United States Court of Appeals
For the First Circuit
No. 97-2386
UNITED STATES,
Appellee,
v.
GEORGE SACKO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Mark J. Gardner, by appointment of the Court, for appellant.
James H. Leavey, Assistant United States Attorney, with whom
Margaret E. Curran, United States Attorney, was on brief, for
appellee.
March 15, 1999
TORRUELLA, Chief Judge. The defendant, George Sacko
("Sacko"), was arrested in December 1996, and charged with: (1)
possession of firearms by a convicted felon, and (2) possession of
a silencer by a convicted felon. On July 8, 1997, Sacko pled
guilty to both counts. The district court determined that Sacko
was an armed career criminal under 18 U.S.C. 924(e)(1) because of
three previous Rhode Island convictions for: (1) assault with a
dangerous weapon; (2) assault with intent to murder; and (3)
statutory rape or, as it is described under Rhode Island General
Laws, sexual assault in the third degree. Sacko was sentenced, as
a level 31 Category VI offender, to 212 months imprisonment and
five years of supervised release to be served concurrently on each
count.
DISCUSSION
The only issue before us is the propriety of the district
court's sentencing of Sacko as an armed career criminal by virtue
of his previous conviction for statutory rape under Rhode Island
law. The Rhode Island statutory rape statute punishes a person
over the age of eighteen who engages in sexual penetration with
another person over the age of fourteen and under the age of
consent, which is sixteen years of age. See R.I. Gen. Laws 11-
37-6 (1989). Under the Armed Career Criminal Act ("ACCA"), this
enhancement was only proper if Sacko's conviction was for a
"violent felony." 18 U.S.C. 924(e)(1). The district court
determined that it was such a crime. This issue is one of law, and
our review is de novo. See United States v. Meader, 118 F.3d 876,
881 (1st Cir. 1997), cert. denied, 118 S. Ct. 729 (1998).
Section 924(e)(2)(B) defines a "violent felony" as
follows:
[T]he term "violent felony" means any crime
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, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
Under Taylor v. United States, 495 U.S. 575 (1990),
whether a predicate offense qualifies as a crime of violence
requires a "categorical" examination of the statutory crime.
Taylor considered whether the defendant's predicate offenses
constituted "burglary" as defined in 18 U.S.C. 924(e), a
sentencing enhancement statute. Taylor had been convicted of
"burglary" in Missouri at a time when Missouri had seven different
statutes under which a person could be charged for that crime. The
Supreme Court held that, rather than examining the particular
circumstances of the crimes for which the defendant was convicted,
a sentencing court should look only to whether the statute of
conviction contained the elements of a "generic" burglary and
should not inquire whether the specific crime committed was
especially dangerous to others. See Taylor, 495 U.S. at 598. The
Court defined generic burglary as a crime that consists of:
"unlawful and unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime." Id. Taylor noted
that in some situations the statute of conviction may include
elements beyond those of a generic burglary (e.g., entry into
places other than buildings). See id. at 599-600.
To address that issue, and other problems of
interpretation of 924(e), sentencing courts should employ a
"formal categorical approach," and generally "look only to the fact
of conviction and the statutory definition of the prior offense."
Id. at 602. A sentencing court may go beyond the fact of
conviction in those cases where the statute encompasses both
violent felonies (e.g., generic burglary) and non-violent felonies
(e.g., burglary of a vehicle rather than of a building). See id.
In such a situation, the sentencing court may examine the
indictment or information and jury instructions in order to discern
which type of crime the offender was convicted of perpetrating.
See id. The Taylor Court remanded the case so that this
determination could be made with respect to Taylor's prior
convictions.
After Taylor, our analysis of predicate offenses has
followed this categorical approach. See United States v. Damon,
127 F.3d 139, 141-46 (1st Cir. 1997); Meader, 118 F.3d at 881-83
("[T]he standard approach for determining whether a particular
crime fits within the 'crime of violence' rubric is a generic one,
in which inquiry is restricted to the statutory definitions of
prior offenses, without regard to the particular facts underlying
them.") (citations omitted); United States v. Winter, 22 F.3d 15,
18 (1st Cir. 1994); United States v. De Jess, 984 F.2d 21, 23
(1st Cir. 1993) ("[R]ather than examining the actual circumstances
underlying the earlier conviction, we examine only the statutory
formulation of the crime charged . . . to see if that crime is a
crime of violence . . . .").
The Rhode Island statute, defining third degree sexual
assault as it applied in 1989 at the time of Sacko's conviction, is
as follows:
A "person" is guilty of third degree sexual
assault if he or she is over the age of
eighteen (18) years and engaged in sexual
penetration with another person over the age
of fourteen (14) years and under the age of
consent, sixteen (16) years of age.
Because the Rhode Island statute does not include as an
element the use or threat of physical force, it is undisputed that
in order to qualify as a "violent felony," it must fall under the
"otherwise" clause of 924(e)(2)(B), and therefore be an offense
that presents "a serious potential risk of physical injury." The
district court, in determining the potential risk of physical
injury posed by statutory rape, made the following observations:
So what the Court has to determine here is
whether statutory rape presents a serious
risk, serious potential risk of physical
injury to another, and whether that risk is
inherent in the usual type of conduct that
constitutes the offense . . . .
What the Court has to look at here is what's
the typical, usual type of conduct that makes
up the offense of statutory rape. And it
seems to me, there were two paradigms here.
One category of usual conduct in statutory
rape would be where the young woman or female
consents in every sense of the word except the
legal sense, since the law does not recognize
the ability of a minor to consent to such
activity. But, but for that, it would be
considered a consensual, mutually-consensual
act on the part of the two participants, where
the only reason that an offense is committed
is the age of the woman, of the female.
The other model for statutory rape is one
that is very similar to any other kind of
rape, except that there has been no actual
force used or threatened, but the activity
cannot be characterized as consensual on the
part of the victim and, therefore, because it
is not consensual, it clearly presents a
serious potential risk of physical injury
because of the likelihood that if the victim
resists, that force will be used and serious
harm will result.
As best I can make out from the pre-sentence
report here, the pre-sentence report indicates
that the Defendant--the Defendant met the
victim on the street, somehow induced her to
go back to his apartment or his mother's
house, I guess it was, and directed her to
take off her clothes and then had sexual
intercourse with her. Shortly thereafter,
three males--three other males entered the
room, the victim ran away and, obviously,
reported the incident to the police.
So it seems clear that what happened in this
case falls into the second category of
offenses, and not the first. And, therefore,
I find that this is a violent felony within
the meaning of the statute.
Tr. 11/14/97 at 27-29.
Sacko argues: (1) that the district court's approach was
a violation of the "categorical" approach, and (2) that the
determination that Sacko's conviction was for a "violent felony"
was in error.
While the categorical approach frames our inquiry, as
with most any rule, there is an exception. A basis for expanding
the inquiry beyond the cold words of the statute is found in
Taylor, where the Supreme Court carved out a narrow exception to
the categorical approach for cases in which the statute of
conviction covers conduct both inside and outside the "violent
felony" sphere. In such instances, the sentencing court may look
to the information or indictment and jury instructions to ascertain
whether the conduct that was the basis for the conviction
constituted a violent felony. See Meader, 118 F.3d at 882 n.9.
Because statutory rape can encompass both violent and
non-violent conduct, it was permissible for the district court to
examine the indictment to learn that "George Sacko [age 21] . . .
did engage in sexual penetration, vaginal intercourse, with [Jane
Doe], age 14 . . . ." The district court's investigation of the
circumstances of the crime should have ended there. It was error
for the district court to delve into the facts of Sacko's crime as
described in the presentence report in order to determine whether
his conviction was for a violent or a non-violent crime. SeeDamon, 127 F.3d at 144-45 (holding that it is error for a district
court to rely on an offender's uncontested presentencing report).
In deciding whether Sacko's conviction constitutes a
"violent felony," we look to Meader, United States v. Shannon, 110
F.3d 382 (7th Cir. 1996) (en banc), and United States v. Thomas,
159 F.3d 296 (7th Cir. 1998).
In Meader, we held that the conviction of a 39 year old
man under a Maine statute for statutory rape with a girl under the
age of fourteen was a "crime of violence." See Meader, 118 F.3d at
884-85. Two crucial factors supporting our conclusion were: (1)
the age of the girl; (2) the large chronological gap between the
victim and the defendant; and (3) the medical literature regarding
the possible physical injuries to the girl as a result of sexual
intercourse with the defendant. See id. at 884.
In Shannon, the Seventh Circuit, sitting en banc, decided
an issue remarkably similar to the one at hand: whether sexual
intercourse between a 17 year old boy and a 13 year old girl is a
crime of violence. See Shannon, 110 F.3d at 385. Writing for the
Court, Chief Judge Posner discussed the issue of whether any
felonious act with a minor creates a serious potential risk of
physical injury. See id. at 386. Citing the wide variation in age
above which sex with a minor is not regarded as felonious in the
absence of any aggravating factors, he concluded that "a serious
risk of physical injury cannot be automatically inferred from the
existence of a statutory-rape law." Id. (noting, for example,
that in Iowa, "the minor need only have reached the age of 14, and
in Pennsylvania, she need only have turned 13").
His conclusion that sexual intercourse between a 17 year
old boy and a 13 year old girl involved conduct that presents a
serious potential risk of physical injury to another was based on
"medical literature which indicated that a 13 year old is unlikely
to appreciate fully or be able to cope effectively with the disease
risks and fertility risks of intercourse and that if she does
become pregnant it is likely to be a high risk pregnancy both for
her and the fetus." Id. at 387-88.
In Thomas, Chief Judge Posner, writing for the panel,
stated that "it is difficult to maintain on a priori grounds that
sex is physically dangerous to 16 year old girls," Thomas, 159
F.3d at 299, because "[m]ore than 40 percent of the 16 year old
girls in our society have had sexual intercourse . . . and 45 of
the 50 states permit marriage at 16." Id. Relying on these facts
and the government's failure to cite any secondary literature
delineating the potential risk of injury posed by a 16 year old
girl engaging in sexual intercourse, the Court vacated Thomas's
sentence as an armed career criminal.
This Court stands in the midst of an issue fraught with
peril. As we stated in Meader, this is an issue that "appeals
courts, have neither the expertise nor the authority to resolve in
the first instance," 118 F.3d at 885, and which should be resolved
by the Sentencing Commission and Congress. In Meader, it was
"commonsensical" that there was a serious potential risk of injury
because of the large age difference between the defendant and the
victim. In Shannon, the Seventh Circuit relied on copious medical
evidence discussing the potential risks that result from a 13 year
old girl engaging in sexual intercourse. Here, we are unprepared
to say a priori that sex is not physically dangerous for a 14 year
old girl. However, we have no legal basis for the opposite
conclusion, no studies or medical journals to ground such a
holding.
As a result, we remand this case to the district court to
take evidence on the issue whether the crime of sexual penetration
of a fourteen year-old by someone over the age of eighteen involves
conduct presenting a serious potential risk of physical injury to
the former. As a circuit, we have not yet needed to address the
issue with these age characteristics. Our opinion in Meaderinvolved a thirteen year-old and relied on physical injuries
"includ[ing] abrasions, hymenal transections, first-degree vaginal
tears, and perianal tears." Meader, 118 F.3d at 882 n.7 (quoting
State v. Rundlett, 391 A.2d 815, 819 (Me. 1978)). For the purposes
of Meader, we found these injuries sufficient to find that the
defendant's conduct "involve[d] conduct that present[ed] a serious
potential risk of physical injury to another." U.S.S.G. 4B1.2.
In so doing, we explicitly recognized the fact that we
"bypassed a number of troubling and complex issues" including "what
is meant by 'physical injury'[.]" Meader, 118 F.3d at 884. We
then highlighted the disagreement on this particular point among
the judges of the Seventh Circuit. See Meader, 118 F.3d at 884-85.
We have already outlined the more expansive views of the majority.
See supra at 9. However, a concurrence suggested that "the risk of
physical injury referred to in the Guideline must be confined to
the act of intercourse, not the possible consequences that could
develop, such as pregnancy or disease." Shannon, 110 F.3d at 390
(Manion, J., concurring).
The district court may find the risks of physical injury
during penetration to be sufficient to meet the requisite "serious
potential risk of physical injury." If not, it will have to
address the alternative noted above. In the continuing absence of
guidance from Congress and the Sentencing Commission, additional
briefing by the parties, and an initial determination by the
district court, we deem it inappropriate to proceed.
CONCLUSION
For the reasons stated in this opinion, we REMAND this
case to the district court for further proceedings consistent with
this opinion.