No. 96-2123
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH LEON MEADER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
David
M.
Sanders, by Appointment of the Court, for appellant.
Margaret
D.
McGaughey, Assistant United States Attorney, with
whom
Jay
P.
McCloskey, United States Attorney, and Gail F. Malone,
Assistant United States Attorney, were on brief for appellee.
July 11, 1997
COFFIN, Senior Circuit Judge. Appellant Kenneth Leon Meader
was convicted on all three counts of an indictment charging him
with distributing cocaine, using a firearm in connection with a
drug trafficking crime, and being a felon-in-possession of a
firearm.
He
essentially
raises two claims on appeal, one involving
possible juror bias and the other concerning his sentencing as a
career criminal based on prior convictions for unlawful sexual
contact and intercourse with a minor. After careful review, we
affirm.
I. Factual Background
The
facts
of
the
crime
are largely irrelevant to the issues we
face
on
appeal, and we therefore do not recite them in any detail.
It suffices to say that, viewing the evidence in the light most
favorable to the prosecution, the jury could have found that
appellant
abducted
the
mother of his young son at gunpoint from her
parents'
home,
took
her
to the house they had shared, forced her to
ingest
cocaine and sleeping pills, and assaulted her sexually. He
eventually released her, and surrendered to authorities.
The jury returned its guilty verdicts on March 27, 1996. On
April 19, defense counsel advised the court that he had received
information about a juror that suggested that she possibly was
biased. A defense witness, Decato, had spoken with the juror's
son, who reported that his mother had a history of abusive
relationships and consequently was "dead set against" domestic
abusers.
The
son
also
told Decato that once his mother made up her
mind she would not change it.
-2-
Before trial, Meader had submitted six proposed voir dire
questions, four of which pertained to domestic abuse.1 The court
reframed them into a single question:
There
may
be
evidence in this case concerning a domestic
relationship in which physical force or abuse was
involved or threatened. Does any member of the panel
have personal views or personal experiences that would
prevent you from deciding this type of case fairly and
impartially?
No juror responded.
In
a
conference with counsel following revelation of Decato's
conversation, the district court identified two issues: did the
juror
prejudge the case, and did she answer the voir dire question
falsely?
Attempting to adhere to First Circuit authority strongly
disfavoring direct contact with jurors, see United States v.
Kepreos
,
759
F.2d
961,
967 (1st Cir. 1985), the court determined to
hear testimony first from Decato, then from the juror's son, and,
only
if
questions remained, from the juror. Further reflection by
both
court
and
counsel
following Decato's testimony and a review of
the voir dire transcript led, however, to a decision to hear
directly from the juror rather than her son.
1 The four questions proposed by Meader on the issue of
domestic violence were as follows:
1. Have you been involved in a domestic relationship in
which physical force or abuse was involved?
2. Has a relative of yours, or a close friend been
involved in a domestic relationship in which physical
force was used, or was claimed to have been used?
3. Have you been involved in a domestic relationship in
which
the
threat
of
physical force or abuse was involved?
4. Has a relative of yours, or a close friend been
involved in a domestic relationship in which the threat
of physical force or abuse was used, or claimed to have
been used?
-3-
The
juror,
Sandra Petersen, was questioned by the court in an
informal session. Both counsel were present and had submitted
proposed
questions, but they were asked to remain at the periphery
of the proceeding "to maintain a certain level of informality."
Juror Petersen acknowledged that she had been emotionally and
verbally abused by an ex-husband, and that her son had been
physically abused by the same man. She further acknowledged that
she does not like abusers, but emphatically rejected her son's
suggestion to Decato that she had her mind made up about the case
before its conclusion. She responded to the court's question on
that point as follows:
What? No way. No way. He -- he must have fabricated
that because no way. No, I -- in fact, I told him that
it
would
take
awhile
for
me to -- to come to the decision
because
it's
a
man's
life is what I said. And that's the
way I feel about any case. You know, I'm -- I've got a
man's life here in my hands. There's no way I -- no.
In
response
to
her
son's
comment that "my mother doesn't change her
mind once it's set," she explained that that was the way she
handled him -- "if I tell him this is it, that's all" -- and that
she viewed his statement as an attempt "to pump himself up, make
himself look big" because his mother was a juror for the trial.
Asked
if
her
views had any impact on the trial, the juror replied:
I retarded everyone else in the deliberation because I
had
a
life
in my hand and I did not know, you know, if I
should go along with everybody else. Everyone else was
going towards guilty. I was not. Because I waited
until,
you
know, I heard more about it and more evidence
and,
you
know, we deliberated before I finally said yes.
When the court asked if her experiences with her ex-husband
affected her attitude toward the trial, she answered:
-4-
It did in a way because I had to really think out the
case and say, you know, is this -- you know, is there
abuse here or is it that this man has a -- a mental
problem
.
.
. I know a little bit about the psychic mind
and how it works. And sometimes when you're under an
awful
lot
of
stress
you
will do things on the spur of the
moment. But the other jurors made me see that this was
premeditated,
he thought it out before he -- he actually
did the crime.
Additionally, when asked specifically whether her experiences
affected
her
fairness or impartiality, the juror replied: "I think
I was very fair because I thought it all out . . . . I wouldn't
make a judgment on someone unless I really thought something out.
And
I
wouldn't let my own personal feelings interfere in any way."
She repeated that sentiment when asked whether her personal views
made her more or less sympathetic to either the government or the
defense: "I went by what was on the table . . . . I put my own
feelings aside."
Based on this inquiry, the court tentatively concluded that
neither predisposition nor outside factors influenced the jury's
verdict, but also asked for briefs from counsel. The court
rejected
defense
counsel's request that the court also question the
juror's son, noting the First Circuit's reluctance to probe into
the jury process unless absolutely necessary.
On
June
14,
1996, three weeks after the court's exchange with
the juror, Meader moved for a mistrial. He claimed both that the
court
should
have
used
his proposed voir dire questions, instead of
the court's modification, and that additional investigation into
juror bias was necessary.
-5-
The
district
court denied the motion in a thoughtful ten-page
order,
and
we here provide only a summary of its contents. First,
the court found no suggestion of prejudice, observing that the
juror's answers -- which the court found "logical and believable"
-- "reveal that, if anything, she gave this defendant the benefit
of the doubt." On Meader's claim that his voir dire questions
should have been asked, the court noted that no objection was
raised to the questions actually posed and no requests for
additional questions were made at the time of the voir dire. The
claim therefore was waived. Responding to Meader's attack on the
adequacy of the investigation into bias, the court noted the need
to avoid undue intrusion into jurors' lives, and stated that
testimony from the juror's son was unnecessary because the court
had credited Decato's testimony about what the son told him, even
though Decato had reason to testify so as to make a mistrial more
likely.
The court sentenced Meader to 120 months in prison on Count
One (felon-in-possession), to be served concurrently with a 360-
month term on Count Two (distribution of cocaine). A 60-month
consecutive term, as required by statute, would follow on Count
Three (use of firearm in drug trafficking crime). The penalties
reflected increases for various specific characteristics of the
offenses, including the abduction of the victim, commission of
criminal
sexual abuse, and use of force and threats of death. The
penalty
also
reflected Meader's status as a career offender, based
on his having two prior convictions for drug or violent crimes.
-6-
On
appeal,
Meader challenges the district court's handling of
the voir dire and the allegations of juror bias, both relating to
the domestic abuse issue. He also claims that his prior
convictions
for
statutory rape and unlawful sexual contact were not
crimes of violence and thus should not have been used to classify
him as a career offender.
II. Domestic Abuse: Voir Dire and Juror Bias
A. Voir Dire. We need not dwell on the district court's
failure
to
ask
verbatim
Meader's proposed voir dire questions. The
court had no obligation to ask the questions in the specific
language
proposed, see United States v. Victoria-Peguero, 920 F.2d
77, 84 (1st Cir. 1990), and counsel's acquiescence in the court's
reframed
question means that any objection to that formulation was
not preserved for appeal. See United States v. Walsh, 75 F.3d 1,
6 (1st Cir. 1996) ("[T]he usual rule is that an objection must be
made
known
at
the
time
that the court is making its decision to act
.
.
.
.").
Because the district court's inquiry -- asking whether
jurors could impartially judge a case involving domestic violence
-- directly focused on the critical concern of bias, we are
persuaded beyond any doubt that no plain error occurred.
In so concluding, we offer no view of the substance of
Meader's complaint. He contends that the court's voir dire
question,
allowing jurors who were exposed to domestic violence to
reveal their experiences only if they felt such exposure would
impact their jury service, deprived him of the ability to use his
challenges
effectively. Although this position has some force, we
-7-
decline
to
consider
whether, in other circumstances, the failure to
pose more discerning questions would be reversible error.
B. Juror Bias. Meader also challenges the district court's
approach and conclusion with respect to the possible bias of one
juror.
He
particularly
complains about the court's failure to hear
testimony from the juror's son and its prohibiting the defendant
from
either
directly contacting the son or sending an investigator
to
interview
him. Meader asserts that this limitation on the bias
inquiry prevented him from effectively challenging the juror's
"self-serving statements . . . that she could and did put her
feelings about domestic abuse aside in deciding this case."
Our caselaw holds that a district court is obliged to
investigate plausible allegations of improper influence on a jury
verdict, see, e.g., Walsh, 75 F.3d at 6-7; United States v.
Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989), but that the court
has
"broad
discretion to determine the type of investigation which
must be mounted," United States v. Boylan, 898 F.2d 230, 258 (1st
Cir. 1990); see also Walsh, 75 F.3d at 7. In this case, the
court's process was a textbook model of conscientiousness, and so
far from an abuse of discretion that it is difficult to take
Meader's complaint seriously.
The
court
promptly
conferred with counsel about how to proceed
when alerted to the possible juror taint, it ordered a transcript
of the jury selection process so that it could accurately review
the new information in light of what previously had occurred, it
heard testimony from the witness who had brought the juror's
-8-
possible bias to the defendant's attention, and it discussed with
the parties how best to proceed in keeping with both the First
Circuit's
admonition
against unnecessary juror contact and the need
to ferret out the juror's true attitudes. Indeed, the court
overcame
its
reluctance
to question the juror directly in deference
to defendant's preference.
The process of questioning the juror also was marked by
commendable attention to the various interests at stake. So that
the juror would not be unduly alarmed or prepare ahead for
questioning
on the bias issue, she was asked to appear in court by
means of a regular jury summons. The attorneys were given the
opportunity
to submit questions to the court, but were kept on the
sidelines
during
the
actual questioning to contain the formality of
the proceeding. After completing the preliminary questions, the
court excused the juror and consulted with counsel about possible
additional
areas of inquiry. Its rejection of defendant's request
to question the son as well, or to allow him to be questioned by
investigators, was carefully considered and supportable.2 Its
2 On this point, the court wrote, in substantial part:
First, I am crediting the account of Mr. Decato --
the defendant's employee, witness and boyfriend of his
daughter
--
as to what the young man said to Mr. Decato.
. . . Second, now that I have interviewed the juror and
she is fully aware that her son is the cause of the
inquiry, I am concerned that to bring her son in by
subpoena
or
to
send
an
FBI agent and private investigator
to interview him (as was proposed by the lawyers) would
unnecessarily increase the juror's apprehension and
concern that her son is now in trouble notwithstanding
her explanation of what took place. Third, to pursue
from her son things that the juror may or may not have
said to him would be embarking on a fishing expedition
-9-
substantial written opinion fully explained the basis of its
conclusions.
Nor is the court's finding that the juror was not
prejudicially biased assailable. The dialogue between the court
and
the
juror
recounted
above reveals that the juror understood her
obligation to keep her own subjective, though related, feelings
outside of the deliberation process, and that, as the court
observed, she gave the defendant "the benefit of the doubt."
Assessment of the juror's credibility as she responded to the
questioning is uniquely the domain of the district court, and, to
borrow the government's language, her "clear, responsive, and
forthright responses provided ample reason to credit her
assertions."
Thus, we find no basis connected to the court's handling of
the domestic abuse issue upon which to disturb the jury's
verdicts.3
contrary to the admonitions of the appellate courts to
keep the jury process and the jurors themselves free of
unnecessary intrusions. Finally, any interview I might
conduct of the son now would clearly be preceded by a
frank and candid discussion between juror and son,
thereby making any such interview of limited value.
Order at 4-5.
3
We
find no merit in Meader's additional suggestion that the
jury as a whole engaged in misconduct by deliberating before the
conclusion of all the evidence. The district court's response to
this contention in its Order was both adequate and appropriate.
See Order at 9-10.
-10-
III. Career Offender Status
Meader
claims that the district court erred in sentencing him
as a career offender under U.S.S.G. S 4B1.1, which provides for
enhanced sentences if a defendant's criminal history satisfies
three criteria: (1) he was at least 18 years old at the time he
committed the offense for which he is being sentenced; (2) that
offense
is
a
felony that either constituted a crime of violence or
a
controlled
substance offense; and (3) the defendant has at least
two prior felony convictions for either crimes of violence or
crimes involving controlled substances. Meader concedes most of
these requirements, including one of the two necessary "predicate
offenses."4 The only issue in dispute is whether his criminal
history includes a second such offense.
The
district
court
based
its finding of career offender status
on two 1988 Maine convictions for statutory rape and unlawful
sexual
contact
with
a
child under the age of fourteen, finding that
they qualified as "crimes of violence" within the meaning of the
guidelines.5 Meader contends that neither was properly counted.
The issue is one of law, and our review is therefore de novo.
United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994).
4 Meader does not dispute that his 1982 conviction for the
sale of narcotics constitutes such an offense.
5 At some points during the sentencing hearing, the district
court seemed to deal with the two offenses as one, and its "crime
of violence" determination seemed to apply only to the statutory
rape conviction. Whether or not the court meant its ruling to
include
both
convictions
does not matter for purposes of this case,
however, since only one additional offense is needed to trigger
career offender status.
-11-
A "crime of violence" under the guidelines is any state or
federal offense punishable by a year or more in prison 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 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. S 4B1.2(1). Application note 2 to the provision
elaborates on the meaning of "crime of violence" by listing
additional crimes that fall within its scope, including murder,
manslaughter, kidnapping, and forcible sex offenses.
Because neither of the two Maine sexual offenses includes as
an element the use or threat of physical force,6 it is undisputed
that in order to qualify as "crimes of violence" they must fall
under
the
"otherwise" clause of S 4B1.2, and therefore be offenses
that present "a serious potential risk of physical injury." The
district court, noting that the requisite risk is of any physical
injury, found that "there is a strong likelihood of some physical
injury,
however minor the injury might be in the range of possible
physical injuries that can happen to a human body in sexual
intercourse
with
a
13-year-old female." The court drew support for
its
conclusion from a Maine Supreme Court case, State v. Rundlett,
6 The two offenses were denominated as rape, Me. Rev. Stat.
Ann. tit. 17-A, S 252, and unlawful sexual contact, id. at S 255.
The conviction for rape required the jury to find only that the
defendant had engaged in sexual intercourse with another person,
not his spouse, who was not yet fourteen. The conviction for
unlawful sexual contact similarly required a finding that the
defendant had subjected another person, not his spouse, to sexual
contact when that other person was not yet fourteen and he was at
least three years older.
-12-
391 A.2d 815 (1978), that linked passage of the state's statutory
rape provision to a concern about physical injury to young girls,
id. d medical literature on injuries caused to
young adolescent females by sexual intercourse with adult males.7
Thus, combining its own perceptions with this precedent and
supporting material, the district court held that the Maine
convictions triggered career offender status.
M
at
819,
and
that
cite
eader
takes
issue
with
this finding on multiple fronts. His
primary argument is that the district court failed to follow the
well
established "categorical" approach for deciding the "crime of
violence"
issue, see, e.g., Winter, 22 F.3d at 18, and that, if it
had,
its
conclusion would have been different. He emphasizes that
the rape statute embraces a wide variety of consensual acts,
including
those between two individuals who are both under the age
of fourteen, and imposes liability without culpability.
Consequently, he asserts, many, if not most, circumstances of
statutory rape would not involve a likelihood of the sort of
accompanying violence that was targeted by the career offender
guideline. Therefore, viewed from a categorical perspective, he
maintains
that statutory rape under Maine law cannot be classified
as a crime of violence.
The sentencing court's inquiry is not as confined as Meader
posits
it
to
be. Meader is correct that the standard approach for
7 Quoting from a 1977 article in a clinical obstetrics and
gynecological journal, the Maine court reported: "'These injuries
are most frequently minor and include abrasions, hymenal
transections, first-degree vaginal tears, and perianal tears.'"
State v. Rundlett, 391 A.2d 815, 819 (1978).
-13-
determining whether a particular crime fits within the "crime of
violence" rubric is a generic one, in which inquiry is restricted
t ory definitions of the prior offenses, without regard
the particular facts underlying them, see Taylor v. United
States, 495 U.S. 575, 600 (1990);8 Winter, 22 F.3d at 18; United
States v. DeJesus, 984 F.2d 21, 23 (1st Cir. 1993) ("formal
categorical
approach
.
.
. is the method of choice" for determining
"crime
of
violence"). Thus, in United States v. Doe, 960 F.2d 221
(1st Cir. 1992), we concluded that the crime of being a felon in
possession of a firearm was not a crime of violence despite the
o
the
statut
to
fact
that
the defendant in that case possessed the gun while lying
in
wait
for
an enemy to come out of a restaurant. This conclusion
was warranted under the formal categorical approach, we held,
because the conduct that typically constitutes firearm possession
(keeping a gun in a closet, a car, a pocket) is not likely to
include accompanying violence. Id. at 224-25.
Application Note 2 to guideline section 4B1.2, however,
explicitly
identifies the defendant's charged conduct, rather than
8 Taylor involved the definition of a "violent felony" for
purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. S
924(e), which we have noted is "the same in all material respects
as the definition of a 'crime of violence' for purposes of the
sentencing guidelines' career offender provision." United States
v.
Bell
,
966
F.2d 703, 704 (1st Cir. 1992). Given the similarity,
"authority interpreting one phrase frequently is found to be
persuasive in interpreting the other phrase," United States v.
Winter
,
22
F.3d
15,
18
n.3 (1st Cir. 1994). See also United States
v.
Fiore
,
983
F.2d
1,
4
(1st Cir. 1992) (relying in career offender
context
on
interpretation of ACCA's "identically worded 'otherwise'
clause" because the two contexts represent "a distinction without
a
difference").
Accord
U
nited States v. Wood, 52 F.3d 272, 275 n.2
(9th Cir. 1995).
-14-
the general offense category, as the focus of the "otherwise"
c See
o
"the
conduct
set
forth i.e., expressly charged) in the count of
which
the
defendant was convicted"). The district court therefore
was explicitly authorized to review the charging papers.9
Meader's focus on a categorical analysis is not entirely off
the mark, however, because even when inquiry beyond the statutory
language is appropriate, we have held that the scrutiny should
remain
categorical
rather than become fact-specific, see Winter, 22
F.3d at 19:
[T]he court should not plunge into the details of a
particular
defendant's conduct, but, rather . . . should
merely assess the nature . . . of the . . . activity as
described in the indictment and fleshed out in the jury
instructions.
cord United States v.
lause.
U.S.S.G. S 4B1.2, comment. (n.2) (directing attention
t (
Ac Wood, 52 F.3d 272, 275 (9th Cir. 1995).
This is what the district court did. Using only the facts
9
A
second basis for looking beyond the statutory language is
Taylor v. United States, 495 U.S. 575, 602 (1990), where
the
Supreme
Court carved out a narrow exception to the categorical
found in
approach for cases in which the statute of conviction covers
conduct
both
inside
and
outside the "crime of violence" sphere. In
such
instances,
the
sentencing court may look to the information or
indictment and jury instructions to ascertain whether the conduct
that was the basis for the conviction constituted a crime of
violence. See Winter, 22 F.3d at 18; United States v. Doe, 960
F.2d 221, 224 (1st Cir. 1992). Here, for example, where the
statute
of
conviction covers a wide range of sexual crimes -- from
an adult's violent rape of a child to the consensual sexual
intercourse
of
two
teenagers -- it was permissible under Taylor for
the district court to review the charging papers and jury
instructions to determine whether the jury in deciding to convict
"necessarily
had
to
find" force, see Taylor, 495 U.S. at 602, which
would bring the conviction directly within the list of qualifying
crimes contained in the Application Note. See U.S.S.G. S 4B1.2,
comment.
(n.2)
(identifying "forcible sexual offenses" as crimes of
violence). There was, however, no allegation in the indictment,
and thus no jury finding, of force.
-15-
contained
in
the indictment, the court identified the issue before
it as "whether sexual intercourse with a 13-year-old female or
sexual touching of a 13-year-old female by a 36-year-old male . .
. 'by its nature presented a serious potential risk of physical
injury' to the 13-year-old female."
This
careful
articulation of the question provides the target
for Meader's second-tier assault on the court's methodology. He
argues
that,
assuming the court acted properly in referring at all
to the indictment, it was improper to rely on factors as specific
as the victim's gender and the age disparity between the two
individuals.
He
points
out that the statute is gender neutral, and
that the specific age difference was irrelevant to the conviction
(beyond
the
three-year
gap required by the sexual contact offense).
Focusing
too
narrowly, Meader contends, will inject disparity back
into the sentencing procedure, undermining the rationale of
consistency that supports the categorical approach.
In Meader's view, therefore, once scrutiny of the charging
papers revealed no allegation of force, a categorical analysis
required the conclusion that this conviction was not a violent
crime within the meaning of the Guidelines. He emphasizes that
this result is consistent with the intent of the Sentencing
Commission,
which
listed
sexual offenses as crimes of violence only
when
they
were "forcible." See supra at 12. Indeed, he maintains
that
using
a
conviction for underage sexual relations without that
requirement "runs contrary to the stated purpose of the act, to
focus law enforcement efforts on 'those who commit a large number
-16-
of fairly serious crimes as their means of livelihood.'
Appellant's Brief at 45 (citing , 495 U.S. at 587).
e
do
not
accept
the
prop
"
Taylor
W osition that the guidelines permit no
more refined scrutiny than an examination of whether the charging
documents
(or jury instructions) include an explicit allegation of
force.
The
question for the sentencing court here was whether the
defendant's conduct, by its nature, posed a serious risk of
physical injury. Although the use of force in virtually every
instance could be expected to create a serious risk of injury, it
is not the only way in which the guideline standard could be met.
The age of the girl and the chronological gap between her and the
defendant were crucial facts that framed the nature of the crime,
and were relevant to the question of injury.10
Other circuits have treated the issue in similar fashion,
linking
their determinations that sexual contact with a minor is a
crime of violence to the specific age of the victim. See, e.g.,
United
States v. Shannon, 110 F.3d 382, 388-89 (7th Cir. 1997) (en
banc) (limiting holding to thirteen-year-olds and younger, though
statute
applied
to
persons under the age of sixteen); Wood, 52 F.3d
at 275 (accepting government argument that "anytime an adult
engages in sexual contact with a four year old child, there is
10 We recognize that the specific age disparity is stated in
the unlawful sexual contact count, not in the rape count. Since,
however, the court clearly had justification in considering the
disparity in the sexual contact count and the jury found guilt on
both
counts,
our
inquiry
need reach no farther. Moreover, it would
be excessively artificial to require a court to overlook the
indictment information relating to one count which so clearly
increases its understanding of the nature of the statutory rape
charged in the other count.
-17-
always
a
serious
potential risk of physical injury"); United States
Rodriguez
11
license to focus at that level of particularity seems inherent in
the
sentencing
court's
authority to evaluate the conduct "expressly
charged."
Having
approved the district court's procedure, we can easily
endorse
its
conclusion. If commonsense is inadequate to establish
that there is a strong likelihood of some physical injury when a
thirteen-year-old girl has sexual intercourse with a man nearly
three times her age, the medical literature cited by the Maine
Supreme Court substantiating that view completes the support.12
11 Rodriguez involved enhanced punishment for illegal entr
v. , 979 F.2d 138, 140 (8th Cir. 1992) (involving
lascivious acts with children "of the tender age of ten"). The
into the United States by a deported alien who had been convicted
o ence that are defined somewhat differently
y
f
certain
crimes
of
viol
from the career offender context; rather than involving a
substantial risk of physical injury, a crime of violence in this
immigration setting must involve a substantial risk of physical
force. See U.S.S.G. S 2L1.2(b)(2) & 18 U.S.C. S 16.
12
We
find unpersuasive Meader's argument that the Sentencing
Commission could not have intended convictions for statutory rape
to trigger career offender status, if they did not involve an
element
of
force, because they do not reflect the sort of longterm
commitment
to
crime
that
the career offender guideline was designed
to punish. See generally Taylor, 495 U.S. at 587 (enhancement
provision in ACCA focused on "those who commit a large number of
fairly serious crimes as their means of livelihood"). First, the
language of the "otherwise" clause is broadly written, presumably
to ensure capture of any crime posing a serious risk of physical
injury. Second, a criminal history that satisfies the career
offender requirements by means of any crime serious enough to
possibly
cause
injury
to
a person is not, in our view, inconsistent
with the objective of the guideline to punish more heavily those
who commit serious crimes and also have a significant criminal
history.
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We
recognize
in so deciding that we have bypassed a number of
troubling
and
complex
iss
the conduct charged -- could be classified as a crime of violence
the e
considered to pose a "serious potential risk of physical injury"
for
a
minor.13
Indeed,
even determining what is meant by "physical
injury" is a task fraught with complexity, as evidenced by the
contrasting views of the Seventh Circuit judges in Shannon, 110
F.3d at 388-90.14
These are issues that we believe courts, and particularly
s
appeals courts, have neither the expertise nor the authority to
ues that would need to be addressed before
tatutory
rape
at
its
mos i.e., regardless of
for federal sentencing purposes. Perhaps foremost among them i
standard age below which sexual intercourse typically may b
13
s t categorical level --
If statutory rape is to be classified generically as a
crime of violence for purposes of the federal sentencing
guidelines,
the
actionable age should be the same regardless of the
state in which the crime occurred. Yet, in a recent decision on
whether to classify statutory rape as a crime of violence, the
Seventh
Circuit, sitting en banc, reported that states vary widely
in setting the age above which sex with a minor is not made
felonious,
in
the
absence of aggravating circumstances. See United
States
v.
Shannon
,
110
F.3d 382, 386 (7th Cir. 1997) (en banc). In
Illinois, for example, the age is seventeen; in Wisconsin, it is
sixteen; in Pennsylvania, it is thirteen. Moreover, not all such
statutes
are
justified by the risk of physical injury. Id. As we
indicate below, these inconsistencies call for action at a
policymaking level.
14 In holding that the sexual assault by an almost eighteen-
year-old against an almost fourteen-year-old was a crime of
violence, the majority of the en banc court focused primarily on
the risk of pregnancy or disease. 110 F.3d at 388. In a
concurrence, Judge Manion, joined by Judge Kanne, stated his view
that
"the
risk
of
physical injury referred to in the Guideline must
be confined to the act of intercourse, not the possible
consequences
that
could
develop, such as pregnancy or disease." Id.
at 390.
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resolve
in
the first instance,15
of cases in this area, should be handled expeditiously b
Meader argues that, in the meantime, we should invoke
courts deciding that sexual offenses involving minors
and that, in light of the growing
number y
the Sentencing Commission and Congress. Accord Shannon, 110 F.3d
at 389.16
Some
be classified as crimes of violence have framed their
holdings broadly, however, notwithstanding the lack of supporting
data. , e.g., United States v. Velazquez-Overa, 100 F.3d 418,
422 (5th Cir. 1996) (Texas offense of sexual contact with a child
under 17 is a crime of violence within the meaning of 18 U.S.C. S
16); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.
should
15
See
1993) (holding that sexual abuse of a child is crime of violence
within meaning of 18 U.S.C. S 16 because "when an older person
attempts
to
sexually
touch a child under the age of fourteen, there
is always a substantial risk that physical force will be used to
ensure the child's compliance"); United States v. Bauer, 990 F.2d
373, 375 (8th Cir. 1993) (per curiam) (holding generally that
sexual intercourse with a female child under 16 is a crime of
violence). It should be noted that the first two cases involved
the
definition of "crime of violence" contained in 18 U.S.C. S 16,
focusing
on
the
risk
of
physical force rather than physical injury.
The third case, Bauer, is a brief per curiam that relied almost
entirely
on
the
Eighth
Circuit's earlier decision in Rodriguez, 979
F.2d at 140, which was more circumscribed (question of first
impression whether commission of lascivious acts with a child, in
the manner Rodriguez admits he committed the crime, qualifies as
crime of violence).
Other courts, as noted earlier, have referred to the
defendant's specific conduct and/or focused on the minor's age in
reaching their conclusions. See, e.g., United States v. Shannon,
110 F.3d 382, 389 (7th Cir. 1997) (en banc) (sexual intercourse
with a 13-year-old is a crime of violence; statute criminalized
sexual contact or intercourse with child under 16); United States
v. Taylor, 98 F.3d 768, 773-74 (3d Cir. 1996) (holding that
indecent exposure was crime of violence based on facts alleged in
indictment showing that victim was "forced onto a bed and
restrained while [defendant] commit[ted] a sexual act upon her");
Wood, 52 F.3d at 275 (sexual contact with a four-year-old always
poses serious risk of violence).
16 In Shannon, the en banc Seventh Circuit, in reversing the
panel's 2-1 ruling that the district court had erred in enhancing
the
defendant's sentence based on a previous conviction for sexual
assault,
recognized the difficulty of the issue and observed "[w]e
cannot
be
certain that we have gotten it right." 110 F.3d at 389.
The panel majority had emphasized the fact that the prior crime
involved intercourse between two teenagers, the 17-year-old
-20-
the
rule
of
lenity
to
exclude his conviction from predicate offense
It is unnecessary to do so. Whatever the dividing line
betw
status.
een sexual offenses that constitute crimes of violence and
those that do not, we are confident that the circumstances here
fall well within the "crime of violence" category.
We therefore hold that, because defendant's conviction under
Maine's
statutory
rape
law involved conduct that created a "serious
potential risk of physical injury to another," that offense
qualifies as a crime of violence under the federal sentencing
guidelines. Meader thus having two such convictions, he properly
was sentenced as a career offender.
Affirmed.
defendant and a 13-year-old girl, and stated that such conduct
between
two
minors cannot automatically be deemed violent. See 94
F.3d 1065, 1072 (7th Cir. 1996).
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