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Second Circuit Holds NY Sodomy Not ‘Prior Sex Conviction’ for Purposes of Federal Statute Mandating Life Sentence for Repeat Sex Offenders

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held that a prior conviction for sodomy under New York law is not a valid prior sexual offense conviction under the categorical approach to mandate a life sentence as a repeat sex offender under 18 U.S.C. § 3559(e).

Having been convicted of new federal sexual offenses involving a minor, Judge Leonard D. Wexler of the Eastern District of New York sentenced Jay Kroll to a mandatory term of life in prison based on his prior conviction in New York for sodomy, plus 10 years for committing the new offenses while being a registered sex offender.

When Kroll’s standby counsel (he largely represented himself) argued that a life sentence was unjustified, the judge responded, “Normally, I agree that giving someone a life sentence who didn’t kill somebody seems irrational.”  However, the judge reasoned that the sexual abuse of Kroll’s victims was “torture” that would last their lifetime, and Kroll’s life sentence would be “equal to that.”  The judge also said, “I have no authority to go under that, even if I wanted to, which I don’t.”

Kroll took his life sentence to the Court of Appeals for the Second Circuit, arguing that the district court erred in counting his prior New York sodomy conviction as a “prior sex conviction” mandating a life sentence.  The Court agreed.

Under 18 U.S.C. Sec. 3559(e), titled “Mandatory life imprisonment for repeated sex offenses against children,” a sentencing court is required to impose a life sentence if the instant offense is a covered offense involving a minor and the defendant “has a prior sex conviction in which a minor was the victim.”  A prior sex conviction under state law qualifies if it “consists of conduct that would be a federal sex offense.”  § 3559(e)(2)(B).

The Court agreed with the parties that New York sodomy is most comparable to a federal sex offense under 18 U.S.C. § 2241(c), the sexual abuse provision under federal law, which applies to anyone who “knowingly engages in a sexual act with another person that has not attained the age of 12 years.”

The problem, Kroll argued, is that New York sodomy criminalizes engaging in “deviate sexual intercourse with another person less than fourteen years old.”  N.Y. Penal Law § 130.45. So, because New York’s law criminalizes a broader swath of conduct than its federal counterpart, his prior sodomy conviction could not be used to impose a life sentence.

The Government took a different tack and argued that § 3559(e) requires the sentencing court to look at the “conduct” in Kroll’s prior conviction because that is what the federal statute says, and Kroll’s victim in the New York case was 11 years old.

The Court rejected the conduct-specific approach and ruled that the “categorical approach” applies in assessing whether a prior conviction qualifies under § 3559(e).  The Court took the opportunity to clarify its earlier decision in United States v. Rood, 679 F.3d 95 (2d Cir. 2012), in which it held that the categorical approach applies to § 3559(e) but also allowed the sentencing court to look at state court documents to examine the defendant’s conduct to determine if the prior conviction involved conduct meeting the criteria under § 3559(e).  That portion of Rood was wrongly decided, the Court announced, in light of subsequent U.S. Supreme Court decisions beginning with Descamps v. United States., 570 U.S. 254 (2013).

But Rood’s holding applying the categorical approach to § 3559(e) stands, the Court explained, and applying it to Kroll’s prior conviction rendered it overbroad and invalid to support his life sentence. Under the categorical approach, the district court is only allowed to look at the elements of Kroll’s prior conviction, not at what he actually did.

Because the New York sodomy statute prohibits sexual conduct with victims older than 12 years old, it “swept more broadly” than the federal equivalent offense under § 2241(c), the Court concluded.

While the sentencing judge said he would have imposed the same life sentence even if he weren’t required to do so, the Court of Appeals said that because the sentencing judge imposed a mandatory life sentence based on a statute that did not apply, the error affected Kroll’s substantial rights and requires resentencing. 

Accordingly, the Court vacated Kroll’s sentence and remanded to the district court for proceedings consistent with its opinion. See: United States v. Kroll, 918 F.3d 47 (2d Cir. 2019). 

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