United States v. Williams

United States Court of Appeals
For the First Circuit

No. 07-1354

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.

Christie M. Charles, George F. Gormley, and George F. Gormley,
P.C. on brief for appellant.
Michael J. Sullivan, United States Attorney, and Wendy
Waldron, Trial Attorney, United States Department of Justice, on
brief for appellee.

May 7, 2008
 SELYA, Senior Circuit Judge. This appeal requires us to

answer for the first time the question of whether the interstate

transport of a minor for prostitution in violation of 18 U.S.C. §

2423(a) constitutes a crime of violence within the purview of the

career offender provision of the federal sentencing guidelines.

See USSG §4B1.2(a). That answer is complicated by a recent Supreme

Court decision, which this court has not yet addressed. Working

our way through the precedential labyrinth, we conclude that the

tawdry and purposeful conduct proscribed by the statute presents a

serious potential risk of physical injury to the minor and is

sufficiently similar to the types of crimes enumerated in the

relevant guideline provision. Accordingly, we respond

affirmatively to the question and affirm the sentence imposed

below.

We rehearse here only those facts that are essential to

an understanding and resolution of the issue on appeal. At this

stage of the proceedings, those facts are not genuinely disputed.

During a period that spanned portions of the years 2000

to 2002, defendant-appellant Robert Williams engaged in activities

related to prostitution. On several occasions, he either took or

sent a young girl from Massachusetts into neighboring states to

perform sex acts in exchange for money. While the appellant

maintains that he did not know that the girl was only thirteen

years of age when the trafficking began, he admittedly learned the

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truth on or about July 1, 2001. He nevertheless persisted in his

course of illicit conduct after that disclosure.

On August 3, 2005, a federal grand jury returned a

thirteen-count indictment related to these meretricious activities.

After initially maintaining his innocence, the appellant pleaded

guilty to all twelve counts in which he was named. Although each

of those counts was linked to the prostitution of the minor, four

counts specifically charged the appellant with violating 18 U.S.C.

§ 2423(a).1 That statute proscribes the knowing interstate

transport of a minor for purposes of prostitution.

The presentence investigation report recommended that the

appellant be sentenced as a career offender. At the disposition

hearing, the appellant challenged his purported career offender

status. That challenge centered on whether the offenses of

conviction (or, at least, some of them) constituted crimes of

violence.

Refined to bare essence, the challenge had two parts.

First, in an attempt to distinguish his conduct from conduct that

this court previously had deemed violent, the appellant pointed to

the absence of any charges related to his personal sexual contact

1
The other eight counts variously charged the appellant with
transporting an individual interstate to engage in prostitution in
violation of 18 U.S.C. § 2421; inducing travel to engage in
prostitution in violation of 18 U.S.C. § 2422(a); trafficking
children for sex in violation of 18 U.S.C. § 1591; and conspiring
in sex trafficking and in inducing interstate travel for the
purpose of prostitution in violation of 18 U.S.C. § 371.

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with the minor. Second, the appellant sought to characterize the

underlying activities as a "joint business venture" between himself

and the minor, in which she was a willing participant.

The district court rejected these exhortations and

sentenced the appellant, as a career offender, to a 151-month

incarcerative term.2 This timely appeal followed. In it, the

appellant persists in challenging the district court's

determination that the charges to which he pleaded guilty qualify

him for the career offender enhancement.

To understand the appellant's argument, it is helpful to

survey the architecture of the career offender provision. Under

that provision, a defendant is subject to an enhanced sentence if

(i) he was eighteen years old at the time he committed the instant

offense; (ii) that offense was either a crime of violence or a

controlled substance offense; and (iii) he had at least two prior

felony convictions for either crimes of violence or controlled

substance offenses. USSG §4B1.1(a). In this instance, the first

and third requirements are not in issue. The appellant was forty-

five years of age when he first encountered the minor and his

criminal history includes the requisite number and kind of

predicate offenses. Thus, this appeal turns on whether any of the

offenses to which the appellant pleaded guilty in the court below

2
In formulating the sentence, the court afforded the appellant
a credit for acceptance of responsibility. See USSG §3E1.1.

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qualify as crimes of violence. This poses a quintessentially legal

question, which engenders de novo review. United States v. Eirby,

515 F.3d 31, 37 (1st Cir. 2008).

For sentencing purposes, the term "crime of violence" is

a term of art. The guidelines define a crime of violence as:

[A]ny 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.

USSG §4B1.2(a) (emphasis supplied).

Here, none of the offenses of conviction explicitly

includes an element of force. By the same token, none of them

falls within the statutory enumeration of specified crimes.

Consequently, we concentrate our attention on the underscored

statutory language — variously known as the "residual clause" or

the "otherwise clause" — and inquire whether any of the offenses of

conviction presents "a serious potential risk of physical injury to

another."

In pursuing this inquiry, we must follow a two-step

approach. See Taylor v. United States, 495 U.S. 575, 600-02

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(1990).3 That approach pertains both when a court is attempting to

characterize a predicate offense and when a court is attempting to

characterize a current offense. See United States v. Bell, 966

F.2d 703, 706 (1st Cir. 1992).

This two-step approach is categorical: the court's

analysis is "restricted to an examination of how the legislature

has defined the crime, without any concomitant inquiry into the

details of defendant's actual criminal conduct." United States v.

Winter, 22 F.3d 15, 18 (1st Cir. 1994); see Taylor, 495 U.S. at

600. If the court determines that a violation of the statute in

question necessarily involves each and every element of a violent

crime, then the offense is deemed a crime of violence and the

inquiry is at an end. See Eirby, 515 F.3d at 37; Winter, 22 F.3d

at 18.

If, however, the statute's text is broad enough to

criminalize both violent and non-violent conduct, the court must

embark on the second step of the Taylor pavane. In so doing, it

may not undertake a mini-trial of a putative predicate offense, but

it may inspect the record of conviction in order to determine

3
To be sure, the issue in Taylor was whether a predicate
offense constituted a "violent felony" under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). Given the similarity
between the ACCA's definition of "violent felony" and the
definition of "crime of violence" contained in the pertinent
guideline provision, we previously have taken the position that
authority interpreting one phrase is generally persuasive when
interpreting the other. See, e.g., United States v. Winter, 22
F.3d 15, 18 n.3 (1st Cir. 1994).

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whether a defendant was actually charged with an offense that

involved violent or potentially violent conduct. See United States

v. Richards, 456 F.3d 260, 263 (1st Cir. 2006). To satisfy that

criterion "the jury must have been required to find (or, in a

guilty plea context, the defendant necessarily must have admitted)

all the elements of a violent felony." Id.

To trigger the career offender enhancement, it is only

necessary that one of the twelve offenses of conviction qualifies

as a crime of violence. For that reason, we need look no further

than the convictions under 18 U.S.C. § 2423(a) — and we need not go

past the first step in the Taylor pavane.4

We begin our analysis with the penalty involved in the

offense: those who violate section 2423(a) are subject to a term of

imprisonment of "not less than 10 years or for life." Id. Thus,

the level of punishment easily satisfies the requirement that, to

qualify as a crime of violence, an offense must be punishable by

incarceration for more than one year. See USSG §4B1.2(a).

We move next to risk of harm. In this circuit, it is

common ground that most "indecent sexual contact crimes perpetrated

by adults against children categorically present a serious

potential risk of physical injury." United States v. Cadieux, 500

4
The government contends that violations of some of the other
statutes of conviction are sufficient to trigger the career
offender provision. It is not necessary for us to address that
ambitious contention.

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F.3d 37, 45 (1st Cir. 2007) (emphasis in original); see, e.g.,

Eirby, 515 F.3d at 38 (applying principle to a fourteen- or

fifteen-year-old girl); United States v. Sherwood, 156 F.3d 219,

221 (1st Cir. 1998) (applying principle to molestation of a child

under age thirteen); United States v. Meader, 118 F.3d 876, 884

(1st Cir. 1997) (applying principle to statutory rape of a girl

under fourteen); see also Richards, 456 F.3d at 264 (reasoning in

same vein in violent felony case); United States v. Sacko, 247 F.3d

21, 22 (1st Cir. 2001) (same).

These decisions recognize that illicit sexual activity

between an adult and a minor (at least a minor below a certain age)

poses a significant risk that force will be used in the

consummation of the crime. See Eirby, 515 F.3d at 38. This risk

arises because such offenses "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 (citing United States v.

Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)). Moreover,

when the illicit activity involves sexual intercourse, it poses an

additional risk of harm due to the possible transmission of social

or venereal diseases. See United States v. Carter, 266 F.3d 1089,

1091 (9th Cir. 2001); Sacko, 247 F.3d at 24.

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 The appellant offers no compelling rejoinder to this long

line of well-reasoned precedents. He does, however, suggest that

his situation is distinguishable. The distinction, he says, is

that his case is "once removed" from the potentially harmful

conduct because he himself was not sexually active in the

commission of any of the charged offenses but, rather, merely

facilitated others' sexual contact with the minor. The suggestion

that this distinction matters is unpersuasive.

In our view, the fact that the appellant was not

personally intimate with the minor during the commission of any of

the section 2423(a) offenses does nothing to diminish the risk that

force might be used in carrying out the crime. The appellant's

conduct — knowingly transporting the minor for prostitution —

necessarily placed the minor in harm's way and led ineluctably to

a sex act that typically occurred in close quarters between the

minor and an older man unconcerned with her welfare. Thus, the

imbalanced power dynamic that influenced our earlier decisions was

fully operational here. So were the twin likelihoods that force

might be used and that serious physical harm might result.

To cinch matters, the commercial context — the selling of

sex — works against the appellant, not in his favor. It seems

self-evident to us that a prostituted child who is exploited in

violation of section 2423(a) faces more and greater risks than does

a seduced child, including the dual risk of physical abuse by

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either her pimp or her client. See Carter, 266 F.3d at 1091.

Viewed from a different angle, the risk of injury present in any

prostitution scenario is heightened when the situation involves a

minor. See United States v. Curtis, 481 F.3d 836, 838 (D.C. Cir.

2007). And, finally, exposing a young girl to multiple sex

partners obviously adds incrementally to the potential risk of

disease. Taking these realities into account, we have no hesitancy

in concluding that the appellant's conduct actually increased the

level of risk.

The case law, though scanty, bears out this intuition.

In Carter, the Ninth Circuit held that a violation of section

2423(a) constitutes a crime of violence. Carter, 256 F.3d at 1091.

The court assessed the statute categorically and determined that a

prostituted minor faces the risks of "contracting a sexually

transmitted disease" and "assault or physical abuse by the pimp's

customers or by the pimp himself." Id.5

Similarly, the Curtis court held that the prostitution of

a minor in violation of N.J. Stat. Ann. § 2C:34-1(b)(3) qualified

as a crime of violence for career offender purposes. Curtis, 481

F.3d at 838-39. The court stressed that, in such a situation, a

5
The appellant seeks to distinguish Carter on the facts. This
effort is unavailing for it ignores the categorical nature of the
approach that the crime of violence inquiry demands. See Taylor,
495 U.S. at 600-02.

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child faces a significant risk of serious physical harm from both

pimps and customers. Id.

The appellant has a fallback position. He posits that

his offense cannot qualify as a crime of violence because the minor

consented to engaging in what he euphemistically terms a "joint

business venture." To bolster this thesis, he asserts that he

believed that the minor was over eighteen during a substantial

portion of the time in question.6

We find this thesis unconvincing. Even if the minor had

factually consented, that consent would not have been legally

valid. See Mass. Gen. Laws ch. 265, § 23; Commonwealth v. Miller,

432 N.E.2d 463, 464 (Mass. 1982). In all events, factual consent

would not eliminate the potential risks that confronted the child.

See Aguiar v. Gonzales, 438 F.3d 86, 90-91 (1st Cir. 2006) (finding

that the risks to a minor, unable to give legal consent, are not

diminished by factual consent). Just as consent is not a defense

to a prosecution under section 2423(a), see United States v. Lowe,

145 F.3d 45, 52 (1st Cir. 1998), so too consent in this context

does not reconfigure the risk-of-harm calculus.

Up until April 16, 2008, we could have ended our analysis

at this juncture. On that date, however, the Supreme Court handed

6
The appellant's subjective belief is beside the point.
Moreover, the significance of his purported lack of knowledge is
undercut by the fact that two of his four section 2423(a)
violations occurred after the appellant admittedly learned how old
she was.

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down its decision in Begay v. United States, 553 U.S. ___ (2008)

[No. 06-11543, slip op.]. There — well after briefing and

submission of this appeal — the Court effectively charted a new

course in interpreting the critical violent felony definition of

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).

For both prudential and precedential reasons, we have read that

statute and the almost parallel guidelines language at issue here

as being in pari passu. See supra note 3. If that identity is to

be altered, it cannot be done by this panel.

We briefly limn the contours of the Begay decision. The

question there was whether Begay's offense — driving under the

influence of alcohol (DUI) — constituted a violent felony. The

Court answered this question in the negative because DUI offenses

are more comparable to crimes in "which the offender need not have

had any criminal intent at all." Begay, 553 U.S. at ___ [slip op.

at 7-8] (emphasizing that "the conduct for which the drunk driver

is convicted . . . need not be purposeful or deliberate").

The main substantive change that Begay wrought is that

the Court now requires us to focus not only on the degree of risk

of harm posed by a particular crime but also on whether that crime

is similar "in kind" to the enumerated offenses of arson, burglary,

extortion, and the like. Id. at ___ [slip op. at 5]. To help

answer this "in kind" query, the Begay Court adopted a new

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touchstone: asking whether the crime involves purposeful, violent,

and aggressive conduct. Id. at ___ [slip op. at 7].

Because a new test is introduced and because the Court's

decision is itself close, it is hard to be absolutely certain how

a majority of the Justices would apply the test to the crime at

issue here — a crime that falls neither within the safe harbor of

offenses with limited scienter requirements and uncertain

consequences (like DUI, see id. at ___ [slip op. at 8-9]), nor

among those that have deliberate violence as a necessary element or

even as an almost inevitable concomitant. Adjectives like

"purposeful" and "aggressive" denote qualities that are ineluctably

manifested in degree and appear in different combinations;7 they

are, therefore, imprecise aids.

Notwithstanding this new gloss, a strong argument exists

for treating the transport of a minor for prostitution as a violent

crime. Unlike DUI, the crime is purposeful and the perpetrator is

aware of the risks that the prostituted minor will face. The

defendant may well use force to ensure the minor's compliance; but

it is even more likely, and fully foreseeable, that the "clients"

will endanger the minor's safety in various ways. As we have

7
For example, even the crimes enumerated by Congress in the
ACCA and treated as examples satisfy these requirements only in
some measure. Burglary, for instance, can be described as
purposeful but not, at least in most instances, as purposely
violent or necessarily aggressive. Drug trafficking crimes
similarly involve purposeful conduct but are only sometimes violent
or aggressive.

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explained, the crime is implicitly (and sometimes explicitly)

aggressive, and coercion of the minor is virtually inherent.

Admittedly, the case at hand is different in one respect

from most crimes of violence: in other cases, the defendant himself

is usually the agent of the violence (real or potential). Here,

however, the violence often will be carried out by third parties.

But since the risk of harm is so substantial and so easily foreseen

by the defendant, we discern no basis for distinction. Surely,

tying a man to the railroad tracks is an act of violence even

though the oncoming train is the instrument through which

inevitable harm is administered.

We need go no further. Only time and future cases can

tell how the Supreme Court will develop its new definition.8 But

delivering a minor for prostitution appears to us fairly readily to

fall within both the Court's trio of adjectives and Congress's

harm-based statutory definition (incorporated in the relevant

guideline provision). Indeed, it is surpassingly difficult to see

how burglary could be treated as a violent crime yet child

trafficking exempted.

For the reasons elucidated above, we hold that a

violation of section 2423(a) involves purposeful and aggressive

8
Indeed, the Court has just agreed to review the question of
classifying escape crimes. See United States v. Chambers, 473 F.3d
724 (7th Cir. 2007), cert. granted, 553 U.S. ___ (2008)[2008 WL
1775023].

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conduct that presents serious potential risks of physical injury.

The commission of that offense therefore categorically constitutes

a crime of violence within the purview of USSG §4B1.2(a).

Affirmed.

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