U.S. v. Thornton

• Decision Date: 03 February 2009
• Docket Number: No. 08-4251.,08-4251.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Ray THORNTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

554 F.3d 443

UNITED STATES of America, Plaintiff-Appellee, v. Michael Ray THORNTON, Defendant-Appellant.

No. 08-4251.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2008.

Decided: February 3, 2009.

ARGUED: Fay Frances Spence, Office of the Federal Public Defender, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, Office of the United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge KING and Judge SHEDD joined.

OPINION

DUNCAN, Circuit Judge:

A jury convicted Michael Ray Thornton of possessing a firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1) and 931. During his sentencing, the district court classified Thornton as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction. At issue on appeal is whether Virginia's statutory rape offense, which makes it a crime to "carnally know[ ], without the use of force, a child" between thirteen and fifteen years of age, is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because we find that Virginia's carnal knowledge offense does not constitute a violent felony under the ACCA as interpreted by Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we are constrained to reverse.

I.

A grand jury indicted Thornton on March 24, 2005 for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and for possession of body armor by a convicted felon in violation of 18 U.S.C. § 931. A jury convicted him on both counts on February 13, 2006. On May 12, 2006, the district court classified Thornton as an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to a total of 204 months.¹ The court based its sentence on four previous convictions, finding that any three would support Thornton's classification as an armed career criminal: a July 1973 conviction for statutory burglary and maiming; an August 1986 conviction for aggravated sexual battery; an August 1986 conviction for attempted rape; and an August 1986 conviction for "carnal knowledge of a minor" between thirteen and fifteen years old.²

Thornton appealed, contesting his classification as an armed career criminal. We vacated his sentence and remanded the case in a March 21, 2007 unpublished opinion. United States v. Thornton, 222 Fed. Appx. 325 (4th Cir.2007). The opinion instructed the district court to determine whether Thornton's aggravated sexual battery and attempted rape offenses, which involved the same victim, occurred on separate occasions and represented separate predicate offenses under the ACCA. The opinion also instructed the district court to consider whether statutory rape creates a "serious potential risk of physical injury to another person," such that it constitutes a violent felony within the meaning of the ACCA.³ Id. at 327.

The district court held an evidentiary hearing on October 18, 2007 and accepted additional briefing from counsel. At the hearing, both parties offered expert evidence on the risks of physical injury, pregnancy, and sexually transmitted diseases ("STDs") that accompany nonforcible sexual activity between an adult male and a minor female between thirteen and fifteen years old. On January 18, 2008, before the Supreme Court's decision in Begay, the district court issued a memorandum opinion. It held that Thornton's aggravated sexual battery and attempted rape offenses did not occur on separate occasions and could not count as two separate predicate convictions under the ACCA. The district court also held that statutory rape, as defined by Va.Code § 18.2-63, constituted a violent felony because the risk of STDs and pregnancy created a serious potential risk of physical injury. The court reimposed its original sentence of 204 months for possession of a firearm by a convicted felon and 36 months (concurrent) for possession of body armor by a convicted felon. Thornton now appeals the district court's decision classifying Virginia's carnal knowledge offense as a violent felony under 18 U.S.C. § 924(e)(2)(B).

II.

We have jurisdiction over Thornton's appeal under 28 U.S.C. § 1291. When considering a sentence's reasonableness, we "review the district court's legal conclusions de novo and its factual findings for clear error." United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008) (quoting United States v. Hampton, 441 F.3d 284, 287 (4th Cir.2006)); see also United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002) (noting that the question of whether a state felony offense "falls within the federal definition of a crime of violence ... is a question of law that we review de novo" (citing United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996))).

III.

Under the ACCA, a violent felony either "has as an element the use, attempted use, or threatened use of physical force," or is "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The parties do not argue that Virginia's carnal knowledge offense, which criminalizes carnal knowledge of a minor "without the use of force," does not fall under the definition's first prong. Rather, they frame the issue as whether Virginia's carnal knowledge offense is sufficiently similar to the crimes enumerated in 18 U.S.C. § 924(e)(2)(B)(ii) and whether it involves a "serious potential risk of physical injury."

In arguing that Virginia's carnal knowledge offense does not fall under the second prong of section 924(e)(2)(B), Thornton relies heavily on Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which postdates the district court's decision.⁴ In Begay, the Supreme Court addressed whether New Mexico's offense of driving under the influence of alcohol ("DUI") constituted a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii).⁵ The Begay Court held that violent felonies under the second prong are limited to crimes "that are roughly similar, in kind as well as in degree of risk posed, to the examples" of arson, burglary, extortion, and crimes involving explosives. Id. at 1585. The Court found that New Mexico's DUI offense is not a violent felony under the second prong because unlike the exemplar crimes, it does not "involve purposeful, violent, and aggressive conduct" and is not "characteristic of the armed career criminal." Id. at 1586 (quotations and citation omitted). Rather, the Court likened DUI to "crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all." Id. at 1586-87. The Court found that a DUI conviction did not "show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger." Id. at 1587.

Thornton argues that Virginia's carnal knowledge offense is not sufficiently similar to the enumerated crimes in section 924(3)(2)(B)(ii) and does not present a "serious potential risk of physical injury." Pointing out that the risks of STD transmission and pregnancy associated with nonforcible adult-minor sexual activity "depend upon a speculative chain of events unrelated to the age of the sexual partners," he argues that the carnal knowledge offense does not present the same degree of risk as the enumerated crimes. Pet'r Br. at 14. Thornton also distinguishes the carnal knowledge offense because it is not a property crime like the enumerated crimes. He argues that it is more akin to the DUI offense analyzed in Begay because it "involves consensual conduct `that would be lawful but for the age of the minor'" and "does not require criminal intent." Pet'r Reply Br. at 6. Thornton emphasizes in addition that the Sentencing Guidelines do not classify the equivalent federal offense, which criminalizes sexual abuse of a minor, to be a violent felony.

The government marshals several arguments in response, which we address separately below. First, the government emphasizes that Virginia's carnal knowledge offense presents a significant risk of bodily injury and should therefore be classified as a violent felony. To support this contention, the government devotes much of its brief to the expert testimony presented on the risks of STDs and pregnancy associated with sexual activity between an adult male and female minor. The government also relies heavily on circuit court cases finding that offenses involving adult-minor sexual activity carry a serious risk of physical injury. Second, based on its expert's testimony and supporting case law, the government contends that that Virginia's statutory rape offense is "roughly similar in kind" to crimes like arson and burglary "because the most common attribute of the enumerated offenses [of section 924(e)(2)(B)(ii)] ... is that all of these offenses create significant risks of bodily injury or confrontation that might result in bodily injury." Resp't Br. at 20. Lastly, the government argues that the carnal knowledge offense involves "constructive force" because the victim is unable to give legal consent. The government contends that the presence of constructive force, as well as the fact that "[s]ex acts are by nature purposeful and deliberate acts," brings the carnal knowledge offense under the ACCA's definition of a violent felony. Resp't Br. at 47.

Although not without weight, the government's arguments are unavailing in light of Begay for several reasons. First, the government's emphasis on the risks of physical injury associated with adult-minor sexual activity...