U.S. v. Dennis

• Decision Date: 22 December 2008
• Docket Number: No. 08-8000.,08-8000.
• Citation: U.S. v. Dennis, 551 F.3d 986 (10th Cir. 2008)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessy Michael DENNIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

551 F.3d 986

UNITED STATES of America, Plaintiff-Appellee, v. Jessy Michael DENNIS, Defendant-Appellant.

No. 08-8000.

United States Court of Appeals, Tenth Circuit.

December 22, 2008.

Gregory A. Phillips, Assistant United States Attorney (Kelly H. Rankin, United States Attorney, on the brief), Cheyenne, WY, for Plaintiff-Appellee.

Thomas B. Jubin of Jubin & Zerga, L.L.C., Cheyenne, WY, for Defendant-Appellant.

Before KELLY, TYMKOVICH, Circuit Judges and DeGIUSTI^*, District Judge.

KELLY, Circuit Judge.

Defendant-Appellant Jessy Michael Dennis pleaded guilty to a single count of felon in possession of a firearm pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2). At sentencing, the district court imposed a sentence of 46 months' imprisonment, followed by three years' supervised release. The sole issue on appeal is whether Mr. Dennis's prior state conviction for knowingly taking immodest, immoral or indecent liberties with a minor, Wyo. Stat. § 14-3-105 (1997) (repealed 2007), constitutes a prior "crime of violence" as defined in U.S.S.G. § 4B1.2. The district court concluded that it did, thereby resulting in an enhanced base offense level of 20 (rather than 14) under U.S.S.G. § 2K2.1(a)(4)(A). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing.

Background

In relevant part, the state statute under which Mr. Dennis was charged provides:

Immoral or indecent acts; penalty

(a) Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.

(b) As used in this section, "child" means a person under the age of eighteen (18) years.

Wyo. Stat. § 14-3-105 (1977).

Mr. Dennis was charged with two counts by information (each count related to different time periods). A jury returned a verdict of guilty only upon the second count, which stated: that the "Defendant, did unlawfully:" On or about November 12, 1995, and December 9, 1995, in Campbell County Wyoming take immodest, immoral or indecent liberties with a child, to wit: did cause [RS] (DOB: August 14, 1979) to engage in sexual intercourse with him, in violation of Wyoming Statute § 14-3-105, a felony, punishable by imprisonment by not more than ten (10) years, a fine of not less than $100.00 nor more than $1,000, or both;

3 R. Gov't Ex. 1.

The district court initially rejected the "crime of violence" enhancement, but then reversed course. At sentencing, it noted confusion in Tenth Circuit caselaw, but ultimately held that the conviction was a "crime of violence" based on the risk of physical injury, specifically the risk of pregnancy and sexually transmitted infections associated with sexual intercourse. 6 R. at 13, 16.

Discussion

Whether an offense constitutes a "crime of violence" under U.S.S.G. § 4B1.2 is a question of statutory construction, which we review de novo. United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir. 2003) (citing United States v. Riggans, 254 F.3d 1200, 1203 (10th Cir.2001); United States v. Spring, 80 F.3d 1450, 1463 (10th Cir.1996)). The guidelines define "crime of violence" to mean

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) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). The commentary following this definition further instructs that a "crime of violence" may include murder, manslaughter, kidnapping, aggravated assault, and forcible sex offenses. Id., cmt. n. 1. The commentary further provides that

[o]ther offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e. expressly charged) in the count of which the defendant was convicted . . . by its nature, presented a serious risk of physical injury to another.

Id.

We have noted that the definition of a "crime of violence" under § 4B1.2(a) "is virtually identical to that contained in the [Armed Career Criminal Act]." United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir.2008). In determining whether an offense is a "violent felony" under the Armed Career Criminal Act (ACCA), the Supreme Court has directed courts to apply "a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This pure categorical approach does not allow a court to evaluate the underlying facts of the defendant's conduct. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143; United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005). However, when the underlying statute of conviction "is ambiguous, or broad enough to encompass both violent and nonviolent crimes, a court can look beyond the statute to certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto and findings by the [sentencing] court." Perez-Vargas, 414 F.3d at 1284 (quoting United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir.2001) (alteration in original) (internal quotation marks omitted)). This is known as the modified categorical approach, and it allows a court to determine under which part of an ambiguous or varied statute a defendant was charged so as to perform the statutory analysis. United States v. Torres-Romero, 537 F.3d 1155, 1158 (10th Cir.2008). The modified categorical approach does not allow a subjective inquiry into the underlying facts of the conviction to determine whether the enhancement provision is satisfied. United States v. Zuniga-Soto, 527 F.3d 1110, 1121 (10th Cir.2008).

The government summarizes the parties' positions:

The parties agree that a "modified categorical approach" is unavailable in this case. They agree that the indecent liberties statute is entirely a crime of violence or not at all. Accordingly, there is no reason to examine any records from the prior proceeding to determine which part of the indecent liberties statute the Defendant admitted or necessarily was found to have violated.

Aplee. Br. at 8; Aplt. Reply Br. at 1. That said, the government also argues that under a "categorical-plus" approach the indecent liberties statute is a "crime of violence." Aplee. Br. at 12. The parties agree that the modified categorical approach does not apply to this case; thus, we consider the categorical approach. We cannot agree with the government that the Wyoming indecent liberties statute "is categorically a crime of violence." Aplee. Br. at 8.

First, turning to § 4B1.2(a)(1), the indecent liberties statute simply does not have "as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1); rather, it proscribes "`taking immodest, immoral or indecent liberties' with a minor under the age of eighteen." Pierson v. State, 956 P.2d 1119, 1125 (Wyo.1998). The parties agree that no specific element of the offense includes the use or threatened use of physical force. Aplt. Br. at 6; Aplee. Br. at 25-26.

Next, turning to § 4B1.2(a)(2), we hold that the Wyoming indecent liberties statute does not constitute "burglary of a dwelling, arson, or extortion," nor does it "involve[ ] use of explosives, or otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The government relies upon the residual clause, arguing that the statute "otherwise involves conduct that presents a serious potential risk of physical injury to another." Aplee. Br. at 29-33. However, to fall within the residual clause, the offense in question must be "roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1585, 170 L.Ed.2d 490 (2008). Regardless of whether the Wyoming statute is similar in kind to an enumerated offense, it surely is not similar in risk. Id. at 1586. In Begay, the Court rejected the contention that New Mexico's DUI offense, while presenting a serious risk of physical injury to another, fell within the scope of the residual clause because it was too dissimilar to the examples which preceded it, particularly in light of the behavior addressed by the ACCA. 128 S.Ct. at 1588. In addition, the Supreme Court has made it clear that it is the elements of the offense which must be considered: they must be "of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender." James v. United States, 550 U.S. 192 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007).

The government argues that the indecent liberties statute is part of a statutory scheme that protects against sexual exploitation, protects children under age eighteen, and oftentimes results in convictions involving serious sexual misconduct against minors. Yet, Wyoming's sexual assault statutes and its indecent liberties statute are designed to operate as an integrated whole. Misenheimer v. State, 27 P.3d 273, 279 (Wyo.2001). At the time, the third-degree sexual assault statute provided for an age of consent of sixteen, and that the defendant be at least four years older than the victim. Wyo. Stat. § 6-2-304 (1977). The Wyoming Supreme Court has explained:

The sexual...