United States v. Cadieux

United States Court of Appeals
For the First Circuit

No. 05-2567

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID CADIEUX,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Howard, Circuit Judge,

Campbell, Senior Circuit Judge,

and Saris,* District Judge.

Jane Elizabeth Lee, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

August 21, 2007

_____________________

*Of the District of Massachusetts, sitting by designation.
SARIS, District Judge.

Appellant David Cadieux was convicted as a felon-in-

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and

sentenced to 188 months under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). On appeal, he contends that (1) the

trial court’s admission of a recording of a 911 call made by a

declarant whom Appellant did not have the opportunity to cross-

examine violated the Confrontation Clause; and (2) the trial court

improperly classified Appellant’s 1989 conviction for indecent

assault and battery on a child under fourteen, Mass. Gen. Laws ch.

265, § 13B (1989), as a violent felony under the ACCA because his

conviction was for a state-law crime that covered both violent and

non-violent conduct.

I. Background1

A. The 911 Call for Help

On May 15, 2003, the police responded to a 911 call

reporting that a drunken Cadieux was brandishing a shotgun during

an argument with his long-time girlfriend, Theresa Nye, at his home

in rural Maine. A convicted felon since the 1980s, Cadieux lived

on the property with Nye and her children. When Nye returned home

from work around 9 p.m., she found Cadieux in the barn drunk and

angry, apparently having been kicked by a horse. They argued, and

1
The government introduced evidence of these facts at trial.
For purposes of this appeal, these facts are undisputed.

2
eventually Nye asked Cadieux to leave. During this exchange,

Cadieux picked up a shotgun lying nearby in the barn. At this

time, Jolene Nye, Theresa’s twenty-one-year-old daughter, arrived

home with her boyfriend and child. Theresa told Jolene not to get

involved in the argument and to go into the house because there

were guns in the barn. Hysterical, Jolene entered the house and

called the police. As she spoke with the dispatcher, her mother

tried to persuade her to hang up the phone.

Jolene had the following exchange with the dispatcher:

Police: 911
[Jolene]: Um, I have, I don’t care Mom, he’s
Police: Hi, hello
[Jolene]: Hello
Police: Talk with me, try to calm down, what’s going
on? Hi
[Jolene]: Um
Police: You’re on the Maxwell Road in Temple
[Jolene]: Yup
Police: What’s the problem? What’s going on, do you
want a police officer?
[Jolene]: Um, yeah, because
Police: Yup, Maxwell Road, Temple
Mom: No
[Jolene]: Mom, yes, think about your kids right now Mom
Police: What’s your Mom’s name?
[Jolene]: I don’t care if there’s no ammunition Mom he
just grabbed the gun cuz he’s shitfaced.
Police: Hey,
[Jolene]: Uh-huh
Police: Who grabbed the gun?
[Jolene]: (breathing)
Police: Who’s got a gun you gotta tell me now.
[Jolene]: It’s not loaded it was out in the barn
Police: Who?
[Jolene]: Hello?
Police: Hi, how old is he?
[Jolene]: Um

3
 Police: Who’s in the barn with the gun?
[Jolene]: My mom’s
Police: boyfriend?
[Jolene]: Yeah
Police: Franklin Unit 76, 1032
[Jolene]: We’ve never had a problem like this
Police: It’s gonna be Maxwell Road, 25 Maxwell Road,
a male subject; the female caller does not
believe there are any bullets in the gun
[Jolene]: No there is, there isn’t any, he’s drunk. I
just said that Mom
Police: ___ start toward Temple (background police
noise) Temple, Unit 8 could you head for 25
Maxwell Road Temple, thank you.
[Jolene]: I’m not sure I think he might have left. But
there was there was (talking to Mom in
background)
Police: (Background police noise) Is it the first
house on the right? Is it the first house on
the right?
[Jolene]: Huh?
Police: Are you the first house on the right?
[Jolene]: I think the second, my mom wants to talk to
you.

She then handed the phone to her mother. At some point, Cadieux

fled into the nearby woods.

When the police arrived, they set up a tactical team

around the perimeter of the house and searched for Cadieux. He was

discovered hours later, around midnight, as he attempted to enter

the barn through a locked rear door. The police found the shotgun,

which was missing a clip, and an antique rifle2 stuffed into a

crawlspace underneath the barn’s foundation. The police also found

a shotgun shell in the barn near where the horses were kept. A

2
As an antique, the rifle is not a “firearm” under 18 U.S.C.
§ 922(g).

4
search the next day revealed the missing shotgun clip in a vest

hanging in the barn close to many of Cadieux’s possessions.

Cadieux was arrested for being a felon in possession of

a firearm. When he was taken into custody, Cadieux insisted that

he had a firearm identification card issued in Massachusetts and

could have guns on his property if he wanted.

B. The Failed Plea Agreement and Trial

On July 19, 2004, Cadieux entered into a plea agreement

under Fed. R. Crim. P. 11(c)(1)(c). The agreement specified a base

offense level 14 and criminal history category II, which resulted

in an initial guidelines range of 12-18 months. At the change-of-

plea hearing on September 2, 2004, probation informed the court

that Cadieux was subject to a sentencing enhancement as an armed

career criminal because Cadieux had three prior violent felony

convictions. See 18 U.S.C. § 924(e)(1). Among other things, he

argued that his 1989 conviction for indecent assault and battery on

a minor did not qualify as a third strike because the 1989 statute

captured consensual sexual touching that could not be deemed

“violent” within the meaning of the ACCA. The presentence report,

to which Cadieux did not object, stated that Cadieux was born on

September 20, 1959. In a well-reasoned opinion, the court below

found that “a comparison between the [1989] indictment and the

elements of the statute as illuminated by applicable case law”

established that Cadieux, as an adult, had committed an indecent

5
sexual touching of a child which, under our precedent, was a

violent felony under the ACCA. See United States v. Cadieux, 350

F. Supp. 2d 275, 285 (D. Me. 2004).3 The court permitted Cadieux

to withdraw his plea, and the case went to trial.

At trial, over Cadieux’s objection, the district court

allowed the government to introduce a recording of Jolene’s

statements to the 911 dispatcher. Jolene did not testify. The

court concluded that the recording was admissible either as a

business or public record; that the statements themselves, though

hearsay, could be introduced either as excited utterances or

present sense impressions; and that the statements were

nontestimonial and therefore exempt from Confrontation Clause

challenge.

After a two-day trial, Cadieux was convicted on one count

of being a felon-in-possession of a firearm. The court

subsequently imposed a sentence of 188 months incarceration, the

minimum term applicable under the ACCA. See 18 U.S.C. § 924(e).

This appeal followed.

II. Discussion

A. Confrontation Clause

Appellant first challenges the admission of the

3
Although Cadieux’s age at the time of the crime was
undisputed, the court did not consider it, despite the fact that
it struck the court “as equally artificial not to do so.”
Cadieux, 350 F. Supp. 2d at 285 n.14.

6
statements to the 911 operator. In Crawford v. Washington, the

Supreme Court held that the Sixth Amendment’s Confrontation Clause

bars “admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had a prior opportunity for cross-examination.” 541 U.S.

36, 53-54 (2004). Appellant objects to the district court’s

classification of Jolene Nye’s statements as nontestimonial.

We review “de novo the question of whether or not a given

statement, in context, should be deemed testimonial.” United

States v. Brito, 427 F.3d 53, 59 (1st Cir. 2005). In Crawford, the

Court “offered no precise definition of which statements were to be

regarded as testimonial and which were not.” Brito, 427 F.3d at

59. Instead, the Court set out, “for illustrative purposes, a trio

of formulations that [comes] within the ‘core class’ of testimonial

statements.” Id. (quoting Crawford, 541 U.S. at 59).

The first formulation encompasses “ex parte in-court
testimony or its functional equivalent -- that is,
material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially.” The second encompasses “extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions.” The third encompasses
“statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial.”

Id. (quoting Crawford, 541 U.S. at 50-52).

The Supreme Court has clarified the circumstances under

7
which the admission of a 911 recording of an absent witness will

offend the Sixth Amendment. See Davis v. Washington, __ U.S. __,

126 S. Ct. 2266, 2273-74 (2006). The Davis Court held that

statements made to a 911 operator “are nontestimonial when made in

the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency.” Id.

(emphasis added). By contrast, such statements are testimonial

“when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” Id.

The Davis Court identified several factors that should

guide courts in this objective inquiry, including:

(1) Was the declarant speaking about current events as
they were actually happening, “requiring police
assistance” rather than describing past events?

(2) Would a “reasonable listener” conclude that the
declarant was facing an ongoing emergency that called for
help?

(3) Was the nature of what was asked and answered during
the course of a 911 call such that, “viewed objectively,
the elicited statements were necessary to be able to
resolve the present emergency” rather than “simply to
learn . . . what had happened in the past?”

(4) What was the “level of formality” of the interview?
For example, was the caller frantic, in an environment
that was neither tranquil nor safe?

See id. at 2276-77 (emphasis in original).

8
 Under the Davis guideposts, the statements recorded

during the 911 call are nontestimonial hearsay. The daughter is

speaking about events in real time, as she witnessed them transpire

through a window in her home; at no point is there a description of

past events. She specifically requests police assistance. The

dispatcher’s questions are tailored to identify the location of the

emergency, its nature, and perpetrator. Finally, Jolene Nye is

hysterical as she speaks to the dispatcher, in an environment that

is neither tranquil nor, as far as the dispatcher could reasonably

tell, safe. The exchange was not part of a formal police

interrogation designed to elicit statements for the purpose of a

later prosecution. The emergency did not end until Cadieux was

apprehended, hours after Jolene Nye spoke to the dispatcher.

Nonetheless, Appellant insists Jolene was quite aware

that her statements would be recorded by the police and used for a

prosecutorial purpose because of her mother’s pleas to hang up so

that Cadieux would not get into trouble. Therefore, in Appellant’s

view, her statements fall within the “core class” of testimonial

statements “made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available

for use at a later trial.” Crawford, 541 U.S. at 52. This

argument is unavailing. The Court in Davis specifically directs

courts to examine the nature of both “what was asked and answered.”

126 S. Ct. at 2274. The dispatcher’s questions were made with the

9
object of procuring information relevant to providing emergency

police assistance. Jolene’s statements, though at times muddled by

her mother’s interventions, were similarly directed towards that

end. “Ordinarily, statements made to the police while the

declarant or others are still in personal danger cannot be said to

have been made with consideration of their legal ramifications.”

Brito, 427 F.3d at 62. Theresa Nye’s desire not to involve the

police does not alter the fact that Jolene’s call was plainly a

call for help, relating to events transpiring in real time, while

danger was still present. As such, in the totality of the

circumstances, they were nontestimonial. The district court’s

admission of the 911 call is affirmed.

B. Sentencing

Appellant contends that the court erred when it

classified his 1989 conviction for indecent assault and battery on

a child under fourteen as a “violent felony” under the ACCA.

Whether a crime constitutes a “violent felony” under the ACCA is a

question of law, reviewed de novo. United States v. Sacko, 178

F.3d 1, 3 (1st Cir. 1999).

The ACCA provides that anyone convicted as a felon in

possession of a firearm is subject to a term of incarceration for

“not less than fifteen years” if he has three prior convictions for

a “violent felony.” 18 U.S.C. § 924(e)(1). The statute defines

“violent felony” as any crime punishable by imprisonment for more

10
than one year which

(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.

Id. § 924(e)(2) (emphasis added). Appellant concedes that he has

two prior convictions that qualify as violent felonies within the

meaning of the statute. The question presented here is whether his

1989 conviction falls within the ACCA’s residual provision for

crimes that “otherwise involve[] conduct that presents a serious

potential risk of physical injury to another.”

1. The Taylor-Shepard-James Trilogy

The Supreme Court has undertaken the difficult task of

determining whether a prior conviction under state law constitutes

a violent felony under the ACCA in a trilogy of cases beginning

with United States v. Taylor, 495 U.S. 575 (1990). In Taylor, the

Supreme Court instructed sentencing courts to take a “categorical

approach,” which generally looks “only to the fact of conviction

and the statutory definition of the prior offense.” Id. at 602. In

order to impose an ACCA enhancement based on a defendant’s prior

conviction under state law for burglary under clause (ii), a

sentencing court must refer to the statutory elements of the prior

offense to ensure that the defendant was in fact convicted of

“generic” burglary –- that is, the “unlawful or unprivileged entry

11
into, or remaining in, a building or structure, with intent to

commit a crime.” Id. at 599. Where the state law definition of

burglary was broader than the generic offense, under a so-called

“nongeneric” burglary statute, the “categorical approach” permits

the court to examine the record of conviction to determine whether

“a jury was actually required to find all the elements of generic

burglary.” Id. at 602. The Court explained,

For example, in a State whose burglary statutes include
entry of an automobile as well as a building, if the
indictment or information and jury instructions show that
the defendant was charged only with a burglary of a
building, and that the jury necessarily had to find an
entry of a building to convict, then the Government
should be allowed to use the conviction for enhancement.

Id. We have called this a two-tiered categorical approach. United

States v. Miller, 478 F.3d 48, 50 (1st Cir. 2007).

In Shepard v. United States, 544 U.S. 13, 25 (2005), the

Supreme Court addressed this categorical approach in the context of

a prior guilty plea to an offense under a nongeneric burglary

statute, holding that an inquiry

under the ACCA to determine whether a plea of guilty to
burglary defined by a nongeneric statute necessarily
admitted elements of the generic offense is limited to
the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable
judicial record of this information.

Id. at 26. The Court, however, rejected the use of a police report

as a basis for judicial fact-finding because permitting a

sentencing judge considering an ACCA enhancement to make a

12
“disputed finding of fact about what the defendant and state judge

must have understood as the factual basis of the prior plea” raises

Sixth and Fourteenth Amendment concerns. Id. at 25-26.

Recently, the Supreme Court again used the categorical

approach to determine whether an offense qualifies as a violent

felony under the ACCA’s residual clause. In James v. United

States, 550 U.S. __, 127 S. Ct. 1586, 1594 (2007), the Court

considered whether Florida’s attempted burglary statute presented

a sufficient “potential risk of injury” to qualify as a violent

felony within the meaning of the ACCA’s residual provision. In so

doing, the Court stated that the specific offenses enumerated in

Section 924(e)(2)(ii) “provide one baseline from which to measure

whether other similar conduct ‘otherwise . . . presents a serious

potential risk of physical injury.” Id. at 1594. The Court found

that the risk posed by attempted burglary under Florida law -- like

that posed by its closest clause (ii) analogue, completed burglary

-- arises from

the possibility of a face-to-face confrontation between
the burglar and a third party -- whether an occupant, a
police officer, or a bystander -- who comes to
investigate. That is, the risk arises not from the
completion of the burglary, but from the possibility that
an innocent person might appear while the crime is in
progress.

Id. at 1594-95 (citing United States v. Payne, 966 F.2d 4, 8 (1st

Cir. 1992)). Indeed, the Court reasoned, third-party “encounters

may occur much more frequently during attempted burglaries [than

13
the completed sort] because it is precisely due to such encounters

that many planned burglaries do not progress beyond the attempt

stage.” Id. at 1599. Thus, because attempted burglary under

Florida law “presented at least as much risk” as completed

burglary, the Court concluded that it qualified as a violent felony

under the residual clause. Id. at 1598.

The Supreme Court articulated the categorical approach as

follows: “[W]e consider whether the elements of the offense are of

the type that would justify its inclusion within the residual

provision, without inquiring into the specific conduct of th[e]

particular offender.” Id. at 1594 (emphasis in original). The

Court clarified that the residual clause does not require “that

every conceivable factual offense covered by a statute must

necessarily present a serious potential risk of injury before the

offense can be deemed a violent felony.” Id. at 1597 (citing

Gonzales v. Duenas-Alvarez, 549 U.S. __, 127 S. Ct. 815, 822

(2007)).

Rather, the proper inquiry is whether the conduct
encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of
injury to another. . . . As long as an offense is of a
type that, by its nature, presents a serious potential
risk of injury to another, it satisfies the requirements
of § 924(e)(2)(B)(ii)’s residual provision.

Id. (emphasis added).

The Supreme Court recognized the difficulty of assessing

risk for the full range of state-law crimes. See id. at 1598 n.5

14
(acknowledging that the “ACCA requires judges to make sometimes

difficult evaluations of the risks posed by different offenses”).

For example, it refers to an escape crime. See id. at 1599

(“Without hard statistics . . . how is a lower court to determine

whether the risk posed by generic burglary is greater or less than

the risk posed by an entirely unrelated unenumerated offense --

say, escape from prison?”); see generally United States v. Davis,

2007 U.S. App. LEXIS 11549, *8-9 (5th Cir. May 17, 2007)

(recognizing that the enumerated offenses in clause (ii) “merely

provide a starting point in the inquiry of whether there is a

serious risk for physical injury”).

2. The State Law Conviction

Turning to Appellant’s 1989 conviction, we begin with the

elements of the offense. Appellant was convicted under a statute

that prohibited indecent assault and battery on a child under

fourteen.4 See Mass. Gen. Laws ch. 265, § 13B (1989) (“Section

13B”). As one Massachusetts court has explained,

4
Pertinently, Section 13B reads:

Whoever commits an indecent assault and battery on a
child under the age of fourteen shall be punished by
imprisonment in the state prison for not more than ten
years, or by imprisonment in a jail or house of
correction for not more than two and one-half years....

In a prosecution under this section, a child under the
age of fourteen years shall be deemed incapable of
consenting to any conduct of the defendant for which said
defendant is being prosecuted.

15
 An indecent assault and battery is essentially an act or
series of acts which are fundamentally offensive to
contemporary moral values. It is behavior which the
common sense of society would regard as immodest, immoral
and improper. Thus, in order to prove indecent assault
and battery, the Commonwealth must prove beyond a
reasonable doubt that the defendant committed an
intentional, unprivileged and indecent touching of the
victim. It has been held that the intentional,
unjustified touching of private areas such as the
breasts, abdomen, buttocks, thighs, and pubic area of a
female constitutes an indecent assault and battery.

Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 567 N.E.2d 939, 941

(Mass. App. Ct. 1991) (alterations, internal citations, and

quotation marks omitted); see, e.g., Commonwealth v. Taylor, 50

Mass. App. Ct. 901, 733 N.E.2d 584, 584 (Mass. App. Ct. 2000).

On several prior occasions, we have addressed whether

inappropriate sexual touching is a crime that presents a serious

potential risk of physical injury to another. In United States v.

Leahy, we held that Mass. Gen. Laws ch. 265, § 13H, which

criminalizes indecent assault and battery on a person over

fourteen, was a violent felony for ACCA purposes. 473 F.3d 401,

411 (1st Cir. 2007). While helpful, Leahy is not dispositive

because Section 13H, unlike Section 13B, includes lack of the

victim’s consent as an element. The Second Circuit, in Sutherland

v. Reno, found this element (i.e., lack of consent) to be

determinative in holding that Section 13H was a “crime of violence”

under 18 U.S.C. § 16.5 See 228 F.3d 171, 177 (2d Cir. 2000) (“[I]n

5
18 U.S.C. § 16 defines the term “crime of violence” as:

16
indecent assault and battery cases, the non-consent of the victim

is a touchstone for determining whether a crime ‘involves a

substantial risk that physical force against the person . . . may

be used.’”). In adopting the reasoning of Sutherland with respect

to the classification of Section 13H under the ACCA, we noted that

“just as there is ‘a substantial risk that force may be used in

order to overcome the victim’s lack of consent,’ so too is there a

substantial risk of physical injury from the unwanted touching.”

Leahy, 473 F.3d at 411 (citation omitted).

Our caselaw has also established that indecent sexual

contact crimes perpetrated by adults against children categorically

present a serious potential risk of physical injury. In United

States v. Richards, for example, we held that unlawful sexual

contact offenses against children under fourteen by a person at

least three years older under Maine law are violent felonies under

the ACCA. 456 F.3d 260, 264-65 (1st Cir. 2006), cert. denied, 127

S. Ct. 2097 (2007). Similarly, in United States v. Sherwood, we

held that under Rhode Island law a conviction for second-degree

child molestation involving the sexual touching of persons under

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

17
thirteen years of age typically presents “a serious potential risk

of physical injury to another” within the meaning of the sentencing

guidelines even though the statute can encompass both violent and

non-violent conduct. 156 F.3d 219, 221 (1st Cir. 1998); cf. United

States v. Meader, 118 F.3d 876, 881-82 (1st Cir. 1997) (concluding

that a statutory rape conviction qualified as a crime of violence

where the charging documents established that the crime involved a

thirty-six-year-old man and a thirteen-year-old girl because of the

age of the girl and the “chronological gap”).

These decisions rest on the common-sense recognition that

crimes involving indecent sexual contact with a child “typically

occur in close quarters, and are generally perpetrated by an adult

upon a victim who is not only smaller, weaker, and less

experienced, but is also generally susceptible to acceding to the

coercive power of adult authority figures.” Sherwood, 156 F.3d at

221 (quoting United States v. Velazquez-Overa, 100 F.3d 418, 422

(5th Cir. 1996)); see, e.g., United States v. Curtis, 481 F.3d 836,

838-39 (D.C. Cir. 2007) (“[C]ourts have universally recognized that

sex offenses against minors are crimes of violence . . . because of

the substantial likelihood that the perpetrator will use physical

force to ensure the child’s compliance.”); United States v. Munro,

394 F.3d 865, 870 (10th Cir. 2005) (attempted sexual activity with

a minor is a crime of violence because “[i]n cases involving sex

crimes against minors, we have found that ‘there is always a

18
substantial risk that physical force will be used to ensure [a]

child’s compliance’ with an adult’s sexual demands” (citation

omitted)); United States v. Pereira-Salmeron, 337 F.3d 1148,

1153-54 (9th Cir. 2003) (“[S]exual contact with a minor inherently

presents a risk of force sufficient to characterize such misconduct

as a ‘crime of violence’ under the Sentencing Guidelines.”).

To be sure, a sex crime involving indecent touching of a

child does not have an obvious analogue in the enumerated crimes in

clause (ii). Still, the substantial likelihood of physical injury

inherent in indecent sexual contact crimes by an adult with a child

presents at least as much risk as burglary. Cf. Velazquez-Overa,

100 F.3d at 422 (“If burglary, with its tendency to cause alarm and

to provoke physical confrontation, is considered a violent crime

under 18 U.S.C. § 16(b), then surely the same is true of the far

greater intrusion that occurs when a child is sexually molested.”);

see also Sutherland, 228 F.3d at 177 (citing the Velazquez-Overa

child molestation-burglary analogy with approval).

Appellant argues that Section 13B, unlike other child

sexual contact offenses, does not qualify categorically under the

residual clause because it expressly provides that the child’s

consent is not a defense and does not require a minimum age gap

between victim and perpetrator. As such, the statute sweeps in

consensual sexual contact between similarly-aged teenagers, for

example, a fourteen-year-old and a thirteen-year-old who are simply

19
making out. Because this situation would not ordinarily create a

“serious potential risk of physical injury,” he maintains that

conviction under Section 13B cannot be classified as a violent

felony because it spans both violent and non-violent conduct.

Although this argument gives us pause, it ultimately fails.

While the statute potentially punishes consensual sexual

touching between underage teenagers, the likelihood that a

conviction for a Romeo-and-Juliet6 offense could serve as an ACCA

predicate is low. We have scoured the caselaw and could not

discover a single reported case in which a juvenile was convicted

under Section 13B for consensual sexual activity with a similarly-

aged youth. Counsel has pointed us to none under Massachusetts

law. Significantly, the ACCA prescribes a higher standard for

sentencing enhancements based on juvenile convictions. A juvenile

conviction qualifies as a violent felony only if it involves the

“use or carrying of a firearm, knife, or destructive device” and

otherwise satisfies the criteria applicable to adult offenses. See

18 U.S.C. § 924(e)(2)(B). Thus to trigger ACCA enhancement, a

juvenile conviction under the statute would necessarily involve an

unconsented-to indecent sexual touching of a child under fourteen

while using or carrying a weapon.

Further, in order for a juvenile to be tried as an adult

6
As Shakespeare tells us, Juliet was but “[a] fortnight and
odd days” from the age of fourteen. William Shakespeare, Romeo
and Juliet, Act I, Sc. iii.

20
in Massachusetts, a defendant would have to be at least fourteen

years old and, under the law applicable at the time of Cadieux’s

1989 conviction, a judge would have to issue a written order

“supported by clear and convincing evidence 1) that the child

presents a significant danger to the public as demonstrated by the

nature of the offense charged and the child’s past record of

delinquent behavior, and 2) that the child is not amenable to

rehabilitation as a juvenile.” Commonwealth v. Traylor, 29 Mass.

App. Ct. 584, 563 N.E.2d 243, 244 (1990) (citation and internal

quotation marks omitted; emphasis added); see also Mass. Gen. Laws

ch. 119, § 61 (repealed 1996). Accordingly, as a practical matter,

the odds that a conviction for consensual touching between

similarly-aged youths would qualify as an ACCA predicate approach

zero. Cf. Gonzales v. Duenas-Alvarez, __ U.S. __, 127 S. Ct. 815,

822 (2007) (“[T]o find that a state statute creates a crime outside

the generic definition of a listed crime in a federal statute

requires more than the application of legal imagination to a state

statute’s language. It requires a realistic probability, not a

theoretical possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a crime.”).

Moreover, under the “categorical approach,” the

sentencing court is allowed to look at undisputed facts in the

record. Here, under Section 13B, we know that the victim is always

under fourteen years of age. Compare Sherwood, 156 F.3d at 221

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(despite fact that “the chronological gap between a perpetrator and

his victim is not obvious from the face of the [Rhode Island

second-degree child molestation] statute, we do know from the

statute that, in every instance, the victim is at most 12 years

old” and that offenses under the statute “are generally perpetrated

by an adult”). Further, as appellant concedes, under Shepard, we

can look at the indictment. The 1989 indictment establishes that

he pled guilty to violations of Section 13B occurring on various

occasions between September 1984 and February 1985. See 544 U.S.

at 26 (approving use of charging document for ACCA enhancement).

The presentence report, to which Cadieux did not object, indicates

that Cadieux was born on September 20, 1959. See Miller, 478 F.3d

at 52 (adopted admissions by a defendant may be used for ACCA

enhancement purposes); cf. United States v. Morillo, 8 F.3d 864,

872-73 (1st Cir. 1993) (“A defendant that accepts . . . without

contesting the facts set forth in the [presentence] report can

scarcely be heard to complain when the sentencing court uses those

facts to make its findings.”). Thus, Cadieux was an adult in his

mid-twenties when he committed the offense at issue. This

chronological age gap falls squarely within the sexual touching

caselaw holding that age differences of this magnitude necessarily

create a serious potential risk of physical injury to another.

We understand that establishing a dividing line in this

area involving like-aged teenagers is “fraught with peril.” United

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States v. Sacko, 178 F.3d 1, 5 (1st Cir. 1999) (involving statutory

rape of a fourteen-year-old girl by someone over eighteen). If and

when a person is convicted under section 13B for consensual sexual

contact with a youth of the same or similar age, and sentencing

enhancement based on that conviction is sought, we reserve the

right to revisit the issue. Compare Emile v. INS, 244 F.3d 183,

188 (1st Cir. 2001) (construing Section 13B to constitute the

deportable offense of “sexual abuse of a minor” under the alien

removal statute, but reserving the right to revisit that

classification in the event removal is sought for a defendant

convicted of “conduct shown to be markedly less serious” than the

statute was interpreted to capture); cf. United States v. Shannon,

110 F.3d 382, 388-89 (7th Cir. 1997) (en banc) (“mindful that

statutory rape is more often thought of as a ‘morals offense’ than

as a ‘crime of violence,’” limiting holding that sexual contact

with a minor is a crime of violence to thirteen-year-olds and

younger, though statute applied to persons under the age of

sixteen).

Accordingly, Appellant’s 1989 conviction was properly

classified as a “violent felony” under the ACCA’s residual

provision.

C. Uncharged Prior Convictions

Finally, Appellant contends that the district court found

him to be an armed career criminal, and improperly imposed an

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enhanced sentence, where the facts of all three prior convictions

underlying that determination were not charged in the indictment,

found beyond a reasonable doubt, or admitted by defendant. See

United States v. Booker, 543 U.S. 220 (2005). Because Appellant

did not raise this objection below, we review for plain error.

United States v. Olano, 507 U.S. 725, 732-33 (1993). In James, the

Supreme Court re-confirmed that the Sixth Amendment does not

require that prior convictions be treated as an element of the

offense for Sixth Amendment purposes. 127 S. Ct. AT 1600 n.8

(citing Almendarez-Torres v. United States, 523 U.S. 224 (1998));

see also Cunningham v. California, __ U.S. __, 127 S. Ct. 856, 869

(Jan. 22, 2007). Appellant’s sentence is affirmed.

Conclusion

For the reasons stated above, Cadieux’s conviction and

sentence are AFFIRMED.

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