United States v. Duchesne ( 2023 )

22-1621-cr
United States v. Duchesne
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 25th day of July, two thousand twenty-three.
PRESENT: GERARD E. LYNCH,
JOSEPH F. BIANCO,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 22-1621-cr
Zachary L. Duchesne,
Defendant-Appellant.
_____________________________________
FOR DEFENDANT-APPELLANT: James P. Egan, Assistant Federal Public
Defender, Federal Public Defender’s
Office, Syracuse, NY.
FOR APPELLEE: Michael S. Barnett, Rajit S. Dosanjh,
Assistant United States Attorneys for Carla
B. Freedman, United States Attorney for
the Northern District of New York,
Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (D’Agostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Zachary Duchesne appeals from a judgment principally sentencing
him to a term of imprisonment of fifteen years, to be followed by a supervised release term of
fifteen years. On March 4, 2021, Duchesne was charged with seven counts of knowingly
transporting child pornography over the internet, in violation of 18 U.S.C. § 2252A(a)(1), and
one count of knowing possession of child pornography, in violation of § 2252A(a)(5)(B). On
September 15, 2021, Duchesne pled guilty to all eight counts without a plea agreement. On
July 22, 2022, the district court sentenced Duchesne to a term of fifteen years imprisonment on
each count, all to run concurrently to each other. In addition, the district court imposed a fifteen-
year term of supervised release on all counts, again running concurrently. The district court
imposed this sentence after determining that Duchesne’s prior state court conviction for
attempted possession of a sexual performance by a child, in violation of New York Penal Law
(“NYPL”) §§ 110.00 and 263.16, triggered enhanced federal penalties under 18 U.S.C. §
2252A(b). 1 18 U.S.C. § 2252A(b)(1) and (b)(2). On appeal, Duchesne argues that the district
1
This statutory language is identical in Section 2252A(b)(1) and (b)(2). Section 2252A(b)(1) provides
for an enhanced penalty applicable to a person convicted of transporting child pornography in violation
of 18 U.S.C. § 2252A(a)(1)–(4) or (6), while Section 2252A(b)(2) does the same for a person convicted
of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5). The enhanced penalty under
Section 2252A(b)(1) is a minimum term of imprisonment of fifteen years and a maximum term of
imprisonment of forty years, whereas under Section 2252A(b)(2) the enhanced penalty is a minimum
term of imprisonment of ten years and a maximum term of imprisonment of twenty years. Because these
2
court erred in applying those enhanced penalty provisions, which raised the mandatory minimum
sentence applicable to each count of his federal conviction. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal, which we
reference only as necessary to explain our decision to affirm.
“We review de novo all questions of law relating to the district court’s application of a
sentencing enhancement.” United States v. Kleiner, 765 F.3d 155, 158 (2d Cir. 2014) (internal
quotation marks and citation omitted).
The sole issue on appeal is whether Duchesne’s prior state conviction triggers the
enhanced federal penalties under Section 2252A(b). For the enhanced federal penalties to
apply, Duchesne’s prior state conviction must have arisen under a state law “relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of
child pornography.” 18 U.S.C. § 2252A(b)(1) and (b)(2). The parties agree that, to determine
whether Duchesne’s prior conviction triggers these sentencing enhancements, we apply the
categorical approach. See Descamps v. United States, 570 U.S. 254, 257–65 (2013); United
States v. Simard, 731 F.3d 156, 161–62 (2d Cir. 2013) (per curiam); United States v. Barker, 723
F.3d 315, 319–20 (2d Cir. 2013) (per curiam); United States v. Beardsley, 691 F.3d 252, 259 (2d
Cir. 2012). The categorical approach requires us to:
consider [the defendant’s] state offense generically, that is to say, we examine it
in terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion. We then consider
enhanced penalty provisions are identical to enhancement provisions in a neighboring section that defines
other federal offenses involving child pornography, 18 U.S.C. § 2252(b)(1) and (2), our precedents
interpreting those provisions apply here with equal force.
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whether [the defendant]’s state conviction meets the elements of the applicable
generic offense in section 2252[A(b)].
Barker, 723 F.3d at 321 (alterations adopted) (internal quotation marks and citations omitted).
If the “crime of conviction covers any more conduct than the generic [federal] offense,”
then it is not a categorical match. Mathis v. United States, 579 U.S. 500, 504 (2016). However,
our application of the categorical approach is guided by the federal statute’s text and context
describing qualifying predicate offenses. See Shular v. United States, 140 S. Ct. 779, 787
(2020). Some federal laws “refer[] generally to an offense without specifying its elements,”
which requires courts to fashion a “‘generic’ version of a crime” and to compare its elements to
the elements of the state statute. Id. at 783. By contrast, other federal statutes require courts
to determine “whether the conviction meets some other criterion,” and to “simply ask[] whether
the prior convictions . . . met th[e] measure” set out by the federal statute. Id.The enhancement provisions codified at 18 U.S.C. § 2252A(b)(1) and (b)(2) call for the
latter approach. As we noted in United States v. Ragonese, “the specific sentencing
enhancements at issue provide a twist” because “[t]hey are triggered not only when the prior
conviction matches an enumerated offense in the federal penalty provision—‘aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’—but also when the
prior conviction ‘relate[s] to’ such offenses.” 47 F.4th 106, 111 (2d Cir. 2022) (quoting 18
U.S.C. § 2252A(b)(1) and (b)(2)). Thus, “[a]lthough the categorical approach typically calls
for a strict comparison between the elements of the state offense and the elements of the generic
offense, Congress loosened that comparison in the context of sexual abuse laws, such that the
sentencing enhancements apply not simply to state offenses that are equivalent to sexual abuse,
4
but rather to any state offense that stands in some relation to, bears upon, or is associated with
the generic offense.” Id. (alterations adopted) (internal quotation marks and citations omitted).
In doing so, Congress “recogniz[ed] diversity among the several states in the specific elements
of sexual misconduct laws,” and “intend[ed]” that the category of predicate offenses “potentially
encompass convictions under a variety of state laws.” Barker, 723 F.3d at 323. Accordingly,
“our task is to determine whether [New York]’s . . . statute, by its elements and nature, relates to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” id. at 321(alteration adopted) (internal quotation marks omitted), or to “the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” 18 U.S.C.
§ 2252A(b)(1) and (b)(2).
We conclude that the state statute under which Duchesne was previously convicted,
NYPL § 263.16, categorically “relat[es] to” the predicate offense criteria described in Section
2252A(b) for purposes of triggering the federal sentencing enhancements. 2 18 U.S.C. §
2252A(b)(1) and (b)(2). In so doing, we reject Duchesne’s arguments that the district court
erroneously found a categorical match to his crime of conviction. 3 Specifically, Duchesne
2
As a threshold matter, to the extent that the district court’s decision could be construed as indicating
that our decision in Quito v. Barr, 948 F.3d 83 (2d Cir. 2020) forecloses Duchesne’s arguments, we
disagree. In Quito, we held that NYPL § 263.16 “categorically matches” the substantive federal child
pornography possession statute, 18 U.S.C. § 2252(a)(4)(B), in the context of determining whether the
defendant had been convicted of an aggravated felony under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 89, 93. However, because Quito addressed different
statutory text in the INA provision that textually invited a strict comparison of the state offense to the
elements of the federal counterpart, Duchesne’s arguments respecting the enhancement provisions at
issue here are not foreclosed by Quito and require a separate analysis.
3
We do not address the government’s contention that certain arguments by Duchesne are raised for the
first time on appeal and should be reviewed only for plain error because we find that all of Duchesne’s
arguments fail even under de novo review.
5
argues that the sentencing enhancements do not apply to his prior state conviction because “(1)
the New York offense covers unrecorded live performances, whereas federal law is concerned
solely with recorded images; (2) the New York offense covers ‘accessing with intent to view’ a
sexual performance, whereas the sentencing enhancement[s] extend only to possession of child
pornography; and (3) [he] was convicted of an attempt offense, whereas the sentencing
enhancement[s] do not extend to state inchoate offenses.” Appellant’s Br. at 5–6. We find
each of these arguments unpersuasive and address them in turn.
Under New York law, “possess[ion of] a sexual performance by a child,” occurs “when,
knowing the character and content thereof, [a person] knowingly has in his possession or control,
or knowingly accesses with intent to view, any performance which includes sexual conduct by a
child less than sixteen years of age.” NYPL § 263.16. For purposes of this statute, “‘[s]exual
performance’ means any performance or part thereof which . . . includes sexual conduct by a
child less than sixteen years of age.” Id. § 263.00(1). In addition, “sexual conduct” under this
statute “means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct,
sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” Id.
§ 263.00(3). Furthermore, the term “performance” for these purposes “means any play, motion
picture, photograph or dance” and “any other visual representation exhibited before an
audience.” Id. § 263.00(4). Finally, NYPL § 110.00, which is New York’s generic attempt
statute, provides that “[a] person is guilty of an attempt to commit a crime when, with intent to
commit a crime, he engages in conduct which tends to effect the commission of such crime.”
Based on its plain meaning, NYPL § 263.16 criminalizes possessing or accessing sexual
performances involving a victim that is less than sixteen years old, and thus, the conduct
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categorically relates to “possession[] [or] receipt . . . of child pornography” under 18 U.S.C. §
2252A(b). Duchesne’s arguments to the contrary—that NYPL § 263.16 criminalizes broader
conduct than the generic offenses described in this clause of the federal enhancement
provisions—fail, because the allegedly overbroad conduct matches either the federally identified
conduct or falls within the range of predicate conduct “relating to . . . abusive sexual conduct
involving a minor.” See Barker, 723 F.3d at 324.
Duchesne first argues that NYPL § 263.16 criminalizes unrecorded live performances,
whereas the federal definition of “child pornography” as the term appears in the enhancement
provisions is limited to depictions in recorded media, and as defined in 18 U.S.C. § 2256(5) and
(8). That allegedly overbroad criminal conduct, however, still triggers the enhancement
provisions as a whole because such conduct is a square categorical match to offenses “relating
to . . . abusive sexual conduct involving a minor,” 18 U.S.C. § 2252A(b)(1) and (b)(2), which
we have broadly defined to mean state offenses relating to the “misuse or maltreatment of a
minor for a purpose associated with sexual gratification.” Barker, 723 F.3d at 324. Therefore,
even understanding the New York statute to extend to such conduct as Duchesne contends,
viewing an unrecorded live performance of child pornography “relat[es] to” sexually abusive
conduct that categorically triggers the sentencing enhancements.
Duchesne next argues that NYPL § 263.16 overbroadly criminalizes any person who
“knowingly accesses with intent to view” a child sexual performance, which does not match the
generic federal offense for “possession . . . of child pornography” under 18 U.S.C. § 2252A(b).
As an initial matter, the government notes that federal law, including the possession of child
pornography statute under which Duchesne was prosecuted in this case, prohibits “‘knowingly
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possess[ing], or knowingly access[ing] with intent to view’ any ‘material that contains an image
of child pornography.’” Appellee’s Br. at 32 (quoting 18 U.S.C. § 2252A(a)(5)(B)).
Moreover, Duchesne arguably abandoned this argument by insisting that the conduct referenced
by the state statute is not online livestreaming of child pornography, as the government construed
that argument, but only “[i]n contrast to federal law, . . . explicit conduct that can only be seen
live and in person and is not transmitted or disseminated on or through any visual depiction or
medium.” Appellant’s Reply Br. at 4 (emphasis added). This argument accordingly fails for
the same reason already explained above. In any event, this argument independently fails to
demonstrate overbreadth because we have previously construed the terms “possession” and
“receipt” of child pornography, as they appear in related substantive federal offenses, to
encompass the kind of fleeting possession involved in livestreaming of such content. See
United States v. Ramos, 685 F.3d 120, 131 (2d Cir. 2012) (construing “possession” and “receipt”
of child pornography to encompass cache files temporarily stored on a computer).
Finally, Duchesne argues that the sentencing enhancements under Section 2252A(b) do
not extend to inchoate offenses under state law, such as an attempt. We disagree. An attempt
to commit a crime involving child pornography “stands in some relation to, bears upon, or is
associated with” a completed offense involving the same conduct and, thus, triggers the
enhanced penalties under Section 2252A(b). Cf. Ragonese, 47 F.4th at 111 (holding that
attempted first-degree deviate sexual intercourse with a child less than eleven years old “relates
to the sexual abuse of a minor”). 4
4
Several sister circuits have similarly held that an attempt offense can trigger the enhanced penalties
8
In sum, because NYPL § 263.16 categorically relates to “abusive sexual conduct
involving a minor . . . or . . . possession[] [or] receipt . . . of child pornography” under 18 U.S.C.
§ 2252A(b), the district court correctly held that the sentencing enhancements under Section
2252A(b) applied to Duchesne’s convictions for transportation and possession of child
pornography.
* * *
We have carefully considered Duchesne’s remaining arguments and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
under Section 2252A(b) and Section 2252(b). See, e.g., United States v. Nelson, 985 F.3d 534, 535–36
(6th Cir. 2021); United States v. Wiles, 642 F.3d 1198, 1201 (9th Cir. 2011); United States v. Stults, 575
F.3d 834, 846 (8th Cir. 2009); United States v. Hubbard, 480 F.3d 341, 347 (5th Cir. 2007).
9