence provision in 18 U.S.C. § 3559(e). Then, we consider whether Kroll waived his right to challenge the applicability of § 3559(e) and, finally, whether the district court committed plain error by failing to apply the categorical approach.

A. The Categorical Approach Applies to Kroll’s Offenses

Section 3559(e)(1) states in relevant part that "[a] person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim." 18 U.S.C. § 3559(e)(1). A "Federal sex offense" is an offense under one of several enumerated federal statutes, including 18 U.S.C. § 2251, under which Kroll was convicted of Counts One and Two. Id. § 3559(e)(2)(A). Thus, we must determine whether Kroll’s 1993 state conviction is a "prior sex conviction" for purposes of § 3559(e)(1) ’s sentencing enhancement.

A "prior sex conviction" comprises either a "Federal sex offense" as defined in § 3559(e)(2)(A), or, as is relevant here, a "State sex offense" as defined in § 3559(e)(2)(B). 18 U.S.C. § 3559(e)(2)(C). For a prior state conviction to qualify as a "State sex offense," it must "consist[ ] of conduct that would be a Federal sex offense" if there were a basis for federal jurisdiction. 18 U.S.C. § 3559(e)(2)(B). Of the enumerated Federal sex offenses under § 3559(e)(2)(A), we agree with the parties that 18 U.S.C. § 2241(c) is the most comparable to New York Penal Law § 130.45.

When Kroll was convicted of the state offense of sodomy in the second degree in 1993, New York Penal Law § 130.45 stated that "[a] person is guilty of sodomy in the second degree when, being eighteen years old or more, he engages in deviate sexual intercourse with another person less than fourteen years old." N.Y. Penal Law § 130.45. By contrast, 18 U.S.C. § 2241(c) applies to a defendant who "knowingly engages in a sexual act with another person who has not attained the age of 12 years ... or attempts to do so."⁴ 18 U.S.C. § 2241(c). The state statute thus punishes some conduct that the federal statute does not: deviate sexual intercourse with twelve- and thirteen-year-old children. As mentioned above, Kroll stipulated at his plea proceeding in the instant case that his victim in the 1993 state offense was eleven years old, below the age limit for both statutes. Therefore, whether Kroll’s 1993 conviction is a "prior sex conviction" turns on whether we look to the statutory elements of the prior conviction or to his conduct underlying that conviction, as admitted in the guilty-plea stipulation in this case.

In United States v. Rood , 679 F.3d 95 (2d Cir. 2012), we addressed how to determine whether a prior state conviction consists of conduct, which, but for the additional element of federal jurisdiction, would be a "Federal sex offense," and thus constitutes both a "State sex offense" under 18 U.S.C. § 3559(e)(2)(B) and makes a conviction for that conduct a "prior sex conviction" under 18 U.S.C. § 3559(e)(2)(C). 679 F.3d at 98. Looking to the text of § 3559(e), we stated that "[i]n order to determine whether a state offense is equivalent to a federal offense, courts must compare the elements of the state offense to the elements of the federal offense." Id. (citing 18 U.S.C. § 3559(e)(2)(B) ). In other words, to this extent, the Rood court adopted a categorical approach.

Under the categorical approach, we "ask[ ] whether the least of conduct made criminal by the state s...