United States Court of Appeals
For the First Circuit
No. 07-1354
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT WILLIAMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.
Christie M. Charles, George F. Gormley, and George F. Gormley,
P.C. on brief for appellant.
Michael J. Sullivan, United States Attorney, and Wendy
Waldron, Trial Attorney, United States Department of Justice, on
brief for appellee.
May 7, 2008
SELYA, Senior Circuit Judge. This appeal requires us to
answer for the first time the question of whether the interstate
transport of a minor for prostitution in violation of 18 U.S.C. §
2423(a) constitutes a crime of violence within the purview of the
career offender provision of the federal sentencing guidelines.
See USSG §4B1.2(a). That answer is complicated by a recent Supreme
Court decision, which this court has not yet addressed. Working
our way through the precedential labyrinth, we conclude that the
tawdry and purposeful conduct proscribed by the statute presents a
serious potential risk of physical injury to the minor and is
sufficiently similar to the types of crimes enumerated in the
relevant guideline provision. Accordingly, we respond
affirmatively to the question and affirm the sentence imposed
below.
We rehearse here only those facts that are essential to
an understanding and resolution of the issue on appeal. At this
stage of the proceedings, those facts are not genuinely disputed.
During a period that spanned portions of the years 2000
to 2002, defendant-appellant Robert Williams engaged in activities
related to prostitution. On several occasions, he either took or
sent a young girl from Massachusetts into neighboring states to
perform sex acts in exchange for money. While the appellant
maintains that he did not know that the girl was only thirteen
years of age when the trafficking began, he admittedly learned the
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truth on or about July 1, 2001. He nevertheless persisted in his
course of illicit conduct after that disclosure.
On August 3, 2005, a federal grand jury returned a
thirteen-count indictment related to these meretricious activities.
After initially maintaining his innocence, the appellant pleaded
guilty to all twelve counts in which he was named. Although each
of those counts was linked to the prostitution of the minor, four
counts specifically charged the appellant with violating 18 U.S.C.
§ 2423(a).1 That statute proscribes the knowing interstate
transport of a minor for purposes of prostitution.
The presentence investigation report recommended that the
appellant be sentenced as a career offender. At the disposition
hearing, the appellant challenged his purported career offender
status. That challenge centered on whether the offenses of
conviction (or, at least, some of them) constituted crimes of
violence.
Refined to bare essence, the challenge had two parts.
First, in an attempt to distinguish his conduct from conduct that
this court previously had deemed violent, the appellant pointed to
the absence of any charges related to his personal sexual contact
1
The other eight counts variously charged the appellant with
transporting an individual interstate to engage in prostitution in
violation of 18 U.S.C. § 2421; inducing travel to engage in
prostitution in violation of 18 U.S.C. § 2422(a); trafficking
children for sex in violation of 18 U.S.C. § 1591; and conspiring
in sex trafficking and in inducing interstate travel for the
purpose of prostitution in violation of 18 U.S.C. § 371.
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with the minor. Second, the appellant sought to characterize the
underlying activities as a "joint business venture" between himself
and the minor, in which she was a willing participant.
The district court rejected these exhortations and
sentenced the appellant, as a career offender, to a 151-month
incarcerative term.2 This timely appeal followed. In it, the
appellant persists in challenging the district court's
determination that the charges to which he pleaded guilty qualify
him for the career offender enhancement.
To understand the appellant's argument, it is helpful to
survey the architecture of the career offender provision. Under
that provision, a defendant is subject to an enhanced sentence if
(i) he was eighteen years old at the time he committed the instant
offense; (ii) that offense was either a crime of violence or a
controlled substance offense; and (iii) he had at least two prior
felony convictions for either crimes of violence or controlled
substance offenses. USSG §4B1.1(a). In this instance, the first
and third requirements are not in issue. The appellant was forty-
five years of age when he first encountered the minor and his
criminal history includes the requisite number and kind of
predicate offenses. Thus, this appeal turns on whether any of the
offenses to which the appellant pleaded guilty in the court below
2
In formulating the sentence, the court afforded the appellant
a credit for acceptance of responsibility. See USSG §3E1.1.
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qualify as crimes of violence. This poses a quintessentially legal
question, which engenders de novo review. United States v. Eirby,
515 F.3d 31, 37 (1st Cir. 2008).
For sentencing purposes, the term "crime of violence" is
a term of art. The guidelines define a crime of violence as:
[A]ny 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.
USSG §4B1.2(a) (emphasis supplied).
Here, none of the offenses of conviction explicitly
includes an element of force. By the same token, none of them
falls within the statutory enumeration of specified crimes.
Consequently, we concentrate our attention on the underscored
statutory language — variously known as the "residual clause" or
the "otherwise clause" — and inquire whether any of the offenses of
conviction presents "a serious potential risk of physical injury to
another."
In pursuing this inquiry, we must follow a two-step
approach. See Taylor v. United States, 495 U.S. 575, 600-02
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(1990).3 That approach pertains both when a court is attempting to
characterize a predicate offense and when a court is attempting to
characterize a current offense. See United States v. Bell, 966
F.2d 703, 706 (1st Cir. 1992).
This two-step approach is categorical: the court's
analysis is "restricted to an examination of how the legislature
has defined the crime, without any concomitant inquiry into the
details of defendant's actual criminal conduct." United States v.
Winter, 22 F.3d 15, 18 (1st Cir. 1994); see Taylor, 495 U.S. at
600. If the court determines that a violation of the statute in
question necessarily involves each and every element of a violent
crime, then the offense is deemed a crime of violence and the
inquiry is at an end. See Eirby, 515 F.3d at 37; Winter, 22 F.3d
at 18.
If, however, the statute's text is broad enough to
criminalize both violent and non-violent conduct, the court must
embark on the second step of the Taylor pavane. In so doing, it
may not undertake a mini-trial of a putative predicate offense, but
it may inspect the record of conviction in order to determine
3
To be sure, the issue in Taylor was whether a predicate
offense constituted a "violent felony" under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). Given the similarity
between the ACCA's definition of "violent felony" and the
definition of "crime of violence" contained in the pertinent
guideline provision, we previously have taken the position that
authority interpreting one phrase is generally persuasive when
interpreting the other. See, e.g., United States v. Winter, 22
F.3d 15, 18 n.3 (1st Cir. 1994).
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whether a defendant was actually charged with an offense that
involved violent or potentially violent conduct. See United States
v. Richards, 456 F.3d 260, 263 (1st Cir. 2006). To satisfy that
criterion "the jury must have been required to find (or, in a
guilty plea context, the defendant necessarily must have admitted)
all the elements of a violent felony." Id.
To trigger the career offender enhancement, it is only
necessary that one of the twelve offenses of conviction qualifies
as a crime of violence. For that reason, we need look no further
than the convictions under 18 U.S.C. § 2423(a) — and we need not go
past the first step in the Taylor pavane.4
We begin our analysis with the penalty involved in the
offense: those who violate section 2423(a) are subject to a term of
imprisonment of "not less than 10 years or for life." Id. Thus,
the level of punishment easily satisfies the requirement that, to
qualify as a crime of violence, an offense must be punishable by
incarceration for more than one year. See USSG §4B1.2(a).
We move next to risk of harm. In this circuit, it is
common ground that most "indecent sexual contact crimes perpetrated
by adults against children categorically present a serious
potential risk of physical injury." United States v. Cadieux, 500
4
The government contends that violations of some of the other
statutes of conviction are sufficient to trigger the career
offender provision. It is not necessary for us to address that
ambitious contention.
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F.3d 37, 45 (1st Cir. 2007) (emphasis in original); see, e.g.,
Eirby, 515 F.3d at 38 (applying principle to a fourteen- or
fifteen-year-old girl); United States v. Sherwood, 156 F.3d 219,
221 (1st Cir. 1998) (applying principle to molestation of a child
under age thirteen); United States v. Meader, 118 F.3d 876, 884
(1st Cir. 1997) (applying principle to statutory rape of a girl
under fourteen); see also Richards, 456 F.3d at 264 (reasoning in
same vein in violent felony case); United States v. Sacko, 247 F.3d
21, 22 (1st Cir. 2001) (same).
These decisions recognize that illicit sexual activity
between an adult and a minor (at least a minor below a certain age)
poses a significant risk that force will be used in the
consummation of the crime. See Eirby, 515 F.3d at 38. This risk
arises because such offenses "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 (citing United States v.
Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)). Moreover,
when the illicit activity involves sexual intercourse, it poses an
additional risk of harm due to the possible transmission of social
or venereal diseases. See United States v. Carter, 266 F.3d 1089,
1091 (9th Cir. 2001); Sacko, 247 F.3d at 24.
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The appellant offers no compelling rejoinder to this long
line of well-reasoned precedents. He does, however, suggest that
his situation is distinguishable. The distinction, he says, is
that his case is "once removed" from the potentially harmful
conduct because he himself was not sexually active in the
commission of any of the charged offenses but, rather, merely
facilitated others' sexual contact with the minor. The suggestion
that this distinction matters is unpersuasive.
In our view, the fact that the appellant was not
personally intimate with the minor during the commission of any of
the section 2423(a) offenses does nothing to diminish the risk that
force might be used in carrying out the crime. The appellant's
conduct — knowingly transporting the minor for prostitution —
necessarily placed the minor in harm's way and led ineluctably to
a sex act that typically occurred in close quarters between the
minor and an older man unconcerned with her welfare. Thus, the
imbalanced power dynamic that influenced our earlier decisions was
fully operational here. So were the twin likelihoods that force
might be used and that serious physical harm might result.
To cinch matters, the commercial context — the selling of
sex — works against the appellant, not in his favor. It seems
self-evident to us that a prostituted child who is exploited in
violation of section 2423(a) faces more and greater risks than does
a seduced child, including the dual risk of physical abuse by
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either her pimp or her client. See Carter, 266 F.3d at 1091.
Viewed from a different angle, the risk of injury present in any
prostitution scenario is heightened when the situation involves a
minor. See United States v. Curtis, 481 F.3d 836, 838 (D.C. Cir.
2007). And, finally, exposing a young girl to multiple sex
partners obviously adds incrementally to the potential risk of
disease. Taking these realities into account, we have no hesitancy
in concluding that the appellant's conduct actually increased the
level of risk.
The case law, though scanty, bears out this intuition.
In Carter, the Ninth Circuit held that a violation of section
2423(a) constitutes a crime of violence. Carter, 256 F.3d at 1091.
The court assessed the statute categorically and determined that a
prostituted minor faces the risks of "contracting a sexually
transmitted disease" and "assault or physical abuse by the pimp's
customers or by the pimp himself." Id.5
Similarly, the Curtis court held that the prostitution of
a minor in violation of N.J. Stat. Ann. § 2C:34-1(b)(3) qualified
as a crime of violence for career offender purposes. Curtis, 481
F.3d at 838-39. The court stressed that, in such a situation, a
5
The appellant seeks to distinguish Carter on the facts. This
effort is unavailing for it ignores the categorical nature of the
approach that the crime of violence inquiry demands. See Taylor,
495 U.S. at 600-02.
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child faces a significant risk of serious physical harm from both
pimps and customers. Id.
The appellant has a fallback position. He posits that
his offense cannot qualify as a crime of violence because the minor
consented to engaging in what he euphemistically terms a "joint
business venture." To bolster this thesis, he asserts that he
believed that the minor was over eighteen during a substantial
portion of the time in question.6
We find this thesis unconvincing. Even if the minor had
factually consented, that consent would not have been legally
valid. See Mass. Gen. Laws ch. 265, § 23; Commonwealth v. Miller,
432 N.E.2d 463, 464 (Mass. 1982). In all events, factual consent
would not eliminate the potential risks that confronted the child.
See Aguiar v. Gonzales, 438 F.3d 86, 90-91 (1st Cir. 2006) (finding
that the risks to a minor, unable to give legal consent, are not
diminished by factual consent). Just as consent is not a defense
to a prosecution under section 2423(a), see United States v. Lowe,
145 F.3d 45, 52 (1st Cir. 1998), so too consent in this context
does not reconfigure the risk-of-harm calculus.
Up until April 16, 2008, we could have ended our analysis
at this juncture. On that date, however, the Supreme Court handed
6
The appellant's subjective belief is beside the point.
Moreover, the significance of his purported lack of knowledge is
undercut by the fact that two of his four section 2423(a)
violations occurred after the appellant admittedly learned how old
she was.
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down its decision in Begay v. United States, 553 U.S. ___ (2008)
[No. 06-11543, slip op.]. There — well after briefing and
submission of this appeal — the Court effectively charted a new
course in interpreting the critical violent felony definition of
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).
For both prudential and precedential reasons, we have read that
statute and the almost parallel guidelines language at issue here
as being in pari passu. See supra note 3. If that identity is to
be altered, it cannot be done by this panel.
We briefly limn the contours of the Begay decision. The
question there was whether Begay's offense — driving under the
influence of alcohol (DUI) — constituted a violent felony. The
Court answered this question in the negative because DUI offenses
are more comparable to crimes in "which the offender need not have
had any criminal intent at all." Begay, 553 U.S. at ___ [slip op.
at 7-8] (emphasizing that "the conduct for which the drunk driver
is convicted . . . need not be purposeful or deliberate").
The main substantive change that Begay wrought is that
the Court now requires us to focus not only on the degree of risk
of harm posed by a particular crime but also on whether that crime
is similar "in kind" to the enumerated offenses of arson, burglary,
extortion, and the like. Id. at ___ [slip op. at 5]. To help
answer this "in kind" query, the Begay Court adopted a new
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touchstone: asking whether the crime involves purposeful, violent,
and aggressive conduct. Id. at ___ [slip op. at 7].
Because a new test is introduced and because the Court's
decision is itself close, it is hard to be absolutely certain how
a majority of the Justices would apply the test to the crime at
issue here — a crime that falls neither within the safe harbor of
offenses with limited scienter requirements and uncertain
consequences (like DUI, see id. at ___ [slip op. at 8-9]), nor
among those that have deliberate violence as a necessary element or
even as an almost inevitable concomitant. Adjectives like
"purposeful" and "aggressive" denote qualities that are ineluctably
manifested in degree and appear in different combinations;7 they
are, therefore, imprecise aids.
Notwithstanding this new gloss, a strong argument exists
for treating the transport of a minor for prostitution as a violent
crime. Unlike DUI, the crime is purposeful and the perpetrator is
aware of the risks that the prostituted minor will face. The
defendant may well use force to ensure the minor's compliance; but
it is even more likely, and fully foreseeable, that the "clients"
will endanger the minor's safety in various ways. As we have
7
For example, even the crimes enumerated by Congress in the
ACCA and treated as examples satisfy these requirements only in
some measure. Burglary, for instance, can be described as
purposeful but not, at least in most instances, as purposely
violent or necessarily aggressive. Drug trafficking crimes
similarly involve purposeful conduct but are only sometimes violent
or aggressive.
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explained, the crime is implicitly (and sometimes explicitly)
aggressive, and coercion of the minor is virtually inherent.
Admittedly, the case at hand is different in one respect
from most crimes of violence: in other cases, the defendant himself
is usually the agent of the violence (real or potential). Here,
however, the violence often will be carried out by third parties.
But since the risk of harm is so substantial and so easily foreseen
by the defendant, we discern no basis for distinction. Surely,
tying a man to the railroad tracks is an act of violence even
though the oncoming train is the instrument through which
inevitable harm is administered.
We need go no further. Only time and future cases can
tell how the Supreme Court will develop its new definition.8 But
delivering a minor for prostitution appears to us fairly readily to
fall within both the Court's trio of adjectives and Congress's
harm-based statutory definition (incorporated in the relevant
guideline provision). Indeed, it is surpassingly difficult to see
how burglary could be treated as a violent crime yet child
trafficking exempted.
For the reasons elucidated above, we hold that a
violation of section 2423(a) involves purposeful and aggressive
8
Indeed, the Court has just agreed to review the question of
classifying escape crimes. See United States v. Chambers, 473 F.3d
724 (7th Cir. 2007), cert. granted, 553 U.S. ___ (2008)[2008 WL
1775023].
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conduct that presents serious potential risks of physical injury.
The commission of that offense therefore categorically constitutes
a crime of violence within the purview of USSG §4B1.2(a).
Affirmed.
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