Friday, September 02, 2016

Repeat and Dangerous Sex Offender Guideline / Categorical Approach

In United States v. Dahl, No. 15-2271 (3d Cir., Aug. 17, 2016), the district court committed plain error by failing to apply the categorical approach in determining whether Dahl’s Delaware first- and third-degree unlawful sexual contact convictions constitute federal sex offense convictions under the federal repeat offender statute, 18 U.S.C. § 2426(b)(1)(B), and therefore subjected him to an increased sentence under the career sexual offender guideline embodied at U.S.S.G. § 4B1.5. Section 2426(b)(1)(B) refers to a “conviction for an offense . . . consisting of conduct that would have been an offense” under certain federal statutes, and § 4B1.5 refers to a “sex offense conviction” as “any offense [under 18 U.S.C. § 2426(b)(1)(B)], if the offense was perpetrated against a minor.” However, the Supreme Court’s decisions in Descamps, Johnson, Mathis, and Nijhawan v. Holder, 557 U.S. 29 (2009) demonstrate that the factual inquiry triggered by the qualifying language in the statute is limited to the facts relevant to the qualification itself. Therefore, the district court could make a factual inquiry into whether the victim of Dahl’s offenses were minors, but was required to apply the categorical approach to the underlying elements of the predicate offenses.  

Applying the categorical approach, the Court determined that Dahl’s Delaware convictions were broader than the aggravated sexual abuse statutes embodied at 18 U.S.C. § 2241 in two ways, and therefore could not count as predicates for an enhanced sentence under U.S.S.G. § 4B1.5. First, the sexual contact prohibited under Delaware law encompassed touching genitalia and other specified areas through clothing, whereas the federal statute requires penetration or skin-to-skin contact between various body parts. Second, the Delaware third-degree unlawful sexual contact statute prohibited consensual contact the defendant nonetheless knew was “offensive to the victim,” whereas the federal aggravated sexual abuse statute requires a nonconsensual act.
Dahl was entitled to resentencing under plain error review. The error was plain in light of recent Supreme Court precedents, it affected Dahl’s substantial rights because it subjected him to a much harsher guideline range, and the Court typically exercises its discretion to recognize a misapplication of the Guidelines as affecting the fairness, integrity, or public reputation of judicial proceedings.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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