NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0338n.06
Filed: May 15, 2007
No. 05-6670
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TYRICE L. SAWYERS, ) MIDDLE DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Tyrice L. Sawyers
challenges the 300 month sentence imposed by the district court following his conviction for being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). More specifically, Sawyers
challenges the district court’s decision to sentence him as an armed career criminal under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We find no error in the district court’s
application of the ACCA, and accordingly, we affirm.
I.
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
On February 29, 2000, a jury convicted Sawyers of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). On June 6, 2002, the district court, applying the ACCA,
sentenced Sawyers to 300 months imprisonment, in part based on its conclusion that his prior
conviction for statutory rape–upon entry of a guilty plea in Tennessee state court–constituted a
“violent felony” as that term is defined in the ACCA.1 Sawyers appealed his conviction and
sentence. We affirmed his conviction but vacated his sentence because the district court improperly
applied the categorical approach in analyzing whether Sawyers’s statutory rape conviction
constituted a “violent felony” for purposes of the ACCA. United States v. Sawyers, 409 F.3d 732,
743 (6th Cir. 2005). On remand for resentencing, we instructed the district court, in determining
whether Sawyers’s prior conviction constituted a “violent felony,” to “consider, along with the
statutory definition, the ‘charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.’” Id. at 742 (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)).
On remand, the district court examined these materials and determined that Sawyers’s
statutory rape conviction did constitute a “violent felony” as defined by the ACCA. In particular, the
district court reviewed the transcript from the plea colloquy and the factual allegations presented to
the trial court by the prosecution in support of the indictment and plea. According to the district
court, the factual allegations outlined by the prosecution demonstrated that the conduct involved
posed a serious risk of harm to the victim, a minor. Accordingly, the district court determined that
1
In addition, the district court found that Sawyers’s prior convictions in Tennessee state court
for facilitation of aggravated burglary and retaliation for past action constituted violent felonies.
Together with the statutory rape conviction, these two convictions provided the necessary three
predicate offenses for sentencing Sawyers as an armed career criminal under the ACCA. Only the
classification of Sawyers’s statutory rape conviction as a “violent felony” is at issue on appeal.
2
Sawyers’s prior conviction for statutory rape was a “violent felony” for purposes of the ACCA. The
district court then reimposed a sentence of 300 months incarceration. Sawyers subsequently appealed.
II.
We review de novo a district court’s conclusion that a defendant may be sentenced as an armed
career criminal under the ACCA. Sawyers, 409 F.3d at 736 (citing United States v. Maness, 23 F.3d
1006, 1008 (6th Cir. 1994)).
A.
Under the ACCA, a defendant who has been convicted of a violation of 18 U.S.C. § 922(g) and
who has been convicted of three violent felonies, as defined by the ACCA, is subject to a minimum
sentence of fifteen years imprisonment. 18 U.S.C. § 924(e)(1). Moreover, armed career criminal
status under this section enhances the advisory range recommended by the guidelines. See U.S.S.G.
§ 4B1.4.
The ACCA outlines two classes of offenses that constitute violent felonies. Only the latter
category is relevant to this appeal. Under the ACCA, a “violent felony” is “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
to another . . . .” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
B.
3
On appeal, Sawyers raises a single argument:2 the conduct giving rise to his conviction
identified by the district court in its review of the transcript of Sawyers’s plea colloquy did not pose
a serious risk of potential injury to another. The crux of Sawyers’s argument is that the absence of
any evidence that his sexual contact with the victim was forcible or otherwise resulted in her injury
precludes a finding that his conviction for statutory rape was a “violent felony.”
Sawyers’s position ignores the clear statutory language. Whether a given offense resulted
from conduct that caused physical harm is immaterial, it is only necessary that the conduct posed the
risk of physical injury to another. Sawyers does not dispute the allegations made by the government
during the plea colloquy, and as the district court noted, the factual basis upon which the trial court
accepted Sawyers’s plea demonstrated: (1) Sawyers, an adult, participated in a series of events by
which several individuals compelled a fifteen-year-old girl to have oral and vaginal intercourse while
in Sawyers’s home; (2) Sawyers participated in the extortion of sexual favors from the victim,
conditioning the return of personal property on her performance of sexual acts and preventing her
exit from the home; (3) following their departure from Sawyers’s home, Sawyers, in addition to
another individual, engaged in oral and vaginal intercourse with the victim in a motel room.
It is difficult to understand how Sawyers’s participation in the coerced sexual assault of a
minor could not be deemed to pose a serious risk of physical harm to the victim. In our prior
decision, we observed that it is the breadth of conduct encompassed within the statute that renders
impossible any categorical determination that Tennessee’s statutory rape statute defines a “violent
2
Before the district court, Sawyers argued that because his plea to the charge of statutory rape
was a “best-interest” plea and because he did not admit to any of the factual allegations leveled
against him, the statement of the prosecution regarding the factual basis for his plea contained in the
colloquy transcript may not be relied upon to determine whether Sawyers’s conviction was for a
“violent felony.” Sawyers has abandoned this argument on appeal, however, and we express no
opinion on this matter.
4
felony.” Sawyers, 409 F.3d 741-42. After all, the inherent risk of violence posed by consensual
sexual activity between a seventeen-year-old and a twenty-one-year-old is quite different from that
posed by compelled sexual activity between a twenty-one-year-old and a younger teen. This is true
in spite of the fact that, in both cases, the older party would be subject to criminal liability under
Tennessee’s statutory rape statute. Id. at 741. Sawyers was an active participant in a series of events
by which a fifteen-year-old girl was coerced into performing multiple sexual acts. Irrespective of
whether the victim in this particular case suffered any physical injury, there can be little doubt that
she faced a “serious potential risk of physical injury.” Consequently, the district court was correct
in finding Sawyers’s statutory rape conviction constituted a “violent felony” under the ACCA.
III.
For the foregoing reasons, we affirm.
5