United States v. Wray

FILED
United States Court of Appeals
Tenth Circuit

January 27, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-1086

REGINALD JEROME WRAY, a/k/a
Raymond Anderson,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 13-CR-00198-RM-1)

Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States
Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Reginald Jerome Wray pleaded guilty to being a felon

in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 77
months’ imprisonment and three years’ supervised release. The issue we resolve

on appeal is whether Mr. Wray’s prior conviction for “Sexual Assault - 10 Years

Age Difference” under Colo. Rev. Stat. § 18-3-402(1)(e) constitutes a “crime of

violence” as that phrase is used in U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. Our

jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

remand for resentencing because we conclude the prior conviction does not

qualify as a “crime of violence.”

Background

Mr. Wray’s presentence investigation report (PSR) concluded that he had

two prior felony convictions for “crime[s] of violence,” U.S.S.G. § 2K2.1(a)(2),

based upon two prior Colorado convictions: one for felony menacing and the

other for “sexual assault - 10 years age difference.” Regarding the sexual assault

conviction, Colo. Rev. Stat. § 18-3-402(1)(e) provides:

(1) Any actor who knowingly inflicts sexual intrusion or sexual
penetration on a victim commits sexual assault if:

***

(e) At the time of the commission of the act, the victim is at
least fifteen years of age but less than seventeen years of age
and the actor is at least ten years older than the victim and is
not the spouse of the victim.

Mr. Wray objected to the use of this conviction as a predicate for increasing his

base offense level from 20 to 24. He argued that a violation of the statute did not

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constitute a “crime of violence” in light of the Supreme Court’s decision in Begay

v. United States, 553 U.S. 137 (2008).

The district court acknowledged that the Supreme Court’s decisions in

Begay and Sykes v. United States, 131 S. Ct. 2267 (2011), made application of

Tenth Circuit precedent to Mr. Wray’s case less than straight-forward.

Nevertheless, the district judge concluded that this circuit’s prior decisions

required him to find that the sexual assault conviction constituted a “crime of

violence.”

Discussion

Our review of whether a defendant’s prior conviction constitutes a crime of

violence under U.S.S.G. § 4B1.2 is de novo. United States v. Dennis, 551 F.3d

986, 988 (10th Cir. 2008).

Under U.S.S.G. § 2K2.1(a)(2), a defendant convicted under 18 U.S.C.

§ 922(g) is assigned an offense level of 24 “if the defendant committed any part

of the instant offense subsequent to sustaining at least two felony convictions of

either a crime of violence or a controlled substance offense.” The commentary to

§ 2K2.1 directs us to consult the career-offender guideline, § 4B1.2, for the

definition of “crime of violence.” That section defines “crime of violence” as:

[a] [A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—

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 (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.

U.S.S.G. § 4B1.2(a) (emphasis added). Application Note 1 to § 4B1.2 further

provides that “‘crime of violence’ includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate

extension of credit, and burglary of a dwelling.” (emphasis added).

Both Mr. Wray and the government agree that the sexual assault conviction

does not constitute a “crime of violence” under the elements approach of

§ 4B1.2(a)(1). 1 Accordingly, we consider only the government’s arguments that

the prior conviction (1) is a “forcible sex offense” under to Application Note 1, or

(2) comes within the residual clause of § 4B1.2(a)(2) (i.e., is one that “otherwise

involves conduct that presents a serious potential risk of physical injury to

another.”).

A. The Categorical Approach and the Residual Clause

The “crime of violence” definition set forth in the career-offender

guideline, § 4B1.2, is virtually identical to the definition of “violent felony”

contained in the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(2)(B);

1
In other words, the government does not argue that Colo. Rev. Stat. § 18-
3-402(1)(e) “has as an element the use, attempted use, or threatened use of
physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1).

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see James v. United States, 550 U.S. 192, 206 (2007). Thus, this court and other

federal courts of appeals have applied the Supreme Court’s ACCA “violent

felony” analysis in cases interpreting § 4B1.2’s definition of “crime of violence.”

Dennis, 551 F.3d at 988; see also United States v. Rooks, 556 F.3d 1145, 1149–50

(10th Cir. 2009); United States v. McDonald, 592 F.3d 808, 810 (7th Cir. 2010).

Our approach, therefore, is guided by a line of Supreme Court cases interpreting

the scope of § 924(e)(2)(B).

To determine whether a prior conviction constitutes a crime of violence, we

employ a categorical approach. United States v. Perez-Jiminez, 654 F.3d 1136,

1140 (10th Cir. 2011). That is, “we look only to the fact of conviction and the

statutory definition of the prior offense, and do not generally consider the

particular facts disclosed by the record of conviction.” James, 550 U.S. at 202;

Begay, 553 U.S. at 141. With regard to § 4B1.2(a)(2)’s residual clause, the

categorical approach requires us to focus on the elements of the offense and ask

whether those elements “are of the type that would justify its inclusion within the

residual provision.” James, 550 U.S. at 202. It is not “requir[ed] that every

conceivable factual offense covered by a statute . . . necessarily present a serious

potential risk of injury.” Id. at 208. “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.” Id. Thus, in considering

Mr. Wray’s sexual assault conviction, we do not look to the particular facts of the

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offense, nor do we examine the most or least culpable means of violating the

statute. We ask only whether the elements of that offense are such that the

commission of the crime, “in the ordinary case,” presents a serious potential risk

of physical injury.

Employing the categorical approach in James, the Court considered whether

the defendant’s prior conviction for attempted burglary “otherwise involv[ed]

conduct that presents a serious potential risk of physical injury to another.” 2

James, 550 U.S. at 201. Turning to the statutory language for guidance, the Court

noted that the enumerated offenses preceding the residual clause “provide one

baseline from which to measure” whether certain offenses properly fall within the

scope of that clause. Id. at 203. The Court employed a risk-comparison

approach, comparing the risk posed by attempted burglary to the risk posed by the

offense’s closest analog among the enumerated offenses. Id. The Court

concluded that attempted burglary is a “violent felony” under the residual clause

because attempted burglary poses the “same kind of risk” as completed

burglary—namely, the potential risk of “violent confrontation” between an

attempted burglar and innocent bystander. Id. at 204–05. The Court emphasized

2
The attempted burglary did not qualify as a “violent felony” under the
elements test of 18 U.S.C. § 924(e)(2)(B)(ii) because it did not have “as an
element the use, attempted use, or threatened use of physical force against the
person of another.” Nor did the attempted burglary constitute any of the
enumerated offenses of § 924(e)(2)(B)(ii), including “generic” burglary. James,
550 U.S. at 197 (citing Taylor v. United States, 495 U.S. 575, 598 (1990)).

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that the focus of the inquiry is on potential, rather than actual or factual, risk. Id.

at 207–08.

The following year, the Supreme Court decided Begay, where it considered

whether the defendant’s felony driving under the influence (DUI) convictions

were violent felonies under the ACCA’s residual clause. 553 U.S at 140–41.

While conceding that drunk driving indeed poses a “serious potential risk of

physical injury to another,” the Court nonetheless concluded that Begay’s DUI

offenses were not covered by the statute. The enumeration of specific crimes in

the statutory language indicated Congress’ intent that the residual clause “cover[]

only similar crimes, rather than every crime that ‘presents a serious potential risk

of physical injury to another.’” Id. at 142. Thus, the residual clause covers only

those offenses “roughly similar, in kind as well as in degree of risk posed,” to the

enumerated offenses. Id. at 143.

With this interpretation in hand, the Begay Court concluded that the risk

posed by drunk driving is not the same kind of risk posed by the enumerated

offenses. The enumerated crimes “all typically involve purposeful, violent, and

aggressive conduct.” Id. at 144–45 (internal quotations omitted). That type of

conduct “makes more likely that an offender, later possessing a gun, will use that

gun deliberately to harm a victim.” Id. at 145. DUI statutes, on the other hand,

do not target purposeful, violent, and aggressive conduct. Rather, those crimes

are more analogous to “crimes that impose strict liability, criminalizing conduct

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in respect to which the offender need not have any criminal intent at all.” Id. at

145. A prior conviction for one of these crimes, then, sheds no light on the

likelihood that such person will engage in the kind of deliberate behavior

“associated with violent criminal use of firearms.” Id. at 147.

The most recent authority on the scope of the ACCA’s residual clause is

Sykes. Mr. Sykes contended that his prior conviction for vehicle flight from law

enforcement was not a “violent felony” for ACCA purposes. Citing Begay, Mr.

Sykes asserted that vehicle flight was outside the scope of the residual clause

because it did not involve the same kind of risk posed by the offenses enumerated

in § 924(e)(2)(B)(ii). Sykes, 131 S. Ct. at 2275. The Court rejected this

argument.

The Court began its analysis with the risk-comparison approach of James.

Analogizing vehicle flight to arson and burglary, the Court concluded that, like

those crimes, “[r]isk of violence is inherent to vehicle flight.” Id at 2274. And,

central to this case, the Court found Mr. Sykes’ reliance on Begay misplaced.

Distinguishing Begay’s qualitative risk analysis, the Court noted that, “[i]n

general, levels of risk divide crimes that qualify from those that do not.” Id. at

2275 (emphasis added). The Court explained:

The Begay phrase is an addition to the statutory text. In many cases
the purposeful, violent, and aggressive inquiry will be redundant with
the inquiry into risk . . . . As between the two inquiries, risk levels
provide a categorical and manageable standard that suffices to
resolve the case before us.

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 Begay involved a crime akin to strict liability, negligence, and
recklessness crimes; and the purposeful, violent, and aggressive
formulation was used in that case to explain the result.

Id. at 2275–76.

Before applying the law to this case, we note the significance of the

concurring and dissenting opinions in Sykes. Each of these opinions—a

concurrence by Justice Thomas and dissents from Justice Scalia and Justice

Kagan—acknowledges that the Court’s opinion did not entirely abrogate Begay’s

purposeful, violent, and aggressive formulation. Id. at 2277 (Thomas, J.,

concurring); id. at 2289 n.1 (Kagan, J., dissenting). Rather, a proper reading of

the Court’s opinion “suggests [that the Begay test] applies only ‘to strict liability,

negligence, and recklessness crimes.’” Id. at 2285 (Scalia, J., dissenting).

B. “Crime of Violence” Analysis – “Forcible Sex Offense” and the Residual
Clause

Whether Wray was properly sentenced turns on whether his sexual assault

conviction is a “crime of violence.” U.S.S.G. § 4B1.2. The government argues

that this conviction—in essence, a statutory rape conviction—constitutes either

(1) a “forcible sex offense” under Application Note 1 to § 4B1.2, or (2) an

offense falling within the residual clause of § 4B1.2. We consider these

arguments not in a vacuum, but against the backdrop of prior Tenth Circuit

decisions interpreting the impact of Sykes on Begay.

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 1. Is the Sexual Assault Conviction a “Forcible Sex Offense”?

We begin with the government’s position that a violation of Colo. Rev.

Stat. § 18-3-402(1)(e) is a “forcible sex offense” that specifically qualifies as a

“crime of violence” under Application Note 1 to § 4B1.2. The government makes

two arguments in support. First, because Colorado law “presupposes the inability

of a female between the ages of 15 and 17 to consent,” any sexual contact

between a member of that age group and an adult is inherently forcible. Aplee.

Br. at 8. Second, the government relies upon the definition of a “crime of

violence” provided in the commentary to U.S.S.G. § 2L1.2. According to the

government, § 2L1.2 encompasses a narrower set of crimes than does § 4B1.2, yet

specifically includes statutory rape and sex offenses where consent is not legally

valid. Thus, the government argues that because statutory rape is within the

(narrower) ambit of § 2L1.2, it must also fall within the scope of § 4B1.2. Aplee.

Br. at 10–11. We are not persuaded.

Because the “crime of violence” definition given by § 2L1.2 is relevant to

both of the government’s arguments, we start there. That section sets forth the

Guidelines’ offense level for unlawful entry, or unlawfully remaining in, the

United States. The commentary to § 2L1.2 defines as a “crime of violence:”

[A]ny of the following offenses under federal, state, or local law:
Murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is
not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced), statutory rape, sexual abuse of

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 a minor, . . . .

§ 2L1.2(b)(1), App. Note 1(B)(iii) (emphasis added).

We are not persuaded that Mr. Wray’s prior offense was a “forcible sex

offense” because the victim was not capable of giving legal consent. We do not

quarrel with the assertion that the Colorado statute “presupposes the inability of a

female between the ages of 15 and 17 to consent.” We disagree, however, with

the broad proposition that statutes withdrawing the possibility of legal consent are

per se “forcible sex offenses” for purposes of Note 1 to § 4B1.2.

The text of Note 1 indicates that the phrase “forcible sex offenses” does not

necessarily include all sex offenses where there is no legal consent. We find the

Fourth Circuit’s reasoning in United States v. Leshen persuasive:

[T]he very inclusion of the modifier ‘forcible’ demonstrates that the
Sentencing Commission contemplates some sex offenses as
nonforcible . . . We also find significant that in all other respects the
commentary, text, and the ACCA have identical coverage. All other
offenses listed in the commentary (1) plainly have as elements the
use of physical force (e.g., murder, kidnapping, aggravated assault),
(2) are repetitions of offenses enumerated in the Guideline text (e.g.,
burglary of a dwelling, arson, extortion), or (3) by their terms present
a serious potential risk of physical injury that is similar in kind and
degree to listed offenses (e.g., manslaughter, robbery).

453 F. App’x 408, 415 (4th Cir. 2011) (unpublished). The absence of legal

consent does not preclude the possibility, in the context of statutory rape, of

factual consent. And in light of “forcible” as a modifying term, we respect the

distinction in Colorado’s sexual assault statute between forcible and non-forcible

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sexual assaults. See id. at 413; compare Colo. Rev. Stat. § 18-3-402(1)(e) with §

18-3-402(1)(a). Bound as we are to employ the categorical approach, comparing

the elements of the offense in question to the examples set forth in the guideline,

we cannot say that Mr. Wray’s offense is, categorically, a “forcible” sex offense.

The government also argues that because § 2L1.2’s “crime of violence”

definition includes, inter alia, statutory rape and forcible sex offenses where

consent “is not legally valid,” the “broader” § 4B1.2 must also include those

offenses. For a number of reasons, we find the exact opposite. First, the felon in

possession of a firearm guideline, § 2K2.1, cross-references § 4B1.2 and its

“crime of violence” definition, not § 2L1.2. If the Sentencing Commission

wanted to cross-reference to the definition set forth § 2L1.2, it easily could have

done so. In the alternative, it could have included a uniform “crime of violence”

definition applicable to every section of the Guidelines. Second, the maxim

expressio unius est exclusio alterius applies here. See Tenn. Valley Auth. v. Hill,

437 U.S. 153, 188 (1978) (the express inclusion of one thing implies the

purposeful exclusion of another). We again agree with the Fourth Circuit’s

reasoning in Leshen: “[T]he Commission, when it added the parenthetical clause

to the Immigration Guideline in 2008, declined to add the clause to the Career-

Offender Guideline.” 453 F. App’x at 415–16. The express inclusion in one part

of the Guidelines of statutory rape and “forcible sex offenses” where consent is

not legally valid suggests, at a minimum, that statutory rape offenses not

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precluding the possibility of factual consent are not per se “forcible sex offenses”

under § 4B1.2.

None of our prior decisions are inconsistent with our holding that a

conviction under a sexual assault statute withdrawing the possibility of legal

consent is not, per se, a “forcible sex offense.” The cases cited by the

government in support of its argument, namely United States v. De La Cruz-

Garcia, 590 F.3d 1157 (10th Cir. 2010), United States v. Austin, 426 F.3d 1266

(10th Cir. 2005), and United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003), are

not controlling. See Aplee. Br. at 8–10. In essence, the government cites these

cases for the proposition that “the impossibility of legal consent under child sex-

abuse statutes is directly analogous to the kind of non-consensual sexual touching

that constitutes rape.” Vigil, 334 F.3d at 1221; see Austin, 426 F.3d at 1279

(“[W]e must reject Mr. Austin’s assertion the act was consensual, given Colorado

has determined a person under the age of eighteen is incapable of such consent.”).

We question the government’s reliance on De La Cruz-Garcia, however, because

that case considered whether the defendant’s touching of a minor without her

factual consent was “sexual abuse of a minor” under § 2L1.2, not § 4B1.2. Austin

and Vigil are also not dispositive. In Austin, this court explicitly acknowledged

that it was not addressing the “forcible sex offense” argument because the

government had not raised it. Austin, 426 F.3d at 1271. And while Vigil did not

make clear whether it was relying on the “forcible sex offense” phrase or the

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residual clause, the crime at issue in that case was not merely statutory rape; the

defendant was convicted of aggravated incest. Vigil, 334 F.3d at 1217. This

court concluded that that crime, not statutory rape, was a crime of violence under

§ 4B1.2. In Vigil, we specifically declined to address Seventh Circuit precedent

holding that factually consensual sexual contact does not constitute a “crime of

violence.” Id. at 1222. We declined to consider those cases, we stated, because

“they do not consider the aggravating factor of incest.” Id.

In contrast to these decisions, our decision in United States v. Dennis, 551

F.3d 986 (10th Cir. 2008), supports our conclusion. In Dennis, we held that

defendant’s prior conviction for violating Wyoming’s indecent liberties with a

minor statute was not a “crime of violence” under § 4B1.2. We applied the

categorical approach to the Wyoming statute, which “criminalizes activities that

are otherwise permissible between consenting adults when one of the parties is

under the age of eighteen years,” and rejected the argument that the offense was a

“forcible sex offense.” Dennis, 551 F.3d at 990. We noted that “the indecent

liberties statute simply lacks force or assault as an element, let alone lack of

consent.” Id. The same can be said of Colo. Rev. Stat. § 18-3-402(1)(e).

Accordingly, we conclude that the text and structure of the relevant

Guidelines provisions do not require a per se rule that all violations of age-based

sexual contact statutes are “forcible sex offenses” under Application Note 1 to §

4B1.2. Thus, Colo. Rev. Stat. § 18-3-402(1)(e), which does not preclude the

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possibility of factual consent, is not categorically a “forcible sex offense” under §

4B1.2.

2. Is the Sexual Assault Conviction Within the Residual Clause?

We next consider whether the conviction falls within the residual clause of

§ 4B1.2(a)(2) because it “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” We hold that it does not.

As noted above, we are not painting on a blank canvas. Much of the

disagreement in this case concerns whether our pre-Begay cases holding that sex

offenses involving minors present a serious potential risk of physical injury are

outcome determinative. We think it clear, however, that our cases interpreting

Begay and Sykes establish that Begay survived Sykes, albeit in a limited manner.

The commission of a strict liability offense, while potentially posing a serious

risk of physical injury, does not involve purposeful, violent, or aggressive

conduct. In other words, the commission of such an offense does not involve a

risk that is “roughly similar, in kind as well as in degree of risk posed,” to the

enumerated offenses. Begay, 553 U.S. at 143. Accordingly, where a defendant’s

prior conviction is for a strict liability offense, the Begay exception applies and

the conviction is outside the scope of the residual clause.

Following Begay, this court employed a two-part analysis to determine

whether a defendant’s prior conviction was included under the residual clause of

either § 924(e)(2)(B)(ii) or § 4B1.2(a)(2). United States v. Maldonado, 696 F.3d

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1095 (10th Cir. 2012); United States v. Sandoval, 696 F.3d 1011, 1015–16 (10th

Cir. 2012) (citing United States v. McConnell, 605 F.3d 822, 826–27 (10th Cir.

2010)). Under that approach, we asked “(1) whether the offense presents a

serious potential risk of physical injury to another and (2) whether the offense is

roughly similar, in kind as well as degree of risk posed, to the enumerated

crimes.” Sandoval, 696 F.3d at 1015–16 (internal quotations omitted). After

Sykes, however, we recognized the Supreme Court’s “partial retreat from Begay.”

Sykes, 131 S. Ct. at 2278 (Thomas, J., concurring). We embraced Sykes’

admonition that, “[i]n general, levels of risk divide crimes that qualify from those

that do not.” Id. at 2275. Nonetheless, we did not conclude then, nor do we

conclude now, that Sykes abrogated Begay entirely. As the concurring and

dissenting opinions in Sykes make clear, Begay survived Sykes.

We read our post-Sykes cases as unequivocally establishing a Begay

“exception” to Sykes’ general rule that levels of risk distinguish qualifying

offenses from non-qualifying offenses. Sykes, 131 S. Ct. at 2275. “Where the

felony at issue is ‘not a strict liability, negligence, or recklessness crime’ the test

is not whether the crime was ‘purposeful, violent, and aggressive’ but whether it

is ‘similar in risk to the listed crimes.’” United States v. Smith, 652 F.3d 1244,

1248 (10th Cir. 2011) (citing Sykes, 131 S. Ct. at 2276); see also Sandoval, 696

F.3d at 1016 (“After Sykes, it is not necessary to reach Begay’s ‘purposeful’

inquiry when the mens rea of the offense requires intentional conduct.”); United

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States v. Perez-Jiminez, 654 F.3d 1136, 1141 n.4 (10th Cir. 2011) (“Sykes limited

Begay’s ‘purposeful, violent, and aggressive’ test to strict liability, negligence,

and recklessness crimes.”); United States v. Armijo, 651 F.3d 1226, 1237 n.14

(10th Cir. 2011). Thus, our threshold inquiry is whether Colo. Rev. Stat. § 18-3-

402(1)(e) is a strict liability, negligence, or recklessness crime. If we find that it

is, our task comes to an abrupt end—the prior conviction is outside the scope of

the residual clause. If it is not a strict liability, negligence, or recklessness crime,

we ask only whether the offense “presents a serious potential risk of physical

injury to another”—a question we readily admit our prior cases already answer in

the affirmative.

The statute at issue here, Colo. Rev. Stat. § 18-3-402(1)(e), is akin to the

strict liability statute at issue in Begay, and we therefore find the Begay exception

applies. Under that statute, a person is guilty of sexual assault if they “knowingly

inflict sexual intrusion or sexual penetration on a victim [and] . . . (e) [a]t the

time of the commission of the act, the victim is at least fifteen years of age but

less than seventeen years of age.” Colo. Rev. Stat. § 18-3-402(1)(e) (emphasis

added). The parties agree that the mental state “knowingly” does not apply to the

“statutory element that makes the conduct illegal—namely, the age of the victim.”

Aplt. Br. at 22; Aplee. Br. at 24. We agree.

The government contends, however, that this conclusion is irrelevant.

According to the government, “[t]he sexual act requires a mens rea, and the

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absence of a mens rea with respect to the victim’s age does not result in a strict

liability offense akin to the DUI in Begay.” Aplee. Br. at 24. On this point, we

disagree.

Consider the following. Consensual sex is generally lawful. In the context

of statutory rape, the only thing that makes it unlawful is the age of the (younger)

participant. In order to violate the Colorado statute at issue here, a defendant

need not know the age of the younger participant. Thus, the only element of the

offense that distinguishes it from lawful conduct is the element without a mens

rea requirement. See United States v. McDonald, 592 F.3d 808, 814 (7th Cir.

2010) (“The act of sexual intercourse or contact, of course, must be volitional, but

there is no mens rea requirement with respect to the statutory element that makes

that conduct illegal—the age of the victim.”). On this basis alone, we can

conclude that Colo. Rev. Stat. § 18-3-402(1)(e) is a strict liability statute.

This conclusion is further supported by Colorado law on the subject. In

People v. Salazar, 920 P.2d 893, 895 (Colo. App. 1996), the Colorado Court of

Appeals held that a similar statute, Colorado’s sexual assault of a child statute,

provided for strict liability despite the statutory inclusion of the word

“knowingly.” Id. at 895; see Colo. Rev. Stat. § 18-3-405(1) (“Any actor who

knowingly subjects another not his or her spouse to any sexual contact commits

sexual assault on a child if the victim is less than fifteen years of age and the

actor is at least four years older than the victim.”). The language and purpose of

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the statute at issue in Salazar is substantially similar to the language and purpose

of the statute now before us; we therefore find it persuasive that the Colorado

Court of Appeals found that statute to be one of strict liability despite its

inclusion of the word “knowingly.”

The government’s reliance on the Colorado Supreme Court’s decision in

Ferguson v. People, 824 P.2d 803 (Colo. 1992), is unavailing. There, the court

rejected the defendant’s argument that a sexual assault statute prohibiting a

psychotherapist from “knowingly” inflicting sexual penetration on one of his

clients was a strict liability offense. Id. at 812–13. The court’s analysis,

however, demonstrates the flaw in the government’s argument. Under the court’s

interpretation of the psychotherapist statute:

A psychotherapist, therefore, acts ‘knowingly’ with respect to
inflicting sexual penetration on a client when the psychotherapist is
aware [1] that he is inflicting sexual penetration [2] on a person who
seeks or is receiving psychotherapy from him or when the
psychotherapist is aware that his conduct is practically certain to
cause submission of the client to an act of sexual penetration.

Ferguson, 824 P.2d at 812 (emphasis added) (interpreting Colo. Rev. Stat. § 18-3-

406(2)). Under both of the court’s formulations, the psychotherapist is criminally

liable only if he knows that the person upon whom he is inflicting sexual

penetration is one of his clients. In simpler terms, the court read the mental state

“knowingly” to apply to both of the statute’s material elements. As we have

explained above, the phrase “knowingly” in Colo. Rev. Stat. § 18-3-402(1)(e)

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does not apply to the age of the victim, a material element of the offense. Mr.

Wray’s offense is therefore one of strict liability.

Having concluded that the narrow Begay exception applies in this case, we

need not address whether a conviction under the statute at issue presents a serious

potential risk of physical injury to another. Indeed, we acknowledge that our

precedents firmly establish that many sex offenses involving adult-minor sexual

contact present a serious potential risk of physical injury. However, because

Colo. Rev. Stat. § 18-3-402(1)(e) is a strict liability offense, Begay instructs us

that this is not the type of crime that Congress intended to cover, as it sheds little

or no light on whether “an offender, later possessing a gun, will use that gun

deliberately to harm a victim.” Begay, 553 U.S. at 145.

Because we agree with Mr. Wray that his prior conviction under Colo. Rev.

Stat. § 18-3-402(1)(e) is not a “crime of violence” pursuant to U.S.S.G. § 4B1.2,

we need not address his constitutional argument that § 4B1.2 is void for

vagueness.

REMANDED for resentencing consistent with this opinion.

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