United States v. Austin, 426 F.3d 1266, 10th Cir. (2005)
United States v. Austin, 426 F.3d 1266, 10th Cir. (2005)
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 04-1387
I. Background
In his plea agreement, Mr. Austin agreed to plead guilty to possession of a
firearm by a prohibited person in violation of 18 U.S.C. 922(g)(1), but disputed
the governments contention his sentence should be increased based on his prior
Colorado state conviction for Attempted Sexual Assault on a Child under
Colorado Revised Statute 18-3-405(1), which he asserted did not constitute a
crime of violence as proscribed by United States Sentencing Commission,
Guidelines Manual (U.S.S.G.) 2K2.1(a)(2) and defined under U.S.S.G. 4B1.2
and its commentary. The probation officer who prepared the presentence report
nonetheless recommended a base offense level increase of four levels, from 20 to
24, based on the prior Colorado conviction, which he characterized as a crime of
-2-
violence but also noted involved a legal issue for the court to determine. Prior
to the sentencing hearing, the Supreme Court issued its decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Thereafter, in objecting to the
presentence report, Mr. Austin again objected to the characterization of his prior
conviction as a crime of violence and, in light of Blakely, also objected to the
mandatory application of the Sentencing Guidelines in determining his sentence.
The district court held a sentencing hearing at which it denied Mr. Austins
objections to the mandatory application of the Sentencing Guidelines and the
characterization of his prior state conviction as a crime of violence. Rather
than considering any of the alleged facts underlying the prior conviction as
contained in the presentence report and an affidavit submitted in the state case, 1
the district court instead considered only the statutes involved and the charging
documents, including Mr. Austins admissions at his state court plea and
sentencing hearing, to determine if his prior conviction met the definition of a
-3-
The statute to which Mr. Austin pled guilty, Colorado Revised Statute 183-405(1), is titled Sexual assault on a child and states: [a]ny actor who
knowingly subjects another not his or her spouse to any sexual contact commits
sexual assault on a child if the victim is less than fifteen years of age and the
actor is at least four years older than the victim. Under Colorado law sexual
contact is defined as:
[T]he knowing touching of the victims intimate parts by the actor, or
of the actors intimate parts by the victim, or the knowing touching
of the clothing covering the immediate area of the victims or actors
intimate parts if that sexual contact is for the purposes of sexual
arousal, gratification, or abuse.
Colo. Rev. Stat. 18-3-401(4). A corresponding statute entitled Unlawful
sexual contact states:
Any person who knowingly, with or without sexual contact, induces
or coerces a child by any of the means set forth in section 18-3-402
to expose intimate parts or to engage in any sexual contact, intrusion,
or penetration with another person, for the purpose of the actors own
sexual gratification, commits unlawful sexual contact. For the
purposes of this subsection (1.5), the term child means any person
under the age of eighteen years.
See Colo. Rev. Stat. 18-3-404(1.5). In addition, in Colorado, consent of both
parents is required for a person under the age of eighteen to marry, and a person
must be eighteen years of age to be competent to contract, manage his or her
-4-
estate, sue and be sued, and make decisions regarding his or her own body. See
Colo. Rev. Stat. 14-2-106 (regarding parental consent) and 13-22-101
(concerning age of competency).
Mr. Austin now appeals his sentence on grounds the district court erred in
characterizing his prior conviction as a crime of violence and mandatorily
applying the Sentencing Guidelines to determine his sentence. The government
concedes the district court erred in mandatorily sentencing Mr. Austin under the
applicable Sentencing Guidelines, but nevertheless continues to contend Mr.
Austin committed a violent crime under the otherwise ... risk of physical
-7-
II. Discussion
A. Arguments Concerning Characterization of Prior Conviction
In contesting the characterization of his prior conviction as a crime of
violence, Mr. Austin suggests Colorado Revised Statute 18-3-405(1) is
ambiguous as to whether he committed a violent crime because it covers both
invasive and noninvasive sexual assault conduct. He bases this premise on the
fact the statute contains as an element sexual contact, which includes the mere
touching of a childs intimate parts through clothing and which, he contends,
does not otherwise involve conduct which presents a serious potential risk of
physical injury to another. In addition, Mr. Austin contends lack of consent
cannot be considered because it is not an element of 18-3-405(1). While Mr.
Austin acknowledges he admitted at his plea hearing to touching the minor girls
vagina, he insists we should only apply a least culpable act test and assume he
did the least culpable act possible for conviction under the statute, which would
involve the mere consensual touching of a young girls clothing covering her
intimate parts. Mr. Austin further suggests, without supporting evidence in the
charging document or in his admissions, that the facts in this case establish the
age difference between himself and the girl involved was just barely over ... four
-8-
years and that the conduct was somewhat consensual in nature. Mr. Austin
further asserts no aggravating circumstances warrant characterizing his conduct
as a crime of violence because the victim was not under the age of twelve, the
act did not involve incest, and he was not an adult family friend or relative. As
an example, he suggests the situation was like two teenagers in the same high
school engaging in consensual touching of the clothing covering the girls
intimate parts which, he contends, would certainly not constitute a crime of
violence. Finally, he contends the government failed to carry its burden in
offering medical or statistical evidence to show a girl of fourteen, or almost
fifteen, could be physically injured by sexual contact involving the mere touching
of her intimate parts through her clothing.
The government relies on this and other circuit court precedent to urge us
to make a per se determination that, by its nature, the statutory conduct for which
Mr. Austin pled guilty constitutes a crime of violence or, alternatively, that his
factual admissions establish he committed a crime of violence. Based on Mr.
Austins own admissions, the government contends he committed a crime of
violence and contests his characterization of the offense as consensual and
involving the mere touching of the clothing covering the girls intimate parts.
It also points out that the least culpable analysis suggested by Mr. Austin would
-9-
-10-
-11-
We agree with the district court that 18-3-405 does not contain the
elements outlined in 4B1.2 because it does not require the use, attempted use,
or threatened use of physical force against the person of another. U.S.S.G.
4B1.2 cmt. n.1. The government also does not suggest Mr. Austin's statutory or
admitted conduct fits within the expressly enumerated example of forcible sex
offenses and therefore we do not address it. 2 Rather, both parties concentrate on
the second prong of 4B1.2 to determine whether Mr. Austin's prior conviction
otherwise involve[s] conduct that presents a serious potential risk of physical
injury to another. U.S.S.G. 4B1.2(a)(2).
-13-
issue, sexual contact with a child under the age of fifteen, is inherently a crime
of violence, the government relies on an array of Tenth Circuit cases, including
United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998); and United
States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). In Reyes-Castro, this court
determined attempted sexual abuse of a child under the age of fourteen is a crime
of violence, as defined by 18 U.S.C. 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 childs compliance.
Id. at 379 (emphasis added). In that case, the Utah statute at issue stated a person
commits sexual abuse of a child by the touching of the anus, buttocks, or
genitalia of any child, the breast of a female child younger than fourteen years of
age, or otherwise takes indecent liberties with a child ... with the intent to arouse
or gratify the sexual desire of any person regardless of the sex of any participant.
Id. at 378-79 (quoting Utah Code Ann. 76-5-404.1(1)). Another Utah statute on
which the court relied stated that sexual abuse of a child under the age of fourteen
is without consent. Id. at 379 (relying on Utah Code Ann. 76-5-406). Rather
than applying 4B1.2, which is at stake here, Reyes-Castro involved application
of 18 U.S.C. 16, which also defines a crime of violence as an offense that
has as an element the use, attempted use, or threatened use of physical force
against the person or property of another but, rather than the risk of physical
-14-
injury in 4B1.2, it considers whether the crime involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense. 18 U.S.C. 16 (emphasis added).
Id. at 1244-45.
-16-
However, as Mr. Austin suggests, both cases rely on 18 U.S.C. 16, which
defines a crime of violence differently than U.S.S.G. 4B1.2. In explaining the
differences, we have determined the 4B1.2(a)(2) definition involving the risk
of resulting physical injury is much broader than the 16(b) definition involving
the risk of physical force ... in the course of committing the offense, which we
held requires destructive or violent force. See United States v. VenegasOrnelas, 348 F.3d 1273, 1275-77 & n.2 (10th Cir. 2003), cert. denied, 125 S. Ct.
494 (2004). In United States v. Lucio-Lucio, 347 F.3d 1202, 1207 (10th Cir.
2003), we explained the failure to recognize the difference between 16 and
4B1.2 would collapse the distinction between these two differently-worded
definitions. Thus, Mr. Austin directs us to consider only whether his conduct
presented a serious potential risk of physical injury under 4B1.2 and not rely on
cases considering the risk of physical force under 16.
The government counters by pointing out that this court has repeatedly held
16 cases provide persuasive value in 4B1.2 sexual abuse cases. In support, it
relies not only on Coronado-Cervantes, but United States v. Vigil, 334 F.3d 1215
(10th Cir.), cert. denied, 540 U.S. 1026 (2003). In Vigil, we held a fathers
sexual penetration of his eighteen-year-old daughter constituted a crime of
violence under 4B1.2. Id. at 1217, 1224. In that case, we also relied on cases
-17-
sixteen (16) years of age or older, in a lewd and lascivious manner and without
the consent of that person. Id. at 1195. We rejected the defendants argument
that mere nonconsensual touching of an arm or leg in a lewd or lascivious manner
could not entail either violence or a serious potential risk of injury, noting the
Oklahoma statute made such nonconsensual touching of any body part a sexual
battery and therefore a crime of violence. Id. at 1196-98. Relying on our
decision in McCann v. Bryon L. Rosquist, D.C., 185 F.3d 1113 (10th Cir. 1999),
cert. granted, judgment vacated on other grounds, 529 U.S. 1126 (2000), we
explained that lack of consent to physical sexual abuse, which we held in that
case implicated a substantial risk of physical force, could similarly implicate a
serious risk of physical injury under 4B1.2. Id. at 1197-98. We further
determined the possibility that a crime may be completed without injury is
irrelevant to the determination of whether it constitutes a crime of violence within
the meaning of 4B1.2, and held the serious risk of bodily injury is a constant
in cases involving sexual battery. Id. at 1198.
Comparing the underlying statutory elements in this and the Rowland case,
it is clear the instant case contains more aggravating elements than Rowland
because the victim here was at least two years younger than the victim in
Rowland, and the Colorado statutes at issue pertain to the touching of a minors
-19-
intimate parts, not merely any body parts, as did the Oklahoma statute. Given we
held in Rowland that the nonconsensual touching of any body part of a person
sixteen years of age or older may entail a serious risk of physical injury under
4B1.2, we find it difficult to reconcile that the touching of the intimate parts
(which in this case was the victims vagina) of someone less than fifteen years old
would not likewise potentially cause a risk of physical injury. While Mr. Austin
points out that Rowland was based, in part, on lack of consent, we discern little
difference because Colorado has determined eighteen to be the age of consent;
therefore, under its statutes, a person under the age of fifteen cannot consent. See
Colo. Rev. Stats. 18-3-404(1.5) (stating that for sexual assault cases child
means any person under the age of eighteen); 14-2-106 (regarding parental
consent required for marriage under the age of eighteen); and 13-22-101
(identifying eighteen as age of competency).
opinions is not favored. See 151 F.R.D. 470 (10th Cir. 1993) (containing General
Order of November 29, 1993); 10th Cir. R. 36.3. However, if an unpublished
opinion or order and judgment has persuasive value with respect to a material
issue in a case and would assist the court in its disposition, we allow citation to
that decision. Id.
The government also directs us to our decision in McCann for the purpose
of discussing the injuries sustained by either minors or adults experiencing sexual
abuse. 185 F.3d at 1120. In that case, we discussed not only the requisite
physical force required by 18 U.S.C. 16, but the resulting injuries of sexual
abuse caused by the inappropriate fondling and rubbing of nonconsenting adult
womens buttocks, breasts, and genital areas, both clothed and unclothed, stating,
the imposition of nonconsensual sexual contact, whether brought about by brute
force or ... by trick and abuse of authority, might itself be considered a form of
violence, capable of causing mental and emotional injury no less severe than the
physical injury caused by a blow. Id. at 1115, 1120. We further determined that
such an act, by its nature evinces a clear intention to disregard the victims
dignity and bodily autonomy and creates a substantial risk of more serious
physical intrusion .... Id. at 1120.
Because of our previous concerns with collapsing the distinction between the
differently-worded definitions in 18 U.S.C. 16 and U.S.S.G. 4B1.2, see LucioLucio, 347 F.3d at 1207, we find those cases less persuasive than those involving
4B1.2, but nevertheless recognize their general consensus that sexual abuse in
touching a minor inherently, or by its nature, constitutes a crime of violence
because it involves a risk of substantial physical force. See United States v. AlasCastro, 184 F.3d 812, 813-14 (8th Cir. 1999) (pertaining to sexual contact
through the touching of the intimate parts or the clothing covering the intimate
parts of one fourteen or younger by one nineteen or over for sexual gratification);
United States v. Velazquez-Overa, 100 F.3d 418, 421-23 (5th Cir. 1996)
(regarding sexual contact with a child under the age of seventeen); Ramsey v. INS,
55 F.3d 580, 583-84 (11th Cir. 1995) (concerning handling, fondling, or assault of
a child under the age of sixteen in a lewd, lascivious, or indecent manner). See
also United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992) (concerning
the fondling or touching of a minor childs pubes or genitals by one eighteen or
older).
by its nature, or inherently, presents a serious risk of physical injury and thereby
constitutes a crime of violence, 3 which we find more persuasive than those
circuit decisions involving 16. Since our determination in Coronado-Cervantes,
at least four more circuits have considered the 4B1.2 definition and continued to
conclude that sexual abuse through the inappropriate touching of a minor presents
a serious risk of physical injury and thereby constitutes a crime of violence.
See, e.g., United States v. Granbois, 376 F.3d 993, 995-96 (9th Cir.) (determining
conviction under federal statute prohibiting sexual contact, including the
touching, either directly or through the clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of a child between the ages of twelve and sixteen
by one at least four years older, is per se an offense which presents a serious
potential risk of physical injury to another, and basing its determination on prior
precedent that regardless of which Sentencing Guidelines definition of violent
crime is involved, sexual contact with a minor falls within the category of a
crime of violence), cert. denied, 125 S. Ct. 640 (2004); United States v. Pierce,
278 F.3d 282, 287-89 (4th Cir. 2002) (holding conviction under North Carolina
-24-
statute which prohibits any lewd or lascivious act on any body part of a child age
sixteen or under by another at least five years older is by its nature a crime of
violence given, in part, the legislatures intent to protect impressionable children
from psychological injury or damage from overt sexual acts); United States v.
Campbell, 256 F.3d 381, 396-97 (6th Cir. 2001) (concluding conviction under
Michigan statute for sexual contact with a person age thirteen to sixteen of the
same blood affinity presents a serious potential risk of physical injury even
though crime could occur through mere consented touching); and United States v.
Sherwood, 156 F.3d 219, 221 (1st Cir. 1998) (holding conviction under Rhode
Island statute prohibiting sexual contact, which includes the intentional
touching of the victims intimate parts, clothed or unclothed, for sexual arousal,
gratification, or assault, constituted a crime of violence).
another person who is less than seventeen years of age is categorically a crime of
violence under 924(e)(1)), petition for cert. filed (Aug. 30, 2005) (No. 056149).
least two years younger than the victim in Houston and who, by statute, cannot be
deemed to have consented, together with a perpetrator at least four years older
than the victim, rather than someone only three years older, as in Houston.
someone over the age of eighteen involves conduct presenting a serious potential
risk of injury. 178 F.3d at 6. We note both Sacko and Thomas were decided prior
to Shepard and therefore they do not discuss whether the admission of evidence
concerning the general risk of injury to minors is outside the evidence allowed
when examining a prior conviction. 125 S. Ct. at 1257.
benefits of premarital intercourse or to take good care of herself and her fetus;
and who would otherwise constitute a high-risk pregnancy if impregnated. Id. at
387-88. Stating that statutory rape is more often thought of as a morals offense
than as a crime of violence, it nevertheless determined the aggravating factors
involved in the case established the risk of physical injury which, under 4B1.2,
would constitute a crime of violence. Id. at 388-89. In explaining its rationale,
the court recognized that the statute at issue also covered sexual contact, which
can be as noninvasive as fondling a breast or buttock through clothing, which, it
stated, might disturb a young person, but ... would be highly unlikely to cause
physical injury. Id. at 387.
also Sherwood, 156 F.3d at 222 (explaining the Seventh Circuit, in Shannon, did
not hold that sexual touching could not constitute a crime of violence, and
explaining the contrasting views of the Seventh Circuit judges merely evidence
the troubling and complex issues involved in determining what crimes constitute
crimes of violence).
-30-
conviction for the nonconsensual touching of the body parts of a victim over the
age of sixteen, as prohibited by state statute, created a risk of physical injury
under 4B1.2. Arguably then, our only categorical determination in this case, as
posed by Mr. Austin, would be whether the mere touching of a minor childs
clothing covering her intimate parts could pose a serious risk of physical injury
for the purposes of 4B1.2. 5 Such an inquiry is of first impression in this court
and would no doubt require reconciling this case with our decision in McCann,
where we held nonconsensual sexual touching of the clothing covering even an
adult's intimate parts could cause mental and emotional injury. 185 F.3d at 1115,
1120.
However, we need not make any such determination in the instant case.
Even if we agree with Mr. Austin that the statute of conviction covers a
nonviolent crime because it includes the touching of clothing covering a childs
intimate parts, Mr. Austin's prior conviction still meets the definition of a crime
of violence based on his admissions at his plea and sentencing hearing, which
presented aggravating circumstances beyond what he terms the least culpable
-31-
-32-
she was with his sister for the purpose of attending a slumber party and not for a
teenage sexual liaison. It is apparent that, because of his adult age, familial
relationship with his sister, and the fact the slumber party involved his sister's
friend, he was an adult family friend or at least enjoyed a position of trust which
he abused when he sexually assaulted the minor girl. Clearly, when a girl under
the age of fifteen attends something as innocent as a slumber party, no one
expects her to experience sexual assault by someone at least four years her senior
who goes beyond touching her clothing in a provocative, sexual way, to actual,
physical sexual contact with her vagina for his own admitted sexual gratification.
Moreover, we must reject Mr. Austin's assertion the act was consensual,
given Colorado has determined a person under the age of eighteen is incapable of
such consent. Colo. Rev. Stats. 13-22-101; 14-2-106; 18-3-404(1.5). In
addition, our determination is bolstered by the commonly accepted determination
that sexual abuse of children typically occur[s] in close quarters and [is]
generally perpetrated by an adult upon a victim who is not only smaller, weaker,
and less experienced, but is also susceptible to acceding to the coercive power of
adult authority figures. United States v. Melton, 344 F.3d 1021, 1028 (9th Cir.
2003), cert. denied, 541 U.S. 953 (2004); Campbell, 256 F.3d at 396; Sherwood,
her vagina.
-33-
156 F.3d at 221; Velazquez-Overa, 100 F.3d at 422 (emphasis added). Thus, Mr.
Austin's admissions disclose his conduct went beyond what he himself describes
as the statutes most nonviolent conduct of consensual touching of the clothing
covering the victims intimate parts.
In addition, Mr. Austin fails to reconcile his argument the government must
provide medical or other evidence that touching the vagina of a girl less than
fifteen years old could cause physical injury with our precedent in Rowland,
holding the mere nonconsensual touching of the body parts of a victim over the
age of sixteen, as prohibited by state statute, created a risk of physical injury
under 4B1.2, see 357 F.3d at 1197-98, and our decision in McCann that
nonconsensual sexual touching of even an adult is capable of causing mental and
emotional injury. 185 F.3d at 1120. His argument the government must provide
medical and statistical proof of injury also ignores the underlying discretion of
each state's legislature to consider such information itself and reasonably decide
the potential risk of injury based on a childs age and then to pass legislation to
protect that category of minor victims from such injuries. 8 Moreover, none of the
This is evidenced not only by the statute under which Mr. Austin was
convicted, which establishes a narrow group of children under the age of fifteen it
intends to protect, but the fact that the Colorado legislature has deemed the age of
consent to be eighteen, which is higher than many other states where courts have
examined statutory law concerning sexual contact with a minor. See, e.g.,
8
-34-
Colorado statutes at issue require proof of injury for conviction, and to now
require such proof would contravene those statutes and require a fact finding
inquiry into a prior conviction instead of the required examination of undisputed
information. See Damon, 127 F.3d at 145. Given we are not basing our
determination solely on a categorical analysis of the statute, Mr. Austin's
contention we must view statistical or medical evidence concerning the injurious
impact of his past conduct goes beyond our limited scope, under Shepard, of
examining only the charging documents and his admissions. 125 S. Ct. at 1257.
Finally, for the purposes of this case, we reject Mr. Austin's request we
must employ what he calls the least culpable act test to assume he did the very
least culpable act possible for conviction under the statute, which he contends
involves the mere touching of the young girls clothing over her intimate parts. It
is clear that if we employed such a test to an ambiguous statute without
F. Sentence Length
Because Mr. Austin raised his claim concerning the mandatory application
of the Sentencing Guidelines during the district court proceedings, we review it
for harmless error. See United States v. Labastida-Segura, 396 F.3d 1140, 1143
(10th Cir. 2005). We have said that [i]n non-constitutional harmless error cases,
the government bears the burden of demonstrating, by a preponderance of the
evidence, that the substantial rights of the defendant were not affected. See
United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005).
-36-
In this case, Mr. Austin contends, and the government concedes, that
despite Mr. Austin's Blakely objection at sentencing, the district court mandatorily
applied the Sentencing Guidelines in determining his sentence length and then
sentenced him at the bottom of the guidelines range. Given he was sentenced at
the bottom of the range, the government summarily concedes our decision in
Labastida-Segura dictates and Mr. Austin's sentence length must be remanded for
consideration in light of both Booker and Blakely.
III. Conclusion
For the foregoing reasons, we AFFIRM Mr. Austins sentence with respect
to his prior conviction constituting a crime of violence but otherwise
REMAND his sentence for a determination in accordance with Booker and this
decision.
-37-