Divisibility of N.J. § 2C:14‑2c and Predicate “Sex Offense Conviction” Status under U.S.S.G. § 4B1.5(a): Eleventh Circuit’s Analysis in United States v. Hass

Introduction

In United States v. Hass (11th Cir. No. 24‑12815, Nov. 7, 2025) (per curiam) (not for publication), the Eleventh Circuit affirmed a 240‑month sentence imposed for an attempted violation of 18 U.S.C. § 2422(b), rejecting a categorical‑approach challenge to a sentencing enhancement under U.S.S.G. § 4B1.5(a) (Repeat and Dangerous Sex Offender Against Minors). The defendant, Jay Hass, argued that his 1987 New Jersey conviction for second‑degree sexual assault under N.J. Stat. Ann. § 2C:14‑2c could not serve as a predicate “sex offense conviction.” The panel held the New Jersey statute is divisible; that Hass was convicted under subsection (5) (age‑based statutory‑rape provision requiring “sexual penetration” and a four‑year age differential); and that this offense qualifies as a predicate under § 4B1.5(a), as defined by 18 U.S.C. § 2426(b) via reference to 18 U.S.C. § 2243(a). The court also clarified that affirmative defenses (such as § 2243(d)’s reasonable‑belief‑of‑age defense) are not offense “elements” for categorical‑approach purposes.

The opinion provides two principal takeaways: (1) New Jersey’s § 2C:14‑2c is divisible into separate crimes, allowing use of the modified categorical approach; and (2) a conviction under § 2C:14‑2c(5) categorically matches (indeed is narrower than) the federal analog in § 2243(a), thus qualifying as a “sex offense conviction” for § 4B1.5(a) enhancement.

Summary of the Opinion

Applying de novo review to guideline interpretation and statutory questions, the Eleventh Circuit:

Reaffirmed the use of the categorical approach for determining whether a prior conviction qualifies as a predicate for a Chapter 4 guideline enhancement, citing United States v. Kushmaul and United States v. Lusk.
Held N.J. Stat. Ann. § 2C:14‑2c (1987) is divisible because it lists “any one of the following circumstances,” each describing distinct conduct and elements; the court drew support from Descamps, Mathis, and the Third Circuit’s decision in Grijalva Martinez v. Attorney General concerning the modern analog of the statute.
Employed the modified categorical approach to determine that Hass’s 1987 conviction rested on § 2C:14‑2c(5) (victim aged 13–15 and defendant at least four years older).
Compared the elements of § 2C:14‑2c(5) to the federal analog in 18 U.S.C. § 2243(a) (sexual act with a person between 12 and 16 who is at least four years younger), as incorporated through 18 U.S.C. § 2426(b), and concluded that the least culpable conduct under the state provision (sexual penetration with a 13‑to‑15‑year‑old, with a four‑year age gap) necessarily constitutes a federal “sexual act” with the requisite age differential. Because the federal definition is at least as broad (and in certain respects broader), the state conviction qualifies.
Rejected the argument that § 2243(d)’s reasonable‑belief‑of‑age affirmative defense makes the federal analog narrower; affirmative defenses are not offense elements under the categorical approach, citing Donawa and Oliver.
Affirmed the district court’s application of the § 4B1.5(a) enhancement.

Analysis

Precedents Cited and Their Influence

United States v. Lusk, 119 F.4th 815 (11th Cir. 2024). The court cited Lusk for the proposition that guideline interpretation and application are reviewed de novo and that the categorical approach applies to Chapter 4 enhancements. This frames the analytical method for assessing predicate convictions under § 4B1.5(a).
United States v. Kushmaul, 984 F.3d 1359 (11th Cir. 2021). Kushmaul confirms the categorical approach’s “least culpable conduct” test and the elements‑based comparison against the “generic” offense mentioned in the enhancement scheme. It anchors the methodological steps the panel followed.
Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016). Foundational cases establishing when a statute is divisible and when a court may consult a “limited class of documents” to identify which statutory alternative formed the basis of conviction. These cases directly inform the court’s threshold determination that § 2C:14‑2c is divisible and justify looking to the complaint and indictment.
Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013) and United States v. Oliver, 962 F.3d 1311 (11th Cir. 2020). The panel relies on these authorities for the principle that affirmative defenses are not elements a prosecutor must prove beyond a reasonable doubt and therefore are not part of the categorical‑approach comparison.
United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) and United States v. Jews, 74 F.4th 1325 (11th Cir. 2023). These cases address the weight courts may give to guideline commentary after Kisor. The panel notes that while courts do not defer to commentary where the guideline text is unambiguous, they may rely on the commentary where no party challenges its validity. Because neither side disputed Application Note 3’s cross‑reference to 18 U.S.C. § 2426(b), the court accepted it.
Grijalva Martinez v. Attorney General, 978 F.3d 860 (3d Cir. 2020). The Third Circuit’s divisibility analysis of the modern version of N.J. § 2C:14‑2c bolstered the Eleventh Circuit’s view that the 1987 statute is divisible for categorical purposes. Grijalva emphasized that each subsection requires proof of a fact not required by others and cited New Jersey model jury instructions that list the alternatives disjunctively.
State v. Cole, 576 A.2d 864 (N.J. 1990). The panel explained why Cole, a New Jersey merger‑doctrine case interpreting a different subsection (§ 2C:14‑2a), was inapposite. Merger asks whether offenses should be punished separately; divisibility asks whether a statute lists alternative elements creating distinct crimes. The two doctrines serve different purposes and employ different analyses.

Legal Reasoning

1) Divisibility of N.J. Stat. Ann. § 2C:14‑2c (1987)

The court began by parsing the statutory text: “An actor is guilty of sexual assault if he commits an act of sexual penetration under any one of the following circumstances,” followed by five numbered circumstances. The structure—numbered alternatives, each describing distinct conduct (coercion; incapacity; abuse of supervisory authority; age plus household/supervisory authority; age plus four‑year differential)—strongly signals distinct elements and, therefore, multiple crimes. The absence of illustrative language (such as “including” or “such as”) and the presence of a directive (“any one of”) further supports an exhaustive, alternative‑elements listing. That conclusion dovetails with Grijalva’s analysis of the modern statute and with New Jersey model jury instructions, which present the subsections in the alternative.

2) Modified Categorical Approach to Identify the Conviction Element Set

Having found the statute divisible, the court consulted a limited set of judicial records (complaint and indictment) to determine the particular alternative of conviction. Those documents identified § 2C:14‑2c(5): “The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim,” coupled with sexual penetration. That locked the elements to be compared under the categorical approach.

3) Categorical Comparison to the Federal Analog

The guideline’s Application Note 3 defines “sex offense conviction” by reference to 18 U.S.C. § 2426(b)(1)(A)–(B). Section 2426, in turn, includes specified Chapter 109A federal offenses and any state offenses consisting of conduct that would have been an offense under those federal provisions if committed in federal jurisdiction. The parties agreed that the most apt federal analog is 18 U.S.C. § 2243(a), which criminalizes engaging in a “sexual act” with a person between ages 12 and 16 who is at least four years younger than the defendant. “Sexual act” under § 2246(2) includes penetration and certain hands‑on sexual contact with minors.

Comparing elements, the court concluded:

Actus reus: The state offense requires “sexual penetration.” That conduct is encompassed by the federal definition of “sexual act,” which includes penetration and more (e.g., certain intentional genital touching). Thus, with respect to the physical conduct, the state offense is narrower than the federal analog.
Age elements: The state offense requires a victim aged 13–15 and a defendant at least four years older. The federal offense covers victims aged 12–15 and likewise requires at least a four‑year age differential. Consequently, the state’s age requirements fit within the federal scheme.
Affirmative defense: The federal statute provides a reasonable‑belief‑of‑age affirmative defense (§ 2243(d)). Under the categorical approach, affirmative defenses are not elements, because they are not facts the prosecution must prove beyond a reasonable doubt. Relying on Donawa and Oliver, the panel refused to treat this defense as narrowing the federal offense for element‑matching purposes.

Because the least culpable conduct criminalized by § 2C:14‑2c(5)—sexual penetration of a 13‑ to 15‑year‑old by a defendant at least four years older—necessarily constitutes a federal “sexual act” under § 2243(a) with the requisite age differential, the state conviction “consist[s] of conduct that would have been an offense” under the federal statute. It therefore qualifies as a predicate “sex offense conviction” for purposes of § 4B1.5(a).

4) Use of Guideline Commentary Post‑Dupree

The court acknowledged Eleventh Circuit precedent cautioning against deferring to commentary where the guideline text is clear (Dupree). Yet it also noted that courts may rely on commentary when no party contests its validity or application (Jews). Here, neither side disputed the Application Note’s definitional cross‑reference to § 2426(b), so the court applied it. Practically, the opinion confirms that parties who wish to avoid commentary‑based definitions must affirmatively place the commentary’s validity in issue.

Impact

Enhancements under § 4B1.5(a): Convictions under N.J. § 2C:14‑2c(5) (1987) will be treated as predicate “sex offense convictions” for the Repeat and Dangerous Sex Offender enhancement when the instant offense is a covered sex crime and § 4B1.1 does not apply. By confirming divisibility and the categorical match to § 2243(a), the opinion provides a ready blueprint for probation offices and district courts within the Eleventh Circuit.
Divisibility of multi‑factor sex statutes: The analysis underscores a method for treating state sexual assault statutes that enumerate distinct circumstances in numbered subsections as divisible, especially where the text uses exhaustive phrasing (“any one of the following”) and where model jury instructions present alternatives disjunctively.
Age‑based statutory‑rape analogs: Many state age‑based sexual assault laws will map onto § 2243(a) for purposes of § 2426(b). Where a state provision requires penetration and a four‑year age differential for victims aged 13–15 (or similar), it will often fit within the federal “sexual act” and age framework, satisfying the categorical test.
Affirmative defenses and the categorical approach: The opinion reinforces that affirmative defenses in the federal analog (e.g., reasonable belief of age) do not constrain the element comparison. Defendants seeking to argue that a federal analog is narrower because of an affirmative defense will face a high bar.
Importance of record documents: Because § 2C:14‑2c includes alternatives not limited to minors (e.g., coercion or incapacity provisions), divisibility ensures that only the minor‑specific subsections count as § 4B1.5 predicates. The government and probation must secure charging instruments or plea colloquies that specify the subsection of conviction to satisfy the modified categorical approach.
Nonprecedential but instructive: Although unpublished, the reasoning is consistent with Supreme Court and Eleventh Circuit categorical‑approach jurisprudence and may be persuasive in future cases, particularly where New Jersey convictions under § 2C:14‑2c are at issue.

Complex Concepts Simplified

Categorical approach: A method for deciding whether a prior conviction counts for sentencing purposes. Courts compare statutory elements—not the defendant’s actual facts—to the elements of a “generic” offense or federal analog. If the least serious conduct covered by the state law still satisfies the generic offense, the conviction qualifies.
Divisible statute: A statute that lists alternative elements creating multiple distinct crimes (e.g., five numbered “circumstances,” each with different facts that must be proven). If a statute is divisible, courts may use a narrow set of documents to identify which alternative led to the conviction.
Modified categorical approach: When a statute is divisible, the court consults limited court records (like indictments or plea colloquies) to determine the specific alternative of conviction, and then applies the categorical approach to that set of elements.
Least culpable conduct: The minimum behavior that could violate the statute (e.g., the mildest act meeting the elements). If even that minimal conduct fits the federal definition, the state offense qualifies categorically.
Affirmative defense vs. element: An element is a fact the prosecution must prove beyond a reasonable doubt. An affirmative defense excuses conduct even if all elements are met, and the defendant generally bears the burden of proving it. Under the categorical approach, affirmative defenses are not part of the element comparison.
Merger vs. divisibility: Merger, a state‑law doctrine, addresses whether two charged crimes should be punished separately or merge into one conviction, focusing on punishment and protected interests. Divisibility is a federal categorical‑approach concept focusing on whether a single statute sets out alternative elements (i.e., multiple crimes) for predicate‑offense analysis. They answer different questions and employ distinct tests.
“Sex offense conviction” under § 4B1.5(a): The guideline incorporates 18 U.S.C. § 2426(b)’s definition: specified federal sex crimes or state convictions that would be offenses under those federal statutes if committed in federal jurisdiction, and that are perpetrated against a minor. This cross‑reference is currently applied where not contested.

Conclusion

United States v. Hass applies the Supreme Court’s categorical‑approach framework to hold that New Jersey’s § 2C:14‑2c (1987) is divisible and that a conviction under subsection (5) qualifies as a predicate “sex offense conviction” for U.S.S.G. § 4B1.5(a). The court’s reasoning is straightforward: the statute lists alternative elements; the record shows conviction under the minor‑specific, penetration‑based alternative; and the least culpable conduct under that alternative necessarily constitutes a § 2243(a) “sexual act” with the required age differential. The panel further confirms that affirmative defenses (like § 2243(d)’s reasonable‑belief‑of‑age defense) do not alter the element comparison under the categorical approach.

Though unpublished, the decision is a cogent application of Descamps and Mathis to a common state sexual assault structure and is likely to influence future § 4B1.5(a) predicate determinations—especially those involving age‑based New Jersey convictions. It also underscores two practical points: parties should be prepared with charging and plea documents to identify the exact statutory alternative, and any effort to avoid guideline commentary must be coupled with a concrete challenge to the commentary’s validity or fit under Eleventh Circuit precedent.