United States v. Kirk

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-50510
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGERS JULIAN KIRK,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

April 17, 1997

Before JOHNSON, WIENER, and DENNIS, Circuit Judges.

JOHNSON, Circuit Judge.

Rogers Julian Kirk appeals his conviction for possession of a

firearm as a convicted felon in violation of 18 U.S.C. § 922(g).

Kirk asserts two points of error on appeal. First, he complains

that the district court erred in overruling his motion to suppress
evidence unlawfully discovered. Second, Kirk contends that the

district court erred in assigning a Sentencing Guideline base

offense level (BOL) of twenty because his prior conviction for

indecency with a child is not “a crime of violence.” Finding no

merit in either argument, we affirm.

I. Factual and Procedural History

On November 4, 1994, the Caldwell County Sheriff’s Department
(CCSD) arrested Kirk for an outstanding parole violation and for

false identification to a police officer. When the police arrested

him, Kirk was living in a 1974 MCI bus parked in Lockhart State

Park outside of Lockhart, Texas. Following the arrest, the police

impounded the bus, and Inspector Scott with the Department of

Public Safety (DPS) and Deputy Hay with CCSD began an inventory

search of the interior. While searching the vehicle, Scott came

across what appeared to be pornographic photographs of young boys.

The Government further asserts that during the inventory search,

James Blanton, another CCSD officer, discovered a firearm in an

exterior luggage carrier. This weapon is the subject of Kirk's

present conviction. The inventory search was never completed

because after discovering the allegedly pornographic material,

Scott and Hay terminated the inventory search to obtain a search

warrant.

On September 5, 1995, a federal grand jury indicted Kirk for

possession of a firearm as a convicted felon, 18 U.S.C. §

922(g)(1); possession of a firearm as a fugitive from justice, §

924(a)(2); and possession of a stolen firearm, 18 U.S.C. §§ 922(j),

924(a)(2). Kirk filed a motion to suppress evidence challenging

the admissibility of the firearm that officer Blanton discovered.

The district court denied the motion. Kirk subsequently pleaded

guilty to possession of a firearm as a convicted felon, but

specifically reserved his right to appeal the denial of the motion

to suppress.

In sentencing Kirk, the district court assigned a BOL of

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twenty pursuant to Sentencing Guideline section 2K2.1(a)(4)(A).

This section states that a defendant’s BOL is twenty “if the

defendant had one prior felony conviction of . . . a crime of

violence.” U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) (1995).

The district court found that Kirk had a prior felony conviction

of indecency with a child and that this crime constituted a crime

of violence as defined by the Sentencing Guidelines. See id. §

4B1.2(1). Kirk objected to the assignment of a BOL of twenty,

asserting that indecency with a child was not a crime of violence.1

In overruling Kirk’s objection, the district court found that

indecency with a child was “certainly violent, violent to the

victim, violent to the mores of our society, nonviolent to nobody.”

After considering other pertinent factors,2 the district court

set Kirk’s total offense level at nineteen. The probation officer

determined in the presentence report (PSR) that Kirk had twelve

criminal history points, placing Kirk in a criminal history

category of V. But pursuant to Sentencing Guideline section 4A1.3,

the district court increased Kirk’s criminal history category to VI

because category V did not adequately reflect the seriousness of

1
Kirk claims that if the district court had not classified his
prior conviction as a crime of violence, he would have received a
BOL of fourteen, thereby resulting in a reduced sentence.
2
Two points were added pursuant to Sentencing Guideline
section 2K2.1(b)(4) because the firearm was stolen. However, four
points were subtracted because Kirk demonstrated an acceptance of
personal responsibility for his criminal conduct and because he
assisted the authorities in investigating and prosecuting his own
misconduct. See U.S.S.G.M. § 3E1.1(a)-(b).

3
Kirk’s past criminal conduct. Using a total offense level of 19

and a criminal history category of VI, the district court sentenced

Kirk to seventy-eight months of imprisonment, the maximum allowed

by the Sentencing Guidelines. See id. at ch. 5, pt. A. Kirk now

appeals the denial of his motion to suppress evidence and his

sentence.

II. Discussion

A. Suppression of Evidence

Kirk filed a motion to suppress the firearm discovered by

Blanton. His primary complaint was that Blanton’s search of the

exterior of the bus was not in accordance with strict police

procedures for conducting an inventory search. Thus, Kirk

contends, the discovery of the weapon was not pursuant to a valid

inventory search. The district court, however, declined to rule on

the constitutionality of the search, instead finding that the

inevitable discovery exception applied. The court reasoned that

even if Blanton’s search was inappropriate, Scott and Hay had

commenced a proper inventory search and inevitably would have

discovered the firearm.

In order for the inevitable discovery exception to apply, the

Government must demonstrate, by a preponderance of the evidence,

both “(1) a reasonable probability that the contested evidence

would have been discovered by lawful means in the absence of police

misconduct and (2) that the Government was actively pursuing a

‘substantial alternate line of investigation at the time of the

constitutional violation.’” United States v. Lamas, 930 F.2d 1099,

4
1102 (5th Cir. 1991) (quoting United States v. Cherry, 759 F.2d

1196, 1205-06 (5th Cir. 1985)). Kirk challenges the district

court’s finding that the Government was actively pursuing a

substantial line of alternate investigation at the time that

Blanton discovered the pistol.

Blanton testified that he arrived at the crime scene around

5:00 or 6:00 p.m. and commenced his inventory search of the bus

around 9:00 p.m. Kirk, however, claims that Blanton could not have

discovered the gun around 9:00 p.m. Rather, Kirk asserts that

Blanton discovered the firearm when he first arrived at the scene,

prior to Scott and Hay beginning the inventory search. He bases

this belief on (1) Blanton’s testimony that the firearm was found

prior to the discovery of the alleged pornographic pictures, (2)

Scott’s testimony that the pictures were found early on in the

inventory search, and (3) Scott’s testimony that the inventory

search began shortly after he arrived at the park around 6:30 p.m.,

instead of 9:00 p.m. as Blanton testified. Furthermore, Kirk

reasons that Blanton would not have proceeded to search the

exterior of the bus after Scott and Hay had assumed tight control

over the inventory search of the bus. Thus, Kirk reaches the

conclusion that Blanton must have discovered the firearm somewhere

around 5:00 p.m. or 6:00 p.m., prior to Scott and Hay starting the

inventory search.

When reviewing a motion to suppress based on live testimony,

we must accept a district court’s findings of fact unless clearly

erroneous or influenced by an incorrect view of the law. See

5
United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994); United

States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993). Furthermore,

we must view the evidence in a light most favorable to the party

that prevailed below. See id. The Government submitted evidence

at the suppression hearing showing that at the time Blanton

discovered the weapon (1) the decision to impound and inventory the

bus had already been made and (2) the inventory of the interior of

the vehicle was underway. Hay, who initiated the inventory search

with Scott, testified that he arrived at the park around 7:30 or

8:00 p.m. and that the inventory search started approximately an

hour after he arrived. Mike Masur, an employee of the Texas Parks

and Wildlife Department who was assisting in the search,

corroborated Hay’s testimony and testified that the search began at

approximately 9:00 p.m. Viewing this evidence in a light most

favorable to the Government, it was not clearly erroneous for the

district court to find that the Government was actively pursuing a

substantial alternate line of investigation at the time Blanton

discovered the weapon. The district court, therefore, did not err

in denying Kirk’s motion to suppress.

B. Sentencing Guidelines

In Kirk’s second point of error, he challenges the district

court’s assignment of a BOL of twenty. We must uphold Kirk’s

sentence unless it was imposed in violation of the law, resulted

from an erroneous application of the Sentencing Guidelines, or was

an unreasonable departure from the range authorized by the

guidelines. See, e.g., 18 U.S.C. § 3472(e); United States v.

6
Guadardo, 40 F.3d 102, 103 (5th Cir. 1994); United States v. Ford,

996 F.d. 83, 85 (5th Cir. 1993). Challenges to a district court’s

interpretation of the Sentencing Guidelines are reviewed de novo

while challenges to a district court’s findings of fact made in the

course of applying the sentencing guidelines are reviewed for clear

error. See id.

A defendant convicted of violating 18 U.S.C. § 922(g),

possession of a firearm as a convicted felon, is sentenced pursuant

to Sentencing Guideline section 2K2.1. Section 2K2.1(a)(4)(A)

assigns a BOL of twenty to a defendant with one prior felony

conviction of a crime of violence. Although this section does not

specifically state which crimes are considered crimes of violence,

the commentary to section 2K2.1 expressly incorporates the

definition of a crime of violence set out in Sentencing Guideline

section 4B1.2. See U.S.S.G.M. § 2K2.1 cmt. 5.

Section 4B1.2(1) states that a crime of violence is an offense

punishable by imprisonment for a term exceeding one year that

(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(ii) 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.

Id. § 4B1.2(1). Kirk claims that his prior conviction for two

counts of indecency with a child does not constitute a crime of

violence as defined by this section of the Sentencing Guidelines.

Kirk was convicted of violating both subsection (a)(1) and

(a)(2) of Texas Penal Code section 21.11. Section 21.11(a)

7
provides:

(a) A person commits an offense if, with a child younger
than 17 years and not his spouse, whether the child is of
the same or opposite sex, he:
(1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals,
knowing the child is present, with intent to arouse
or gratify the sexual desire of any person.

TEX. PENAL CODE ANN. § 21.11(a) (Vernon 1994).3 The Texas Penal Code

further defines sexual contact as “any touching of the anus,

breast, or any part of the genitals of another person with intent

to arouse or gratify the sexual desire of any person.” Id. §

21.01(2). The district court considered these two counts as one

prior felony conviction for purposes of establishing the BOL. See

U.S.S.G.M. § 4A1.2(a)(2). However, because the nature of the two

offenses for which Kirk was convicted of are different, (i.e., one

offense involves sexual contact and the other does not), we review

each offense separately.

We begin by determining whether Kirk’s conviction under Texas

Penal Code section 21.11(a)(1), sexual indecency with a child

involving sexual contact, is a crime of violence. Section

4B1.2(1)(i) of the Sentencing Guidelines is inapplicable because

physical force is not an element of the crime of indecency with

a child. See T EX. PENAL CODE ANN. § 21.11(a)(1). Thus, the focus

in this case is whether Kirk’s conviction for indecency with a

child involving sexual contact involved conduct that "present[ed]

a serious potential risk of physical injury to another."

3
Although Kirk was not convicted under the 1994 statute, the
portions of the statute that applied to Kirk when he was convicted
are identical to the current version.

8
U.S.S.G.M. § 4B1.2(1)(ii).

Although this court has not expressly ruled on whether

indecency with a child involving sexual contact is a crime of

violence pursuant to Sentencing Guideline section 4B1.2, we have

found that for purposes of 18 U.S.C. § 16, indecency with a child

involving sexual contact is a crime of violence. See United

States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996).4 In

Velazquez-Overa, we noted that crimes of this type are generally

perpetrated by adults who are not only bigger and stronger than

the children they abuse, but who also have the ability to coerce

these children as an adult authority figure, adding immensely to

the dangerous circumstances under which this type of crime is

committed. See Id. at 422. At the heart of the Velazquez-Overa

opinion “is the belief ‘that when an older person attempts to

sexually touch a child under the age of fourteen, there is always

a substantial risk that physical force will be used to ensure the

child’s compliance.’” Id. (quoting United States v. Reyes-Castro,

13 F.3d 377 (10th Cir. 1993)).

We realize that the definition of crime of violence as stated

in 18 U.S.C. § 16 is not identical to the definition in section

4
Other circuits, also interpreting 18 U.S.C. § 16, have
reached similar conclusions. See United States v. Reyes-Castro, 13
F.3d 377 (10th Cir. 1993) (holding that attempted sexual abuse of
a child in violation of Utah state law is a crime of violence);
United States v. Rodriguez, 979 F.2d 138 (8th Cir. 1992) (holding
that lascivious acts with a child in violation of Iowa state law is
a crime of violence).

9
4B1.2 of the Sentencing Guidelines.5 While § 16 refers to the

risk of physical force, section 4B1.2 refers to the risk of

physical injury. Nonetheless, the definitions are substantially

similar. Therefore, the reasoning employed in § 16 cases is

persuasive authority for the conclusion reached today. Cf.

Velazquez-Overa, 100 F.3d at 421 n.4 (stating that the Ninth

Circuit’s analysis in United States v. Wood, 52 F.3d 272 (9th Cir.

1995), while interpreting crimes of violence pursuant to section

4B1.2, supported the conclusion that indecency with a child was

a crime of violence under 18 U.S.C. § 16). Indeed, in situations

in which there is a substantial risk that physical force against

a person will be used, a serious potential risk of physical injury

may also exist.

In Wood, the Ninth Circuit held that pursuant to Sentencing

Guideline section 4B1.2 indecent liberties with a minor was a

crime of violence. 6 52 F.3d at 272. In 1985, Wood had pleaded

5
Section 16 states that a crime of violence means

(a) an offense that has an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used.

18 U.S.C. § 16.
6
The Washington state law stated that

(1) A person is guilty of indecent liberties when
he knowingly causes another person who is not his
spouse to have sexual contact with him or another:

(a) By forcible compulsion; or
(b) When the other person is less than 14

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guilty in state court to taking indecent liberties with a minor

and was convicted for molesting a four year old little girl. See

id. at 273. In concluding that Wood’s conviction was a crime of

violence, the Ninth Circuit reasoned that “there is a serious risk

of physical harm just in the very nature of the offense. Such

conduct is inherently violent because the threat of violence is

implicit in the size, age and authority position of the adult

dealing with a . . . child.” Id. at 274 (quoting district court).

The court held without hesitation that an offense of indecent

liberties with a child younger than four presents a “serious

potential risk of physical injury to another” and was a crime of

violence as defined by section 4B1.2.

In the present case, the PSR stated that Kirk has been

convicted of sexual indecency with a child involving sexual

contact.7 The facts indicated that Kirk’s victim was only eight

years of age.
. . . .

(2) For purposes of this section, “sexual contact”
means any touching of the sexual or other intimate
parts of a person done for the purpose of
gratifying the sexual desire of either party.

Wood, 52 F.3d at 274 (quoting former WASH. REV. CODE § 9A44.100
(1985)).
7
Kirk complains for the first time on appeal that the district
court improperly relied on the PSR to determine that his conviction
for indecency with a child was crime of violence. Because Kirk
failed to object to this at the district court level we will only
review the district court’s actions for plain error. See United
States v. Guerrero, 5 F.3d 868, 870 (5th Cir. 1993). “Plain error
is so obvious that [this court’s] failure to notice it would
seriously affect the fairness, integrity, or public reputation of
[the] judicial proceeding.” United States v. Hoster, 988 F.2d
1374, 1380 (5th Cir. 1993). More specifically, we will uphold

11
years old. Furthermore, it was shown that Kirk had lured this

child to a secluded area of a local park by deceiving and coercing

the child. The little boy, unaware of the grave danger posed by

Kirk, befriended him. Taking advantage of his position as an

adult authority figure and the innocent nature of this child, Kirk

sexually abused him.

Although the record does not indicate that any actual

physical injury resulted, physical injury is not the test. The

fact that a serious potential risk of physical injury exists is

sufficient. As in this situation, when children are physically

inferior to and trusting of adults, a potentially dangerous

situation exists. Anytime an eight-year-old child is molested by

an adult there is a significant risk that physical injury will

result. When one couples a mature adult’s inherent authority over

a helpless young child with the implicit threat that his superior

physical strength poses, the risk of physical injury is clear and

unequivocal.

We therefore hold that Kirk’s conviction of indecency with

a child involving sexual contact under Texas Penal Code section

21.11(a)(1) is a crime of violence as defined by section 4B1.2 of

sentencing adjustments if “the record as a whole demonstrates that
the adjustments did not result in miscarriage of justice.” United
States v. Pattan, 931 F.2d 1035, 1043 (5th Cir. 1991). In the
present case, we conclude that the district court’s reliance on the
PSR in characterizing Kirk’s prior conviction as a crime of
violence was not plain error. See United States v. Jackson, 22
F.3d 583, 585 (5th Cir. 1994) (stating that a district court could
review the description of a conviction in a PSR to determine
whether it was a crime of violence).

12
the United States Sentencing Guidelines.8 Because we have

determined that Kirk’s violation of section 21.11(a)(1) is a crime

of violence sufficient to uphold the district court’s assignment

of a BOL of twenty, we decline to decide whether Kirk’s conviction

under Texas Penal Code section 21.11(a)(2), sexual indecency with

a child not involving sexual contact, was also a crime of

violence.

III. Conclusion

For the reasons stated above, we hold that the district court

properly denied Kirk’s motion to suppress evidence and correctly

found that Kirk’s conviction for indecency with a child involving

8
We note that in Velazquez-Overa this court held that sexual
indecency with a child in violation of Texas Penal Code 21.11(a)(1)
was per se a crime of violence. Importantly, under 18 U.S.C. § 16,
we were compelled to apply a categorical approach in determining
crimes of violence. See Velazquez-Overa, 100 F.3d at 420. The
Sentencing Guidelines, however, do not require such a categorical
approach. See Jackson, 22 F.3d at 585. Because we determine that
the specific conduct Kirk was convicted of was a crime of violence
we decline to rule on whether a violation of Texas Penal Code
section 21.11(a)(1) could be per se a crime of violence under
Sentencing Guideline section 4B1.2. Whether a conviction for
sexual indecency with a child is always a crime of violence under
Sentencing Guideline section 4B1.2 presents difficult questions.
For example, a nineteen year old individual that engaged in
consensual sexual contact with a sixteen year old may have violated
section 21.11(a)(1). Yet, we cannot say that a serious potential
for physical injury necessarily exists in this scenario. We are
aware that under Texas law a person under the age of seventeen is
legally unable to consent to sexual contact. However, factually a
they can consent thereby resulting in nonviolent sexual contact.
Importantly, the circumstances surrounding sexual contact between
two teenagers are far different from those surrounding sexual
contact between a young child and a much older adult. Thus, while
sexual indecency with a child is under many circumstances a crime
of violence as defined by section 4B1.2, we recognize that
situations may exist where a potential risk of physical injury is
not present when Texas Penal Code section 21.11(a)(1) is violated.
See generally Id. at 585.

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sexual contact was a crime of violence pursuant to Sentencing

Guideline section 4B1.2.

AFFIRMED.

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