United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2007 Decided March 23, 2007
No. 03-3030
UNITED STATES OF AMERICA,
APPELLEE
v.
VINCENT ANDREWS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00255-01)
Lisa B. Wright, Assistant Federal Public Defender, was
on the brief for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, David B. Goodhand,
and Matthew P. Cohen, Assistant U.S. Attorneys.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
GRIFFITH, Circuit Judge: This appeal presents the issue
of whether the district court committed plain error when it held
that the appellant’s prior conviction for first-degree sexual abuse
of a ward was a crime of violence under the Sentencing
Guidelines. Because we find that the district court did not
plainly err, we affirm the sentence.
I.
While a police officer with the District of Columbia
Metropolitan Police Department (“MPD”) in September 1998,
appellant Vincent Andrews booked a woman who had been
arrested for prostitution. With the woman in his sole custody,
Andrews drove her a short distance away from the police station
and stopped the car where she performed oral sex on him in the
backseat. After returning to the police station, Andrews realized
that the woman had kept the condom used during the sexual
encounter. When she refused to give him the used condom, he
tackled her, held her down, and groped her, ultimately
recovering the condom from her person. The woman
immediately reported the incident to other police officers at the
station, and Andrews was arrested. After a jury trial, he was
convicted in November 1999 in the District of Columbia
Superior Court of first-degree sexual abuse of a ward, tampering
with physical evidence, obstruction of justice, and simple
assault. Andrews was sentenced to two to six years
imprisonment, with all but one year suspended. He was also
fired from the MPD.
3
In January 2002, Andrews visited a law enforcement
equipment store and, allegedly holding himself out as a police
officer, attempted to purchase police equipment. The owner
refused to make the sale and notified the police. The police
executed a search warrant on Andrews’s apartment and
discovered a shotgun. Andrews was charged with false
personation of a police officer and being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). After a jury trial
in November 2002, Andrews was convicted on the weapons
charge but was cleared of impersonating a police officer. It was
his sentencing on this conviction that gave rise to the current
appeal.
The presentence investigation report (“PSR”) prepared
by the Probation Office relied on the federal Sentencing
Guidelines and reported a base offense level of 20 for
Andrews’s firearm conviction because it determined that his
prior conviction for first-degree sexual abuse of a ward was a
“crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A). Andrews
did not argue to the district court that the prior D.C. conviction
was not a crime of violence. Had Andrews’s prior conviction
not been a “crime of violence,” his offense level would have
been 12 rather than 20. In addition, Andrews would have been
able to invoke as a defense to his sentence the terms of
§ 2K2.1(b)(2), which provides a base offense level of 6 if the
firearms were possessed for “lawful sporting purposes or
collection.” Id. § 2K2.1(b)(2). Andrews attempted to interpose
that defense to the PSR, arguing that his gun was a “collectible”
because it was forty years old. The district court rejected
Andrews’s argument because the “collectible” exception is not
available to those who have been previously convicted for a
crime of violence. See Transcript of Sentencing Proceedings at
15, United States v. Andrews, Crim. No. 02-255 (D.D.C. Mar. 4,
2003); see also U.S.S.G. § 2K2.1(a)(4). A base offense level of
20 corresponds to a recommended sentence range of 41-51
4
months. A level of 12 corresponds to 15-21 months. A level of
6 corresponds to 2-8 months. The district court’s conclusion
that Andrews’s prior conviction was a crime of violence
increased the sentencing range for his firearms conviction from
a possible level of 6 or more likely level of 12 to a base offense
level of 20. Being found to have previously committed a crime
of violence therefore provides a significant “bump” to a sentence
for felon in possession of a firearm.
II.
Because Andrews failed to argue to the district court that
his conviction for first-degree sexual abuse of a ward was not a
crime of violence, we review his sentence only for plain error.
See, e.g., United States v. (Adrian) Williams, 358 F.3d 956, 966
(D.C. Cir. 2004) (citing FED. R. CRIM. P. 52(b)). “Plain error”
occurs “where (1) there is error (2) that is plain and (3) that
affects substantial rights, and (4) the court of appeals finds that
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Johnson,
437 F.3d 69, 74 (D.C. Cir. 2006) (citing United States v. Olano,
507 U.S. 725, 732 (1993)). Our sole inquiry here is whether it
was an “obvious” error. United States v. Saro, 24 F.3d 283, 286
(D.C. Cir. 1994) (quoting Olano, 507 U.S. at 734).
“Obviousness is assessed from the perspective of the trial court;
the error must be ‘so ‘plain’ the trial judge and prosecutor were
derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.’” Id. (quoting United States v. Frady,
456 U.S. 152, 163 (1982)). Were we considering this case under
a more rigorous standard of review, we might need to address
the more difficult methodological issues regarding how a
sentencing court should regard prior convictions that are
discussed so cogently in Judge Williams’s concurrence. We
need not reach these issues to dispose of the appeal because we
are convinced that the district court did not plainly err.
5
To determine whether the district court committed an
“obvious” error by categorizing Andrews’s prior conviction for
first-degree sexual abuse of a ward as a crime of violence, we
start with the definition of crime of violence in the Guidelines:
(a) 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 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.
U.S.S.G. § 4B1.2(a) (emphasis added). To analyze whether
Andrews’s prior conviction fits within that definition of crime
of violence, we “must look only to the statutory definition [of
the crime for which he has been convicted], not to the
underlying facts or evidence presented.” United States v.
Mathis, 963 F.2d 399, 408 (D.C. Cir. 1992) (citing Taylor v.
United States, 495 U.S. 575, 602 (1990)). Under this categorical
approach, if the statutory definition itself does not yield an
obvious answer, for example, where it covers both violent and
non-violent crimes, we can then look to “the charging paper and
jury instructions” to determine whether a jury was required to
find elements supporting the determination that the prior
conviction was a crime of violence. Taylor, 495 U.S. at 602; see
also Shepard v. United States, 544 U.S. 13, 26 (2005).
Under D.C. law, first-degree sexual abuse of a ward is
defined as “a sexual act with another person . . . when that other
person [i]s in official custody, or is a ward or resident, on a
6
permanent or temporary basis, of a hospital, treatment facility,
or other institution.” D.C. CODE § 22-3013 (formerly § 22-
4113). “Sexual act” covers a variety of conduct, including
vaginal sex, anal sex, oral sex, and penetration by other objects.
Id. § 22-4101(8) (1998) (repealed 2000). Because physical
force—the touchstone of the first prong of the Guidelines’
definition of “crime of violence”—is not an element of first-
degree sexual abuse of a ward, we must look to the second prong
of the definition—whether this conduct “presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). As we have observed, “[t]he issue, then, is
whether the offense of [first-degree sexual abuse of a ward]—as
a category—carries appreciably less risk of injury to another
than do the listed crimes [burglary, arson, extortion].” United
States v. Thomas, 361 F.3d 653, 660 (D.C. Cir. 2004). Because
consent is not a defense to this crime, see D.C. CODE § 22-3017
(formerly § 22-4117), and the statute covers a wide range of
conduct, it is possible to imagine situations in which the statute
could be violated without posing “a serious potential risk of
physical injury to another.” As per Taylor, we therefore look to
the indictment and jury instructions to see what the jury actually
determined.
The jury instructions make clear the conduct for which
Andrews was convicted. The jury was charged to find whether
Andrews engaged in a “sexual act” with the victim “[t]hat is
contact between his penis and her mouth.” Trial Transcript at
35, United States v. Andrews, No. 6601-98 (D.C. Super. Ct.
Sept. 21, 1999). Our determination is therefore limited to the
question of whether oral sex with a ward, as a categorical
determination, “presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2). We note two
factors, sufficient to withstand plain error review, that suggest
this crime could present a serious potential risk of physical
injury. First, there exists a potential risk of injury that is
7
inherent in the coercive nature of the supervisor-ward
relationship. The fact that consent is not a defense to sexual
abuse of a ward, see D.C. CODE § 22-3017 (formerly § 22-4117),
might be taken to demonstrate that District legislators believed
there existed an inherent power imbalance in the relationship.
Although it is an open question that we need not resolve whether
the coercive nature of the relationship alone might be enough to
make this a crime of violence, there is also in the very nature of
the sex act a risk of exposing the victim to sexually transmitted
infections. See, e.g., Sarah Edwards & Chris Carne, Oral Sex
and the Transmission of Non-Viral STIs, 74 SEXUALLY
TRANSMITTED INFECTIONS 95-100 (1998) (providing a
comprehensive literature review on the role of oral sex in
transmitting infections). For those reasons, it is not “obvious”
to us that first-degree sexual abuse of a ward does not constitute
a crime of violence, and the district court did not plainly err in
so finding.
Andrews’s argument to the contrary fails to the extent
that it relies on consent not constituting a defense to first-degree
sexual abuse of a ward. Although the unavailability of a consent
defense could conceivably criminalize behavior that might not
involve violent behavior, this court “cannot accept the
defendant[’]s contention that an offense is not categorically a
crime of violence unless every such offense is.” Thomas, 361
F.3d at 659 n.11 (internal quotation marks and citation omitted).
Just because Andrews “can hypothesize circumstances in which
[first-degree sexual abuse of a ward] can be committed without
either force or risk or injury cannot be dispositive under
§ 4B1.2(a), as such an analytical approach would eviscerate the
notion of a ‘categorical’ definition.” Id. at 658. Andrews’s
reliance on the comments of the judge who sentenced him on
first-degree sexual abuse of a ward, see Appellant’s Br. at 17-20,
also misses the mark for two reasons. First, that judge did not
consider whether sexual abuse of a ward is a crime of violence
8
under the federal Sentencing Guidelines. Second, we are
compelled to make a categorical determination, but Andrews’s
arguments rely upon the underlying facts supporting the
conviction. See Mathis, 963 F.2d at 408 (citing Taylor, 495
U.S. at 602). Finally, Andrews cites to no authority supporting
his view that first-degree sexual abuse of a ward is not a crime
of violence. We have yet to consider the issue, and other
circuits that have considered the analogous situation of statutory
rape (for which consent is also not a defense) have generally
found that to be a crime of violence. See, e.g., United States v.
Asberry, 394 F.3d 712, 717-18 (9th Cir. 2005); see also United
States v. Searcy, 418 F.3d 1193, 1196-98 (11th Cir. 2005)
(holding that use of interstate commerce channel to entice minor
into sexual contact is a crime of violence). But see United States
v. Houston, 364 F.3d 243, 248 (5th Cir. 2004). As we described
the matter in a similar sentencing case: “Whatever one might say
about the merits of [appellant’s] argument, it certainly does not
leap from the text of the Guideline and the commentary. We
could hardly expect the district court to come up with it sua
sponte.” United States v. (Norman) Williams, 350 F.3d 128, 130
(D.C. Cir. 2003).
III.
Because the district court did not plainly err when it
considered first-degree sexual abuse of a ward as a crime of
violence for sentencing under the federal Guidelines, the
judgment of the district court is affirmed.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring: I join the
majority opinion, but write separately to discuss some
principles that I believe underlie our decision. I particularly
want to address the relation between: (1) Taylor v. United
States, 495 U.S. 575 (1990), which prescribes how a
sentencing court should assess whether a prior conviction was
for a “crime of violence”; (2) Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which excepts prior convictions
from the requirement of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), that factors increasing a sentence beyond the
statutory maximum be found by a jury beyond a reasonable
doubt; and (3) conventional principles of issue preclusion.
In Taylor the Supreme Court held that a court sentencing
under the Armed Career Criminal Act could look to statutory
elements, charging documents, and jury instructions to
determine whether an earlier conviction after trial was a
“crime of violence.”1 The Court affirmed this narrow
exception to Congress’s “categorical approach” in Shepard v.
United States, 544 U.S. 13 (2005), but strictly curtailed
recourse to a larger set of sources, such as police reports.
The rationale and scope of Taylor’s exception pose
difficult methodological questions. Why are we limited to the
indictment, information, and jury instructions? And are we
limited as to which facts we may draw from those sources? In
the present case, the happenstance that our review is only for
1
Although Taylor specifically involved prior burglaries, its
holding covered other predicate offenses under that statute, as well
as its residual provision for prior crimes involving “serious potential
risk of physical injury,” see 495 U.S. at 600 n.9, which parallels the
provision at issue here, i.e., § 2K2.1(a)(4)(A) of the U.S. Sentencing
Guidelines.
2
plain error has largely mooted these questions; future courts
will often lack that advantage.
In Shepard at least four members of the Court suggested
that Taylor reflects Sixth Amendment concerns subsequently
voiced in cases such as Jones v. United States, 526 U.S. 227,
243 n.6 (1999), and Apprendi, 530 U.S. at 490. See Shepard,
544 U.S. at 24; but see id. at 37 (O’Connor, J., dissenting)
(“[T]oday’s decision reads Apprendi to cast a shadow possibly
implicating recidivism determinations, which until now had
been safe from such formalism.”). And, indeed, Taylor does
mesh nicely with the Almendarez-Torres exception from
Apprendi. Taylor directs courts to look to the fact of prior
conviction, and Almendarez-Torres allows them to rely on
that fact without meeting Apprendi’s requirement of a jury
finding beyond a reasonable doubt.
Resting Taylor’s exception on the rationale of
Almendarez-Torres may raise more questions than it answers,
however. Almendarez-Torres itself relied on an arguably
formalistic distinction between elements and sentencing
factors, see 523 U.S. at 229-35, a distinction that has since
been heavily eroded by the Apprendi line. See Shepard, 544
U.S. at 27 (Thomas, J., concurring) (“Almendarez-Torres, like
Taylor, has been eroded by this Court’s subsequent Sixth
Amendment jurisprudence, and a majority of the Court now
recognizes that Almendarez-Torres was wrongly decided.”);
see also Apprendi, 530 U.S. at 520-21 (2000) (Thomas, J.,
concurring); but see Harris v. United States, 536 U.S. 545
(2002). The question is whether Taylor can survive these
developments, and in what form, or whether its exception now
amounts to constitutional error, as Justice Thomas has
suggested. Compare Shepard, 544 U.S. at 27 (Thomas, J.,
concurring) (“Taylor and today’s decision thus explain to
lower courts how to conduct factfinding that is, according to
the logic of this Court’s intervening precedents,
3
unconstitutional in this very case.”), with id. at 30-31
(O’Connor, J., dissenting) (“Taylor left room for courts to
determine which other reliable and simple sources might aid
in determining whether a defendant had in fact been convicted
of generic burglary. . . . I would expand that list to include
any uncontradicted, internally consistent parts of the record
from the earlier conviction.”).
Fortunately, I believe Taylor’s readiness to rely on
charging documents and jury instructions can be sustained
independently of Almendarez-Torres’s historical treatment of
recidivism as a sentencing factor, namely, by reliance on an
entirely non-formalistic principle of litigation: issue
preclusion.
The standard application of issue preclusion requires that
a party be estopped from relitigating an identical issue
previously decided if three conditions are satisfied:
(1) The issue must have been actually litigated, that
is contested by the parties and submitted for
determination by the court.
(2) The issue must have been actually and
necessarily determined by a court of competent
jurisdiction in the first trial.
(3) Preclusion in the second trial must not work an
unfairness.
Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d
193, 197 (D.C. Cir. 1996) (internal punctuation omitted).
Though most applications of issue preclusion occur in
civil litigation, the “principle is as applicable to the decisions
of criminal courts as to those of civil jurisdiction.” Frank v.
Mangum, 237 U.S. 309, 334 (1915). Most invocations in the
4
criminal arena are by the defendant, on the basis of either the
Double Jeopardy Clause, Ashe v. Swenson, 397 U.S. 436, 447
(1970), or due process more generally, see Akhil Reed Amar
& Jonathan L. Marcus, Double Jeopardy Law After Rodney
King, 95 Colum. L. Rev. 1, 31 (1995) (“[T]he Ashe idea must
be rooted outside the strict text of the Double Jeopardy
Clause, in the more spacious—but also more flexible, less
absolute—language of due process.”). See, e.g., Green v.
United States, 426 F.2d 661 (D.C. Cir. 1970) (per curiam)
(precluding the Government from relitigating a question of
fact determined in defendants’ favor in a previous partial
verdict). Offensive uses in criminal suits are extremely rare,
see Richard B. Kennelly, Jr., Precluding the Accused:
Offensive Collateral Estoppel in Criminal Cases, 80 Va. L.
Rev. 1379 (1994) (collecting cases), despite judicial
acknowledgements of the theoretical appropriateness, as in
Frank v. Mangum. One reason may be that issue preclusion is
inapt for the superficially most inviting use—cases where a
prior conviction is an element of the new crime; there, the
only necessary “fact” is the existence of the prior conviction
itself. Id. at 1381-82 n.12.
But for sentencing provisions that turn on particular
characteristics of a prior conviction, the court must decide not
only the fact of conviction but the facts determined by that
conviction. And in this context, a sentencing court would
seem able to rely on issue preclusion without offending any of
the interests reflected in the Apprendi-line of cases. After all,
the facts to be introduced and precluded from contestation at
sentencing will have been established beyond a reasonable
doubt by a jury (unless waived).
Moreover, reliance on the principles of preclusion
provides contour to the holdings of Taylor and Shepard, while
at the same time providing support for Almendarez-Torres’s
outcome without the formalism of its analysis. First, by
5
focusing on precluded issues, it becomes clear why Taylor
and Shepard limited inquiry to charging documents and jury
instructions: The latter are proof of what a jury found beyond
a reasonable doubt, and the former by law must include the
specific elements that must be so found for conviction.2
Accord United States v. Thompson, 421 F.3d 278, 282 (4th
Cir. 2005) (“The common denominator of the approved
sources is their prior validation by process comporting with
the Sixth Amendment.”). Recourse to charging documents
and jury instructions thus ensures that a defendant’s prior
conviction is labeled a “crime of violence” only when the
requisite elements were actually and necessarily decided
beyond a reasonable doubt as part of the conviction.
Likewise, issue preclusion provides coherent justification
for a “categorical approach” that bypasses facts or
determinations elicited at trial but not found in the charging
documents or jury instructions. In the instant case, for
example, Andrews invokes observations of the trial judge in
his prior case to the effect that the “victim” may have
consented. See Appellant’s Br. at 17-19. The observations
are of no help to him. Under the law governing the prior
conviction neither consent nor its absence was relevant;
accordingly, no finding one way or the other could have been
necessary to the conviction. Here the Taylor requirements
themselves exclude fact statements that would not meet the
criteria for issue preclusion.
2
Because the rules limiting variances between indictment and
proof are a bit porous, however, see United States v. Baugham, 449
F.3d 167, 175 (D.C. Cir. 2006), the indictment or information may
be a somewhat defective tool for exact ascertainment of the crime
of conviction.
6
Second, a focus on preclusion also helps clarify which
facts may appropriately be drawn from the charging
documents and jury instructions. Reflecting congressional
desire for a “categorical approach,” Taylor and Shepard
permit inquiry beyond the statutory text for the limited
purpose of determining the necessary elements of a
defendant’s crime when the statute in question prohibits
offenses both covered and not-covered by the definition of a
“crime of violence.” This exercise is akin to a court’s
determination of which elements would be precluded as
“necessarily decided” and therefore conclusively resolved by
prior litigation. The analogy reminds us that not every fact
which happens to be decided is actually necessary to the prior
judgment or conviction, a point that Taylor and Shepard
treated as central. See Shepard, 544 U.S. at 21.
Consider then the Seventh Circuit’s en banc decision in
United States v. Shannon, 110 F.3d 382 (7th Cir. 1997).
There the court’s appraisal of whether the statutory rape of
which defendant had previously been convicted posed a
“serious potential risk of physical injury” turned in significant
part on the fact that the victim was 13 years old (as opposed to
15, for example). See id. at 387-89. But the statute under
which the defendant was charged simply criminalized “sexual
contact or sexual intercourse with a person who has not
attained the age of 16.” Id. at 384 (citing Wis. Stat.
§ 948.02(2)). A finding that the victim was younger than, say,
15, was in no way necessary to the conviction; it was
established simply because the defendant happened to plead
guilty to an information that stated the victim’s date of birth.
Id. Analogizing the Taylor inquiry to one of issue preclusion
makes clear why this is troubling: The Shannon decision is
based in large part on a statement that, while contained in a
charging document, was not truly necessary to the crime
charged nor worth quarrelling about from the perspective of
the parties (so long as the victim’s age was under 16). See
7
Restatement (Second) of Judgments § 27 cmt. j (1982) (“The
appropriate question, then, is whether the issue was actually
recognized by the parties as important and by the trier as
necessary to the first judgment.”); id. cmt. h (1982) (“If issues
are determined but the judgment is not dependent upon the
determinations, relitigation of those issues in a subsequent
action between the parties is not precluded. Such
3
determinations have the characteristics of dicta . . . .”).
The question whether a particular finding was necessary
for conviction might have been critical in a quite plausible
variation on today’s case. As the court’s opinion makes clear,
judicial readiness to include statutory rape as a crime of
violence has turned in material part on the dangerous diseases
associated with sexual contact—dangers of which a minor is
unlikely to have been adequately aware when giving consent.
Yet while the transmittal rates from oral sex may be difficult
to determine with accuracy, they are universally regarded as
significantly lower than for conventional sex. See, e.g.,
Primary HIV Infection Associated with Oral Transmission,
http://www.cdc.gov/hiv/resources/factsheets/oralsexqa.htm;
see also Oral Sex, http://www.stanford.edu/group/SHPRC/
3
Reliance on the alleged age of the victim enabled the court in
Shannon to disaggregate offenses under Wisconsin’s statutory rape
provision, thereby leaving for another day whether statutory rape of
a 14-year-old or 15-year-old would qualify as a crime of violence.
See Shannon, 110 F.3d at 389 (“[O]ur decision leaves unresolved
the proper treatment of cases in which the victim of the statutory
rape is above the age of 13.”). There are obvious advantages to
such disaggregation, see United States v. Chambers, 473 F.3d 724
(7th Cir. 2007), but, as the last paragraph of this opinion argues,
there is at least a serious linguistic difficulty with using fact
variations irrelevant to a specific criminal offense to apply a
sentence enhancement purportedly based on the fact of conviction.
8
ch4_ora.html. Suppose (1) the record suggested that the
transmittal rates for oral sex were lower than for conventional
sex by a margin sufficient to preclude a finding that it
generated a serious risk of physical injury; (2) the prosecution
in the initial case claimed that defendant had engaged in both
forms of sexual conduct; but (3) the statute and jury
instructions did not differentiate between the two acts and the
jury found the defendant guilty simply of the basis of the
generic element of “sexual conduct.” In this hypothetical, we
could not say that facts sufficient to show a “serious risk of
physical injury” had been actually and necessarily decided in
reaching the conviction. Cf. Restatement (Second) of
Judgments § 27 cmt. i (1982) (“If a judgment of a court of
first instance is based on determinations of two issues, either
of which standing independently would be sufficient to
support the result, the judgment is not conclusive with respect
to either issue standing alone.”). Thus, under the assumptions
used in this example, the prior conviction could not be
classified as a “crime of violence.”
Two remaining complexities: First, prior convictions
triggering sentence enhancements will commonly be from a
different jurisdiction, and in such cases there will be a want of
mutuality. But the Supreme Court has found that a lack of
mutuality is not so troubling as to require an across-the-board
ban on the offensive use of issue preclusion in civil cases
where mutuality is missing. Parklane Hosiery Co. v. Shore,
439 U.S. 322 (1979). Although the circumstance should alert
courts to exercise special care in assuring themselves there
would be no unfairness in applying issue preclusion, it seems
as weak a basis for a categorical rule here as in the civil
context.
Second, courts may be tempted to rely on facts admitted
by the defendant in a prior proceeding, or which otherwise
seem indisputable. This reflects a natural resistance to the
9
lumpiness of a truly categorical approach, which forces courts
to treat what may seem large and somewhat diverse swaths of
conduct as “crimes of violence” (or not). See supra n.3. But
sentence enhancements for prior convictions are just that—for
convictions. Conviction-based enhancements should not rest
on collateral evidence of the defendant’s bad character. Those
facts can flow into the sentencing decision independently, as a
basis for the sentencing judge’s exercise of discretion.