U.S. v. Sacko

Decision Date30 June 2000
Docket NumberNo. C.R. 97-36T.,C.R. 97-36T.
Citation103 F.Supp.2d 85
PartiesUNITED STATES v. George SACKO.
CourtRhode Island Supreme Court

James H. Leavey, Edwin J. Gale, Asst. U.S. Attorney's Office, Providence, RI, for Plaintiff.

Edward C. Roy, Jr., Roy & Cook, Providence, RI, for Defendant.

Memorandum and Order

TORRES, Chief Judge.

                Procedural History ............................................................87
                Findings of Fact ..............................................................88
                Conclusions of Law ............................................................89
                     I. Risk of Injury ........................................................90
                
                        A. Seriousness ........................................................90
                        B. Likelihood of Injury ...............................................90
                    II. Assessment of Risk.....................................................90
                        A. Sources of Risk ....................................................90
                        B. Quantifying the Risk ...............................................91
                Conclusion.....................................................................91
                

This case has been remanded by the Court of Appeals so that this Court may "take evidence" and make findings "on the issue whether the crime of sexual penetration of a fourteen year-old by someone over the age of eighteen involves conduct presenting a serious potential risk of physical injury to the former." United States v. Sacko, 178 F.3d 1, 6 (1st Cir.1999). If so, that crime would be classified as a "violent felony" that triggers the sentencing enhancement provisions of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1).

After considering the testimony and exhibits presented at an evidentiary hearing, I answer that question in the affirmative.

Procedural History

On July 8, 1997, Sacko pled guilty to a two-count indictment charging possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of an unregistered silencer by a convicted felon, in violation of 26 U.S.C. § 5861(d). The government sought a sentencing enhancement under ACCA, which applies to persons with "three previous convictions ... for a violent felony," 18 U.S.C. § 924(e)(1), and defines "violent felony" to include:

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 explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

Id. § 924(e)(2)(B)(ii)(emphasis added).

Prior to the instant conviction, Sacko had been convicted of assault with a dangerous weapon; assault with intent to murder; and third degree sexual assault,1 which encompasses what commonly is referred to as statutory rape.

Rhode Island's "third degree sexual assault" statute provides that:

A "person" is guilty of third degree sexual assault if he or she is over the age of eighteen (18) years and engaged in sexual penetration with another person over the age of fourteen (14) years and under the age of consent, sixteen (16) years of age.2

R.I. Gen. Laws § 11-37-6.

Over Sacko's objection, this Court treated the third-degree sexual assault as a "violent felony" and sentenced Sacko as an armed career criminal pursuant to 18 U.S.C. § 924. In reaching that conclusion, the Court relied, in part, on the undisputed account of the offense contained in Sacko's Presentence Report ("PSR"). The PSR stated that Sacko met the victim on the street; induced her to accompany him to his residence; directed her to take her clothes off; and then had sexual intercourse with her. Three other men, then, entered the room, causing the victim to flee, and she reported the incident to police.

On appeal, the First Circuit noted that, in determining whether a predicate offense is a "violent felony," the sentencing court "should employ a `formal categorical approach,' and generally `look only to the fact of conviction and the statutory definition of the prior offense.'" Sacko, 178 F.3d at 3. The Court did recognize that "[a] sentencing court may go beyond the fact of conviction in those cases where the statute encompasses both violent felonies (e.g., generic burglary) and non-violent felonies (e.g., burglary of a vehicle rather than of a building)". Id. However, it stated that, even in such cases, the sentencing court may not go beyond the "indictment or information and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." Id. Accordingly, the First Circuit held that this Court erred in considering the description of the prior offense contained in the PSR even though that account was undisputed. Id. at 5.

In remanding, the First Circuit noted that it previously had held the statutory rape of a 13-year-old girl by a 39-year-old man to be a "violent crime" under ACCA, because of "(1) the age of the girl; (2) the large chronological gap between the victim and the defendant; and (3) the medical literature regarding the possible physical injuries to the girl as a result of sexual intercourse with the defendant." Id. (citing United States v. Meader, 118 F.3d 876 (1st Cir.1997)). However, the Court stated that it was unable to say, a priori, whether or not "sex is [ ] physically dangerous for a 14 year old girl" because it had no "studies or medical journals to ground such a holding." Id. at 6.

The First Circuit also noted differences of opinion in other circuits as to whether the inquiry is limited to the risk of immediate physical injury from the act of intercourse, itself, or whether it extends to heightened risks of abnormal pregnancy and sexually-transmitted diseases. Id. The First Circuit took no position on this issue, but stated that if this Court does not find that the risks of physical injury during penetration are sufficient to meet the "serious potential risk of physical injury" standard, it should address the risks of pregnancy and contracting sexually-transmitted diseases as well. Id.

Findings of Fact

After carefully considering the record previously compiled; the testimony of Dr. Carole Jenny, a pediatrician and professor of pediatrics at Brown University Medical School; the written opinion of Dr. Andrea M. Vandeven, the acting medical director of the Child Protection Team at Children's Hospital in Boston; the medical literature and other exhibits presented by the parties; and the stipulations and arguments of counsel; I hereby find the facts relevant to the remand order to be as follows.

At the time of his conviction for third degree sexual assault, Sacko was 22 years old and the victim was 14.

Based on the Tanner system for measuring physical development, a female passes through five stages in progressing from a pre-pubertal child to a fully-developed adult woman. The stages are marked by changes in breast and genital development.

A girl at stage 1 or 2 almost certainly will sustain physical damage or injury upon having sexual intercourse with an adult male. Such injuries would be classified as serious and would include tearing of tissue and damage to the vagina, the hymen and the introitus. A girl who has reached stage 3 may or may not experience physical injury from the act of intercourse, and most girls who have reached stage 4 can engage in sexual intercourse without tissue damage.

Thirty-three percent of adolescent girls do not reach Tanner stage 4 until sometime after attaining the age of 14. Twelve percent do not reach stage 4 until after attaining the age of 15.

In addition to the risk of immediate tissue damage, adolescent girls also are at a greater risk of contracting sexually transmitted diseases (STD's) because even into the late adolescent years, the cells lining the cervix are not as tough as those found in a fully-developed mature woman, and they are more metabolically active. One such disease is chlamydia trachomatis, a devastating variety of STD that can lead to tissue damage and sterility. Susceptibility to genital tract infections also is heightened by the fact that the mucus secretions produced by an adolescent girl are less than those produced by a mature woman. Finally, since the blood vessels in an adolescent's cervix are much closer to the surface and therefore more easily traumatized, adolescent girls are more vulnerable to being infected by the AIDS virus.

Some of these diseases not only are more damaging to an adolescent girl; but, also, are more likely to recur in adolescents because adolescents are less able to develop an immunity to such infections.

In addition to these immediate and short-term risks, intercourse also subjects adolescent girls to increased long-term health risks that include a greater likelihood of contracting genital cancer and/or experiencing complications in pregnancy.

These facts support the opinion expressed by Dr. Jenny that sexual penetration of a 14-year old female by a male over the age of 18 "involves conduct presenting a serious potential risk of physical injury to the female." That opinion was not directly controverted by Dr. Vandeven, Sacko's expert. Dr. Vandeven merely stated that: "Given the following facts: that (1) a fourteen-year-old female had sexual intercourse with a twenty-year-old man, that (2) she did not become pregnant, and that (3) she did not contract a sexually transmitted disease, I can state that, given the physical maturity and genital anatomy of most African-American fourteen-year-olds, she would most likely not have sustained physical harm or injury as a direct result of the sexual intercourse." (Letter from Andrea M. Vandeven, M.D., Jan. 20, 2000.)

Dr. Vandeven's opinion is less persuasive with respect to the issue presented for two reasons. First, it rests on several factual assumptions that are both unsupported by...

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    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
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