U.S. v. Asberry

• Decision Date: 11 January 2005
• Docket Number: No. 04-30009.,04-30009.
• Citation: 394 F.3d 712
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo ASBERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

394 F.3d 712

UNITED STATES of America, Plaintiff-Appellee, v. Leo ASBERRY, Defendant-Appellant.

No. 04-30009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 17, 2004.

Filed January 11, 2005.

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Nancy Bergeson, Assistant Federal Public Defender, for the defendant-appellant.

Fredric N. Weinhouse, Assistant United States Attorney, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-02-00246-ALA.

Before: WALLACE, GOULD, and BEA, Circuit Judges.

GOULD, Circuit Judge:

Leo Asberry, Jr. appeals his sentence for possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1) (2000). On appeal, Asberry challenges district court rulings that: 1) an Oregon conviction for Rape in the Third Degree constituted a "crime of violence" under United States Sentencing Guidelines section 4B1.2(a);¹ 2) the Rape in the Third Degree conviction and a Delivery of Marijuana for Consideration conviction were not related under Guidelines section 4A1.2(a)(2); and 3) discretionary downward departure from the Sentencing Guidelines was neither allowed nor warranted under Guidelines section 5K2.0. We have jurisdiction over the appeal of the first two rulings pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We do not have jurisdiction over the appeal of the third ruling. We affirm in part and dismiss in part.

I

On December 15, 2003, the district court sentenced Asberry to seventy-seven months in prison and three years supervised release for violating 18 U.S.C. section 922(g)(1), which prohibits felons from possessing firearms or ammunition. In sentencing Asberry, the district court considered three 1993 Oregon offenses including a November 4, 1993 conviction for Rape in the Third Degree, a November 4, 1993 conviction for Delivery of Marijuana for Consideration, and a November 9, 1993 conviction for Delivery of Marijuana for Consideration.

The Rape in the Third Degree conviction arose from conduct that occurred in February 1993. Asberry, then twenty-one, engaged in a sexual relationship with a fifteen-year-old female. Asberry was arrested on July 1, 1993 and charged with violating Oregon Revised Statute section 163.355, which reads: "A person commits the crime of rape in the third degree if the person has sexual intercourse with another person under 16 years of age." Or.Rev.Stat. § 163.355 (2003).

Asberry pled guilty. His plea stated: "I wish to plead GUILTY to the charge(s) of RAPE III[and] DELIVERY OF MARIJUANA .... on the basis of HAVING HAD SEXUAL RELATIONS WITH [a minor] [and] HAVING BEEN PRESENT WHEN MARIJUANA WAS DELIVERED BY THIRD PERSON." On the basis of his plea agreement, the Oregon state court found Asberry guilty of Rape in the Third Degree. His plea agreement also provided the foundation for the November 4, 1993 conviction for Delivery of Marijuana for Consideration, which arose from a sale to undercover agents in Union County, Oregon on April 7, 1993. Asberry was arrested for this drug offense on July 16, 1993. The Oregon court entered consecutive sentences for the rape and the drug charge in a single hearing. It used two separate sentencing documents and case numbers and did not issue a formal consolidation order.

At Asberry's sentencing for violating 18 U.S.C. § 922(g)(1), the district court ruled that Rape in the Third Degree was a "crime of violence" under Guidelines section 4B1.2(a), and that Delivery of Marijuana for Consideration was a "controlled substance offense" under section 4B1.2(b). The court further ruled that the November 9 and November 4 marijuana convictions were not related under section 4A1.2(a)(2),² nor was the rape conviction related to the November 4 marijuana conviction. Counsel for Asberry requested a downward departure from the Guidelines. The district court denied the motion, stating, "I don't think this record warrants it, and I don't believe... I have the authority regardless." This appeal followed.

II

We first consider whether the district court erred in holding that a violation of Oregon Revised Statute section 163.355 is a "crime of violence" under United States Sentencing Guidelines sections 2K2.1(a)(2) and 4B1.2(a).³

We take a categorical approach to determining whether a state offense is a "crime of violence." Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (requiring consideration of "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted"). Under the categorical approach, we consider only the statutory elements of the offense to determine whether it meets the definition of "crime of violence" in the Guidelines. Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143.⁴ Oregon Revised Statute section 163.355, in combination with section 163.345, makes it a crime for a perpetrator who is more than three years older than his or her victim to have intercourse with a person who is less than sixteen years of age.

A

In United States v. Granbois, we held that "sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years and is at least four years younger than the perpetrator" is a "crime of violence" under Sentencing Guidelines sections 4B1.1 and 4B1.2. 376 F.3d 993, 995-96 (9th Cir.2004). We conclude that this case is materially indistinguishable from Granbois. Like the defendant in Granbois, Asberry was convicted of having sexual contact with a girl less than sixteen years of age and several years his junior. The legal conclusion of Granbois controls, and we hold that a violation of Oregon Revised Statute section 163.355 is a "crime of violence" under Guidelines section 4B1.2.

B

A consideration of Granbois and the concerns underlying it illuminate the issue before us. In Granbois, we held that a conviction for statutory rape was "sexual abuse of a minor" and, therefore, a per se "crime of violence" under the Sentencing Guidelines. 376 F.3d at 996. Although Guidelines section 4B1.2 does not explicitly list "sexual abuse of a minor" or "statutory rape" as a per se "crime of violence," the commentary to Guidelines section 2L1.2 mentions that these offenses meet the definition of "crime of violence" under section 2L1.2. In Granbois, we held in the context of interpreting "sexual abuse of a minor" that "there is no indication that [`crime of violence'] is intended to mean something different" in section 4B1.2 than it does in section 2L1.2. 376 F.3d at 996 (quoting United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th Cir.2003)); see also United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003).

The evolution of the language of Guidelines section 2L1.2 supports this conclusion. Prior to 2001, sentencing under section 2L1.2 also used the definition of "crime of violence" in section 4B1.2, which included "forcible sex offenses" among the per se "crimes of violence" enumerated in the commentary. U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (2000).⁵ In 2001, the Sentencing Commission completed a comprehensive revision of section 2L1.2 and, among other changes, added a full definition of "crime of violence" with the parenthetical "(including sexual abuse of a child)" appearing after the term "forcible sex offenses" in the commentary. U.S. Sentencing Guidelines Manual app. C, amend. 632, 216-19 (2003); U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 1(B)(ii)(II) (2002). In 2003, the Sentencing Commission again amended the commentary to section 2L1.2 to list specifically "forcible sex offenses, statutory rape, [and] sexual abuse of a minor." The Commission stated that the 2003 amendment "clarifies the meaning of the term `crime of violence'.... [because] [t]he previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor ... also had to include as an element of the offense `the use, attempted use, or threatened use of physical force against the person of another.'" U.S. Sentencing Guidelines Manual app. C, amend. 658, Reason for Amendment, 397-402 (2003) (emphasis added).

Therefore, the Commission has indicated that these amendments to section 2L1.2 merely clarified the meaning of the term "crime of violence" and provided elaboration regarding the offenses that are included within this category; the amendments did not change the definition of "crime of violence" that section 2L1.2 originally borrowed from section 4B1.2. These indications of the Commission's intent control interpretations of section 2L1.2 United States v. Garcia-Cruz, 40 F.3d 986, 990 (9th Cir.1994), and provide guidance to us in our efforts to construe the identical term "crime of violence" in section 4B1.2. See United States v. Moreno-Cisneros, 319 F.3d 456, 458-59 (9th Cir.2003) (holding that an amendment to one section of the Guidelines may clarify similar language in an analogous provision of the Guidelines); see also Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (describing how a court reaches a correct interpretation of the Guidelines).

C

Even if statutory rape were not a per se "crime of violence," it would fall within the terms of Guidelines section 4B1.2 because that section includes conduct that "by its nature, presented a serious potential risk of physical injury to another." U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (2003). Under this catch-all clause, the government must demonstrate: 1) commission of a felony; 2) that posed a serious potential risk; 3) of some form of physical injury to another.

To conclude that an offense falls within the definition of "crime of violence" in section 4B1.2, we need not determine that the charged conduct poses a certain or probable risk of physical injury, or that the victim suffered...