United States Second Circuit

In this case, defendant pleaded guilty to one count of failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act, and one count of possession of stolen firearms. Prior to the firearms offense, defendant had sustained two felony convictions, one for attempted burglary, and one for statutory rape in violation of New York Penal Law section 130.40-2. At sentencing, the district court calculated defendant’s base offense level pursuant to U.S.S.G. section 2K2.1, which sets base offense level for defendants who have committed certain firearms offenses after sustaining at least two felony convictions of a crime of violence. Judgment is vacated and the case is remanded for resentencing, where the conduct prohibited by section 130.40-2 is not categorically a “crime of violence” under U.S.S.G. section 4B1.2.

Appellate Information

• Decided 12/08/2014
• Published 12/08/2014

Judges

• Livingston

Court

• United States Second Circuit

Counsel