What is the current state of the law on whether a state conviction "relates" to aggravated sexual abuse sexual abuse, or abusive sexual conduct involving a minor or ward?

MultiRegion, United States of America

The following excerpt is from United States v. Simard, No. 12-3968-cr (2nd Cir. 2013):

2. As described at greater length below, courts have employed two approaches for determining whether a state conviction "relate[s] to aggravated sexual abuse sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. 2252(b)(2). As we have explained, "[u]nder a categorical approach, courts compare the statute forming the basis of the defendant's prior conviction with the applicable generic offense in the federal sentencing statute." United States v. Barker, - -- F.3d ----, 2013 WL 3388381, at *2 (2d Cir. July 9, 2013). "In contrast, under the modified categorical approach, courts may, to a limited extent in order to discover the elements of the prior conviction, consider facts underlying the prior conviction if they are based upon adequate judicial record evidence." Id. (internal quotations marks omitted). In other words, the "categorical approach" only takes into account the language of the underlying state statute, while the "modified categorical approach" permits courts to probe, to a limited extent, the actual nature of the defendant's prior crime.

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