178 F.3d 1 (1st Cir. 1999), 97-2386, United States v. Sacko

Docket Nº97-2386
Citation178 F.3d 1
Opinion JudgeTORRUELLA, Chief Judge.
Party NameUNITED STATES, Appellee, v. GEORGE SACKO, Defendant, Appellant
AttorneyMark J. Gardner, by appointment of the Court, for appellant. James H. Leavey, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee.
Judge PanelBefore Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.
Case DateMarch 15, 1999
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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178 F.3d 1 (1st Cir. 1999)

UNITED STATES, Appellee,

v.

GEORGE SACKO, Defendant, Appellant

No. 97-2386

United States Court of Appeals, First Circuit

March 15, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Ernest C. Torres, U.S. District Judge.

Mark J. Gardner, by appointment of the Court, for appellant.

James H. Leavey, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, was on brief, for appellee.

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

OPINION

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TORRUELLA, Chief Judge.

The defendant, George Sacko (" Sacko" ), was arrested in December 1996, and charged with: (1) possession of firearms by a convicted felon, and (2) possession of a silencer by a convicted felon. On July 8, 1997, Sacko pled guilty to both counts. The district court determined that Sacko was an armed career criminal under 18 U.S.C. § 924(e)(1) because of three previous Rhode Island convictions for: (1) assault with a dangerous weapon; (2) assault with intent to murder; and (3) statutory rape or, as it is described under Rhode Island General Laws, sexual assault in the third degree. Sacko was sentenced, as a level 31 Category VI offender, to 212 months imprisonment and five years of supervised release to be served concurrently on each count.

DISCUSSION

The only issue before us is the propriety of the district court's sentencing of Sacko as an armed career criminal by virtue of his previous conviction for statutory rape under Rhode Island law. The Rhode Island statutory rape statute punishes a person over the age of eighteen who engages in sexual penetration with another person over the age of fourteen and under the age of consent, which is sixteen years of age. See R.I. Gen. Laws § 11-37-6 (1989). Under the Armed Career Criminal Act (" ACCA" ), this enhancement was only proper if Sacko's conviction was for a " violent felony." 18 U.S.C. § 924(e)(1). 1 The district court determined

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that it was such a crime. This issue is one of law, and our review is de novo. See United States v. Meader, 118 F.3d 876, 881 (1st Cir. 1997), cert. denied, 522 U.S. 1064, 139 L.Ed.2d 667, 118 S.Ct. 729 (1998).

Section 924(e)(2)(B) defines a " violent felony" as follows:

The term " violent felony" means 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.

Under Taylor v. United States, 495 U.S. 575, 109 L.Ed.2d 607, 110 S.Ct. 2143 (1990), whether a predicate offense qualifies as a crime of violence requires a " categorical" examination of the statutory crime. Taylor considered whether the defendant's predicate offenses constituted " burglary" as defined in 18 U.S.C. § 924(e), a sentencing enhancement statute. Taylor had been convicted of " burglary" in Missouri at a time when Missouri had seven different statutes under which a person could be charged for that crime. The Supreme Court held that, rather than examining the particular circumstances of the crimes for which the defendant was convicted, a sentencing court should look only to whether the statute of conviction contained the elements of a " generic" burglary and should not inquire whether the specific crime committed was especially dangerous to others. See Taylor, 495 U.S. at 598. The Court defined generic burglary as a crime that consists of: " unlawful and unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. Taylor noted that in some situations the statute of conviction may include elements beyond those of a generic burglary (e.g., entry into places other than buildings). See id. at 599-600.

To address that issue, and other problems of interpretation of § 924(e), sentencing courts should employ a " formal categorical approach," and generally " look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602. 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). See id. In such a situation, the sentencing court may examine the indictment or information and jury instructions in order to discern which type of crime the offender was convicted of perpetrating. See id. The Taylor Court remanded the case so that this determination could be made with respect to Taylor's prior convictions.

After Taylor, our analysis of predicate offenses has followed this categorical approach. See United States v. Damon, 127 F.3d 139, 141-46 (1st Cir. 1997); Meader, 118 F.3d at 881-83 (" The standard approach for determining whether a particular crime fits within the 'crime of violence' rubric is a generic one, in which inquiry is restricted to the statutory definitions of prior offenses, without regard to the particular facts underlying them." ) (citations omitted); United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994); United States v. De Jesus, 984 F.2d 21, 23 (1st Cir. 1993) (" Rather than examining the actual circumstances underlying the earlier conviction, we examine only the statutory formulation of the crime charged . . . to see if that crime is a crime of violence . . . ." ).

The Rhode Island statute, defining third degree sexual assault as it applied in

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1989 at the time of Sacko's conviction, is as follows:

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.

Because the Rhode Island statute does not include as an element the use or threat of physical force, it is undisputed that in order to qualify as a " violent felony," it must fall under the " otherwise" clause of § 924(e)(2)(B), and therefore be an offense that presents " a serious potential risk of physical injury." The district court, in determining the potential risk of physical injury posed by statutory rape, made the following observations:

So what the Court has to determine here is whether statutory rape presents a serious risk, serious potential risk of physical injury to another, and whether that risk is inherent in the usual type of conduct that constitutes the offense . . . .

What the Court has to look at here is what's the typical, usual...

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31 practice notes
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...of "violent felony" under the ACCA and "crime of violence" under the Sentencing Guidelines. 7 United States v. Sacko, 178 F.3d 1, 3 n. 1 (1st Cir.1999); United States v. Meader, 118 F.3d 876, 883 n. 8 (1st Cir.1997), cert. denied, 522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2......
  • United States v. Aguirre, 022714 MADC, 07-10365-JLT
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • February 27, 2014
    ...for assault and battery with a deadly weapon categorically qualified as a violent felony under the ACCA). United States v. Sacko , 178 F.3d 1, 1-2 (1st Cir. 1999) (armed assault with intent to murder is a "violent felony" because it involves serious risk of physical force under 18......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...of "violent felony" under the ACCA and "crime of violence" under the Sentencing Guidelines. 7 United States v. Sacko, 178 F.3d 1, 3 n. 1 (1st Cir.1999); United States v. Meader, 118 F.3d 876, 883 n. 8 (1st Cir.1997), cert. denied, 522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2......
  • 53 RI Bar J., No. 5, Pg. 5 (March/April 2005). Surveying Sex Crimes Law In Rhode Island.
    • United States
    • Rhode Island Bar Journal Nbr. 2005, January 2005
    • January 1, 2005
    ...594 A.2d 882 (R.I. 1991). 21 Id. at 885. 22 Id. at 884. 23 State v. Tobin, 602 A.2d 528 (R.I. 1992). 24 Id. at 535. 25 U.S. v. Sacko, 178 F.3d 1 (1st. Cir. 1999). 26 Id. at 2. 27 Id. at 4. 28 Id. at 6. 29 State v. Yanez, 716 A.2d 759 (R.I. 1998). 30 Id. 31 State v. Aponte, 800 A.2d 420 (R.I......
  • Request a trial to view additional results
30 cases
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...of "violent felony" under the ACCA and "crime of violence" under the Sentencing Guidelines. 7 United States v. Sacko, 178 F.3d 1, 3 n. 1 (1st Cir.1999); United States v. Meader, 118 F.3d 876, 883 n. 8 (1st Cir.1997), cert. denied, 522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2......
  • United States v. Aguirre, 022714 MADC, 07-10365-JLT
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • February 27, 2014
    ...for assault and battery with a deadly weapon categorically qualified as a violent felony under the ACCA). United States v. Sacko , 178 F.3d 1, 1-2 (1st Cir. 1999) (armed assault with intent to murder is a "violent felony" because it involves serious risk of physical force under 18......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Maine
    • December 22, 2004
    ...of "violent felony" under the ACCA and "crime of violence" under the Sentencing Guidelines. 7 United States v. Sacko, 178 F.3d 1, 3 n. 1 (1st Cir.1999); United States v. Meader, 118 F.3d 876, 883 n. 8 (1st Cir.1997), cert. denied, 522 U.S. 1064, 118 S.Ct. 729, 139 L.Ed.2......
  • 103 F.Supp.2d 85 (D.R.I. 2000), C.R. 97-36, United States v. Sacko
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Rhode Island
    • June 30, 2000
    ...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 o......
  • Request a trial to view additional results
1 books & journal articles
  • 53 RI Bar J., No. 5, Pg. 5 (March/April 2005). Surveying Sex Crimes Law In Rhode Island.
    • United States
    • Rhode Island Bar Journal Nbr. 2005, January 2005
    • January 1, 2005
    ...594 A.2d 882 (R.I. 1991). 21 Id. at 885. 22 Id. at 884. 23 State v. Tobin, 602 A.2d 528 (R.I. 1992). 24 Id. at 535. 25 U.S. v. Sacko, 178 F.3d 1 (1st. Cir. 1999). 26 Id. at 2. 27 Id. at 4. 28 Id. at 6. 29 State v. Yanez, 716 A.2d 759 (R.I. 1998). 30 Id. 31 State v. Aponte, 800 A.2d 420 (R.I......