United States v. Harry Lewis Ivory

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 17, 2007
No. 06-10895 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00090-CR-CB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRY LEWIS IVORY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(January 17, 2007)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

On this appeal, we consider whether an Alabama conviction for second
degree rape constitutes a “crime of violence” under United States Sentencing

Guidelines §§ 2K2.1 and 4B1.2.1 We hold that it does.

BACKGROUND

A jury found Harry Lewis Ivory guilty of being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1). Prior to sentencing, the

probation officer prepared a presentence investigation report (“PSI”). The PSI

assigned a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A),

because Ivory had a prior conviction in Alabama for a crime of violence, second

degree rape, which Ivory had pled guilty to. Ivory, who was 22 years old at the

time of the prior offense, had engaged in sexual intercourse with a female who was

less than 16 years old. The PSI further enhanced Ivory’s base offense level by four

levels pursuant to U.S.S.G. § 2K2.1(b)(5), because Ivory possessed ammunition

and a firearm in connection with another felony offense, possession of cocaine.

The PSI scored Ivory’s criminal history at level VI. With an offense level of 24

and a criminal history score of VI, Ivory’s resulting guideline range was 100 to 125

months’ imprisonment.

Ivory filed objections to the PSI, arguing that his base offense level was

improperly enhanced because the court erroneously determined that his prior

1
Ivory was sentenced under the 2004 version of the sentencing guidelines, and all guidelines
citations are to the 2004 version unless otherwise noted.

2
Alabama conviction for second degree rape was a crime of violence under

U.S.S.G. §§ 2K2.1 and 4B1.2. He further argued that the PSI’s recommendation of

a four level enhancement based on the offense’s connection with another felony

offense was in violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005), because he did not admit to, and was not found guilty of,

possession of a firearm or cocaine. The district court adopted the PSI and

overruled both of Ivory’s objections. The court found that Ivory’s prior conviction

for second degree rape conviction constituted a crime of violence as contemplated

by § 2K2.1(a)(4). The court further found, by a preponderance of the evidence,

that Ivory did possess ammunition and a firearm in connection with possession of

cocaine, which supported the recommended four-level enhancement. Ivory was

then sentenced to 120 months’ imprisonment to run consecutively with the

revocation of his supervised release, followed by 3 years’ supervised release.

STANDARD OF REVIEW

We review a district court’s interpretation and application of the Sentencing

Guidelines de novo. United States v. Chavarriya-Mejia, 367 F.3d 1249, 1251 (11th

Cir. 2004) (per curiam). The interpretation of Alabama’s statute for second degree

rape is a question of law and is also subject to de novo review. United States v.

Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).

3
 DISCUSSION

We have not previously considered whether Alabama’s statute for second

degree rape constitutes a crime of violence pursuant to U.S.S.G. §§ 2K2.1 and

4B1.2. Because Ivory was convicted of violating 18 U.S.C. § 922(g)(1), his base

offense level is governed by U.S.S.G. § 2K2.1. Section 2K2.1(a)(4)(A) provides

that the base offense level for Ivory’s conviction is 20 if “the defendant committed

any part of the instant offense subsequent to sustaining one felony conviction of

either a crime of violence or a controlled substance offense.” U.S.S.G. §

2K2.1(a)(4)(A). Pursuant to § 2K2.1, the term “crime of violence” has the

meaning given in § 4B1.2, which states:

(a) The term “crime of violence” means any 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.

U.S.S.G. § 4B1.2(a). The commentary to § 4B1.2 clarifies that:

“Crime of violence” includes . . . forcible sex offenses . . . . Other
offenses are included as “crimes of violence” if (A) that offense has as
an element the use, attempted use, or threatened use of physical force
against the person of another, or (B) the conduct set forth (i.e.
expressly charged) in the count of which the defendant was convicted

4
 involved use of explosives . . . or, by its nature, presented a serious
potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1.2

Ivory was convicted of second degree rape under Alabama law.

A person commits the crime of second degree rape if:

(1) Being 16 years old or older, he or she engages in sexual
intercourse with a member of the opposite sex less than 16 and more
than 12 years old; provided, however, the actor is at least two years
older than the member of the opposite sex.

(2) He or she engages in sexual intercourse with a member of the
opposite sex who is incapable of consent by reason of being mentally
defective.

Ala. Code § 13A-6-62(a).

We first examine whether “the use, attempted use, or threatened use of

physical force against the person of another,” as specified in U.S.S.G. §

4B1.2(a)(1), is an element of a second degree rape conviction under Alabama law.

To do that we first review what is meant by the term “physical force” and then

examine our relevant precedent about the use of physical force.

In interpreting the term “physical force” in § 4B1.2(a)(1), we look first to the

plain meaning of those words. See United States v. Shenberg, 89 F.3d 1461, 1475

2
We treat the commentary in the sentencing guidelines as authoritative. See United States
v. Spell, 44 F.3d 936, 938 (11th Cir. 1995) (per curiam) (relying in part, on the commentary in
determining that burglary of a dwelling constitutes a crime of violence).

5
(11th Cir. 1996) (noting that we give the sentencing guidelines their plain meaning

effect unless the language leads to a result contrary to legislative intent). We

previously have noted that the plain meaning of “physical force” is “‘[p]ower,

violence, or pressure directed against a person’‘consisting in a physical act.’”

United States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006) (quoting Black’s

Law Dictionary 673 (7th ed. 1999)); see also United States v. Nason, 269 F.3d 10,

16 (1st Cir. 2001) (synthesizing various definitions to find that physical force

includes any “power, violence, or pressure directed against another person’s

body”).

Two of our recent decisions expressly have addressed whether state

convictions involved the “use of physical force” and are particularly instructive

here. In Griffith, we considered whether a conviction for simple battery under

Georgia law has “‘as an element, the use or attempted use of physical force, or the

threatened use of a deadly weapon’” to merit a conviction under the Armed Career

Criminal Act (“ACCA”). See Griffith, 455 F.3d at 1341 (quoting 18 U.S.C. §

921(a)(33)(A) (defining “misdemeanor crime of domestic violence”)); see also 18

U.S.C. § 922(g)(9) (forbidding a person who has been convicted of a

“misdemeanor crime of domestic violence” from possessing a firearm). We noted

that the Georgia battery statute has as an element “‘physical contact of an insulting

6
or provoking nature.’” Griffith, 455 F.3d at 1342 (quoting Ga. Code Ann. § 16-5-

23(a)(1)). Based on the plain meaning of “physical force,” we concluded that a

simple battery conviction under Georgia law satisfied the physical force

requirement of the ACCA because “[a] person cannot make physical

contact–particularly of an insulting or provoking nature–with another without

exerting some level of physical force.” Id.

Similarly, a person cannot engage in nonconsensual sexual penetration with

another without exerting some level of physical force. Indeed, in Chavarriya-

Mejia, we concluded that a statutory rape conviction under Kentucky law, wherein

a minor cannot legally consent to the physical contact of sexual intercourse,

involves the use of physical force and constitutes a “crime of violence” under

U.S.S.G. § 2L1.2. Chavarriya-Mejia, 367 F.3d at 1251. Kentucky’s third degree

rape statute is similar to Ala. Code § 13A-6-62(a)(1). Under Kentucky law, a

person is guilty if “[b]eing twenty-one (21) years old or more, he or she engages in

sexual intercourse with another person less than sixteen (16) years old.” 3 Ky. Rev.

3
Ky. Rev. Stat. Ann. § 510.060(1) provides in full:
A person is guilty of rape in the third degree when: (a) He engages in sexual
intercourse with another person who is incapable of consent because he or she is
mentally retarded; (b) Being twenty-one (21) years old or more, he or she engages
in sexual intercourse with another person less than sixteen (16) years old; (c) Being
twenty-one (21) years old or more, he or she engages in sexual intercourse with
another person less than eighteen (18) years old and for whom he or she provides a
foster family home as defined in [Ky. Rev. Stat. Ann. §] 600.020; or (d) Being a
person in a position of authority or position of special trust, as defined in [Ky. Rev.

7
Stat. Ann. § 510.060(1)(b). The relevant guideline in Chavarriya-Mejia was the

2002 version of § 2L1.2, which provided that a crime of violence included any

“offense under federal, state, or local law that has as an element the use, attempted

use, or threatened use of physical force against the person of another.” U.S.S.G. §

2L1.2 cmt. n.1(B)(ii) (2002).4

In examining in Chavarriya-Mejia whether statutory rape involves the “use

of physical force,” we first noted, “[s]tatutory rape is a kind of battery: unlawful

physical contact. Sexual offenses by adults against children inherently involve

physical force against the children.” Chavarriya-Mejia, 367 F.3d at 1251. We

reasoned that the existence of consent-in-fact was irrelevant because “the law

presumes that the physical contact aspects of statutory rape were not lawfully

consented to.” Id. Accordingly, we concluded that statutory rape under Kentucky

law, which proscribes sexual intercourse with a person under sixteen years old,

Stat. Ann. §] 532.045, he or she engages in sexual intercourse with a minor under
sixteen (16) years old with whom he or she comes into contact as a result of that
position.
Ky. Rev. Stat. Ann. § 510.060(1).
4
The 2004 version of the guidelines contained this same language. See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (2004).

8
inherently involves the use of force and is a crime of violence under § 2L1.2.5

Chavarriya-Mejia, 367 F.3d at 1251.

This Court in Chavarriya-Mejia also discussed the commentary to U.S.S.G.

§ 2L1.2 (2002), which not only defined a crime of violence as an offense that has

the use of physical force as an element, but also stated that crimes of violence

include “murder, manslaughter, kidnapping, aggravated assault, forcible sex

offenses (including sexual abuse of a minor), robbery, arson, extortion,

extortionate extension of credit, and burglary of a dwelling.” § 2L1.2 cmt.

n.1(B)(ii) (2002). In Chavarriya-Mejia, this Court particularly noted the

parenthetical “including sexual abuse of a minor” and also concluded that statutory

rape involves an illegal sexual act against a minor and thus constitutes “sexual

abuse of a minor” under the 2002 commentary to § 2L1.2. Chavarriya-Mejia, 367

F.3d at 1251. While this reasoning provided an additional basis for the conclusion

in Chavarriya-Mejia, the Court nonetheless initially determined that statutory rape

was a crime of violence because it inherently involves the “use of physical force.”

5
Although statutory rape was an enumerated crime of violence in the 2004 commentary to
§ 2L1.2, and was not an enumerated crime of violence in the commentary to § 4B1.2, the
Chavarriya-Mejia Court examined whether statutory rape was a crime of violence under the 2002
sentencing guidelines, which did not list statutory rape as a crime of violence. See Chavarriya-
Mejia, 367 F.3d at 1251. Furthermore, the Court noted that the subsequent amendments to the
commentary were immaterial because “statutory rape is a ‘crime of violence’ under the plain
language of § 2L1.2 . . . .” Id. at 1251 n.3.

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 With this precedent in mind, we now turn to Alabama’s statutory rape

offense at issue here. Similar to Kentucky law, a person violates Ala. Code § 13A-

6-62(a)(1) by engaging in sexual intercourse with a member of the opposite sex

less than sixteen years old. Ala. Code § 13A-6-62(a)(1). Under Alabama’s

criminal code, a person under sixteen years old is deemed to be incapable of

consent to sexual intercourse. Ala. Code § 13A-6-70(c)(1). Accordingly, second

degree rape under Alabama law is sexual intercourse with a person incapable of

consenting to the act. A nonconsensual act of sexual penetration by its nature

involves at least some level of physical force and pressure directed against another

person’s body. See Griffith, 455 F.3d at 1342. Therefore, we conclude that a

second degree rape conviction under Alabama law must involve the “use of

physical force against the person of another.” § 4B1.2(a)(1).

Alternatively, and as an independent basis for our holding, we conclude that

second degree rape of a minor, under Alabama law, at a minimum “presents a

serious potential risk of physical injury to another,” as provided under §

4B1.2(a)(2). Although our prior decision in Ramsey v. INS, 55 F.3d 580 (11th Cir.

1995), dealt with a different state law and involved a different definition of a

“crime of violence,” our analysis in that case provides helpful guidance. In

Ramsey, we examined a “crime of violence” under 18 U.S.C. § 16, which is a

10
felony 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.’” 55 F.3d at 583 (quoting 18 U.S.C. § 16). In the present case, §

4B1.2(a)(2) alternatively defines a “crime of violence” as a crime that “presents a

serious risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

In Ramsey, this Court determined that a conviction for attempted lewd

assault of a person less than sixteen years old under Florida law involves a

“substantial risk that physical force may be used” and thus constitutes a crime of

violence under 18 U.S.C. § 16. 55 F.3d at 583-84. This Court noted that “Ramsey

was not convicted of the substantive offense, but rather of attempting to commit an

act in violation of” the Florida law prohibiting lewd assault on a minor. Id. at 583.

Under the Florida lewd assault statute analyzed in Ramsey, lewd assault on a minor

included any person who “[h]andles, fondles, or assaults any child under the age of

16 years in a lewd, lascivious, or indecent manner . . . without committing the

crime of sexual battery . . . .” Fla. Stat. § 800.04(1) (1993). In Ramsey, we

concluded that even though a lewd assault violation, and certainly an attempted

lewd assault violation, could occur without the use of physical force, the offense

conduct still involved a “substantial risk that physical force may be used against

the victim in the course of committing the offense.” Id. at 583.

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 After Ramsey, we extended Ramsey’s reasoning and concluded in

United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999), that a conviction for

lewd assault against a minor involves “a serious potential risk of physical injury”

and constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(2). 175 F.3d at 905

(quotation marks and citation omitted). In Rutherford, we discussed Ramsey’s

conclusion that attempted lewd assault involved “‘a substantial risk that physical

force may be used against the victim.’” 175 F.3d at 905 (quoting Ramsey, 55 F.3d

at 583). We then stated that there is not a substantial difference in the definition of

a crime of violence under 18 U.S.C. § 16 and the definition of a crime of violence

under U.S.S.G. § 4B1.2. Rutherford, 175 F.3d at 905. In reaching this conclusion,

this Court in Rutherford relied on United States v. Coronado-Cervantes, 154 F.3d

1242, 1244 (10th Cir. 1998). In Coronado-Cervantes, the Tenth Circuit noted the

different definitions of crime of violence in 18 U.S.C. § 16 (“a substantial risk that

physical force may be used”) and U.S.S.G. § 4B1.2 (“a serious potential risk of

physical injury”), but concluded that a decision under one code section should

control the other. Coronado-Cervantes, 154 F.3d at 1244. The Coronado-

Cervantes Court thus determined that it should follow its previous holding that

attempted sexual abuse of a minor was a crime of violence under 18 U.S.C. § 16,

and it ultimately found that a sexual offense involving a minor under 18 U.S.C. §

12
1153 was a crime of violence under U.S.S.G. § 4B1.2. Coronado-Cervantes, 154

F.3d at 1244; see also Rutherford, 175 F.3d at 905 (relying on Coronado-

Cervantes).

In light of Ramsey and Rutherford, second degree rape under Alabama law

involves significantly more physical contact than attempted lewd assault under

Florida law required; there must be sexual intercourse with a minor under Alabama

law, and not merely attempted handling or fondling, as with attempted lewd

assault. Accordingly, the commission of second degree rape by a nonconsensual

act of sexual penetration poses an even greater risk of both physical force and

physical injury.

Moreover, in United States v. Searcy, 418 F.3d 1193 (11th Cir. 2005), cert.

denied, __ U.S. __, 126 S. Ct. 1107 (2006), this Court concluded that even using

the internet to entice a minor to engage in sexual activity6 “presents the possibility

of an encounter that could result in ‘a serious risk of physical injury to [the

minor],’” and thus constitutes a crime of violence under U.S.S.G. § 4B1.2. 418

F.3d at 1197 (citation omitted). In Searcy, we emphasized that sexual offenses

6
At the time of Searcy’s offense, 18 U.S.C. § 2422(b) provided:
Whoever, using the mail or any facility or means of interstate or foreign commerce
. . . knowingly persuades, induces, entices, or coerces any individual who has not
attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so, shall
be fined under this title, imprisoned not more than 15 years, or both.
18 U.S.C. § 2422(b) (1998).

13
against minors always present “‘a substantial risk that physical force will be used

to ensure a child’s compliance with an adult’s sexual demands,’” and that

“‘physical injury need not be [certain] for a crime to pose a serious risk of physical

injury . . . .’” Id. at 1197 (quoting United States v. Munro, 394 F.3d 865, 870 (10th

Cir. 2005)). Given the significant gap in age and maturity, an adult’s conduct in

actually engaging in sexual intercourse with a minor presents an even more serious

risk that physical force will be used to coerce compliance and that physical injury

will occur.

Other circuits that have examined similar statutory sexual offense crimes are

split in their analysis. Some circuits have concluded that statutory sexual offenses

do not inherently qualify as crimes of violence without considering, along with the

statutory definition, some other aggravating factors. See, e.g., United States v.

Sawyers, 409 F.3d 732, 742 (6th Cir.) (holding that statutory rape in Tennessee did

not inherently present a serious potential risk of physical injury), cert. denied, __

U.S. __, 126 S. Ct. 457 (2005); United States v. Shannon, 110 F.3d 382, 386 (7th

Cir. 1997) (declining to impose a per se rule that second degree assault under

Wisconsin law prohibiting either sexual contact or sexual intercourse with a person

under the age of 16 was a crime of violence). Other circuits go the other way and

conclude that statutory sexual offenses do inherently involve a serious potential

14
risk of physical injury, and therefore qualify as crimes of violence. See, e.g.,

United States v. Granbois, 376 F.3d 993, 995-96 (9th Cir. 2004) (holding that

engaging in sexual contact with a minor in violation of 18 U.S.C. § 2244(3) was

per se a crime of violence); United States v. Pierce, 278 F.3d 282, 289 (4th Cir.

2002) (holding that taking indecent liberties with a child under North Carolina law

categorically presented a serious risk of physical injury and was therefore a crime

of violence).

After carefully examining the language of Alabama’s second degree rape

statute, Ala. Code § 13A-6-62, we conclude that the offense inherently poses a

serious potential risk of physical injury to another. See Searcy, 418 F.3d at 1197;

Rutherford, 175 F.3d at 905; Ramsey, 55 F.3d at 583-84. Consequently, it

qualifies as a crime of violence under § 4B1.2(a)(2).

For all of these reasons, we therefore affirm Ivory’s conviction and

sentence.7

AFFIRMED.

7
Ivory also presents two additional issues in his brief: (1) that the district court erred in
denying a motion to suppress evidence and (2) that the district court erred by enhancing his sentence
based on facts that he did not admit to, namely, that he possessed cocaine in connection with the
instant offense. We find no merit to either of these issues and affirm without discussion.

15