U.S. v. Daye

Decision Date10 July 2009
Docket NumberDocket No. 08-1012-cr.
Citation571 F.3d 225
PartiesUNITED STATES of America, Appellee, v. Bruce DAYE, also known as Bruce Allen Emerson, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

William B. Darrow, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Thomas D. Anderson, United States Attorney, District of Vermont, Burlington, VT, for Appellee.

Mary P. Kehoe (Adam P. Bergeron, on the brief), Lisman, Webster & Leckerling, P.C., Burlington, VT, for Defendant-Appellant.

Before: MINER, RAGGI, LIVINGSTON, Circuit Judges.

LIVINGSTON, Circuit Judge:

Defendant-Appellant Bruce Daye appeals from a judgment of the United States District Court for the District of Vermont (Murtha, J.), sentencing him to 180 months' imprisonment upon his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Daye does not challenge his conviction. Rather, he asserts that the District Court incorrectly determined that he was subject to the mandatory minimum sentence of fifteen years' imprisonment imposed on armed career criminals by 18 U.S.C. § 924(e)(1) and to the related offense level enhancement set forth in U.S.S.G. § 4B1.4. More specifically, he contends that the District Court erred in concluding that his prior convictions for sexually assaulting children in violation of Vt. Stat. Ann. tit. 13, § 3252(3) (1986) (since amended) and for escape were convictions for "violent felon[ies]" as defined in 18 U.S.C. § 924(e)(2)(B). For the reasons that follow, we remand to the District Court for consideration of whether, following the Supreme Court's decision in Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), Daye's conviction for escape is a conviction for a violent felony and, if necessary, whether the crimes underlying two of Daye's three sexual assault convictions were "committed on occasions different from one another," 18 U.S.C. § 924(e)(1).

BACKGROUND

On March 23, 2006, Daye was stopped for speeding in Montpelier, Vermont by Deputy Sheriff Jeffrey Severidt of the Washington County Sheriff's Department. Severidt called in Daye's identifying information, learned that Daye was subject to an outstanding warrant, and placed him under arrest. He then proceeded to search Daye's vehicle, recovering a loaded nine-millimeter handgun. Daye subsequently confessed that he had intended to kill his ex-wife and then commit suicide, noting that he had been speeding in order to catch her as she went to work.

A federal grand jury indicted Daye in January 2007 on two counts (one each for the handgun and the associated ammunition) of possessing a firearm or ammunition after having been convicted of a crime punishable by more than one year of imprisonment in violation of 18 U.S.C. § 922(g)(1). He eventually pled guilty to one of these counts.

Following Daye's guilty plea, the District Court held a sentencing hearing. The Presentence Report ("PSR") described Daye's extensive criminal history. Prior to the current incident, Daye had been convicted of at least sixteen felonies and fourteen misdemeanors. Among the felonies were two convictions for the sexual assault of a child in violation of Vt. Stat. Ann. tit. 13, § 3252(3) (1986) (since amended) in Lamoille County, Vermont, one conviction for violation of the same statute in Chittenden County, Vermont, and one conviction for escape, likely in violation of Vt. Stat. Ann. tit. 13, § 1501.1 The Lamoille County convictions arose from an incident in which Daye took four boys blackberry picking. As described in the PSR as well as charging documents associated with these crimes, Daye, while on this trip, molested each of the four boys and compelled two of them, one at most nine years old and the other twelve, to participate in anal sex with him. A police affidavit relating to the Chittenden County conviction states that Daye had engaged in oral sex with and digital penetration of the anus of a six-year-old boy.2

At the sentencing hearing, the District Court determined that Daye's convictions for the sexual assault of a child and escape qualified as convictions for violent felonies as defined in 18 U.S.C. § 924(e)(2)(B). With regard to the sexual assault convictions, the District Court concluded that, pursuant to the Supreme Court's decision in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), it could consider the details of Daye's particular crimes as described in certain judicial documents and that, regardless of whether a generic conviction pursuant to Vt. Stat. Ann. tit. 13, § 3252(3) (1986) (since amended) would qualify as a conviction for a violent felony, the actual crimes committed by Daye did so qualify in light of the youth of his victims. It then found that Daye had been convicted of at least three previous violent felonies "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). In so doing, it appeared to rely, as recommended by the PSR, upon the escape conviction, the Chittenden County conviction, and either of the two Lamoille County convictions.3 Drawing upon this finding, it also determined that Daye was subject to both the offense level enhancement for armed career criminals pursuant to U.S.S.G. § 4B1.4, which increased the preliminary Guidelines sentencing recommendation to a range of 168 to 210 months' imprisonment, and a statutory mandatory minimum sentence of 180 months' imprisonment pursuant to 18 U.S.C. § 924(e)(1), thereby creating an effective Guidelines range of 180 to 210 months' imprisonment, see U.S.S.G. § 5G1.1(c). The District Court then sentenced him principally to imprisonment for 180 months.

DISCUSSION

The issues advanced on appeal by Daye are whether the District Court correctly determined that Daye's prior convictions for sexually assaulting children and for escape were convictions for "violent felon[ies]," as defined in 18 U.S.C. § 924(e)(2)(B). We review de novo the District Court's conclusion that a prior offense is a violent felony. See United States v. Lynch, 518 F.3d 164, 168 (2d Cir.2008).

The Armed Career Criminal Act ("ACCA") establishes a mandatory minimum sentence of fifteen years' imprisonment for a defendant who is convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) while having "three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). In addition, the Guidelines impose a substantial offense level enhancement upon any defendant who qualifies for a mandatory minimum sentence under 18 U.S.C. § 924(e)(1). See U.S.S.G. § 4B1.4. For purposes of the ACCA, a "violent felony" is:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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.

18 U.S.C. § 924(e)(2)(B). To determine whether a prior offense is a violent felony, we use a "categorical approach," in which we "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); accord Lynch, 518 F.3d at 168. "[W]e consider whether the elements of the offense are of the type that would justify its [treatment as a violent felony], without inquiring into the specific conduct of this particular offender."4 James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 2299, ___ L.Ed.2d ___ (2009) ("In Taylor and James we held that ACCA's language read naturally uses the word `felony' to refer to a generic crime as generally committed.").

1. Sexual Assaults

At the time of his sentencing, Daye had three prior convictions for sexual assault of a child in violation of Vermont law. The statute under which he was convicted, captioned "Sexual Assault," provided, in pertinent part, that:

A person who engages in a sexual act with another person and

...

(3) The other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both.

Vt. Stat. Ann. tit. 13, § 3252(3) (1986) (since amended).5 The term "sexual act" was further defined to mean "conduct consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person's body or any object into the genital or anal opening of another." Vt. Stat. Ann. tit. 13, § 3251(1).6

Engaging in a sexual act with a child under sixteen does not constitute "burglary, arson, ... extortion, [or a crime] involv[ing] use of explosives," 18 U.S.C. § 924(e)(2)(B)(ii), and the Government does not argue that Vermont's statute "has as an element the use, attempted use, or threatened use of physical force against the person of another," id. § 924(e)(2)(B)(i). Rather, the Government contends that engaging in a sexual act with a child in violation of former § 3252(3) "involves conduct that presents a serious potential risk of physical injury to another" pursuant to 18 U.S.C. § 924(e)(2)(B)(ii), commonly described as the ACCA's "residual clause," see, e.g., Chambers, 129 S.Ct. at 689.

Prior to the Supreme Court's decision in Begay v. United States, ___ U.S. ___, 128 S.Ct....

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