United States v. Valder

24-2956-cr United States v. Valder In the United States Court of Appeals for the Second Circuit AUGUST TERM 2025 No. 24-2956-cr UNITED STATES OF AMERICA, Appellee, v. STEVEN VALDER, Defendant-Appellant. __________ On Appeal from the United States District Court for the Northern District of New York __________ ARGUED: SEPTEMBER 24, 2025 DECIDED: AUGUST 18, 2026 ________________ Before: LOHIER, Chief Judge, RAGGI, and PARK, Circuit Judges. ________________  On appeal from a judgment of conviction entered in the Northern District of New York (D’Agostino, J.), defendant Steven Valder challenges the concurrent terms of mandatory life imprisonment imposed pursuant to 18 U.S.C. § 3559(e)(1) on his first two counts of conviction for sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). Valder submits that the district court erred in sentencing him pursuant to § 3559(e)(1) because his prior state conviction for a criminal sexual act in the first degree in violation of N.Y. Penal Law § 130.50(1) (2010) did not categorically qualify as “a prior sex conviction in which a minor was the victim,” the predicate required by § 3559(e)(1). Some of Valder’s supporting arguments are reviewed de novo; others only for plain error. None persuades. AFFIRMED. Chief Judge Lohier concurs in a separate opinion. _________________ JAMES P. EGAN (Melissa A. Tuohey, on the brief), Assistant Federal Public Defenders, Office of the Federal Public Defender, Syracuse, NY, for Defendant-Appellant. THOMAS R. SUTCLIFFE (Lisa M. Fletcher, on the brief), Assistant United States Attorneys, for John A. Sarcone III, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee. _________________ REENA RAGGI, Circuit Judge: Defendant Steven Valder stands convicted following a jury trial in the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge) on two counts of sexual exploitation of a child, see 18 U.S.C. 2 § 2251(a); one count of receipt of child pornography, see id. § 2252A(a)(2)(A); and one count of committing a felony offense while a registered sex offender, see id. § 2260A. On this appeal, Valder does not dispute the adjudication of his culpability. Nor does he challenge the 480-month (40-year) prison sentence imposed for his receipt of child pornography or the consecutive 120-month (10- year) prison sentence imposed for committing a felony while a registered sex offender. Rather, Valder appeals only so much of the judgment entered on October 30, 2024, as sentenced him further to concurrent terms of mandatory life imprisonment pursuant to 18 U.S.C. § 3559(e)(1) for his two sexual-exploitation- of-a-child crimes. He submits that the district court erred in so sentencing him because his prior state conviction for a criminal sexual act in the first degree, see N.Y. Penal Law § 130.50(1) (2010)—his forcible anal rape of a 14-year-old boy, see infra at 5 n.4—does not categorically qualify as “a prior sex conviction in which a minor was the victim,” the predicate required by § 3559(e)(1) to mandate a life sentence for his most recent sex crimes against two other minor victims. 1 To the extent Valder relies on arguments raised and rejected in the district court, these fail on the merits. To the extent Valder submits arguments not raised in the district court, particularly those not raised until his reply brief in this court, our review is limited to plain error, which Valder fails to demonstrate. That conclusion is particularly warranted here, where the district court carefully explained why, even in the absence of § 3559(e)(1) mandatory life sentences, it would have 1 Effective September 1, 2024, N.Y. Penal Law § 130.50’s provisions were transferred to and amended in N.Y. Penal Law § 130.35. In this opinion, when referring to the state statute of Valder’s conviction, we continue to use N.Y. Penal Law § 130.50, as this is the version of law required for comparison under the categorical approach. See United States v. Gibson, 55 F.4th 153, 162, 166 (2d Cir. 2022) (holding that categorical approach requires comparing state law at time of state conviction with federal law at time of either defendant’s federal offense or sentencing). 3 imposed a total sentence of “150 years,” i.e., “more than a lifetime term of imprisonment.” App’x at 130. Accordingly, we affirm the challenged judgment. 2 BACKGROUND I. The Instant Crime of Conviction On May 17, 2023, while Valder was under federal supervision for a 2010 child pornography conviction in the Northern District of New York, 3 United States Probation Officers found him in possession of an unauthorized smartphone. Forensic analysis of that phone, conducted pursuant to a judicial warrant, revealed 142 pornographic images of a minor, specifically, a 13-year-old boy (“MV1”), and 42 pornographic images and 13 pornographic videos depicting other minors. In the course of further investigation, including interviews with MV1 and his 11- year-old brother (“MV2”), federal authorities discovered that Valder had repeatedly sexually abused these two children between approximately February and May 2023. In the indictment charging Valder with the four crimes of conviction, the two counts alleging sexual exploitation of MV1 and MV2 referenced not only 18 2 Hereafter in this opinion, to minimize confusion between federal and state laws, we short cite by section number only sections of the United States Code. New York laws are always cited in full. 3 Valder was federally convicted in 2010 for the unlawful transportation and possession of child pornography, see 18 U.S.C. § 2252A(a)(1), (a)(5)(b), crimes for which he was sentenced to a total of 180 months’ (15 years’) incarceration, to be followed by lifetime supervision. As the district court noted in imposing the life sentences at issue in this case, this prior 15-year sentence represented a significant downward variance from the 30-year prison sentence recommended by the Sentencing Guidelines. 4 U.S.C. § 2251(a), which criminalizes such exploitation, but also 18 U.S.C. § 3559(e)(1), which states in pertinent part that, [a] person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed. The indictment alleged that Valder had such a “prior sex conviction,” specifically, a 2010 New York State conviction for Criminal Sexual Act in the first degree by forcible compulsion, see N.Y. Penal Law § 130.50(1), an offense that, in Valder’s case, “involved anal sexual conduct by forcible compulsion with a 14-year-old minor male child.” App’x at 19. 4 Prior to trial, Valder moved for the district court to rule as a matter of law that he was not subject to a mandatory life sentence under § 3559(e)(1) because his 2010 state conviction did not qualify as the necessary predicate “prior sex conviction in which a minor was the victim.” In support, Valder advanced two arguments: (1) that N.Y. Penal Law § 130.50(1) does not require the victim of that crime to be a minor, and (2) that N.Y. Penal Law § 130.50(1) is not a categorical match with any of the federal statutes listed in 18 U.S.C. § 3559(e)(2)(A)’s 4 The New York State information to which Valder pleaded guilty alleged that, in July 2008, he “engaged in anal sexual conduct with C.H. by forcible compulsion when he forced his penis into C.H.’s anus while C.H. tried to get away.” App’x at 46 (internal quotation marks omitted). C.H. is Valder’s stepbrother, who was then 14 years old. The state court sentenced Valder to 10 years’ imprisonment for this crime, that term to run concurrently with the 15-year sentence imposed for his 2010 federal conviction. As the district court here noted, the investigation of Valder’s state crime suggested his possible further sexual abuse of two minor girls, aged 9 and 13, but as no charges were filed in that respect, the district court specifically did not assign any weight to these abuse reports in calculating Valder’s Guidelines for the conviction here at issue. 5 definition of a “Federal sex offense.” 5 As to the latter point, Valder asserted that the state law is not a categorical match with 18 U.S.C. § 2241(a) (aggravated sexual abuse) because the compulsion element of N.Y. Penal Law § 130.50(1) can be proved, inter alia, by threat of “physical injury,” which reaches more broadly than § 2241(a), which permits compulsion to be proved, inter alia, by threat only of “serious” bodily injury. App’x at 28. Nor was the state law a categorical match with 18 U.S.C. § 2242(1) (sexual abuse) because the state law permits compulsion to be proved, inter alia, by use of force, while § 2242(1) “is violated only through means not involving physical force.” Id. 6 In a “text order,” the district court denied the motion without explanation, but “without prejudice” to renewal. Id. at 7. After a four-day trial, a jury found Valder guilty on all four counts charged, finding specifically with respect to the two exploitation counts that Valder committed these crimes after his 2010 New York “sex conviction in which a minor who had not attained the age of 17 years was the victim.” Id. at 51–52. In a pre-sentence submission to the district court, Valder again disputed the applicability of a § 3559(e)(1) mandatory life sentence but, by contrast to his earlier two-fold argument, he now asserted only that “[t]he state statute under which [he] was convicted,” i.e., N.Y. Penal Law § 130.50(1), “does not require that the victim be a minor.” Id. at 77. Nowhere in his pre-sentence submission or anytime at sentencing did Valder argue that his state crime of conviction was not a categorical match for a “Federal sex offense” as defined in § 3559(e)(2)(A). Rejecting Valder’s § 3559(e)(1) challenge as presented in his pre-sentence submission, the district court sentenced him pursuant to that statute to concurrent 5 See infra at 11–12 (citing listed statutes). 6 See infra at 16 (quoting § 2241(a) and § 2242(1) in relevant part). 6 mandatory terms of life imprisonment on his two child-exploitation counts of conviction, a concurrent prison term of 40 years (the statutory maximum) on his receipt-of-child-pornography count of conviction, and a mandatory consecutive prison term of 10 years for committing a felony involving a minor while a registered sex offender. In so sentencing Valder, the district court stated that “even if the [§ 3559(e)(1)] mandatory life term of imprisonment did not apply,” it would have effectively sentenced Valder to life imprisonment, specifically, a total prison term of “150 years,” which “equates to more than a lifetime term of imprisonment obviously.” App’x at 130. 7 In so stating, the district court noted, inter alia, the particularly “gruesome” and “painful nature” of Valder’s sexual abuse of the two victims of his exploitation crimes, which took place on “multiple occasions over a period of several months,” id. at 125 (referencing details provided in Pre-Sentence Report); the further trauma experienced by the child victim who came forward to testify at trial, see id. at 127– 28; Valder’s commission of these crimes following a lengthy term of incarceration for federal child pornography and state child abuse crimes, see id. at 126, and while 7As the district court explained, if a mandatory life sentence were not to apply to Valder’s two exploitation crimes of conviction, the statutory minimum sentence on each of those counts would have been 25 years, and the statutory maximum on each of those counts would have been 50 years, based upon the defendant’s prior convictions. With a Guideline range of life and no count of conviction authorizing a term of life, the combined total guideline imprisonment range would have been 1800 months, which consists of the combined statutory maximums for Counts 1, 2, and 4, pursuant to Guideline 5G1.1(a), plus [a statutorily mandated] 120 months consecutive on Count 3, for a total term of imprisonment of 1800 months, or 150 years. App’x at 130; see 18 U.S.C. §§ 2251(e), 2252A(b)(1), 2260A; U.S.S.G. §§ 2A3.6(b), 2G2.1, 2G2.2, 3A1.1(b), 3D1.1, 3D1.4, 4B1.5, 5G1.1(a), 5G1.2(a), Ch. 5, Pt. A, cmt. n.2. 7 on federal and state supervision, see id. at 129; the numerous opportunities offered Valder for sex offender and mental health treatment, see id. at 127–28; and his repeated failure to accept responsibility for his conduct, see id. at 127. This prompted the district court to conclude that Valder “present[s], and in the court’s view, will present forever, a danger to the community, and a danger to the most innocent among us, the children in our communities who should never, ever be subjected to this type of unspeakable sexual abuse.” Id. at 129 (emphasis added). This timely appeal followed. DISCUSSION I. Standard of Review In challenging the life sentences imposed on his child-exploitation counts of conviction pursuant to 18 U.S.C. § 3559(e)(1), Valder argues that his 2010 state conviction for Criminal Sexual Act in the first degree, see N.Y. Penal Law § 130.50(1), cannot qualify as a “prior sex conviction in which a minor was the victim,” the predicate required by § 3559(e)(1). 8 In support, he asserts (1) that N.Y. Penal Law § 130.50(1) is not a categorical match with any of the federal statutes listed in § 3559(e)(2)(A) to define a “Federal sex offense,” and (2) that the state law can be violated without the crime victim being a minor. As to his first assertion, Valder reargues a point raised in his pre-trial motion but not renewed after trial. He submits that N.Y. Penal Law § 130.50(1) is not a categorical match with 18 U.S.C. § 2241(a) (aggravated sexual abuse) because the state law reaches more broadly in permitting compulsion to be proved by a threat of less-than-serious bodily injury. 8 See supra at 5 (quoting relevant statutory text). 8  Valder further seeks to support this categorical-match challenge with two new arguments first raised in his reply brief. He submits that N.Y. Penal Law § 130.50(1) reaches more broadly than § 2241(a) and § 2242(1) (sexual abuse) in permitting compulsion to be proved by a threat that instills fear not only in the crime victim but also, and even only, in a third party, whereas the federal laws require fear to be instilled in the compelled victim. He also asserts that the “sexual conduct” proscribed by N.Y. Penal Law § 130.50(1) reaches more broadly than the “sexual act” proscribed by § 2241(a) and § 2242(1) in that the state law permits conviction without proof of “penetration,” which he submits these federal laws require. 9 Insofar as Valder’s arguments raise questions of law, our standard of review would normally be de novo. See, e.g., United States v. Thompson, 961 F.3d 545, 549 (2d Cir. 2020). De novo review clearly applies to Valder’s second assertion, i.e., his minor-victim argument, Valder having preserved that challenge by raising it in the district court both pre-trial and, after its rejection without prejudice to renewal, pre-sentence. The same conclusion, however, does not obtain with respect to his first assertion, i.e., the challenge to a categorical match with a Federal sex offense. While Valder argued that point pre-trial with respect to the degree of threatened injury, following its rejection without prejudice to renewal, he failed to reassert it before sentencing. This forfeited the point, such that we review it now only for plain error. See, e.g., United States v. Sweig, 441 F.2d 114, 119 (2d Cir. 1971) 9 Although Valder focused these arguments on § 2242(1), they apply equally to § 2241(a), as both statutes require that a defendant “causes another person to engage in a sexual act . . . by threatening or placing that other person in fear” of the stated harm, and both proscribe “knowingly caus[ing] another person to engage in a sexual act” through certain means. 18 U.S.C. § 2241(a) (emphases added)); see id. § 2242(1) (same). 9 (applying plain-error review to claim made in motion that district court denied “without prejudice”—thus indicating “willingness to reconsider the question”— where “defense never raised the issue again”). To demonstrate plain error, a defendant must show “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the defendant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Lewis, 125 F.4th 69, 74 (2d Cir. 2025) (alterations adopted) (internal quotation marks omitted); see Puckett v. United States, 556 U.S. 129, 135 (2009) (stating that if first “three [plain error] prongs are satisfied, the court of appeals has the discretion to remedy the error— discretion which ought to be exercised only if” fourth prong is also satisfied (emphasis in original)). As for the categorical-match challenges first raised by Valder only in his reply brief—with respect to the fear instilled and the sexual conduct proscribed— this court generally declines to consider such belated arguments, see United States v. Kandic, 134 F.4th 92, 102–03 (2d Cir. 2025) (declining to consider argument “not br[ought] . . . before the district court” and “raised for the first time in a reply brief” (internal quotation marks omitted)). Insofar as we have the discretion to do so, we will exercise that discretion only on a showing of “manifest injustice,” which may be established by a convincing showing of plain error. United States v. Draper, 553 F.3d 174, 179 & n.2 (2d Cir. 2009); see United States v. Spero, 331 F.3d 57, 62 n.3 (2d Cir. 2003) (declining to consider claim not raised in district court or defendant’s main appellate brief where “no plain error is apparent”); see also United States v. 10 Dussard, 967 F.3d 149, 156 (2d Cir. 2020) (stating that defendant bears burden to demonstrate plain error). 10 We proceed now to consider Valder’s arguments in light of these standards. II. Valder’s Categorical-Match Challenges to His § 3559(e)(1) Life Sentences As relevant here, 18 U.S.C. § 3559(e)(1) states that “[a] person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim.” In other words, the statute mandates a life sentence when (1) the crime of conviction for which sentence is being imposed is “a Federal sex offense”; and (2) the defendant has (a) “a prior sex conviction,” (b) “in which a minor was the victim.” 18 U.S.C. § 3559(e)(1). As to the first requirement, Valder does not—and cannot—dispute that his two sexual exploitation convictions in this case under 18 U.S.C. § 2251(a) satisfy the “Federal sex offense” requirement of § 3559(e)(1). See Appellant’s Br. at 22 (conceding point). The latter statute specifically references § 2251 in defining “Federal sex offense” to mean, 10 To the extent Valder seeks to avoid his plain-error burden as to arguments first raised in his reply brief by submitting that they respond to points raised by the government on appeal, we are not persuaded. While we will sometimes consider “arguments raised in response to arguments made in the appellee’s brief,” we generally “will not consider issues raised only in reply briefs.” United States v. Bari, 599 F.3d 176, 180 n.6 (2d Cir. 2010) (emphases in original). The arguments first advanced by Valder in his reply brief all relate to the issue that he forfeited in the district court, i.e., whether his 2010 conviction under N.Y. Penal Law § 130.50(1) is a categorical match for a “Federal sex offense” as defined in § 3559(e)(2)(A). Accordingly, any arguments pertaining to that forfeited issue are properly reviewed only for plain error whether first raised in Valder’s opening brief on appeal or in his reply brief. 11  an offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors). 18 U.S.C. § 3559(e)(2)(A) (emphasis added). Instead, Valder focuses on the second requirement, arguing that his 2010 New York State conviction for a Criminal Sexual Act in the first degree, see N.Y. Penal Law § 130.50(1), does not categorically satisfy either the “prior sex conviction” or minor-victim prongs of the predicate offense requirement of § 3559(e)(1). He is mistaken. A. Valder’s 2010 New York State Conviction for a Criminal Sexual Act in the First Degree Qualifies as a “Prior Sex Conviction” Under § 3559(e)(1) Title 18 U.S.C. § 3559(e)(2)(C) defines the “prior sex conviction” required for a § 3559(e)(1) life sentence as “a conviction [1] for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and [2] which was for a Federal sex offense or a State or Military sex offense.” Valder does not dispute the first requirement. He argues only that his 2010 conviction under N.Y. Penal Law § 130.50(1) does not satisfy the second “State . . . sex offense” requirement. Id. § 3559(e)(2)(C). The federal statute defines a “State . . . sex offense” as “an offense under State law . . . that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense” if there were a basis for federal jurisdiction. Id. § 3559(e)(2)(B) (emphasis added). As earlier noted, § 3559(e)(2)(A) 12 identifies the federal statutes violation of which constitute a “Federal sex offense.” See supra at 11–12. This court has held that the inquiry into whether a prior state crime of conviction qualifies as a “Federal sex offense” is categorical, i.e., “to determine whether a state offense is equivalent to a federal offense, courts must compare the elements of the state offense to the elements of the federal offense.” United States v. Rood, 679 F.3d 95, 98 (2012), abrogated in part on other grounds by Descamps v. United States, 570 U.S. 254, 278 (2013); accord United States v. Kroll, 918 F.3d 47, 55 (2d Cir. 2019) (stating that Rood’s “assertion that we apply the categorical approach to § 3559[(e)] stands”). Only if the elements of the state offense are “the same as, or narrower than,” those of a federal offense identified in § 3559(e)(2)(A) can the state offense qualify as a predicate “prior sex conviction” under § 3559(e)(1). Descamps v. United States, 570 U.S. at 257; see United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (en banc) (observing that categorical approach involves “determin[ing] the minimum criminal conduct necessary to satisfy the elements of a crime, without regard to whether the defendant himself engaged in more egregious conduct”). For “divisible” statutes, i.e., statutes that “list elements in the alternative, and thereby define multiple crimes,” Mathis v. United States, 579 U.S. 500, 505 (2016), we apply a “‘modified’ categorical approach” under which we “examine a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of,” after which we “return to the categorical analysis,” United States v. Davis, 74 F.4th 50, 53 (2d Cir. 2023) (internal quotation marks omitted). No party here disputes that N.Y. Penal Law § 130.50’s numbered subsections identify distinct elements, thereby making the statute divisible into four parts: 13  A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more. Further, the parties agree that Valder was convicted under subpart 1, which states a “forcible compulsion” element for the proscribed sexual conduct. Thus, we here need decide only whether N.Y. Penal Law § 130.50(1) is a categorical match for a “Federal sex offense” listed in § 3559(e)(2)(A) so as to qualify as a “prior sex conviction” warranting a § 3559(e)(1) life sentence. 1. New York Penal Law § 130.50(1)’s “Forcible Compulsion” Element Is a Categorical Match for Conduct that Would Be a “Federal Sex Offense” Valder submits that his 2010 conviction under N.Y. Penal Law § 130.50(1) is not a categorical match for a “Federal sex offense” as identified in § 3559(e)(2)(A) because the state crime’s forcible compulsion element reaches more broadly than that of any of the listed federal crimes. Because the argument fails on the merits, Valder cannot demonstrate error, much less the plain error required to support an argument that he forfeited by not renewing it at sentencing in the district court. To explain, we begin with the term “forcible compulsion” as used in N.Y. Penal Law §130.50(1). New York has statutorily defined that term to mean, to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. 14 N.Y. Penal Law § 130.00(8) (2010). 11 New York’s Third and Fourth Appellate Divisions have construed these “use” and “threat” phrases as alternative means of committing a single offense rather than as distinct elements of different offenses; the state’s highest court has declined to review these decisions; and no New York court appears to have ruled otherwise. 12 In these circumstances, and in the absence of any contrary ruling from New York’s highest court, we will assume for purposes of this appeal that N.Y. Penal Law § 130.50(1) is not divisible based on whether “forcible compulsion” is proved by the proscribed “use” or “threat.” Cf. Mathis v. United States, 579 U.S. at 517–18 (instructing that divisibility of state statute may be resolved by ruling of state’s highest court construing statutory components as “alternative methods of committing one offense” (alteration adopted) (internal quotation marks omitted)). With that understanding of the forcible compulsion element of N.Y. Penal Law § 130.50(1), we consider the two most analogous statutes listed in § 3559(e)(1)(A)’s definition of “Federal sex offense.” 11Hereafter in this opinion, all references to N.Y. Penal Law § 130.00 are to this 2010 version, unless otherwise noted, as this is the proper comparator under the categorical approach. See United States v. Gibson, 55 F.4th at 162, 166. 12 See People v. Horton, 181 A.D.3d 986, 996, 119 N.Y.S.3d 296, 308 (3d Dep’t) (holding N.Y. Penal Law § 130.50(1)’s “element of forcible compulsion may be proven by either physical force or by express or implied threats and does not establish separate offenses for these alternate forms of proof”), leave to appeal denied, 35 N.Y.3d 1045 (2020); People v. Boyce, 305 A.D.2d 1022, 1023, 758 N.Y.S.2d 589, 590 (4th Dep’t) (listing “element” of forcible compulsion for § 130.50(1) crime as singular despite reference to evidence of both “use” and “threat” as “legally sufficient” means of commission), leave to appeal denied, 100 N.Y.2d 560 (2003); see also People v. Bonilla, 229 A.D.3d 850, 853, 214 N.Y.S.3d 505, 510 (3d Dep’t) (describing “implied threat” as “means” of “element of forcible compulsion”), leave to appeal denied, 42 N.Y.3d 1018 (2024). 15  The first, 18 U.S.C. § 2241(a), criminalizes “aggravated sexual abuse,” defined in relevant part as, knowingly caus[ing] another person to engage in a sexual act— (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping. The second statute, 18 U.S.C. § 2242, criminalizes simple “sexual abuse,” defined in relevant part as, knowingly— (1) caus[ing] another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping). As the quoted state and federal statutory texts indicate, N.Y. Penal Law § 130.50(1) and 18 U.S.C. § 2241(a) both proscribe compelling sexual acts (1) by the use of force, or (2) by threats of immediate death or kidnapping. Where the two statutes differ is in their treatment of threats of physical injury, with § 2241(a) requiring a threat of “serious bodily injury” to prove the compulsion necessary for aggravated sexual abuse, and N.Y. Penal Law § 130.50(1) identifying a threat of any “physical injury,” N.Y. Penal Law § 130.00(8), as sufficient to prove forcible compulsion for a Criminal Sexual Act in the first degree. Contrast 18 U.S.C. § 2246(4) (defining “serious bodily injury” as injury involving “substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty”), with N.Y. Penal Law § 10.00(9) (2010) 16 (defining “physical injury” as “impairment of physical condition or substantial pain”). The fact that N.Y. Penal Law § 130.50(1) thus reaches more broadly than § 2241(a) as to the sort of threats that can demonstrate the requisite compulsion does not, however, conclude our consideration of whether § 130.50(1) is a categorical Federal sex offense. As the above-quoted provisions further show, compelling a sexual act by a threat of less-than-serious bodily injury is still a Federal sex offense, only under the compulsion element of § 2242(1) rather than that of § 2241(a). In sum, any means proved to satisfy the “forcible compulsion” element of N.Y. Penal Law § 130.50(1) is necessarily a categorical match for a Federal sex offense: either aggravated sexual abuse under § 2241(a) if force is used or if immediate murder, kidnapping, or serious bodily injury is threatened; or simple sexual abuse under § 2242(1) if some lesser bodily injury is threatened. Put another way, N.Y. Penal Law § 130.50(1) is a categorical match for a “Federal sex offense” because there is no form of compulsion a person can use to commit that state crime without necessarily engaging in compulsive conduct that would be a Federal sex offense, whether defined by § 2241(a) or § 2242(1). In urging otherwise, Valder argues that the government’s failure to rely on § 2242(1) in the district court waived its ability to do so now. We are not persuaded. Even assuming that the government’s omission can be faulted— debatable given Valder’s failure to renew his § 3559(e)(1) challenge before judgment—the record is more suggestive of government forfeiture than true waiver. See, e.g., United States v. Spruill, 808 F.3d 585, 596–97 (2d Cir. 2015) (distinguishing waiver (requiring intent) from forfeiture (which may reflect negligence or inadvertence)). In the absence of true waiver, this court is, of course, “free to affirm on any ground that finds support in the record, even if it was not the ground upon which the trial court relied.” United States v. Avenatti, 81 F.4th 17 171, 210 n.42 (2d Cir. 2023) (internal quotation marks omitted), cert. denied, 144 S. Ct. 2598 (2024). Thus, we consider § 2242(1) as well as § 2241(a) in determining whether N.Y. Penal Law § 130.50(1) categorically qualifies as a “Federal sex offense.” Nor are we persuaded otherwise by Valder’s observation that jurors can find the forcible compulsion element of N.Y. Penal Law § 130.50(1) without stating (or even being unanimous as to) the means established, i.e., whether use of force, threat of immediate death or kidnapping, or threat of physical injury. This misses the point critical to our identification of N.Y. Penal Law § 130.50(1) as a categorical Federal sex offense, i.e., a defendant cannot violate N.Y. Penal Law § 130.50(1) without using some means of compulsion also proscribed by a law constituting a Federal sex offense, whether § 2241(a) or § 2242(1). Which law does not matter as both are statutorily listed Federal sex offenses. It is for that reason that the state crime’s compulsion element does not render it categorically broader than a Federal sex offense. Valder nevertheless insists that we cannot reach this conclusion by looking to more than one of the crimes listed in § 3559(e)(2)(A). He submits that if N.Y. Penal Law § 130.50(1) is compared only with § 2241(a), there can be no categorical match because the state law recognizes any threat of physical injury as sufficient to satisfy its compulsion element, whereas § 2241(a) demands a threat of serious bodily injury to prove the compulsion it proscribes. Further, if N.Y. Penal Law § 130.50(1) is compared only with § 2242(1), Valder suggests that there can be no categorical match because the state law compulsion element can be proved by use of physical force, or by a threat of immediate death, kidnapping, or serious bodily injury, conduct that § 2242(1) expressly excludes from its compulsion element. 13 13 See supra at 16 (quoting text of § 2241(a) and § 2242(1)). 18  That misunderstands the categorical approach, which looks to “the minimum criminal conduct necessary to satisfy the elements” of the predicate state offense, and then determines whether that minimum conduct sufficiently matches the elements of the comparator federal crime. United States v. Scott, 990 F.3d at 104; accord Mathis v. United States, 579 U.S. at 503. That one can violate N.Y. Penal Law § 130.50(1) by exceeding the conduct criminalized under one “Federal sex offense”—§ 2242(1)—does not disturb our conclusion because such conduct is also criminalized under a different “Federal sex offense”—§ 2241(a). Moreover, Valder’s argument overlooks the reason for § 2242(1)’s exclusion of compulsion by “threatening or placing” the victim “in fear” of “death, serious bodily injury, or kidnapping,” which is hardly that such compulsion is no part of a “Federal sex offense” but, rather, that such compulsion, in fact, proves aggravated sexual abuse in violation of § 2241(a). This only reinforces our conclusion that there is no way a defendant can be found guilty of compelling sexual conduct in violation of N.Y. Penal Law § 130.50(1) without also being guilty of a “Federal sex offense” based on compulsion, whether under § 2241(a) or § 2242(1). As Valder himself acknowledges, three of our sister circuits have rejected the idea that a categorical determination about a particular crime can be made only by reference to a single potential comparator. See United States v. Scott, 14 F.4th 190, 196 (3d Cir. 2021) (stating “nothing in the Guidelines or related authorities suggests a court is limited to considering only a single corresponding crime of violence when evaluating a state statute under the categorical framework” with regard to U.S.S.G. § 4B1.2(a), which “define[s] crime of violence as any of the enumerated offenses under federal or state law” (alterations adopted) (emphasis in original) (internal quotation marks omitted)); United States v. Castillo, 811 F.3d 342, 347 (10th Cir. 2015) (same regarding U.S.S.G. § 2L1.2); United States v. Becerril- Lopez, 541 F.3d 881, 892 (9th Cir. 2008) (stating that if conviction under state law “involved a threat not encompassed by generic robbery, it would necessarily 19 constitute generic extortion and therefore be a ‘crime of violence’ under U.S.S.G. 2L1.2”). 14 Valder seeks to distinguish these cases on the ground that they pertain to Sentencing Guidelines, which, at the relevant time, used the word “any” to introduce lists of comparator crimes, thus permitting at least one court to conclude that this “plain language does not limit the comparison of the crime of conviction to only one of the enumerated crimes of violence.” United States v. Castillo, 811 F.3d at 347 (finding further support for conclusion in Guidelines’ broad residual clause). Section 3559(e)(2)(A), Valder notes, does not use the word “any” in listing statutes defining “Federal sex offense.” Rather, § 3559(e)(2) repeatedly uses the indefinite articles “a” or “an” in defining terms pertinent to its life-imprisonment mandate. See, e.g., 18 U.S.C. § 3559(e)(2)(C) (stating that “prior sex conviction” referenced in sentencing mandate means conviction “for a Federal sex offense or a State or Military sex offense”); id. § 3559(e)(2)(B) (stating that “State . . . sex offense” means “an offense under State law . . . punishable by more than one year in prison” that “consists of conduct that would be a Federal sex offense”); id. § 3559(e)(2)(A) (defining “Federal sex offense” as “an offense under” enumerated statutes) (all parenthetical emphases added). This, he submits, indicates that, for purposes of categorical comparison, a state sex offense can be considered by reference to only a single statute listed in § 3559(e)(2)(A). We are not convinced. Depending on context, the indefinite articles “a” or “an” can, i