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
21
(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
22
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
23
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.
24
United States v. Cadieux
Court: Court of Appeals for the First Circuit
Date filed: 2007-08-21
Citations: 500 F.3d 37
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