United States v. Austin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 14, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-1387

ANTONE RAYMOND AUSTIN,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 04-CR-32-RB)

John A. Chanin, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.

Martha Ann Paluch, Assistant United States Attorney (William J. Leone, Acting
United States Attorney, and Philip A. Brimmer, Assistant United States Attorney,
with her on the briefs), Denver, Colorado, for Plaintiff-Appellee.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

BRORBY, Senior Circuit Judge.
 Appellant Antone Raymond Austin pled guilty to one count of possession

of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). He

appeals the enhancement of his sentence based on his prior Colorado conviction

for sexual assault on a child, which he contends the district court improperly

characterized as a crime of violence, in violation of the Supreme Court’s decision

in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, affirm in part,

and remand in part.

I. Background

In his plea agreement, Mr. Austin agreed to plead guilty to possession of a

firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1), but disputed

the government’s contention his sentence should be increased based on his prior

Colorado state conviction for “Attempted Sexual Assault on a Child” under

Colorado Revised Statute § 18-3-405(1), which he asserted did not constitute a

“crime of violence” as proscribed by United States Sentencing Commission,

Guidelines Manual (U.S.S.G.) § 2K2.1(a)(2) and defined under U.S.S.G. § 4B1.2

and its commentary. The probation officer who prepared the presentence report

nonetheless recommended a base offense level increase of four levels, from 20 to

24, based on the prior Colorado conviction, which he characterized as a “crime of

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violence” but also noted involved a legal issue for the court to determine. Prior

to the sentencing hearing, the Supreme Court issued its decision in Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Thereafter, in objecting to the

presentence report, Mr. Austin again objected to the characterization of his prior

conviction as a “crime of violence” and, in light of Blakely, also objected to the

mandatory application of the Sentencing Guidelines in determining his sentence.

The district court held a sentencing hearing at which it denied Mr. Austin’s

objections to the mandatory application of the Sentencing Guidelines and the

characterization of his prior state conviction as a “crime of violence.” Rather

than considering any of the alleged facts underlying the prior conviction as

contained in the presentence report and an affidavit submitted in the state case, 1

the district court instead considered only the statutes involved and the charging

documents, including Mr. Austin’s admissions at his state court plea and

sentencing hearing, to determine if his prior conviction met the definition of a

1
Initially, the government asked us to consider several inculpatory
assertions in the arrest warrant affidavit and similarly directed us to a later pretext
telephone call in which Mr. Austin allegedly made inculpatory statements.
However, in light of the Supreme Court’s decision in Shepard v. United States,
___ U.S. ___, 125 S. Ct. 1254 (2005), the government now withdraws its request
we consider these “facts” and, like the district court, we will not consider factual
accusations underlying a prior conviction to which a defendant has not admitted.
Id. at 1263.

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“crime of violence” under U.S.S.G. §§ 2K2.1 and 4B1.2.

The statute to which Mr. Austin pled guilty, Colorado Revised Statute § 18-

3-405(1), is titled “Sexual assault on a child” and states: “[a]ny actor who

knowingly subjects another not his or her spouse to any sexual contact commits

sexual assault on a child if the victim is less than fifteen years of age and the

actor is at least four years older than the victim.” Under Colorado law “sexual

contact” is defined as:

[T]he knowing touching of the victim’s intimate parts by the actor, or
of the actor’s intimate parts by the victim, or the knowing touching
of the clothing covering the immediate area of the victim’s or actor’s
intimate parts if that sexual contact is for the purposes of sexual
arousal, gratification, or abuse.

Colo. Rev. Stat. § 18-3-401(4). A corresponding statute entitled “Unlawful

sexual contact” states:

Any person who knowingly, with or without sexual contact, induces
or coerces a child by any of the means set forth in section 18-3-402
to expose intimate parts or to engage in any sexual contact, intrusion,
or penetration with another person, for the purpose of the actor’s own
sexual gratification, commits unlawful sexual contact. For the
purposes of this subsection (1.5), the term “child” means any person
under the age of eighteen years.

See Colo. Rev. Stat. § 18-3-404(1.5). In addition, in Colorado, consent of both

parents is required for a person under the age of eighteen to marry, and a person

must be eighteen years of age to be competent to contract, manage his or her

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estate, sue and be sued, and make decisions regarding his or her own body. See

Colo. Rev. Stat. § 14-2-106 (regarding parental consent) and § 13-22-101

(concerning age of competency).

The formal charging document or “information” to which Mr. Austin pled

guilty charged him with a class 4 felony for subjecting another person to “sexual

contact” when that person was less than fifteen years old and Mr. Austin was at

least four years older. During Mr. Austin’s state plea and sentencing hearing, he

pled guilty to attempted sexual assault on a child, a class 5 felony, and made the

following admissions: 1) he touched the child’s vagina; 2) she was at a slumber

party with his sister; 3) he knew what he was doing at the time; 4) he was not

married to the girl; 5) she was less than fifteen at the time; 6) he was at least four

years older than the girl; and 7) he touched her vagina for his own sexual

gratification.

The district court considered the applicable statutes, charging document,

and Mr. Austin’s admissions in light of the applicable Sentencing Guidelines

definition of a “crime of violence,” which, under U.S.S.G. § 4B1.2, states:

The term “crime of violence” means 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

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 physical force against the person of another, or
(2) ... otherwise involves conduct that presents a serious potential
risk of physical injury to another.

U.S.S.G. § 4B1.2(a)(1) and (2). In addition, it recognized that commentary note 1

to § 4B1.2 states a “crime of violence” includes “forcible sex offenses.” U.S.S.G.

§ 4B1.2 cmt. n.1.

In applying this definition, the district court acknowledged attempted

sexual assault on a child under Colorado Revised Statute § 18-3-405(1) does not

have as an element the use, attempted use, or threatened use of physical force

against the victim, or constitute a “forcible sex offense” as specifically

enumerated. However, it found the crime, both “[o]n this record” and “given the

available case law,” presented a serious potential risk of physical injury to the

victim and therefore constituted a “crime of violence” within the meaning of

§ 4B1.2(a)(2).

After determining Mr. Austin’s Colorado conviction met the definition of a

“crime of violence,” the district court refused to grant Mr. Austin’s motion for a

downward departure under U.S.S.G. § 5K2.0, stating it did not “find that the

defendant or his concomitant circumstances, including but not limited to his

criminal history, constitute or qualify as mitigating circumstances of a kind or to a

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degree not adequately considered by the Sentencing Commission in formulating

the apposite guideline, citing guideline section 5K2.0 and 18 U.S.C. section

3553(b).” It held that “under the analysis provided by the United States Supreme

Court in Koon [v. United States, 518 U.S. 81 (1996)], ... this case is simply not

such an atypical case where a particular guideline linguistically applies, but where

the conduct significantly differs from the norm.” In denying the motion, the

district court judge also determined Mr. Austin committed two serious prior

felony offenses, and that his “subsequent record convinces me that he has a

philosophy that evinces a disturbing disrespect for the law, and one that includes

a propensity to illegally arm himself with deadly weapons.” The district court

then calculated Mr. Austin’s Sentencing Guidelines range at eighty-four to 105

months imprisonment and, at the government’s request, imposed a sentence at the

bottom of the range at eighty-four months.

Mr. Austin now appeals his sentence on grounds the district court erred in

characterizing his prior conviction as a “crime of violence” and mandatorily

applying the Sentencing Guidelines to determine his sentence. The government

concedes the district court erred in mandatorily sentencing Mr. Austin under the

applicable Sentencing Guidelines, but nevertheless continues to contend Mr.

Austin committed a “violent crime” under the “otherwise ... risk of physical

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injury” prong of the § 4B1.2 definition.

II. Discussion

A. Arguments Concerning Characterization of Prior Conviction

In contesting the characterization of his prior conviction as a “crime of

violence,” Mr. Austin suggests Colorado Revised Statute § 18-3-405(1) is

ambiguous as to whether he committed a violent crime because it covers both

invasive and noninvasive sexual assault conduct. He bases this premise on the

fact the statute contains as an element “sexual contact,” which includes the mere

touching of a child’s intimate parts through “clothing” and which, he contends,

does not otherwise “involve conduct which presents a serious potential risk of

physical injury” to another. In addition, Mr. Austin contends lack of consent

cannot be considered because it is not an element of § 18-3-405(1). While Mr.

Austin acknowledges he admitted at his plea hearing to touching the minor girl’s

vagina, he insists we should only apply a “least culpable” act test and assume he

did the least culpable act possible for conviction under the statute, which would

involve the mere consensual touching of a young girl’s clothing covering her

intimate parts. Mr. Austin further suggests, without supporting evidence in the

charging document or in his admissions, that the facts in this case establish the

age difference between himself and the girl involved was “just barely over ... four

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years” and that the conduct “was somewhat consensual in nature.” Mr. Austin

further asserts no “aggravating” circumstances warrant characterizing his conduct

as a “crime of violence” because the victim was not under the age of twelve, the

act did not involve incest, and he was not an adult family friend or relative. As

an example, he suggests the situation was like “two teenagers in the same high

school engaging in consensual touching of the clothing covering the girl’s

intimate parts” which, he contends, would certainly not constitute a “crime of

violence.” Finally, he contends the government failed to carry its burden in

offering medical or statistical evidence to show a girl of fourteen, or almost

fifteen, could be physically injured by sexual contact involving the mere touching

of her intimate parts through her clothing.

The government relies on this and other circuit court precedent to urge us

to make a per se determination that, by its nature, the statutory conduct for which

Mr. Austin pled guilty constitutes a “crime of violence” or, alternatively, that his

factual admissions establish he committed a “crime of violence.” Based on Mr.

Austin’s own admissions, the government contends he committed a “crime of

violence” and contests his characterization of the offense as “consensual” and

involving the mere touching of the “clothing” covering the girl’s intimate parts.

It also points out that the “least culpable” analysis suggested by Mr. Austin would

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be warranted only in situations where the statutory definition, charging

documents, and defendant’s admissions are all ambiguous.

B. Law Regarding Categorical Characterization of Prior Conviction

During Mr. Austin’s appeal, the Supreme Court issued United States v.

Booker, which applies its ruling in Blakely to the Federal Sentencing Guidelines.

543 U.S. at ___, 125 S. Ct. at 755-76. In United States v. Moore, 401 F.3d 1220

(10th Cir. 2005), we held that under Booker the government is not required to

charge in an indictment or prove to a jury either: 1) the existence of prior

convictions; or 2) their classification as “violent felonies.” Id. at 1221, 1224-25

& n.2. As to the existence of a prior conviction, Booker expressly reaffirms the

Supreme Court’s holding a prior conviction is an exception to factual jury

submissions by stating, “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S.

Ct. at 756 (emphasis added). Thus, Mr. Austin does not contend the “fact” of his

prior conviction needed to be included in the indictment or submitted to a jury.

See Moore, 401 F.3d at 1224.

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 Similarly, with respect to the characterization of prior convictions as crimes

of violence, we have determined it involves a question of law and not fact and

therefore does not implicate the Sixth Amendment for the purpose of requiring the

characterization of the offense to be charged in the indictment and proven to a

jury. See Moore, 401 F.3d at 1224-26 & n.2. However, when a defendant

contests whether his prior conviction is a “crime of violence,” we have held that

the trial court is generally required to take a categorical approach by looking only

to the fact of the conviction and the statutory definition of the prior offense. See

United States v. Hernandez-Rodriguez, 388 F.3d 779, 782 (10th Cir. 2004)

(relying on Taylor v. United States, 495 U.S. 575, 602 (1990)). When the statute

“reaches behavior that may or may not encompass conduct that constitutes a crime

of violence,” we have held an exception exists allowing the district court to “look

to the charging paper and judgment of conviction in order to determine if the

actual offense the defendant was convicted of qualifies as a crime of violence.”

Id. at 782-83 (quotation marks and citations omitted). The categorical approach

allows the sentencing court to examine sources of undisputed information rather

than conduct a fact finding inquiry, thereby sparing it from conducting mini-trials

on prior offenses which have already been adjudicated. See United States v.

Damon, 127 F.3d 139, 145 (1st Cir. 1997).

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 Since our decision in Hernandez-Rodriguez and the Supreme Court’s

decisions in Taylor, Blakely, and Booker, the Supreme Court has looked at the

categorical approach and exceptions thereto in the context of situations where,

like here, the defendant pled guilty to a prior offense. See Shepard, ___ U.S. at

___, 125 S. Ct. at 1258-59. In determining whether a prior offense qualifies as a

crime of violence, it explained a court is “generally limited to examining the

statutory definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the

defendant assented.” Id. at 1257.

Here, the categorical approach begins with an examination of Colorado

Revised Statute § 18-3-405 and its corresponding statutes and, under such an

approach, we determine whether a conviction thereunder constitutes a “crime of

violence” as defined under § 4B1.2. “We review the district court’s interpretation

of the Sentencing Guidelines de novo.” United States v. Herrera-Roldan, 414

F.3d 1238, 1240 (10th Cir. 2005) (citing United States v. Castro-Rocha, 323 F.3d

846, 848-49 (10th Cir. 2003)). If the statute of conviction is ambiguous, covering

both violent and nonviolent crimes, we rely on the charging documents, as

identified in Shepard, to assist in the determination, which in this case include

Mr. Austin's admissions at the plea and sentencing hearing.

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 We agree with the district court that § 18-3-405 does not contain the

elements outlined in § 4B1.2 because it does not require the “use, attempted use,

or threatened use of physical force against the person of another.” U.S.S.G.

§ 4B1.2 cmt. n.1. The government also does not suggest Mr. Austin's statutory or

admitted conduct fits within the expressly enumerated example of “forcible sex

offenses” and therefore we do not address it. 2 Rather, both parties concentrate on

the second prong of § 4B1.2 to determine whether Mr. Austin's prior conviction

“otherwise involve[s] conduct that presents a serious potential risk of physical

injury to another.” U.S.S.G. § 4B1.2(a)(2).

C. Tenth Circuit Court Precedent

In asking us to make a per se determination that the nature of the crime at

2
While the government does not specifically contend Mr. Austin's conduct
meets the enumerated definition of “forcible sex offenses,” it nevertheless directs
our attention to United States v. Munguia-Sanchez, 365 F.3d 877, 880, 882 (10th
Cir.), cert. denied, 125 S. Ct. 133 (2004). In that decision, we determined sexual
assault or abuse of a child of twelve fits the specially enumerated example of a
“crime of violence” for “forcible sex offenses,” including “sexual abuse of a
minor,” regardless of whether consent or the element of physical force was
involved Id. at 881-82. We note Munguia-Sanchez involved a child of twelve,
and that the § 2L1.2 definition of a “crime of violence,” unlike § 4B1.2, contains
both the enumerated examples of “forcible sex offenses” and “sexual abuse of a
minor.” In addition, since 2001, § 2L1.2 no longer contains the “otherwise”
language in the second prong of § 4B1.2 concerning the potential risk of physical
injury. Compare U.S.S.G. § 2L1.2 cmt. n.1 (2000), with U.S.S.G. § 2L1.2 cmt.
n.1 (2001) (omitting definition reference to § 4B1.2).

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issue, sexual contact with a child under the age of fifteen, is inherently a “crime

of violence,” the government relies on an array of Tenth Circuit cases, including

United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998); and United

States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). In Reyes-Castro, this court

determined attempted sexual abuse of a child under the age of fourteen is a “crime

of violence,” as defined by 18 U.S.C. § 16, because “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. at 379 (emphasis added). In that case, the Utah statute at issue stated a person

commits sexual abuse of a child by the touching of “the anus, buttocks, or

genitalia of any child, the breast of a female child younger than fourteen years of

age, or otherwise takes indecent liberties with a child ... with the intent to arouse

or gratify the sexual desire of any person regardless of the sex of any participant.”

Id. at 378-79 (quoting Utah Code Ann. § 76-5-404.1(1)). Another Utah statute on

which the court relied stated that sexual abuse of a child under the age of fourteen

is without consent. Id. at 379 (relying on Utah Code Ann. § 76-5-406). Rather

than applying § 4B1.2, which is at stake here, Reyes-Castro involved application

of 18 U.S.C. § 16, which also defines a “crime of violence” as “an offense that

has as an element the use, attempted use, or threatened use of physical force

against the person or property of another” but, rather than the risk of physical

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injury in § 4B1.2, it considers whether the crime “involves a substantial risk that

‘physical force’ against the person or property of another may be used in the

course of committing the offense.” 18 U.S.C. § 16 (emphasis added).

In Coronado-Cervantes, the defendant admitted, in part, to knowingly

engaging in sexual contact with a girl under the age of twelve by intentionally

touching her genitalia, anus, groin, breast, inner thigh, and buttocks with an intent

to gratify his sexual desires. 154 F.3d at 1243. The defendant pled guilty to three

federal sex statutes which we determined did not have as an element the use,

attempted use, or threatened use of physical force. Id. at 1243-44. However, we

held the prior conviction met the “otherwise” prong of § 4B1.2 and constituted a

“crime of violence.” Id. at 1244-45. In so holding, we noted that “[e]very

published appellate decision which has considered applying the ‘otherwise’ clause

in the context of sexual offenses involving minors has found a ‘serious potential

risk of physical injury’ to the minors ... and has held that the offenses at issue are

‘crimes of violence.’” Id. at 1244 (citations omitted). While we recognized a

distinction exists between 18 U.S.C. § 16 and U.S.S.G. § 4B1.2, we nevertheless

found the reasoning employed in Reyes-Castro “persuasive” in determining the

conduct to which the defendant pled guilty, by its nature, presented an “otherwise

... serious potential risk of physical injury” and constituted a “crime of violence.”

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Id. at 1244-45.

Mr. Austin argues Reyes-Castro and Coronado-Cervantes are both

distinguishable. As he points out, Reyes-Castro involved an incestuous act by the

defendant who sexually abused his own twelve-year-old daughter, see 13 F.3d at

378; and Coronado-Cervantes, 154 F.3d at 1243, similarly pertained to a child

under the age of twelve, and not of fourteen, as Mr. Austin contends was the age

of his victim. 154 F.3d at 1243. Admittedly, these distinctions exist, but we note

our categorical approach in Reyes-Castro involved consideration of a Utah statute

which addressed minors under fourteen, not twelve, and did not specifically

address incest. 13 F.3d at 379. In fact, we have held support exists “in

classifying sexual abuse of a minor, regardless of [the aggravating factor of]

incest, as a crime of violence.” United States v. Passi, 62 F.3d 1278, 1282 (10th

Cir. 1995). Moreover, in both cases the statutes at issue are very similar to the

statute of conviction at issue here as they prohibit the touching of a minor’s

private parts in a sexual way, and we determined in those two cases that the

defendants' conduct in touching the girls’ private parts, which is similar to Mr.

Austin's admitted conduct, constituted “crimes of violence” under those statutes.

See Coronado-Cervantes, 154 F.3d at 1243; Reyes-Castro, 13 F.3d at 378-79.

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 However, as Mr. Austin suggests, both cases rely on 18 U.S.C. § 16, which

defines a “crime of violence” differently than U.S.S.G. § 4B1.2. In explaining the

differences, we have determined the § 4B1.2(a)(2) definition involving the “risk

of resulting physical injury” is much broader than the § 16(b) definition involving

the “risk of physical force ... in the course of committing the offense,” which we

held requires “destructive or violent force.” See United States v. Venegas-

Ornelas, 348 F.3d 1273, 1275-77 & n.2 (10th Cir. 2003), cert. denied, 125 S. Ct.

494 (2004). In United States v. Lucio-Lucio, 347 F.3d 1202, 1207 (10th Cir.

2003), we explained the failure to recognize the difference between § 16 and

§ 4B1.2 would “collapse the distinction between these two differently-worded

definitions.” Thus, Mr. Austin directs us to consider only whether his conduct

presented a serious potential risk of physical injury under § 4B1.2 and not rely on

cases considering the risk of physical force under § 16.

The government counters by pointing out that this court has repeatedly held

§ 16 cases provide persuasive value in § 4B1.2 sexual abuse cases. In support, it

relies not only on Coronado-Cervantes, but United States v. Vigil, 334 F.3d 1215

(10th Cir.), cert. denied, 540 U.S. 1026 (2003). In Vigil, we held a father’s

sexual penetration of his eighteen-year-old daughter constituted a crime of

violence under § 4B1.2. Id. at 1217, 1224. In that case, we also relied on cases

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involving the 18 U.S.C. § 16 definition of a crime of violence, noting the

difference but relying on the underlying reasoning. 334 F.3d at 1221-22. Besides

determining incest was an aggravating factor that evoked a serious potential risk

of physical injury, we also alluded to risk factors such as pregnancy and venereal

disease. Id. at 1222-23. We determined the “risk” of physical injury to the child

under § 4B1.2 means “potential” rather than “actual” risk, so under a categorical

approach, certain statutorily-defined sexual abuse conduct, by its nature, poses a

serious risk of physical injury. Id. at 1223. Finally, we concluded: 1) “the

possibility of factual consent does not obviate the risk of physical injury”; and 2)

“when considering the relationship between lack of consent and the risk of

physical injury, the age of the victim is immaterial.” Id. at 1223-24.

In focusing on § 4B1.2 and the risk of physical injury prong, the

government directs us to United States v. Rowland, 357 F.3d 1193 (10th Cir.

2004); and an unpublished opinion, United States v. Daniels, 41 Fed. Appx. 298

(10th Cir. May 20, 2002) (unpublished op.), cert. denied, 537 U.S. 1140 (2003).

In Rowland, we determined sexual battery under Oklahoma law constituted a

“crime of violence,” because it met the “otherwise” prong of § 4B1.2. 357 F.3d

at 1198. In that case, the Oklahoma statute at issue defined sexual battery as “the

intentional touching, mauling or feeling of the body or private parts of any person

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sixteen (16) years of age or older, in a lewd and lascivious manner and without

the consent of that person.” Id. at 1195. We rejected the defendant’s argument

that mere nonconsensual touching of an arm or leg in a lewd or lascivious manner

could not entail either violence or a serious potential risk of injury, noting the

Oklahoma statute made such nonconsensual touching of any body part a sexual

battery and therefore a “crime of violence.” Id. at 1196-98. Relying on our

decision in McCann v. Bryon L. Rosquist, D.C., 185 F.3d 1113 (10th Cir. 1999),

cert. granted, judgment vacated on other grounds, 529 U.S. 1126 (2000), we

explained that lack of consent to physical sexual abuse, which we held in that

case implicated a substantial risk of physical force, could similarly implicate a

serious risk of physical injury under § 4B1.2. Id. at 1197-98. We further

determined “the possibility that a crime may be completed without injury is

irrelevant to the determination of whether it constitutes a crime of violence within

the meaning of § 4B1.2,” and held “the serious risk of bodily injury is a constant

in cases involving sexual battery.” Id. at 1198.

Comparing the underlying statutory elements in this and the Rowland case,

it is clear the instant case contains more “aggravating” elements than Rowland

because the victim here was at least two years younger than the victim in

Rowland, and the Colorado statutes at issue pertain to the touching of a minor’s

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intimate parts, not merely any body parts, as did the Oklahoma statute. Given we

held in Rowland that the nonconsensual touching of any body part of a person

sixteen years of age or older may entail a serious risk of physical injury under

§ 4B1.2, we find it difficult to reconcile that the touching of the intimate parts

(which in this case was the victim’s vagina) of someone less than fifteen years old

would not likewise potentially cause a risk of physical injury. While Mr. Austin

points out that Rowland was based, in part, on lack of consent, we discern little

difference because Colorado has determined eighteen to be the age of consent;

therefore, under its statutes, a person under the age of fifteen cannot consent. See

Colo. Rev. Stats. § 18-3-404(1.5) (stating that for sexual assault cases “child”

means any person under the age of eighteen); § 14-2-106 (regarding parental

consent required for marriage under the age of eighteen); and § 13-22-101

(identifying eighteen as age of competency).

The government also asks us to consider our unpublished opinion in United

States v. Daniels, in which this court determined that a prior conviction under the

same Colorado statutes at issue here constituted a “crime of violence” under

§ 4B1.2. 41 Fed. Appx. at 301. In this circuit, unpublished orders are not

binding precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel, and we have generally determined that citation to unpublished

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opinions is not favored. See 151 F.R.D. 470 (10th Cir. 1993) (containing General

Order of November 29, 1993); 10th Cir. R. 36.3. However, if an unpublished

opinion or order and judgment has persuasive value with respect to a material

issue in a case and would assist the court in its disposition, we allow citation to

that decision. Id.

While Daniels may lack precedential value, it nevertheless has some

persuasive value. Like Mr. Austin, Mr. Daniels asserted his prior conviction

under the identical Colorado statute could not constitute a crime of violence

because his conviction involved “sexual contact,” and such contact with a child

under the age of fifteen does not present a risk of physical injury. 41 Fed. Appx.

at 300. In rejecting Mr. Daniels’s argument, we examined our decision in

Coronado-Cervantes, concluding it was analogous and took the “common sense

approach” that “by its very nature, the act of engaging in sexual contact with a

minor presented a serious potential risk of injury to [the] victim and thus should

be considered a crime of violence under U.S.S.G. § 4B1.2.” Id. (quotation marks

and citation omitted). More persuasively, we explained:

By statute, the State of Colorado has defined a person under the age
of eighteen variously as a child or a person incapable of consent. In
crafting § 18-3-405, the Colorado legislature has purposefully chosen
to further protect a more narrow group, children under the age of
fifteen. In doing so they recognized the risks present in non-
consensual contact with a child fourteen or younger.

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Id. at 300-01 (footnote omitted).

The government also directs us to our decision in McCann for the purpose

of discussing the injuries sustained by either minors or adults experiencing sexual

abuse. 185 F.3d at 1120. In that case, we discussed not only the requisite

physical force required by 18 U.S.C. § 16, but the resulting injuries of sexual

abuse caused by the inappropriate fondling and rubbing of nonconsenting adult

women’s buttocks, breasts, and genital areas, both clothed and unclothed, stating,

“the imposition of nonconsensual sexual contact, whether brought about by brute

force or ... by trick and abuse of authority, might itself be considered a form of

violence, capable of causing mental and emotional injury no less severe than the

physical injury caused by a blow.” Id. at 1115, 1120. We further determined that

such an act, “by its nature evinces a clear intention to disregard the victim’s

dignity and bodily autonomy” and “creates a substantial risk of more serious

physical intrusion ....” Id. at 1120.

D. Other Circuit Precedent

Having discussed relevant Tenth Circuit decisions, both parties direct us to

decisions of other circuits in support of their arguments. The government relies,

in part, on decisions pertaining to § 16 and the risk of use of physical force.

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Because of our previous concerns with “collapsing the distinction” between the

differently-worded definitions in 18 U.S.C. § 16 and U.S.S.G. § 4B1.2, see Lucio-

Lucio, 347 F.3d at 1207, we find those cases less persuasive than those involving

§ 4B1.2, but nevertheless recognize their general consensus that sexual abuse in

touching a minor inherently, or by its nature, constitutes a crime of violence

because it involves a risk of substantial physical force. See United States v. Alas-

Castro, 184 F.3d 812, 813-14 (8th Cir. 1999) (pertaining to sexual contact

through the touching of the intimate parts or the clothing covering the intimate

parts of one fourteen or younger by one nineteen or over for sexual gratification);

United States v. Velazquez-Overa, 100 F.3d 418, 421-23 (5th Cir. 1996)

(regarding sexual contact with a child under the age of seventeen); Ramsey v. INS,

55 F.3d 580, 583-84 (11th Cir. 1995) (concerning handling, fondling, or assault of

a child under the age of sixteen in a lewd, lascivious, or indecent manner). See

also United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992) (concerning

the fondling or touching of a minor child’s pubes or genitals by one eighteen or

older).

On the other hand, as the government points out and we acknowledged in

Coronado-Cervantes, 154 F.3d at 1244, other circuits have also specifically

applied the § 4B1.2 definition to determine that sexual abuse in touching a minor,

-23-
by its nature, or inherently, presents a serious risk of physical injury and thereby

constitutes a “crime of violence,” 3 which we find more persuasive than those

circuit decisions involving § 16. Since our determination in Coronado-Cervantes,

at least four more circuits have considered the § 4B1.2 definition and continued to

conclude that sexual abuse through the inappropriate touching of a minor presents

a serious risk of physical injury and thereby constitutes a “crime of violence.”

See, e.g., United States v. Granbois, 376 F.3d 993, 995-96 (9th Cir.) (determining

conviction under federal statute prohibiting sexual contact, including the

touching, either directly or through the clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of a child between the ages of twelve and sixteen

by one at least four years older, is per se an offense which presents a serious

potential risk of physical injury to another, and basing its determination on prior

precedent that regardless of which Sentencing Guidelines definition of violent

crime is involved, sexual contact with a minor falls within the category of a

“crime of violence”), cert. denied, 125 S. Ct. 640 (2004); United States v. Pierce,

278 F.3d 282, 287-89 (4th Cir. 2002) (holding conviction under North Carolina

3
In Coronado-Cervantes, the cases we relied on included United States v.
Meader, 118 F.3d 876, 881, 885 (1st Cir. 1997); United States v. Kirk, 111 F.3d
390, 394-95 (5th Cir. 1997); United States v. Shannon, 110 F.3d 382, 387 (7th
Cir. 1997) (en banc); United States v. Taylor, 98 F.3d 768, 772, 774 (3d Cir.
1996); United States v. Wood, 52 F.3d 272, 275, 277 (9th Cir. 1995); and United
States v. Bauer, 990 F.2d 373, 375 (8th Cir. 1993) (per curiam).

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statute which prohibits any lewd or lascivious act on any body part of a child age

sixteen or under by another at least five years older is by its nature a “crime of

violence” given, in part, the legislature’s intent to protect impressionable children

from psychological injury or damage from overt sexual acts); United States v.

Campbell, 256 F.3d 381, 396-97 (6th Cir. 2001) (concluding conviction under

Michigan statute for sexual contact with a person age thirteen to sixteen of the

same blood affinity presents a serious potential risk of physical injury even

though crime could occur through mere consented touching); and United States v.

Sherwood, 156 F.3d 219, 221 (1st Cir. 1998) (holding conviction under Rhode

Island statute prohibiting “sexual contact,” which includes the intentional

touching of the victim’s intimate parts, clothed or unclothed, for sexual arousal,

gratification, or assault, constituted a “crime of violence”).

Similarly, at least one circuit has determined sexual assault of a minor of a

particular age constitutes a “crime of violence” under 18 U.S.C. §§ 924(c) and

924(e), which, like § 4B1.2, also define a “crime of violence” and “violent

felony” as those crimes that present a serious potential risk of physical injury to

another. See United States v. Mincks, 409 F.3d 898, 900 (8th Cir.) (holding prior

conviction for second-degree statutory sodomy under Missouri statute prohibiting

someone twenty-one years of age or older from deviate sexual intercourse with

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another person who is less than seventeen years of age is categorically a “crime of

violence” under § 924(e)(1)), petition for cert. filed (Aug. 30, 2005) (No. 05-

6149).

However, as Mr. Austin contends, a few circuits have questioned whether

sexual assault on a minor of a particular age constitutes a “crime of violence”

under U.S.S.G. § 4B1.2 or a “violent felony” under 18 U.S.C. § 924(e). In those

cases, the courts have refused to adopt a per se or bright line test but appear to

prefer a case-by-case determination, considering all aggravating factors, including

the specific age of the child, the risk of injury to a minor of that age, and the age

difference between the minor and the perpetrator. For instance, in United States

v. Houston, the Fifth Circuit examined a Texas statute prohibiting contact with or

penetration of the sexual organ of a child under the age of seventeen with the

mouth, anus, or sexual organ of another, and the fact that being not more than

three years older than the victim was an affirmative defense. 364 F.3d 243, 247

(5th Cir. 2004). It concluded sexual intercourse between a twenty-year-old male

and a female one day under seventeen, free of aggravating circumstances such as

the victim’s lack of consent or the offender’s use of violence, does not present a

serious potential risk of physical injury under § 4B1.2. Id. at 247-48. Obviously,

in the instant case, we have the aggravating circumstance of a victim who is at

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least two years younger than the victim in Houston and who, by statute, cannot be

deemed to have consented, together with a perpetrator at least four years older

than the victim, rather than someone only three years older, as in Houston.

In United States v. Thomas, the Seventh Circuit determined the government

failed to provide medical or other evidence to establish any risk of physical

injury, as required under § 924, in a case involving a defendant convicted under

an Illinois statute prohibiting sexual intercourse with a woman under the age of

seventeen and more than five years younger than the man. 159 F.3d 296, 298-99

(7th Cir. 1998). While the court recognized that the age difference between the

victim and perpetrator may be an aggravating factor and noted the risk of injury

through sexually transmitted disease or pregnancy, it determined the government

failed to cite any authority to establish such a risk. Id. at 299-300. Similarly, in

United States v. Sacko, the First Circuit considered the § 924 definition of a

“crime of violence,” together with a Rhode Island statute prohibiting sexual

penetration by one over the age of eighteen of a person over the age of fourteen

but under the age of consent, which is sixteen. 178 F.3d 1, 2 (1st Cir. 1999).

Concerned with the physical injury which may occur depending on the various age

characteristics, it remanded the case for the district court to take evidence on the

issue of whether the crime of sexual penetration of a fourteen-year-old by

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someone over the age of eighteen involves conduct presenting a serious potential

risk of injury. 178 F.3d at 6. We note both Sacko and Thomas were decided prior

to Shepard and therefore they do not discuss whether the admission of evidence

concerning the general risk of injury to minors is outside the evidence allowed

when examining a prior conviction. 125 S. Ct. at 1257.

Finally, in Shannon, the defendant was convicted for second-degree sexual

assault under a Wisconsin law prohibiting either sexual contact or intercourse

with a person under the age of sixteen. 110 F.3d at 384. In that case, the

charging documents disclosed the seventeen-year-old defendant had intercourse

with his thirteen-year-old victim. Id. at 384. After noting the government’s

concession that “the goals behind laws forbidding sex with minors are various and

need not include the goal of protecting the minor from a serious risk of physical

injury,” the Seventh Circuit declined to impose a per se “crime of violence” rule.

Id. at 386. Instead, it looked beyond the statute at issue to the charging document

to consider the aggravating factors involved in that particular case. Those factors

included the fact the defendant had actual intercourse with a child who was only

thirteen and unlikely to fully appreciate the disease and fertility risks of

intercourse or have accurate knowledge of contraceptive and disease-preventive

measures; who lacked the maturity to make a rational comparison of the costs and

-28-
benefits of premarital intercourse or to take good care of herself and her fetus;

and who would otherwise constitute a high-risk pregnancy if impregnated. Id. at

387-88. Stating that “statutory rape is more often thought of as a ‘morals offense’

than as a ‘crime of violence,’” it nevertheless determined the aggravating factors

involved in the case established the risk of physical injury which, under § 4B1.2,

would constitute a “crime of violence.” Id. at 388-89. In explaining its rationale,

the court recognized that the statute at issue also covered “sexual contact, which

can be as noninvasive as fondling a breast or buttock through clothing,” which, it

stated, “might disturb a young person, but ... would be highly unlikely to cause

physical injury.” Id. at 387.

It is the latter determination in Shannon on which Mr. Austin relies in

arguing his prior conviction for mere consensual touching of the clothing

covering his victim’s intimate parts cannot constitute a “crime of violence.”

However, when this court decided Rowland, we exhaustively discussed the

Seventh Circuit’s decision in Shannon, noting it was instructive but not

controlling, and explaining the distinguishing factors involved, including the fact

the court in Shannon did not consider the “goals or grounds” behind the passage

of the Wisconsin statute, but looked beyond it to the charging document involved

and what it considered aggravating circumstances. See 357 F.3d at 1196-98. See

-29-
also Sherwood, 156 F.3d at 222 (explaining the Seventh Circuit, in Shannon, “did

not hold that sexual touching could not constitute a ‘crime of violence,’” and

explaining “the contrasting views of the Seventh Circuit judges merely evidence

the troubling and complex issues involved in determining what crimes constitute

‘crimes of violence’”).

E. Application of Law to Instant Case

With the exception of the few circuit court decisions favoring Mr. Austin's

position, and without delving further into the underlying rationale of the other

decisions discussed, it is clear the weight of our and other circuits' decisions

favors the government’s position that sexual abuse of a statutorily-protected,

specific age group of minors, including abuse through sexual contact, is generally,

by its nature, considered a “crime of violence.” Regardless of our own beliefs

about whether the touching of a fourteen-year-old’s intimate parts by a person at

least four years older is a “crime of violence,” we are bound by our clear

precedent 4 in Rowland, 357 F.3d at 1197-98, where we determined a prior

4
While admittedly the four decisions on which Mr. Austin primarily relies
and which focus on aggravating factors provide persuasive value, we are bound to
follow our court precedent, absent en banc reconsideration or a superceding
contrary decision by the Supreme Court. See Tootle v. USDB Commandant, 390
F.3d 1280, 1283 (10th Cir. 2004); In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)
(per curiam); United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir. 1990).

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conviction for the nonconsensual touching of the body parts of a victim over the

age of sixteen, as prohibited by state statute, created a risk of physical injury

under § 4B1.2. Arguably then, our only categorical determination in this case, as

posed by Mr. Austin, would be whether the mere touching of a minor child’s

“clothing” covering her intimate parts could pose a serious risk of physical injury

for the purposes of § 4B1.2. 5 Such an inquiry is of first impression in this court

and would no doubt require reconciling this case with our decision in McCann,

where we held nonconsensual sexual touching of the clothing covering even an

adult's intimate parts could cause mental and emotional injury. 185 F.3d at 1115,

1120.

However, we need not make any such determination in the instant case.

Even if we agree with Mr. Austin that the statute of conviction covers a

nonviolent crime because it includes the touching of “clothing” covering a child’s

intimate parts, Mr. Austin's prior conviction still meets the definition of a “crime

of violence” based on his admissions at his plea and sentencing hearing, which

presented aggravating circumstances beyond what he terms the “least culpable”

5
As explained hereinafter, we need not determine whether the touching of
the clothing covering a minor’s intimate parts constitutes a “crime of violence,”
as Mr. Austin's admissions establish he did not merely touch the victim's clothing,
but her vagina.

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conduct under the statute of conviction.

Specifically, Mr. Austin's prior admissions show the encounter involved

more than his description of two high school teenagers engaged in a provocative

form of heavy petting including consensual sexual contact through the mere

touching of the clothing covering the female’s intimate parts. First, neither the

charging document nor Mr. Austin's admissions disclose either his or the victim’s

exact ages, although we accept his assertion he was nineteen. 6 Mr. Austin's

asserted age, together with his admissions at the plea hearing, clearly establish he

pled guilty to attempted sexual assault; his victim was under the age of fifteen; he

was at least four years older than the victim (and, at nineteen, was considered an

adult under Colorado law); the act involved the actual physical touching of the

minor girl’s vagina (and not her clothing) 7 for his own sexual gratification; and

6
Just as we cannot consider underlying facts of the prior conviction which
allege Mr. Austin penetrated his victim with more than his finger, we similarly
cannot rely on Mr. Austin's allegations his victim was fourteen, as those facts are
not contained in the charging documents or his admissions. We know only from
his admission and the charging document that she was under the age of fifteen.
We nevertheless accept his assertion he was nineteen, assuming he knew his own
age at the time of the incident, and given he was not charged as a juvenile.
7
Because Mr. Austin explicitly admitted to touching the child’s vagina,
without further qualifying his admission by stating he touched only her clothing,
his argument that we should consider only the least culpable act of touching only
her clothing is not well taken and is an impermissible attempt to reconstruct his
own admission after the fact. Like his other admissions, we consider only the
plain or literal meaning of the words spoken, which in this case is that he touched

-32-
she was with his sister for the purpose of attending a slumber party and not for a

teenage sexual liaison. It is apparent that, because of his adult age, familial

relationship with his sister, and the fact the slumber party involved his sister's

friend, he was an adult family friend or at least enjoyed a position of trust which

he abused when he sexually assaulted the minor girl. Clearly, when a girl under

the age of fifteen attends something as innocent as a slumber party, no one

expects her to experience sexual assault by someone at least four years her senior

who goes beyond touching her clothing in a provocative, sexual way, to actual,

physical sexual contact with her vagina for his own admitted sexual gratification.

Moreover, we must reject Mr. Austin's assertion the act was consensual,

given Colorado has determined a person under the age of eighteen is incapable of

such consent. Colo. Rev. Stats. §§ 13-22-101; 14-2-106; 18-3-404(1.5). In

addition, our determination is bolstered by the commonly accepted determination

that sexual abuse of children “typically occur[s] in close quarters and [is]

generally perpetrated by an adult upon a victim who is not only smaller, weaker,

and less experienced, but is also susceptible to acceding to the coercive power of

adult authority figures.” United States v. Melton, 344 F.3d 1021, 1028 (9th Cir.

2003), cert. denied, 541 U.S. 953 (2004); Campbell, 256 F.3d at 396; Sherwood,

her vagina.

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156 F.3d at 221; Velazquez-Overa, 100 F.3d at 422 (emphasis added). Thus, Mr.

Austin's admissions disclose his conduct went beyond what he himself describes

as the statute’s most nonviolent conduct of consensual touching of the clothing

covering the victim’s intimate parts.

In addition, Mr. Austin fails to reconcile his argument the government must

provide medical or other evidence that touching the vagina of a girl less than

fifteen years old could cause physical injury with our precedent in Rowland,

holding the mere nonconsensual touching of the body parts of a victim over the

age of sixteen, as prohibited by state statute, created a risk of physical injury

under § 4B1.2, see 357 F.3d at 1197-98, and our decision in McCann that

nonconsensual sexual touching of even an adult is capable of causing mental and

emotional injury. 185 F.3d at 1120. His argument the government must provide

medical and statistical proof of injury also ignores the underlying discretion of

each state's legislature to consider such information itself and reasonably decide

the potential risk of injury based on a child’s age and then to pass legislation to

protect that category of minor victims from such injuries. 8 Moreover, none of the

8
This is evidenced not only by the statute under which Mr. Austin was
convicted, which establishes a narrow group of children under the age of fifteen it
intends to protect, but the fact that the Colorado legislature has deemed the age of
consent to be eighteen, which is higher than many other states where courts have
examined statutory law concerning sexual contact with a minor. See, e.g.,

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Colorado statutes at issue require proof of injury for conviction, and to now

require such proof would contravene those statutes and require a fact finding

inquiry into a prior conviction instead of the required examination of undisputed

information. See Damon, 127 F.3d at 145. Given we are not basing our

determination solely on a categorical analysis of the statute, Mr. Austin's

contention we must view statistical or medical evidence concerning the injurious

impact of his past conduct goes beyond our limited scope, under Shepard, of

examining only the charging documents and his admissions. 125 S. Ct. at 1257.

Finally, for the purposes of this case, we reject Mr. Austin's request we

must employ what he calls the “least culpable” act test to assume he did the very

least culpable act possible for conviction under the statute, which he contends

involves the mere touching of the young girl’s clothing over her intimate parts. It

is clear that if we employed such a test to an ambiguous statute without

Rowland, 357 F.3d at 1195 (recognizing age of consent is sixteen under
Oklahoma law); Mugalli v. Ashcroft, 258 F.3d 52, 60 n.9 (2d Cir. 2001) (noting
age of consent in Arkansas is fourteen); Sacko, 247 F.3d at 22 n.1 (citing to
statute which states age of consent in Rhode Island is sixteen); Thomas, 159 F.3d
at 299 (explaining age of consent in Illinois is seventeen, while in the majority of
states it is sixteen); Shannon, 110 F.3d at 405 (concurring/dissenting op.) (noting
that sixty-eight percent of all states have set the legal age of consent at sixteen or
higher, and that at least twenty-five states utilize a legal age of sixteen, four have
set the legal age of consent at seventeen, and five others at eighteen); Reyes-
Castro, 13 F.3d at 379 (explaining age of consent in Utah is fourteen).

-35-
consideration of the charging and related documents, our review of those

documents and a defendant’s admissions would be superfluous, because the least

culpable act would always likely meet the nonviolent crime provision of any

ambiguous statute. Thus, based on Mr. Austin's admissions, we decline to apply

Mr. Austin's least culpable act test to the circumstances of this case to arrive at a

final disposition of the issues.

For the foregoing reasons, we conclude Mr. Austin's prior conviction

constitutes a “crime of violence” for the purpose of increasing his sentence under

U.S.S.G. §§ 2K2.1 and 4B1.2.

F. Sentence Length

Because Mr. Austin raised his claim concerning the mandatory application

of the Sentencing Guidelines during the district court proceedings, we review it

for harmless error. See United States v. Labastida-Segura, 396 F.3d 1140, 1143

(10th Cir. 2005). We have said that “[i]n non-constitutional harmless error cases,

the government bears the burden of demonstrating, by a preponderance of the

evidence, that the substantial rights of the defendant were not affected.” See

United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005).

-36-
 In this case, Mr. Austin contends, and the government concedes, that

despite Mr. Austin's Blakely objection at sentencing, the district court mandatorily

applied the Sentencing Guidelines in determining his sentence length and then

sentenced him at the bottom of the guidelines range. Given he was sentenced at

the bottom of the range, the government summarily concedes our decision in

Labastida-Segura dictates and Mr. Austin's sentence length must be remanded for

consideration in light of both Booker and Blakely.

Because the burden of demonstrating harmless error is on the government

in this case, and it has conceded such error, we are inclined to remand Mr.

Austin’s sentence to the district court for a determination under an advisory

Sentencing Guidelines scheme as to the range and subsequent length of Mr.

Austin’s sentence in accordance with the Supreme Court’s decision in Booker.

III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Austin’s sentence with respect

to his prior conviction constituting a “crime of violence” but otherwise

REMAND his sentence for a determination in accordance with Booker and this

decision.

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