278 F.3d 282 (4th Cir. 2002), 00-4701, United States v. Pierce

Docket Nº:00-4701
Citation:278 F.3d 282
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALVIN JAMES PIERCE, Defendant-Appellant.
Case Date:January 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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278 F.3d 282 (4th Cir. 2002)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALVIN JAMES PIERCE, Defendant-Appellant.

No. 00-4701

United States Court of Appeals, Fourth Circuit

January 10, 2002

Argued: September 28, 2001

Corrected February 14, 2002

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Lacy H. Thornburg, District Judge. (CR-00-54)

Page 283

[Copyrighted Material Omitted]

Page 284

Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge Wilkins joined. Judge Gregory wrote a dissenting opinion.

COUNSEL ARGUED: Eric A. Bach, Charlotte, North Carolina, for Appellant. C. Nicks Williams, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr., United States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

We are presented with the single issue of whether Alvin Pierce's prior conviction for taking indecent liberties with a child, in violation of N.C. Gen. Stat. S 14-202.1, constitutes a predicate "crime of violence" for purposes of enhancing his sentence in the instant case as a "career offender" under the Sentencing Guidelines, U.S.S.G. S 4B1.1. Applying a categorical approach to the determination of career-offender status, we conclude as a matter of law that the state felony offense of taking indecent liberties with a child constitutes a crime of violence under U.S.S.G. S 4B1.1 both because it amounts to a forcible sex offense and because it creates a serious potential risk of physical injury. Accordingly, we affirm the district court's sentence of Pierce as a career offender.

I

On April 21, 1999, Alvin Pierce robbed a branch of the Branch Banking & Trust in Charlotte, North Carolina; on July 30, 1999, Pierce robbed a branch of the Wachovia Bank in Charlotte; and on August 11, 1999, Pierce robbed a branch of Central Carolina Bank in Charlotte. After being indicted for bank robbery and bank larceny in connection with each incident, in violation of 18 U.S.C. SS 2113(a) and 2113(b), Pierce pleaded guilty to three counts of bank robbery. The district court sentenced Pierce as a career offender under U.S.S.G. S 4B1.1 and imposed a 188-month term of imprisonment for each count of conviction, to be served concurrently.

In sentencing Pierce as a career offender, the district court relied on two prior felony convictions, one in 1995 for bank robbery, in violation of 18 U.S.C. S 2113(a), for which he was sentenced to 57 months' imprisonment; and one in 1992 for taking indecent liberties with a child, in violation of N.C. Gen. Stat. S 14-202.1, for which he was sentenced to five years' imprisonment. Although Pierce did not object to the district court's use of the bank robbery conviction as a predicate offense for finding career-offender status, he did object to use of the indecent liberties conviction, arguing that the offense did not constitute a "crime of violence" as required by U.S.S.G. S 4B1.1.

In concluding that the indecent liberties offense did indeed constitute a crime of violence, the district court "specifically . . . noted that the particular incident involved a young seven year old daughter of [Pierce's] girlfriend." When defense counsel noted that the age of the victim was not stated in the charging document, the court Page 285

accepted into evidence a 1992 memorandum from the Greensboro Parole Services Department prepared in connection with the case. That report noted that the victim was seven-and-one-half years old at the time of the crime and described the crime as follows:

The victim stated that this defendant made her watch dirty movies. She stated that he made her touch his penis and that he had fondled her genital area. The child was examined by a doctor and there had been no penetration evident, but the vaginal area was irritated. The victim also stated that this had happened on numerous occasions when her mother was away from the home and that this had begun at age six. The victim, when examined by a doctor, tested positive for Chlamydia, which is a sexually transmitted disease.

Pierce objected to the district court's use of the parole services report because it violated the categorical approach mandated for considering predicate offenses.

In addition, Pierce took the witness stand and testified on his own behalf, denying that he took any indecent liberties with the child. He stated that the charge was "concocted" as the result of a custodial dispute and clarified that the child was his seven-year old daughter.

From the district court's judgment, Pierce noticed this appeal raising only the issue of whether the district court erred in finding that his prior conviction for indecent liberties with a child was a crime of violence for the purpose of applying career-offender status. He argues that under the categorical approach, the court should not have considered facts not contained in the charging document and that the charging document itself only alleges, in statutory language, a violation of N.C. Gen. Stat. S 14-202.1. He asserts that, because the statutory language does not require physical force or touching, the offense is not a crime of violence.

II

Section 994(h) of Title 28 directs that the United States Sentencing Commission provide sentences "at or near the maximum" for defendants convicted of crimes of violence or drug crimes if those defendants have also twice previously been convicted for crimes of violence or drug crimes. Section 4B1.1 of the Sentencing Guidelines, which implements Congress' directive, thus enhances sentences for defendants who are "career offenders." This section defines a "career offender" as any defendant who (1) is at least 18 years old at the time he commits the instant offense; (2) is convicted of a felony that is either a crime of violence or a drug offense; and (3) has at least two prior felony convictions of either a crime of violence or a drug offense. U.S.S.G. S 4B1.1. A defendant found to be a career offender under S 4B1.1 is sentenced at a criminal history Category VI and at specified minimum offense levels. Id.

As used in S 4B1.1, "crime of violence" means any offense, whether federal or state, 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 potential risk of physical injury to another.

U.S.S.G. S 4B1.2(a). The relevant application notes amplify the definition, stating that crimes of violence include "murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit,

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and burglary of a dwelling," as well as any offense that, "by its nature, present[s] a serious potential risk of physical injury to another." U.S.S.G. S 4B1.2, cmt. n.1. Even though the question of whether an offense is a crime of violence is a question of federal law, because the federal law includes the possibility that a predicate offense may be a prior violation of state law, see U.S.S.G. S 4B1.1(a), in considering such an offense, we look to state law to determine its nature and whether its violation is a crime of violence under federal law.

The question presented in this case, therefore, is whether the North Carolina felony offense of taking indecent liberties with a child falls within the federal definition of a crime of violence because it is either a "forcible sex offense" or an offense which, "by its nature, presents a serious potential risk of physical injury to another." This is a question of law that we review de novo. United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).

In answering this question, we use the required categorical approach, which takes into account only the definition of the offense and the fact of conviction. United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998); United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991). The principles for application of this approach were adopted from the analogous analysis prescribed in Taylor v. United States, 495 U.S. 575, 588-90 (1990), in which the Supreme Court applied the same categorical approach to determine whether burglary was a predicate crime of violence for armed-career-offender status under 18 U.S.C. S 924(e). See Kirksey, 138 F.3d at 124. In Kirksey, we pointed out that neither Congress nor the Sentencing Commission intended, by relying on predicate offenses in S 4B1.1, to open up the predicate offenses for retrial or reconsideration. See id. If we were to go behind the fact of conviction and attempt to determine the facts of each predicate offense, sentencing would become a series of minitrials for each prior offense, which would be both costly and unreliable.

When the definition of the predicate offense is ambiguous and does not reveal whether it is a crime of violence, we may discover the nature of the offense for which the defendant was actually convicted by looking at the charging document and the jury instructions. See Kirksey, 138 F.3d at 124. But in permitting this, we have admonished that the inquiry must never "involve[ ] a factual inquiry into the facts previously presented and tried." Id. at 124-25.

In the case before us, the district court relied upon the parole services report that was contained in the record but was not included in the charging document to point out that the victim was seven years old. Pierce correctly notes, however...

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