350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux

Docket NºCR-03-41-B-W.
Citation350 F.Supp.2d 275
Party NameUNITED STATES of America, v. David CADIEUX, Defendant.
Case DateDecember 22, 2004
CourtUnited States District Courts, 1st Circuit, United States District Court (Maine)

Page 275

350 F.Supp.2d 275 (D.Me. 2004)

UNITED STATES of America,

v.

David CADIEUX, Defendant.

No. CR-03-41-B-W.

United States District Court, D. Maine.

Dec. 22, 2004

David W. Bate, Law Office of David W. Bate, Bangor, ME, for David Cadieux, Defendant.

Gail Fisk Malone, Office of the U.S. Attorney, District of Maine, Bangor, ME, for USA, Plaintiff.

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PRESENTENCE ORDER

WOODCOCK, District Judge.

This Court concludes Defendant's two prior convictions under Massachusetts law for Indecent Assault and Battery on a Minor Under Fourteen qualify as "violent felonies" within the meaning of the Armed Career Criminal provision, 18 U.S.C. § 924(e)(2)(B).

I. INTRODUCTION

On July 9, 2003, David Cadieux was charged by Superseding Indictment with possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). 1 Pursuant to a written Plea Agreement, on July 19, 2004, Mr. Cadieux entered a Rule 11(c)(1)(C) guilty plea to the charge. Fed.R.Crim.P. 11(c)(1)(C). The Plea Agreement contained the following stipulations the parties agreed were binding on the Court:

a. Defendant's sentence will be determined by applying U.S.S.G. § 2K2.1;

b. The base offense level applicable to Defendant is 14, pursuant to U.S.S.G. § 2K2.1(a)(6) 2; and,

c. Defendant's criminal history category is II.

It provided further:

If the Court determines that either the base offense level or the criminal history category is higher than as agreed by the parties, or departs upward from the sentencing guideline range that would otherwise apply to Base Offense Level 14 at Criminal History Category II, the Defendant may withdraw his guilty plea.

After entry of the plea, the Probation Office prepared a Presentence Investigation Report. The Report made recommendations inconsistent with the parties' stipulations. First, the Probation Office found Mr. Cadieux had one felony conviction for a crime of violence under U.S.S.G. § 2K2.1(a)(4) and calculated the base offense level to be 20. Second, it calculated his criminal history category as III. Third, it concluded Mr. Cadieux had committed three prior violent felonies 3 and, therefore, applied the Armed Career Criminal provisions of U.S.S.G. § 4B1.4, which increased his offense level to 33 and his criminal history category to IV.

The marked disparity between the Plea Agreement and the Presentence Investigation Report is due solely to Mr. Cadieux's criminal history. 4 For purposes of this

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Order, Mr. Cadieux's criminal history began on November 13, 1980, when he was 20 years old. He was convicted in the Commonwealth of Massachusetts District Court of Breaking and Entering in the Nighttime with Intent to Commit a Felony Larceny. Without doubt, this conviction counts as a predicate offense under 18 U.S.C. § 924(e)(1). 18 U.S.C. § 924(e)(2)(B)(ii) ("the term, 'violent felony' means any crime ...that is burglary...."). 5 Mr. Cadieux's criminal history continues with two additional convictions: 1) an April 20, 1983 conviction for Indecent Assault of a Child Under the Age of Fourteen (three counts) in Massachusetts District Court; and, 2) a November 29, 1989 conviction for Indecent Assault of a Child Under the Age of Fourteen in Massachusetts Superior Court. Mr. Cadieux contends these two later crimes should not be counted as "violent felonies" under 18 U.S.C. § 924(e)(1).

On December 17, 2004, Mr. Cadieux's case was scheduled for sentencing. Having received the Presentence Investigation Report, the parties requested that the Court rule whether his prior convictions would constitute predicate offenses for purposes of the Armed Career Criminal Act (ACCA). The Court ruled from the bench that Mr. Cadieux's three prior convictions were violent felonies within the meaning of the ACCA. This Court indicated it would issue a formal opinion on the issue. Following this ruling, Mr. Cadieux was allowed to withdraw his guilty plea to the pending charge and he did so.

II. DISCUSSION

A. Violent Felony Under the Armed Career Criminal Act.

Under the ACCA, a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony must be imprisoned not less than fifteen years. 18 U.S.C. § 924(e)(1). 6 The term "violent felony" is defined in 18 U.S.C. § 924(e)(2)(B):

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...

"Violent felony" is analogous to "crime of violence" under the Career Offender provisions of § 4B1.1. For purposes of analysis, the First Circuit has determined that there are "no material differences" between

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definitions 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.2d 667 (1998); United States v. Winter, 22 F.3d 15, 18 n. 3 (1st Cir.1994); United States v. Bell, 966 F.2d 703, 704 (1st Cir.1992). This Court looks to case law defining both "violent felony" and "crime of violence" to determine whether the offense of indecent assault and battery on a child under the age of fourteen is a violent felony for purposes of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.

In Taylor v. United States, the United States Supreme Court mandated a "categorical approach" under the ACCA, holding that the statute "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). To determine whether a crime fits the "crime of violence" definition, the Court is to proceed "without regard to the particular facts" underlying it. Meader, 118 F.3d at 882. However, if a statute could encompass both violent and nonviolent crimes, a trial court may "go beyond the fact of conviction ... [and] examine the indictment or information and jury instructions in order to discern which type of crime the offender was convicted of perpetrating." United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (citation omitted). The First Circuit has held that crimes of violence are those "which calls to mind a tradition of crimes that involve the possibility of more closely related, active violence." United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). In that vein, to decide whether a statutory crime constitutes a "crime of violence," the Court may examine "the typical run of conduct" for the offense. Sherwood, 156 F.3d at 221.

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B. Cadieux's Argument.

Cadieux argues an indecent assault and battery on a child under fourteen does not qualify as a violent felony within the meaning of § 924(e)(2)(B) for two reasons: (1) the "use, attempted use, or threatened use of physical force" is not an element of indecent assault because the crime may be committed with the victim's actual consent; and, (2) indecent assault does not "present a serious potential risk of physical injury to another" in the "typical run of conduct" for such a crime. The Court disagrees with both points.

1. The 1983 Conviction: Absence of Consent.

The statute under which Mr. Cadieux was convicted in 1983 read:

Whoever commits an indecent assault and battery on a child under the age of fourteen shall be punished by imprisonment in the state prison for not more than ten years, or by imprisonment in a jail or house of correction for not more than two and one-half years...

Mass. Gen. Laws ch. 265, § 13B (1983). In 1983, § 13B had not yet been amended to provide that a child under the age of fourteen cannot consent to an indecent assault and battery. Thus, when Mr. Cadieux pleaded guilty to this crime in 1983, an absence of his victims' consent was an element of the crime. Commonwealth v. Green, 399 Mass. 565, 505 N.E.2d 886, 886 (1987) (As of June, 1984, lack of consent "was an element of the crime which the Commonwealth was required to prove in a prosecution for a violation of G.L., Ch. 265, § 13B."); Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622, 627 (1983); Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220, 1221 (1984).

As of 1983, therefore, a violation of § 13B, Indecent Assault and Battery on Child Under Fourteen, had the same element of non-consent as a violation of§ 13H, Indecent Assault and Battery on Person Over Fourteen. Mass. Gen. Laws Ch. 265, § 13H. 8 Maghsoudi v. INS, 181 F.3d 8, 14-15 (1st Cir.1999) (lack of consent is an element of indecent assault on a person fourteen or older under § 13H). A violation of § 13H has been held to be a conviction of a "crime of violence." Sutherland v. Reno, 228 F.3d 171, 175-77 (2d Cir.2000); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004); Sango-Dema v. INS, 122 F.Supp.2d 213, 219 (D.Mass.2000). Mr. Cadieux's argument on the 1983 conviction is based on the erroneous premise that the conviction should not count, because non-consent was not an element. In fact, non-consent was an element of § 13B in 1983 and under the rationale well-expressed in Sutherland, Lepore, and Sango-Dema, the 1983 conviction for violation of § 13B is a "violent felony" under § 924(e)(2)(B). 9

2. The 1989 Conviction: Victim Incapable of Consenting.

This leaves the 1989 conviction for indecent assault and battery on a child, a

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violation of § 13B. In 1986, Massachusetts amended § 13B to add the following sentence:

In a prosecution under this section, a child under the...

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