U.S. v. Ivory, 06-10895 Non-Argument Calendar.

• Citation: 475 F.3d 1232
• Decision Date: 17 January 2007
• Docket Number: No. 06-10895 Non-Argument Calendar.,06-10895 Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry Lewis IVORY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

475 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Harry Lewis IVORY, Defendant-Appellant.

No. 06-10895 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

January 17, 2007.

Richard Earl Shields (Court-Appointed), McCleave Denson Shields, LLC, Mobile, AL, for Ivory.

Leigh Lichty Pipkin, Mobile, AL, for U.S.

Appeal from the United States District Court for the Southern District of Alabama.

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

On this appeal, we consider whether an Alabama conviction for second degree rape constitutes a "crime of violence" under United States Sentencing Guidelines §§ 2K2.1 and 4B1.2.¹ We hold that it does.

BACKGROUND

A jury found Harry Lewis Ivory guilty of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Prior to sentencing, the probation officer prepared a presentence investigation report ("PSI"). The PSI assigned a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because Ivory had a prior conviction in Alabama for a crime of violence, second degree rape, which Ivory had pled guilty to. Ivory, who was 22 years old at the time of the prior offense, had engaged in sexual intercourse with a female who was less than 16 years old. The PSI further enhanced Ivory's base offense level by four levels pursuant to U.S.S.G. § 2K2.1(b)(5), because Ivory possessed ammunition and a firearm in connection with another felony offense, possession of cocaine. The PSI scored Ivory's criminal history at level VI. With an offense level of 24 and a criminal history score of VI, Ivory's resulting guideline range was 100 to 125 months' imprisonment.

Ivory filed objections to the PSI, arguing that his base offense level was improperly enhanced because the court erroneously determined that his prior Alabama conviction for second degree rape was a crime of violence under U.S.S.G. §§ 2K2.1 and 4B1.2. He further argued that the PSI's recommendation of a four level enhancement based on the offense's connection with another felony offense was in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because he did not admit to, and was not found guilty of, possession of a firearm or cocaine. The district court adopted the PSI and overruled both of Ivory's objections. The court found that Ivory's prior conviction for second degree rape conviction constituted a crime of violence as contemplated by § 2K2.1(a)(4). The court further found, by a preponderance of the evidence, that Ivory did possess ammunition and a firearm in connection with possession of cocaine, which supported the recommended four-level enhancement. Ivory was then sentenced to 120 months' imprisonment to run consecutively with the revocation of his supervised release, followed by 3 years' supervised release.

STANDARD OF REVIEW

We review a district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Chavarriya-Mejia, 367 F.3d 1249, 1251 (11th Cir.2004) (per curiam). The interpretation of Alabama's statute for second degree rape is a question of law and is also subject to de novo review. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).

DISCUSSION

We have not previously considered whether Alabama's statute for second degree rape constitutes a crime of violence pursuant to U.S.S.G. §§ 2K2.1 and 4B1.2. Because Ivory was convicted of violating 18 U.S.C. § 922(g)(1), his base offense level is governed by U.S.S.G. § 2K2.1. Section 2K2.1(a)(4)(A) provides that the base offense level for Ivory's conviction is 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). Pursuant to § 2K2.1, the term "crime of violence" has the meaning given in § 4B1.2, which states:

(a) 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) 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 to § 4B1.2 clarifies that:

"Crime of violence" includes . . . forcible sex offenses . . . . Other 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 involved use of explosives . . . or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1.²

Ivory was convicted of second degree rape under Alabama law. A person commits the crime of second degree rape if:

(1) Being 16 years old or older, he or she engages in sexual intercourse with a member of the opposite sex less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the member of the opposite sex.

(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being mentally defective.

Ala.Code § 13A-6-62(a).

We first examine whether "the use, attempted use, or threatened use of physical force against the person of another," as specified in U.S.S.G. § 4B1.2(a)(1), is an element of a second degree rape conviction under Alabama law. To do that we first review what is meant by the term "physical force" and then examine our relevant precedent about the use of physical force.

In interpreting the term "physical force" in § 4B1.2(a)(1), we look first to the plain meaning of those words. See United States v. Shenberg, 89 F.3d 1461, 1475 (11th Cir.1996) (noting that we give the sentencing guidelines their plain meaning effect unless the language leads to a result contrary to legislative intent). We previously have noted that the plain meaning of "physical force" is "`[p]ower, violence, or pressure directed against a person' `consisting in a physical act.'" United States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006) (quoting Black's Law Dictionary 673 (7th ed.1999)); see also United States v. Nason, 269 F.3d 10, 16 (1st Cir.2001) (synthesizing various definitions to find that physical force includes any "power, violence, or pressure directed against another person's body").

Two of our recent decisions expressly have addressed whether state convictions involved the "use of physical force" and are particularly instructive here. In Griffith, we considered whether a conviction for simple battery under Georgia law has "`as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon'" to merit a conviction under the Armed Career Criminal Act ("ACCA"). See Griffith, 455 F.3d at 1341 (quoting 18 U.S.C. § 921(a)(33)(A) (defining "misdemeanor crime of domestic violence")); see also 18 U.S.C. § 922(g)(9) (forbidding a person who has been convicted of a "misdemeanor crime of domestic violence" from possessing a firearm). We noted that the Georgia battery statute has as an element "`physical contact of an insulting or provoking nature.'" Griffith, 455 F.3d at 1342 (quoting Ga.Code Ann. § 16-5-23(a)(1)). Based on the plain meaning of "physical force," we concluded that a simple battery conviction under Georgia law satisfied the physical force requirement of the ACCA because "[a] person cannot make physical contact-particularly of an insulting or provoking nature-with another without exerting some level of physical force." Id.

Similarly, a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force. Indeed, in Chavarriya-Mejia, we concluded that a statutory rape conviction under Kentucky law, wherein a minor cannot legally consent to the physical contact of sexual intercourse, involves the use of physical force and constitutes a "crime of violence" under U.S.S.G. § 2L1.2. Chavarriya-Mejia, 367 F.3d at 1251. Kentucky's third degree rape statute is similar to Ala.Code § 13A-6-62(a)(1). Under Kentucky law, a person is guilty if "[b]eing twenty-one (21) years old or more, he or she engages in sexual intercourse with another person less than sixteen (16) years old."³ Ky.Rev.Stat. Ann. § 510.060(1)(b). The relevant guideline in Chavarriya-Mejia was the 2002 version of § 2L1.2, which provided that a crime of violence included any "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002).⁴

In examining in Chavarriya-Mejia whether statutory rape involves the "use of physical force," we first noted, "[s]tatutory rape is a kind of battery: unlawful physical contact. Sexual offenses by adults against children inherently involve physical force against the children." Chavarriya-Mejia, 367 F.3d at 1251. We reasoned that the existence of consent-in-fact was irrelevant because "the law presumes that the physical contact aspects of statutory rape were not lawfully consented to." Id. Accordingly, we concluded that statutory rape under Kentucky law, which proscribes sexual intercourse with a person under sixteen years old, inherently involves the use of force and is a crime of violence under § 2L1.2.⁵ Chavarriya-Mejia, 367 F.3d at 1251.

This Court in Chavarriya-Mejia also discussed the commentary to U.S.S.G. § 2L1.2 (2002), which not only defined a crime of violence as an offense that has the use of physical force as an element, but also stated that crimes of violence include "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including...