The Second Circuit has concluded that a New York conviction for attempted possession of a sexual performance by a child is an aggravated felony related to possession of child pornography. The court rejected the petitioner’s argument that the New York statute had a lower mens rea than the federal statute, finding they both require the defendant to know that a minor was involved in the depiction. The petitioner also argued that the New York statute lacks the affirmative defense permitted by the federal statute, which covers an individual who possesses less than three prohibited visual depictions and, without allowing anyone else to access to them, either promptly destroys them or turns them over to law enforcement. The court deemed the affirmative defense to be irrelevant to the categorical approach.
The full text of Quito v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/doc/18-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/hilite/