PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4251
MICHAEL RAY THORNTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(7:05-cr-00029-JCT-1)
Argued: December 2, 2008
Decided: February 3, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Judge
Duncan wrote the opinion, in which Judge King and Judge
Shedd joined.
COUNSEL
ARGUED: Fay Frances Spence, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appel-
lant. Jean Barrett Hudson, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appel-
2 UNITED STATES v. THORNTON
lee. ON BRIEF: Larry W. Shelton, Federal Public Defender,
Roanoke, Virginia, for Appellant. Julia C. Dudley, Acting
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
A jury convicted Michael Ray Thornton of possessing a
firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1)
and 931. During his sentencing, the district court classified
Thornton as an armed career criminal subject to a sentence
enhancement based in part on a 1986 statutory rape convic-
tion. At issue on appeal is whether Virginia’s statutory rape
offense, which makes it a crime to "carnally know[ ], without
the use of force, a child" between thirteen and fifteen years of
age, is a "violent felony" under the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because we find
that Virginia’s carnal knowledge offense does not constitute
a violent felony under the ACCA as interpreted by Begay v.
United States, 128 S. Ct. 1581 (2008), we are constrained to
reverse.
I.
A grand jury indicted Thornton on March 24, 2005 for pos-
session of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) and for possession of body armor by a
convicted felon in violation of 18 U.S.C. § 931. A jury con-
victed him on both counts on February 13, 2006. On May 12,
2006, the district court classified Thornton as an armed career
criminal under 18 U.S.C. § 924(e) and sentenced him to a
total of 204 months.1 The court based its sentence on four pre-
1
Thornton received a sentence of 204 months for the firearm possession
count and 36 months (concurrent) for the body armor possession count.
UNITED STATES v. THORNTON 3
vious convictions, finding that any three would support
Thornton’s classification as an armed career criminal: a July
1973 conviction for statutory burglary and maiming; an
August 1986 conviction for aggravated sexual battery; an
August 1986 conviction for attempted rape; and an August
1986 conviction for "carnal knowledge of a minor" between
thirteen and fifteen years old.2
Thornton appealed, contesting his classification as an
armed career criminal. We vacated his sentence and remanded
the case in a March 21, 2007 unpublished opinion. United
States v. Thornton, 222 F. App’x 325 (4th Cir. 2007). The
opinion instructed the district court to determine whether
Thornton’s aggravated sexual battery and attempted rape
offenses, which involved the same victim, occurred on sepa-
rate occasions and represented separate predicate offenses
under the ACCA. The opinion also instructed the district court
to consider whether statutory rape creates a "serious potential
risk of physical injury to another person," such that it consti-
tutes a violent felony within the meaning of the ACCA.3 Id.
at *2.
Under 18 U.S.C. § 924(e), any person convicted of firearm possession
under section 922(g) who has three prior violent felony convictions is an
armed career criminal subject to a fifteen-year mandatory minimum term
of imprisonment.
2
Thornton was convicted of statutory rape in August 1986 under Va.
Code § 18.2-63. Under this statute, a person is guilty of statutory rape if
he "carnally knows, without the use of force, a child thirteen years of age
or older but under fifteen years of age." Id. § 18.2-63(A). The statute
defines "carnal knowledge" to include "the acts of sexual intercourse, cun-
nilingus, fellatio, anilingus, anal intercourse, and animate and inanimate
object sexual penetration." Id. § 18.2-63(C).
3
The ACCA defines a violent felony as follows:
(B) [T]he term "violent felony" means any crime punishable by
imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a serious
risk of physical injury to another . . . .
18 U.S.C. § 924 (e)(2)(B).
4 UNITED STATES v. THORNTON
The district court held an evidentiary hearing on October
18, 2007 and accepted additional briefing from counsel. At
the hearing, both parties offered expert evidence on the risks
of physical injury, pregnancy, and sexually transmitted dis-
eases ("STDs") that accompany nonforcible sexual activity
between an adult male and a minor female between thirteen
and fifteen years old. On January 18, 2008, before the
Supreme Court’s decision in Begay, the district court issued
a memorandum opinion. It held that Thornton’s aggravated
sexual battery and attempted rape offenses did not occur on
separate occasions and could not count as two separate predi-
cate convictions under the ACCA. The district court also held
that statutory rape, as defined by Va. Code § 18.2-63, consti-
tuted a violent felony because the risk of STDs and pregnancy
created a serious potential risk of physical injury. The court
reimposed its original sentence of 204 months for possession
of a firearm by a convicted felon and 36 months (concurrent)
for possession of body armor by a convicted felon. Thornton
now appeals the district court’s decision classifying Virginia’s
carnal knowledge offense as a violent felony under 18 U.S.C.
§ 924(e)(2)(B).
II.
We have jurisdiction over Thornton’s appeal under 28
U.S.C. § 1291. When considering a sentence’s reasonable-
ness, we "review the district court’s legal conclusions de novo
and its factual findings for clear error." United States v. Abu
Ali, 528 F.3d 210, 261 (4th Cir. 2008) (quoting United States
v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006)); see also
United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002)
(noting that the question of whether a state felony offense
"falls within the federal definition of a crime of violence . . .
is a question of law that we review de novo" (citing United
States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996))).
III.
Under the ACCA, a violent felony either "has as an element
the use, attempted use, or threatened use of physical force,"
UNITED STATES v. THORNTON 5
or 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).
The parties do not argue that Virginia’s carnal knowledge
offense, which criminalizes carnal knowledge of a minor
"without the use of force," does not fall under the definition’s
first prong. Rather, they frame the issue as whether Virginia’s
carnal knowledge offense is sufficiently similar to the crimes
enumerated in 18 U.S.C. § 924(e)(2)(B)(ii) and whether it
involves a "serious potential risk of physical injury."
In arguing that Virginia’s carnal knowledge offense does
not fall under the second prong of section 924(e)(2)(B),
Thornton relies heavily on Begay v. United States, 128 S. Ct.
1581 (2008), which postdates the district court’s decision.4 In
Begay, the Supreme Court addressed whether New Mexico’s
offense of driving under the influence of alcohol ("DUI") con-
stituted a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii).5
The Begay Court held that violent felonies under the second
prong are limited to crimes "that are roughly similar, in kind
as well as in degree of risk posed, to the examples" of arson,
burglary, extortion, and crimes involving explosives. Id. at
1585. The Court found that New Mexico’s DUI offense is not
a violent felony under the second prong because unlike the
exemplar crimes, it does not "involve purposeful, violent, and
aggressive conduct" and is not "characteristic of the armed
career criminal." Id. at 1586 (quotations and citation omitted).
4
We nevertheless consider Begay in evaluating Thornton’s direct appeal
of his conviction because "[w]hen a decision of the Supreme Court results
in a new rule, that rule applies to all criminal cases still pending on direct
review." United States v. Morris, 429 F.3d 65, 69 (4th Cir. 2005) (citing
Schriro v. Summerlin, 542 U.S. 348 (2004)) (internal punctuation omit-
ted).
5
The Begay Court noted that New Mexico’s DUI offense did not "fall
within the scope" of the first prong, section 924(e)(2)(B)(i), because the
offense "nowhere has as an element the use, attempted use, or threatened
use of physical force against the person of another." 128 S. Ct. at 1584
(quotation marks and citation omitted).
6 UNITED STATES v. THORNTON
Rather, the Court likened DUI to "crimes that impose strict
liability, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all." Id. at
1586-87. The Court found that a DUI conviction did not
"show an increased likelihood that the offender is the kind of
person who might deliberately point the gun and pull the trig-
ger." Id. at 1587.
Thornton argues that Virginia’s carnal knowledge offense
is not sufficiently similar to the enumerated crimes in section
924(3)(2)(B)(ii) and does not present a "serious potential risk
of physical injury." Pointing out that the risks of STD trans-
mission and pregnancy associated with nonforcible adult-
minor sexual activity "depend upon a speculative chain of
events unrelated to the age of the sexual partners," he argues
that the carnal knowledge offense does not present the same
degree of risk as the enumerated crimes. Pet’r Br. at 14.
Thornton also distinguishes the carnal knowledge offense
because it is not a property crime like the enumerated crimes.
He argues that it is more akin to the DUI offense analyzed in
Begay because it "involves consensual conduct ‘that would be
lawful but for the age of the minor’" and "does not require
criminal intent." Pet’r Reply Br. at 6. Thornton emphasizes in
addition that the Sentencing Guidelines do not classify the
equivalent federal offense, which criminalizes sexual abuse of
a minor, to be a violent felony.
The government marshals several arguments in response,
which we address separately below. First, the government
emphasizes that Virginia’s carnal knowledge offense presents
a significant risk of bodily injury and should therefore be clas-
sified as a violent felony. To support this contention, the gov-
ernment devotes much of its brief to the expert testimony
presented on the risks of STDs and pregnancy associated with
sexual activity between an adult male and female minor. The
government also relies heavily on circuit court cases finding
that offenses involving adult-minor sexual activity carry a
serious risk of physical injury. Second, based on its expert’s
UNITED STATES v. THORNTON 7
testimony and supporting case law, the government contends
that that Virginia’s statutory rape offense is "roughly similar
in kind" to crimes like arson and burglary "because the most
common attribute of the enumerated offenses [of section
924(e)(2)(B)(ii)] . . . is that all of these offenses create signifi-
cant risks of bodily injury or confrontation that might result
in bodily injury." Resp’t Br. at 20. Lastly, the government
argues that the carnal knowledge offense involves "construc-
tive force" because the victim is unable to give legal consent.
The government contends that the presence of constructive
force, as well as the fact that "[s]ex acts are by nature pur-
poseful and deliberate acts," brings the carnal knowledge
offense under the ACCA’s definition of a violent felony.
Resp’t Br. at 47.
Although not without weight, the government’s arguments
are unavailing in light of Begay for several reasons. First, the
government’s emphasis on the risks of physical injury associ-
ated with adult-minor sexual activity ignores the Supreme
Court’s reasoning in Begay, which rejected the notion that
section 924(e)(2)(B)’s second prong covers "every crime that
‘presents a serious potential risk of physical injury to
another.’" 128 S. Ct. 1585. The Begay Court interpreted the
examples enumerated in section 924(e)(2)(B)(ii) to indicate
"that the statute covers only similar crimes," that is, crimes
that "typically involve purposeful, ‘violent’ and ‘aggressive’
conduct." Id. at 1585-86. Under Begay, the government’s reli-
ance on expert testimony and case law suggesting that statu-
tory rape involves a serious risk of physical injury is not
sufficient to support Thornton’s classification as an armed
career criminal. The offense must also be like those listed in
section 924(e)(2)(B)(ii), both in kind and degree of risk. In
considering a Michigan "criminal sexual conduct" offense, the
Sixth Circuit has concluded similarly, noting that under
Begay, "this court’s determination that at least some convic-
tions involving sexual contact with minors present ‘a serious
potential risk of physical injury’ is not sufficient to establish
that the conviction comes within the scope of [section
8 UNITED STATES v. THORNTON
924(e)(2)(B)(ii)]." United States v. Bartee, 529 F.3d 357,
362-63 (6th Cir. 2008). Accord United States v. Templeton,
543 F.3d 378, 382 (7th Cir. 2008) (stating that "Begay holds
that risk is insufficient" and that "it is necessary [that] the
offense in question is sufficiently ‘like’ the list [of exemplar
crimes]").
Second, in addressing whether Virginia’s carnal knowledge
offense is similar to the exemplar crimes, the government’s
analysis effectively collapses this inquiry into its exhaustive
analysis of whether the offense involves a serious risk of
injury. Citing James v. United States, 127 S. Ct. 1586 (2007),
the government emphasizes that the Supreme Court found that
"the most relevant common attribute of the enumerated
offenses . . . is that all of these offenses . . . create significant
risks of bodily injury or confrontation that might result in
bodily injury." Id. at 1592. As noted above, the Begay Court
rejected the notion that every crime that involves a serious
risk of injury constitutes a violent felony.
In light of Begay, the government’s position largely
depends on its contention that Virginia’s carnal knowledge
offense is sufficiently similar to the enumerated crimes
because the offense involves constructive force, which a court
may infer because the minor victim lacks capacity to give
legal consent. This argument, however, conflates the presence
of force and the minor’s inability to consent, and thereby
attempts to shoehorn the carnal knowledge offense into the
definition of a violent felony. This ignores the Virginia Crimi-
nal Code’s distinction between forcible and nonforcible sex-
ual offenses. Compare Va. Code § 18.2-61 (classifying
forcible rape as a felony punishable by a minimum of five
years up to a maximum of life in prison, with a minimum of
25 years in the presence of certain aggravating factors) with
Va. Code § 18.2-63 (classifying nonforcible carnal knowledge
of a minor as a Class 4 felony, punishable under Va. Code
§ 18.2-10(d) by a minimum of two years up to a maximum of
ten years in prison). Although the government correctly points
UNITED STATES v. THORNTON 9
out that under Virginia law a minor victim cannot give legal
consent to sexual activity, the victim’s inability to consent
does not erase the Code’s distinction between forcible and
nonforcible sexual offenses. The Code’s structure shows that
the Virginia General Assembly considers forcible and nonfor-
cible sexual offenses to present different risks that are punish-
able in different ways. Although Virginia’s forcible sexual
offenses may qualify as violent felonies under the ACCA, the
government cannot persuasively argue that the nonforcible
carnal knowledge offense constitutes a violent felony by con-
flating it with Virginia’s forcible sexual offenses through the
concept of constructive force.
Nor can the government successfully argue, as it high-
lighted during oral argument, that Virginia’s carnal knowl-
edge offense is inherently purposeful, violent and aggressive
like the enumerated crimes because the minor victim cannot
give legal consent. The government argues that the carnal
knowledge offense constitutes a violent felony because "[s]ex
acts are by nature purposeful and deliberate acts." Resp’t Br.
at 47. The deliberation necessary to engage in adult-minor
sexual activity, however, is not sufficient to bring the carnal
knowledge offense within the definition of a violent felony.
A qualifying offense must also be "violent" and "aggressive,"
like the enumerated crimes. See United States v. Herrick, 545
F.3d 53, 58-59 (1st Cir. 2008) (interpreting Begay to mean
that "all three types of conduct—i.e., purposeful, violent and
aggressive—are necessary for a predicate crime to qualify as
a ‘violent felony’ under ACCA"); cf. United States v. Gray,
535 F.3d 128, 131-32 (2d Cir. 2008) (noting that under Begay,
a violent felony must be purposeful, violent, and aggressive,
and finding that New York’s reckless endangerment offense
does not constitute a violent felony because it does not
involve all three types of conduct); United States v. Smith,
544 F.3d 781, 786 (7th Cir. 2008) (citing Begay for the propo-
sition that a violent felony must be purposeful, violent, and
aggressive, and finding that Indiana’s criminal recklessness
offense is not a violent felony because it does not involve all
10 UNITED STATES v. THORNTON
three types of conduct). The government cites no cases sup-
porting its argument that a victim’s lack of ability to give
legal consent means that the Virginia carnal knowledge
offense is inherently violent and aggressive. As noted above,
the Virginia carnal knowledge offense, by definition, categor-
ically does not involve the use of force and does not support
an inference that any or all instances of the offense are violent
and aggressive.
Although nonforcible adult-minor sexual activity can pres-
ent grave physical risks to minors, and although states are
entitled to criminalize nonforcible adult-minor sexual activity
to protect minor victims from these risks, such risks are not
sufficiently "similar, in kind as well as in degree of risk posed
to the examples" of burglary, arson, extortion, and crimes
involving explosives. 128 S. Ct. at 1585. The Begay Court
noted that the enumerated crimes are "committed . . . in a pur-
poseful, violent, and aggressive manner." Id. at 1586. The
enumerated crimes create immediate, serious, and foreseeable
physical risks that arise concurrently with the commission of
the crimes themselves. The Begay court emphasized that these
kinds of crimes "show an increased likelihood that the
offender is the kind of person who might deliberately point
the gun and pull the trigger," such that a fifteen-year manda-
tory prison term is warranted. Id. at 1587; see also United
States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008) (emphasiz-
ing the same language).
In contrast, Virginia’s carnal knowledge offense, like the
DUI offense in Begay, differs from "violent and aggressive
crimes committed intentionally such as arson, burglary, extor-
tion, or crimes involving the use of explosives." Begay, 128
S. Ct. at 1588. The associated risks that the parties have
identified—primarily STDs and the risks attendant to
pregnancy—are not immediate or violent in nature and do not
inherently support an inference that an offender will later
commit a violent crime; accord Taylor v. United States, 495
U.S. 575, 590 (1990) (finding that "in designating predicate
UNITED STATES v. THORNTON 11
offenses" for the armed career criminal enhancement, Con-
gress intended to use "uniform, categorical definitions to cap-
ture all offenses of a certain level of seriousness that involve
violence or an inherent risk thereof" (emphasis added)). But
cf. United States v. Williams, 529 F.3d 1, 7 (1st Cir. 2008)
(holding that the crime of "delivering a minor for prostitution"
constitutes a crime of violence because it is likely that "‘cli-
ents’ will endanger the minor’s safety" and "the risk of harm
is so substantial and so easily foreseen by the defendant").6
Although this opinion is not intended to minimize the risks
associated with adult-minor sexual activity, a conviction
under Virginia’s carnal knowledge offense is not "associated
with a likelihood of future violent, aggressive, and purposeful
‘armed career criminal’ behavior" and cannot constitute a vio-
lent felony under the ACCA. Begay, 128 S. Ct. at 1588.
IV.
Under Begay, Virginia’s carnal knowledge offense is not
sufficiently similar to the enumerated crimes in kind or in
degree of risk to constitute a violent felony. We reverse the
district court’s opinion, vacate Thornton’s sentence, and
remand for sentencing consistent with this opinion.
REVERSED, VACATED, AND REMANDED
6
Williams is distinguishable from this case. The First Circuit relied
heavily on the fact that third-party clients could endanger the minor victim
— "the violence often will be carried out by third parties" — and that the
defendant can easily foresee the risk of violence to the minor. 529 F.3d at
7. Virginia’s carnal knowledge offense does not contemplate third-party
violence and instead criminalizes the sexual activity between the perpetra-
tor and the minor.