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February 3, 2015
  United States v. Wray
Case Name: United States v. Wray -- Tenth Circuit

Headline: Tenth Circuit holds that age-related sexual offenses are not per se crimes of violence under the federal Career Offender sentencing guidelines.

Areas of Law: Criminal Law

Issues Presented:

1. Is age-related statutory rape a per se forcible sex offense under Application Note 1 of the Career Offender sentencing guidelines?

2. Is age-related statutory rape a per se crime of violence under the residual clause of the Career Offender sentencing guidelines?

Brief Summary:

The defendant pleaded guilty to being a felon in possession of a firearm. During sentencing, his previous conviction for "Sexual Assault - 10 Years Age Difference" under Colorado state law was cited as a prior "crime of violence" and used as a predicate for increasing his sentence under the federal Career Offenders sentencing guidelines. The defendant objected to this use, arguing that the district court erred in concluding that violation of the Colorado statute was a per se crime of violence.

The Tenth Circuit held that violation of Colorado's statutory rape law was not a forcible sex offense under the federal Career Offenders sentencing guidelines, nor was it a crime of violence under the residual clause. The court remanded the case to the district court for resentencing.

Extended Summary:

The defendant, Mr. Wray, pleaded guilty to being a felon in possession of a firearm. He was sentenced to 77 months imprisonment and three years' supervised release. His presentence investigation report (PSR) contained a prior conviction under Colo. Rev. Stat. § 18-3-402(1)(e) for "Sexual Assault - 10 Years Age Difference". This was cited as a prior "crime of violence" and used as a predicate for increasing his base offense level from a 20 to 24. This resulted in an increased term of imprisonment. The defendant objected to this use of his prior conviction, but the district court found that it constituted a crime of violence. The defendant appealed to the Tenth Circuit Court of Appeals.

The court applied a de novo standard of review. It began its analysis by reviewing the sentencing guidelines at issue. Under U.S.S.G. § 2K2.1(a)(2), a defendant is assigned a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The commentary to that statute points to the career-offender guideline, U.S.S.G. § 4B1.2, for the definition of a "crime of violence". That definition of a "crime of violence" includes "(a) any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Application Note 1 to U.S.S.G. § 4B1.2 provides that "forcible sex offenses" constitute crimes of violence but does not define forcible sex offenses.

All parties agreed that the defendant's prior conviction did not satisfy the elements of § 4B1.2(a)(1). Rather, the government contended that Colorado's statutory rape law under which the defendant was convicted addressed "forcible sex offenses" such that the defendant's conviction fell within the ambit of Application Note 1 to U.S.S.G. § 4B1.2. Alternatively, the government argued that the statutory rape law addressed conduct that fell within the residual clause of § 4B1.2(a)(2).

The court noted that the crime of violence definition contained within § 4B1.2 is virtually identical to the definition of a "violent felony" contained in the Armed Career Criminal Act (ACCA). In James v. United States, 550 U.S. 192, 206 (2007), the Supreme Court crafted an analysis to determine if crimes constitute a violent felony under the ACCA. The Tenth Circuit and several other circuit courts adopted the James analysis to determine if criminal offenses constitute "crimes of violence" under § 4B1.2. That analysis utilizes a categorical approach, looking at the fact of conviction and the statutory definition of that prior offense without considering the facts unique to the defendant's own conviction. In James, the Court considered whether the defendant's prior conviction for attempted burglary "otherwise involv[ed] conduct that presents a serious risk of physical injury to another" under a provision of the ACCA that closely mirrors the residual clause of § 4B1.2(a)(2). The Court concluded that the attempted burglary was a violent felony because it posed the "same kind of risk" as completed burglary, such as the potential for violent confrontation between the burglar and an innocent bystander. The Court focused on the potential risk contemplated by the statute instead of the actual or factual risk in the defendant's particular situation.

A year after the James decision, the Supreme Court decided Begay v. United States, 553 U.S. 137 (2008). In Begay, the Court held that Driving Under the Influence (DUI) convictions were not violent felonies under the ACCA. The Court concluded that the Sentencing Commission's use of enumerated offenses in the ACCA's "violent felony" definition showed an intent that the residual clause only encompass crimes "roughly similar, in kind as well as in degree of risk posed" to the enumerated offenses. The Court held that the risk posed by DUI offenses was not similar in nature to those considered by the enumerated offenses. It noted that the enumerated crimes "all typically involve purposeful, violent, and aggressive conduct" whereas DUI statutes impose strict liability without concern for criminal intent or the aggressive nature of the conduct. Prior convictions under such statutes would therefore provide little (if any) indication that the defendant would engage in the kind of violent criminal behavior contemplated by the sentencing guidelines.

The Tenth Circuit then considered the most recent Supreme Court case to address the ACCA residual clause. In Sykes v. United States, 131 S. Ct. 2267 (2011), the Court held that the crime of vehicle flight from law enforcement fell within the residual clause because risk of violence is inherent in vehicle flight and that risk is similar to that of the ACCA's enumerated crimes. The Court distanced itself somewhat from the qualitative risk analysis it employed in Begay, noting that "in general, levels of risk divide crimes that qualify from those that do not." The strict liability DUI statutes in Begay involved a level of risk clearly distinct from the enumerated crimes in the ACCA, whereas the vehicle flight crime involved a level of risk similar to that seen in the ACCA.

The Tenth Circuit began its analysis within the framework of the Supreme Court precedent by first considering whether the defendant's prior conviction was a "forcible sex offense". The government argued that, because Colorado's statutory rape statute at issue presupposes any possible consent from the victim, any sexual conduct covered by the statute is inherently forcible. The court disagreed, citing to the Fourth Circuit's reasoning in United States v. Leshen, 453 F. App'x 408, 415 (4th Cir. 2011) (unpublished). In Leshen, the Fourth Circuit noted that the use of the term "forcible" demonstrates that the Sentencing Commission contemplated some sex offenses as nonforcible. It also suggested that all other criminal offenses listed in commentary to § 4B1.2 entail the use of physical force, are repetitions of the enumerated offenses, or "present a serious potential risk of physical injury that is similar in kind and degree to the listed offenses". In the present case, the court noted the absence of legal consent does not preclude the possibility of factual consent in statutory rape cases. As such, the act prohibited by the statutory rape law will not always be inherently "forcible" in the sense that is more generally contemplated by § 4B1.2. The court further noted that Colorado has a separate statute for sex offenses it deems to be forcible, indicating a legislative belief that the statutory rape was not "forcible" per se.

The government also argued that the statutory rape was a forcible sex offense because statutory rape and sex offenses "where consent is not legally valid" are included in the definition of forcible sex offenses provided by commentary to U.S.S.G. § 2L1.2. This particular sentencing guideline pertains to the unlawful entry into or unlawful remaining in the United States. The court was unconvinced by this argument, noting that the Sentencing Commission could have easily pointed the Career Offenders sentencing guidelines to § 2L1.2 for the definition of a crime of violence, but instead referred to § 4B1.2 and its less inclusive definition. It further noted that the Commission's explicit inclusion of statutory rape as a forcible sex offense under § 2L1.2 but not under § 4B1.2 demonstrated a clear intent for statutory rape to not be considered a per se forcible sex offense.

In dismissing the government's two arguments that the defendant's statutory rape conviction was a per se forcible sex offense, the court cited to its decision in United States v. Dennis, 551 F.3d 986 (10th Cir. 2008). In Dennis, the court held that the defendant's violation of Wyoming's "indecent liberties with a minor" statute was not a crime of violence under § 4B1.2 because that statute "lack[ed] force or assault as an element, let alone lack of consent." In accordance with this decision and other guiding precedent, the court held that violation of age-based sexual contact statutes are not per se "forcible sex offenses" under Application Note 1 to U.S.S.G. § 4B1.2.

The court then considered whether the defendant's prior conviction fell within the residual clause of § 4B1.2(a)(2) because it "otherwise involves conduct that presents a serious potential risk of physical injury to another." It further explained the effects of Begay and Sykes on its analysis, observing that Sykes limited the Begay "purposeful, violent, and aggressive" test to strict liability, negligence, and recklessness crimes. It explained that "[t]he commission of a strict liability offense, while potentially posing a serious risk of physical injury, does not involve purposeful, violent, or aggressive conduct."

The court turned its analysis to determining whether the statute under which the defendant was previously convicted, Colo. Rev. Stat. § 18-3-402(1)(e), is a strict liability statute. Under that statute, a person is guilty of sexual assault if they "knowingly inflict sexual intrusion or sexual penetration on a victim [and] . . . (e) [a]t the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age." The parties agreed that the phrase "knowingly" does not apply to the age of the victim, the statutory element that makes the conduct illegal. However, the government argued that the absence of a mens rea regarding the victim's age does not render the statute one of strict liability because the sexual act itself requires a mens rea. The court disagreed because the only element of the statute that distinguishes unlawful consensual sex from consensual sex is the age of the victim and that element does not have a mens rea requirement. The court also pointed to People v. Salazar, 920 P.2d 893, 895 (Colo. App. 1996), in which the Colorado Court of Appeals held that the sexual assault of a child statute, similar in nature to the statute at issue here, provided for strict liability even though it contained the word "knowingly". Here, the court found that Colorado's statute was one of strict liability. It held that the Begay exception applied and precluded a conviction under that statute from falling within the residual clause of the crime of violence definition.

The court held that the defendant's prior conviction was not a crime of violence and remanded to the district court for resentencing.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1086.pdf

Panel: Kelly, Hartz, Matheson

Date of Issued Opinion: January 27, 2014

Docket Number: No. 14-1086

Decided: Remanded for resentencing.

Counsel:
Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States
Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author: Kelly

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 02/03/2015 10:32 PM     10th Circuit  

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