United States Court of Appeals
For the First Circuit
No. 00-1889
UNITED STATES OF AMERICA,
Plaintiff, 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 L. Stevens, was on brief, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret
E. Curran, United States Attorney, and James H. Leavey, Assistant U.S.
Attorney, were on brief, for appellee.
April 26, 2001
-2-
TORRUELLA, Chief Judge. Appellant George Sacko pled guilty
in 1997 to possession of firearms and silencer by a convicted felon, in
violation of 18 U.S.C. § 922(g) and 26 U.S.C. § 5861(d). His sentence
was enhanced pursuant to the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e), based in part on a prior conviction for statutory
rape.1 Sacko appealed, and this Court remanded so that the district
court "could 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." United States v. Sacko, 178 F.3d 1, 6 (1st Cir. 1999)
[hereinafter Sacko I ]. The district court, after taking such evidence,
concluded that "Sacko's sexual penetration of a 14-year-old girl in
violation of R.I. Gen. Laws § 11-37-6 was a 'violent felony' under ACCA
and that Sacko properly was sentenced as an 'armed career criminal.'"
Sacko II, 103 F. Supp. 2d at 91. This renewed appeal followed.
1 Sacko had been previously convicted in Rhode Island of "carnal
knowledge of a girl under the age of consent." Both parties agreed
that the offense in question was now covered by R.I. Gen. Laws § 11-37-
6, which criminalizes "third degree sexual assault." United States v.
Sacko, 103 F. Supp. 2d 85, 87 n.1 (D.R.I. 2000) [hereinafter Sacko II].
The statute in question provides that "[a] 'person' is guilty of third
degree sexual assault if he or she is over the age of eighteen years
and is engaged in sexual penetration with another person over the age
of fourteen years and under the age of consent, sixteen years." Id. at
87 (citing § 11-37-6).
-3-
BACKGROUND AND PROCEDURAL HISTORY
In Sacko I , we began by summarizing the "formal categorical
approach"2 used to determine whether predicate offenses qualify as
"violent felonies" under 18 U.S.C. § 924(e)(2)(B).3 178 F.3d at 2-4.
We noted that when the relevant criminal statute encompasses both
violent felonies and non-violent felonies, a sentencing court may go
beyond the statutory language and evaluate charging documents or jury
instructions. Id. at 3. Because statutory rape is one such offense,
we explained that it was permissible for the district court to examine
the indictment to determine the ages of the defendant and the victim.
Id. at 4-5. We held that the district court had erred, however, in
addressing the facts and circumstances of the predicate offense, as
gleaned from the pre-sentence report. Id. at 4.
We then evaluated whether, based on the statutory language
of the predicate offense and the limited information of the indictment,
we could conclude that Sacko's conviction was for a "violent felony."
2 The "formal categorical approach" allows a sentencing court to
examine only the statute of conviction, rather than the underlying
facts and circumstances of the predicate offense. Sacko I, 178 F.3d at
3 (citing Taylor v. United States, 495 U.S. 575, 597-602 (1990)).
3 Section 924(e)(2)(B) defines a "violent felony" as "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."
We are only concerned here with the scope of the "otherwise" clause in
§ 924(e)(2)(B)(ii). Sacko I, 178 F.3d at 4.
-4-
This Court has held that the conviction of a thirty-six-year-old man
for statutory rape of a girl under the age of fourteen did so qualify,
based on the age of the girl, the large chronological gap between the
victim and the defendant, and medical literature evaluating the
physical injuries that may result from sexual intercourse under such
circumstances. United States v. Meader, 118 F.3d 876, 884 (1st Cir.
1997). The Seventh Circuit has held that sexual intercourse between a
seventeen-year-old boy and thirteen-year-old girl is a crime of
violence. See United States v. Shannon, 110 F.3d 382, 387-88 (7th Cir.
1998) (en banc). However, the Seventh Circuit has indicated that some
statutory rapes are not crimes of violence. United States v. Thomas,
159 F.3d 296, 299 (7th Cir. 1998) (not extending Shannon to a statute
prohibiting sex with a girl under the age of seventeen where the age of
the victim was not specified in the charging document).
Relying on Meader, Shannon, and Thomas, we were "unprepared
to say a priori that sex is not physically dangerous for a 14-year-old
girl." Sacko I , 178 F.3d at 6. But we also lacked any legal basis for
the opposite conclusion, as no studies or medical journals had been
entered into the record. Id. Thus we remanded, noting that, upon
remand, the district court could "find the risks of physical injury
during penetration to be sufficient to meet the requisite 'serious
potential risk of physical injury.'" Id. (quoting § 924(e)(2)(B)(ii)).
If such risks proved insufficient, we suggested that the district court
-5-
should determine, in the first instance, whether the risk of physical
injury referred to in the statute must be confined to the act of
intercourse or could include possible consequences of that act, such as
pregnancy or disease. Id.; compare Shannon, 110 F.3d at 387-88
(including such secondary consequences in the injury calculus), with
id. at 390 (Manion, J., concurring) (confining risk of physical injury
to that directly accruing from the act of intercourse).
On remand, the district court conducted an evidentiary
hearing. It found that until an adolescent girl has reached Tanner
Stage 4,4 she "may or may not experience physical injury from the act
of intercourse." Sacko II, 103 F. Supp. 2d at 88. It also found that
12-33% of fourteen-year-old girls had not reached Tanner Stage 4. Id.
Based on these two facts, the district court concluded that, "given the
magnitude of immediate tissue injury and the likelihood that it will
occur . . . the unadorned crime of third degree sexual assault
involving penetration of a 14 year-old-girl by a man over the age of 18
'presents a serious risk of physical injury' to the girl." Id. at 91.
The district court also held that a statutory rapist is
accountable under § 924(e)(2)(B) for "the consequences of future
diseases attributable to penetration." Id. (citing United States v.
4 "[Under the] Tanner system for measuring physical development, a
female passes through five steps in progressing from a pre-pubertal
child to a fully developed adult woman. The stages are marked by
changes in breast and genital development." Sacko II, 103 F. Supp. 2d
at 88.
-6-
Marler, 756 F.2d 206, 216 (1st Cir. 1985), for the "fundamental
principle of criminal law" that "a person is held responsible for all
consequences proximately caused by his criminal conduct"). Given that
the court had found that sexually active adolescent girls face an
increased risk (compared to mature women) of contracting chlamydia,
genital tract infections, AIDS, and cervical cancer, id. at 88-89, the
court concluded that "the consequences [of future disease attributable
to statutory rape] are so severe that the risk of their occurrence
presents an additional 'serious potential risk of physical injury,'"
id. at 91.5
DISCUSSION
For the most part, Sacko makes no challenge to the factual
findings of the district court, which we review for clear error, or to
the district court's legal conclusions, which we review de novo. New
England Cleaning Servs., Inc. v. Services Employees Int'l Union, Local
254, AFL-CIO, 199 F.3d 537, 539 (1st Cir. 1999). It is well-settled
that arguments not raised in an appellant's initial brief are waived.
Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of P.R., 189 F.3d 1,
17 n.14 (1st Cir. 1999).
5 Our decision does not require us to determine whether it the district
court was correct in considering these secondary consequences of
statutory rape in its calculus of the potential risk of physical
injury.
-7-
Appellant does suggest two ways in which the district court
erred. First, he notes that Rhode Island does not include third degree
sexual assault in its list of violent crimes. R.I. Gen. Laws § 11-47-
2(2). Although he had every incentive to do so, Sacko failed to
present this argument in his first appeal. He cannot raise it here for
the first time.
A defendant should not be held to have waived an
issue if he did not have a reason to raise it at
his original sentencing; but neither should a
defendant be able to raise an issue for the first
time upon resentencing if he did have reason but
failed nonetheless to raise it in the earlier
proceeding. Under our approach a defendant may
argue at resentencing that the court of appeals'
decision has breathed life into a previously
dormant issue, but he may not revive in the
second round an issue he allowed to die in the
first.
United States v. Tichiarelli, 171 F.3d 24, 32 (1st Cir. 1999). Sacko
has not suggested that our remand "breathed life" into the relevance of
Rhode Island's categorization of third degree sexual assault; it has
therefore been waived in this second appeal.
At any rate, this Court has never held that the analysis of
what constitutes a "violent felony" for purposes of the ACCA turns on
state law. Cf. United States v. DiPina, 230 F.3d 477, 484 (1st Cir.
2000) (delinquency may be considered conviction under federal law, even
though it is not a conviction under state law); United States v.
Cuevas, 75 F.3d 778, 780 ( nolo contendere plea considered conviction
-8-
under federal law, even though it is not one under state law).6 Because
a state's classification of a crime generally reflects different policy
considerations than the federal classification, it is simply not
relevant to the determination of whether a crime is a "violent felony,"
which, under federal law, is based on an assessment of the risk of
physical injury associated with the typical conduct underlying that
crime.
Second, appellant argues that the district court failed to
determine what percentage of fourteen- and fifteen-year-old girls would
not face an enhanced risk of serious physical injury from intercourse
with a person over the age of eighteen. We first note that for
purposes of this case, only the percentage of fourteen-year-old girls
who would face such a risk is relevant. See Sacko I, 178 F.3d at 4-6
(determining age of victim from the indictment, and explaining the
relevance of that modified age for the categorical test). The district
court determined that 12-33% of fourteen-year-old girls had not reached
Tanner Stage 4, and that girls who had not reached Stage 4 faced either
a virtual certainty of physical damage or injury from intercourse (if
at Stage 1 or 2), or at least a real possibility of injury (if at Stage
6 In United States v. Sherwood, 156 F.3d 219, 222 n.3 (1st Cir. 1998),
our discussion of whether a particular felony was a "crime of violence"
noted that the state had designated it as such. However, our analysis
in Sherwood was wholly predicated on federal law, rather than the state
classification. Id. at 221-22.
-9-
3). Sacko II, 103 F. Supp. 2d at 88. In our view, these findings,
which are supported by the evidence, meet the required legal standard.
In a personal letter to this Court, which we have chosen to
treat as a supplemental brief, appellant makes two additional claims.
First, he argues that the district court's refusal to allow his expert
to testify was prejudicial. This claim is without merit. Sacko's
counsel presented a written statement from the expert, which the
Government accepted without objection or a request for cross-
examination. Under such circumstances, the decision not to solicit in-
court testimony from the expert was well within the discretion of the
district court. United States v. Rodríguez, 162 F.3d 135, 149-50 (1st
Cir. 1998). Second, appellant argues that the court's refusal to allow
him to appear pro se was prejudicial. It is not clear that Sacko's
request to appear pro se was actually denied; the district court
offered him "a chance to speak" on the specific issue before the court
(whether statutory rape is a crime of violence), but indicated that his
attorney would also be asked to respond because Sacko appeared
incapable of addressing the issue. Moreover, Sacko's statements at the
hearing devolved into groundless attacks on his attorney. The district
court exercised appropriate discretion on the matter. United States v.
Proctor, 166 F.3d 396, 401-02 (1st Cir. 1999).
For the reasons herein, we affirm.
-10-