U.S. v. Austin, No. 04-1387.

Decision Date14 October 2005
Docket NumberNo. 04-1387.
Citation426 F.3d 1266
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Antone Raymond AUSTIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

John A. Chanin, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant.

Martha Ann Paluch, Assistant United States Attorney (William J. Leone, Acting United States Attorney, and Philip A. Brimmer, Assistant United States Attorney, with her on the briefs), Denver, CO, for Plaintiff-Appellee.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

BRORBY, Senior Circuit Judge.

Appellant Antone Raymond Austin pled guilty to one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). He appeals the enhancement of his sentence based on his prior Colorado conviction for sexual assault on a child, which he contends the district court improperly characterized as a crime of violence, in violation of the Supreme Court's decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, affirm in part, and remand in part.

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 government's 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 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, 159 L.Ed.2d 403 (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. Austin's 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. Austin's admissions at his state court plea and sentencing hearing, to determine if his prior conviction met the definition of a "crime of violence" under U.S.S.G. §§ 2K2.1 and 4B1.2.

The statute to which Mr. Austin pled guilty, Colorado Revised Statute § 18-3-405(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 victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's 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 actor's 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 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).

The formal charging document or "information" to which Mr. Austin pled guilty charged him with a class 4 felony for subjecting another person to "sexual contact" when that person was less than fifteen years old and Mr. Austin was at least four years older. During Mr. Austin's state plea and sentencing hearing, he pled guilty to attempted sexual assault on a child, a class 5 felony, and made the following admissions: 1) he touched the child's vagina; 2) she was at a slumber party with his sister; 3) he knew what he was doing at the time; 4) he was not married to the girl; 5) she was less than fifteen at the time; 6) he was at least four years older than the girl; and 7) he touched her vagina for his own sexual gratification.

The district court considered the applicable statutes, charging document, and Mr. Austin's admissions in light of the applicable Sentencing Guidelines definition of a "crime of violence," which, under U.S.S.G. § 4B1.2, states:

The term "crime of violence" means any offense under federal or state law, 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) ... otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a)(1) and (2). In addition, it recognized that commentary note 1 to § 4B1.2 states a "crime of violence" includes "forcible sex offenses." U.S.S.G. § 4B1.2 cmt. n. 1.

In applying this definition, the district court acknowledged attempted sexual assault on a child under Colorado Revised Statute § 18-3-405(1) does not have as an element the use, attempted use, or threatened use of physical force against the victim, or constitute a "forcible sex offense" as specifically enumerated. However, it found the crime, both "[o]n this record" and "given the available case law," presented a serious potential risk of physical injury to the victim and therefore constituted a "crime of violence" within the meaning of § 4B1.2(a)(2).

After determining Mr. Austin's Colorado conviction met the definition of a "crime of violence," the district court refused to grant Mr. Austin's motion for a downward departure under U.S.S.G. § 5K2.0, stating it did not "find that the defendant or his concomitant circumstances, including but not limited to his criminal history, constitute or qualify as mitigating circumstances of a kind or to a degree not adequately considered by the Sentencing Commission in formulating the apposite guideline, citing guideline section 5 K2.0 and 18 U.S.C. section 3553(b)." It held that "under the analysis provided by the United States Supreme Court in Koon [v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)], ... this case is simply not such an atypical case where a particular guideline linguistically applies, but where the conduct significantly differs from the norm." In denying the motion, the district court judge also determined Mr. Austin committed two serious prior felony offenses, and that his "subsequent record convinces me that he has a philosophy that evinces a disturbing disrespect for the law, and one that includes a propensity to illegally arm himself with deadly weapons." The district court then calculated Mr. Austin's Sentencing Guidelines range at eighty-four to 105 months imprisonment and, at the government's request, imposed a sentence at the bottom of the range at eighty-four months.

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 injury" prong of the § 4B1.2 definition.

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 child's 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 girl's 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...

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