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When a sex offense is not a “sex offense”: plain error to apply career sex offender enhancement; categorical approach controls analysis of state law prior convictions

United States v. Dahl, ___ F.3d ___, 2016 WL 4394538, 2016 U.S. App. LEXIS 15171 (3d Cir. No. 15-2271, Aug. 18, 2016).

The district court sentenced William Dahl as a career sex offender under U.S.S.G. § 4B1.5, having decided that Dahl’s two prior Delaware convictions for unlawful sexual contact with minors qualified as “sex offense convictions” under 18 U.S.C. § 2426(b)(1)(B)).

Section 4B1.5 applies when a defendant has a prior “sex offense conviction,” which includes “any offense [covered by 18 U.S.C. § 2426(b)(1)] … perpetrated against a minor.” Section 2426(b)(1)(B), in turn, encompasses any “conviction” for a state sex offense “consisting of conduct that would have been an offense” under listed federal statutes.

As in any good defense-oriented discussion of a sex offense involving a minor, your blogger will gloss over the facts. The legal issue was whether the district court should have done the same. Specifically, the issue was whether the “categorical approach” applies in determining whether Dahl’s state convictions qualify as “sex offense[s]” under § 2426(b)(1). The “categorical approach,” as many readers of this blog will know, requires courts to look only to the elements of the predicate offense, rather than to the facts underlying the conviction, to determine whether the offense supports a recidivism enhancement. E.g., Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Thus the enhancement does not apply if it is possible to commit the predicate offense with conduct that would not merit the enhancement, even if the defendant’s own conduct would.

It is theoretically possible for Congress to write a recidivism enhancement controlled by facts rather than elements (although that would raise Sixth Amendment problems that blogging Dahl does not require addressing); and the government argued in Dahl that § 2426 is just such an enhancement. The government argued that Congress’s use of the phrase “consisting of conduct” in § 2426, and the Sentencing Commission’s use of “perpetrated against a minor” in § 4B1.5, signaled an intent that courts examine the facts underlying the predicate conviction rather than its elements. That is, the government argued that the court may examine Dahl’s conduct rather than the elements of his state offenses.

The circuit rejected the government’s argument and reversed the application of § 4B1.5. It pointed out that the Supreme Court had recently rejected (in Johnson v. United States, 135 S. Ct. 2551 (2015)) the argument that a statutory reference to “conduct” requires evaluating facts rather than elements; and had recently reiterated (in Mathis v. United States, 136 S. Ct. 2243 (2016)) that a statutory reference to “conviction” (also in § 2426) triggers the application of the categorical approach.

The circuit also cited a decision of its own, affirmed by the Supreme Court, to explain that “perpetrated against a minor” is mere “qualifying language.” A court may examine facts to determine whether the qualifier is satisfied – here, whether Dahl’s victims were minors − but must apply the categorical approach in all other respects.

Outstanding appellate advocacy corrects doctrinal drift, and Dahl accomplished that too. When discussing the treatment of qualifying language the circuit admitted that it had, in a 2012 decision, “incorrect[ly] … conflated” the factual inquiry into a qualifier with the “modified categorical approach.” The modified categorical approach applies when the statute of conviction lists more than one crime, and the court must examine underlying judicial documents to identify the crime of conviction. Because the 2012 case had invoked the term in the wrong context, and contained dictum that the Dahl court disavowed in any event, it did not help the government.

Having held that the categorical approach applies, the circuit then determined that the Delaware statutes permitted conviction for conduct that does not violate a listed federal law, and thus the recidivist enhancement does not apply. The court reversed on plain error review − noting the recent Supreme Court precedent, substantial increase to Dahl’s Guidelines range, and the fact that “few things … affect … the public’s perception of the fairness and integrity of the judicial process more than a reasonable probability an individual will linger longer in prison than the law demands only because of an obvious judicial mistake.”

By:  Lisa A. Mathewson, www.mathewson-law.com