United States v. Daniels, 10th Cir. (2002)
United States v. Daniels, 10th Cir. (2002)
MAY 20 2002
PATRICK FISHER
Clerk
No. 01-1469
(D.C. No. 01-CR-13-D)
(D. Colorado)
Defendant-Appellant.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Whether Mr. Daniels state felony conviction for sexual assault on a child is
a crime of violence is a question of law that we review
Mr. Daniels argues that his prior conviction was not a crime of violence
because a class 4 felony under 18-3-405 does not include in its definition force
or threats of force as an element of the crime. He contends that because he was
convicted of sexual contact, the least severe unlawful sexual conduct under the
Colorado Criminal Code, he is not guilty of a crime of violence. He states that
sexual contact with a child under the age of fifteen does not present a risk of
physical injury.
To evaluate his arguments, we look to the definition of crime of violence
set forth in USSG 4B1.2(a):
(a) The term crime of violence means any offense under federal or
state law, punishable by imprisonment for a term exceeding one year,
that
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(2)
(Emphasis added.) If Mr. Daniels conviction for sexual assault on a child fits the
or otherwise category of offenses described in 4B1.2(a)(2), it is not necessary
that the offense had as an element the use or threatened use of physical force, and
his base offense level was properly increased by the district court.
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In United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993), this court
addressed the question of whether attempted sexual abuse of a child of twelve
could be considered a crime of violence within the meaning of 18 U.S.C. 16.
The offense in question in Reyes-Castro did not involve physical force as an
element of the crime. Id. at 379. However, we concluded that [b]ecause the
crime involves a non-consensual act upon another person, there is a substantial
risk that physical force may be used in the course of committing the offense.
It does not matter whether physical force is actually used. Id. (emphasis added).
We further concluded that
[a] common sense view of the sexual abuse statute, in combination
with the legal determination that children are incapable of consent,
suggests that when an older person attempts to sexually touch a child
under the age of fourteen [below the age of consent in Utah], there is
always a substantial risk that physical force will be used to ensure
the childs compliance.
Id.
A more analogous case would be United States v. Coronado-Cervantes,
154 F.3d 1242 (10th Cir. 1998), which involved determining whether sexual
contact with a child under the age of twelve was a crime of violence within the
or otherwise clause of USSG 4B1.2(a)(2). In Coronado-Cervantes we again
took the common sense approach and determined, that by its very nature, the act
of engaging in sexual contact with a minor presented a serious potential risk of
injury to [the] victim and thus should be considered a crime of violence under
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See also Colo. Rev. Stat. 14-2-106 (1997) (requiring the consent of both parents
for a person under the age of eighteen to marry); Colo. Rev. Stat. 13-22-101
(1997) (requiring a person be eighteen years of age to be competent to contract,
manage their estate, sue, and make decisions regarding their body).
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II.
Mr. Daniels also argues on appeal that the district court erred in denying
a downward departure in his sentencing. Generally, we lack jurisdiction to
review a sentencing courts discretionary refusal to depart from the guideline
range. See United States v. Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999).
Mr. Daniels acknowledges that such discretionary decisions are largely
unreviewable. However, he maintains that an exception occurs if a court
erroneously believes it does not have the authority to depart from the sentencing
guideline range.
This exception has a very narrow application. [T]he courts of appeals
cannot exercise jurisdiction to review a sentencing courts refusal to depart from
the sentencing guidelines except in the very rare circumstances that the district
court states that it does not have any authority to depart from the sentencing
guideline range for the entire class of circumstances proffered by the defendant.
United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (citations omitted).
We will not assume the district court was unaware of its discretion to depart
downward from the guidelines, even if the district court is silent on the point.
United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996). [U]nless the
judges language unambiguously states the judge does not believe he has authority
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John C. Porfilio
Circuit Judge
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