United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3154
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
James A. Scudder, *
*
Appellee. *
*
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Submitted: April 14, 2011
Filed: August 4, 2011
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Before LOKEN and MURPHY, Circuit Judges, and JARVEY,1 District Judge.
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JARVEY, District Judge.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
Appellant James Scudder pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 922(a)(2). The district court2
concluded that he was an armed career criminal under 18 U.S.C. § 924(e)(1), and
sentenced him to 188 months in prison, the bottom of the Sentencing Guidelines
range. Scudder appeals his sentence, arguing that his two prior convictions for felony
child molestation are not predicate violent felonies under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e).
Because we find that Scudder’s convictions for felony child molestation are
categorically violent felonies under the ACCA, we affirm his sentence.
I. BACKGROUND
At sentencing, the district court found that Scudder had three predicate ACCA
convictions, a Missouri conviction for possession of paraphernalia with intent to
manufacture methamphetamine and two Indiana convictions for felony child
molestation. To determine that Scudder’s molestation convictions were “violent
felonies” within the meaning of the ACCA, the district court looked not only to the
statute of conviction but also to an affidavit of probable cause submitted in support
of the Indiana prosecutor’s information, which was introduced by the government at
sentencing. That affidavit contained a law enforcement officer’s report from an
interview with one of Scudder’s victims, who stated that both molestations were, in
fact, violent. The district court explicitly relied on this affidavit after concluding that
the statute of conviction covered both violent and non-violent felonies. As a result,
Scudder was sentenced pursuant to the ACCA ten-year mandatory minimum and a
thirteen-level increase to his base offense level.
2
The Honorable Richard E. Dorr, Western District of Missouri.
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Scudder concedes that his Missouri drug conviction is a predicate ACCA
offense, but he contends that his Indiana child molestation convictions are
categorically non-violent felonies and that the district court erred by looking to
anything beyond the statute of conviction. In the alternative, Scudder argues that,
even if the relevant statute applies to violent and non-violent conduct, the district
judge erred by relying upon the affidavit introduced at sentencing.
II. DISCUSSION
“We review de novo a district court’s determination that a defendant’s prior
conviction constitutes a violent felony for purposes of § 924(e).” United States v.
Abari, 683 F.3d 847, 848 (8th Cir. 2011) (quoting United States v. Boaz, 558 F.3d
800, 806 (8th Cir. 2009)) (internal quotations omitted).
The ACCA mandates a fifteen-year minimum prison term for felons who
unlawfully possess a firearm following three convictions for serious drug felonies or
violent felonies committed on separate occasions. 18 U.S.C. § 924(e)(1).
Additionally, the Sentencing Guidelines impose an offense-level enhancement upon
any defendant who qualifies for the ACCA mandatory minimum. U.S.S.G. § 4B1.4.
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 the use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
We use a “categorical approach” to determine whether a conviction is a violent
felony under the ACCA, meaning we look only to the statute of conviction and not
to the facts underlying it. Sykes v. United States, 131 S. Ct. 2267, 2272 (2011)
(quoting James v. United States, 550 U.S. 192, 202 (2007)) . “[W]e consider whether
the elements of the offense are of the type that would justify its inclusion [as a violent
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felony] . . . without inquiring into the specific conduct of this particular offender.”
Id. (quoting James, 550 U.S. at 202). Only if the statute is overinclusive by
“prohibit[ing] both conduct that does and does not qualify as a violent felony under
the ACCA,” do we look to the judicial record, such as the charging papers, plea
agreement, jury instructions, or plea colloquy, to determine whether the offense
qualifies as a violent felony in a particular instance. United States v. Lee, 625 F.3d
1030, 1033 (8th Cir. 2010); United States v. Parks, 620 F.3d 911, 913 (8th Cir. 2010).
Scudder was convicted of felony child molestation pursuant to the 1981 version
of Indiana Code 35-42-4-3, which provides:
A person sixteen (16) years of age, or older who, with a
child twelve (12) years of age or older but under sixteen
(16) years of age, performs or submits to any fondling or
touching, of either the child or the older person, with intent
to arouse or to satisfy the sexual desires of either the child
or the older person, commits child molesting, a Class D
felony. However, the offense is a Class B felony if it is
committed by using or threatening the use of deadly force,
or while armed with a deadly weapon.
Ind. Code § 35-42-4-3 (1981). Defendant’s convictions are two Class D felonies,
which do not have physical force as an element of the crime and therefore do not
qualify as violent felonies under § 924(e)(2)(B)(i).3 Scudder’s convictions are also
3
Scudder relies on Johnson v. United States, 130 S. Ct. 1265 (2010), to argue
that his convictions are not for violent felonies because Ind. Code § 35-42-4-3 is
satisfied by only minimal touching. In Johnson, the Court concluded that §
924(e)(2)(B)(i)’s “physical force” requirement means “violent force – that is, force
capable of causing physical pain or injury to another person.” 130 S. Ct. at 1271.
The Court then reversed a sentence enhanced under the ACCA because one of the
defendant’s predicate convictions was for violation of a Florida battery statute, which
the Florida Supreme Court had decided was satisfied by “any physical contact, no
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not equivalent to the enumerated crimes in § 924(e)(2)(B)(ii). Accordingly, we must
determine whether Scudder’s child molestation convictions fall under §
924(e)(2)(B)(ii)’s residual clause, that is, whether they “otherwise involve[] conduct
that presents a serious potential risk of physical injury to another.”
“When considering whether an intentional crime . . . falls within the residual
clause, ‘levels of risk divide crimes that qualify from those that do not.’” United
States v. Nathaniel Smith, No. 10-2533, slip op. at 6 (8th Cir. Jul. 14, 2011) (quoting
Sykes, 131 S. Ct. at 2275). “The residual clause applies ‘when the relevant prior
offenses involved a potential risk of physical injury similar to that presented by
burglary, extortion, arson, and crimes involving use of explosives.’” Id. (quoting
Sykes, 131 S. Ct. at 2277).
Scudder’s child molestation convictions are for intentional crimes, see Ind.
Code § 35-42-4-9(e) (1981); Lechner v. State, 715 N.E.2d 1285, 1287 (Ind. App.
1999), and they are “similar in risk” to the crimes listed in the ACCA’s residual
clause. See Sykes, 131 S. Ct. at 2276. In United States v. Mincks, we held that
statutory sexual offenses “categorically . . . present a serious potential risk of
physical injury to another because ‘this type of contact between parties of differing
physical and emotional maturity carries a substantial risk that physical force . . . may
be used in the course of committing the offense.’ ” 409 F.3d 898, 900 (8th Cir. 2005)
(quoting United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (per curiam)
(holding that sexual assault of a child qualified as “crime of violence” under 18
U.S.C. § 16)). The same is true for Scudder’s offenses. Child molestation under the
matter how slight.” Johnson, 130 S. Ct. at 1267 (quoting State v. Hearns, 961 So.2d
211, 218 (Fla. 2008)). Scudder’s reliance on Johnson is misplaced, however, because
the Court in Johnson considered whether the defendant’s conviction satisfied §
924(e)(2)(B)(i) and specifically did not interpret the residual clause of §
924(e)(2)(B)(ii), which we consider here. Abari, 638 F.3d at 850 (citing Johnson,
130 S. Ct. at 1274).
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Indiana statute involves sexual contact between parties of differing maturity, and it
presents a serious potential risk that the molester will use physical force on the child.
It is categorically similar in risk to the crimes listed in the ACCA’s residual clause.
It is therefore a violent felony.
For these reasons, Scudder was properly sentenced as an armed career criminal,
and we affirm that sentence.
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