U.S. v. Williams

• Decision Date: 07 May 2008
• Docket Number: No. 07-1354.,07-1354.
• Citation: 529 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Robert WILLIAMS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

529 F.3d 1

UNITED STATES of America, Appellee, v. Robert WILLIAMS, Defendant, Appellant.

No. 07-1354.

United States Court of Appeals, First Circuit.

Submitted March 18, 2008.

Decided May 7, 2008.

Christie M. Charles, George F. Gormley, and George F. Gormley, P.C. on brief for appellant.

Michael J. Sullivan, United States Attorney, and Wendy Waldron, Trial Attorney, United States Department of Justice, on brief for appellee.

Before BOUDIN, Chief Judge, SELYA and STAHL, Senior Circuit Judges.

SELYA, Senior Circuit Judge.

This appeal requires us to answer for the first time the question of whether the interstate transport of a minor for prostitution in violation of 18 U.S.C. § 2423(a) constitutes a crime of violence within the purview of the career offender provision of the federal sentencing guidelines. See USSG § 4B1.2(a). That answer is complicated by a recent Supreme Court decision, which this court has not yet addressed. Working our way through the precedential labyrinth, we conclude that the tawdry and purposeful conduct proscribed by the statute presents a serious potential risk of physical injury to the minor and is sufficiently similar to the types of crimes enumerated in the relevant guideline provision. Accordingly, we respond affirmatively to the question and affirm the sentence imposed below.

We rehearse here only those facts that are essential to an understanding and resolution of the issue on appeal. At this stage of the proceedings, those facts are not genuinely disputed.

During a period that spanned portions of the years 2000 to 2002, defendant-appellant Robert Williams engaged in activities related to prostitution. On several occasions, he either took or sent a young girl from Massachusetts into neighboring states to perform sex acts in exchange for money. While the appellant maintains that he did not know that the girl was only thirteen years of age when the trafficking began, he admittedly learned the truth on or about July 1, 2001. He nevertheless persisted in his course of illicit conduct after that disclosure.

On August 3, 2005, a federal grand jury returned a thirteen-count indictment related to these meretricious activities. After initially maintaining his innocence, the appellant pleaded guilty to all twelve counts in which he was named. Although each of those counts was linked to the prostitution of the minor, four counts specifically charged the appellant with violating 18 U.S.C. § 2423(a).¹ That statute proscribes the knowing interstate transport of a minor for purposes of prostitution.

The presentence investigation report recommended that the appellant be sentenced as a career offender. At the disposition hearing, the appellant challenged his purported career offender status. That challenge centered on whether the offenses of conviction (or, at least, some of them) constituted crimes of violence.

Refined to bare essence, the challenge had two parts. First, in an attempt to distinguish his conduct from conduct that this court previously had deemed violent, the appellant pointed to the absence of any charges related to his personal sexual contact with the minor. Second, the appellant sought to characterize the underlying activities as a "joint business venture" between himself and the minor, in which she was a willing participant.

The district court rejected these exhortations and sentenced the appellant, as a career offender, to a 151-month incarcerative term.² This timely appeal followed. In it, the appellant persists in challenging the district court's determination that the charges to which he pleaded guilty qualify him for the career offender enhancement.

To understand the appellant's argument, it is helpful to survey the architecture of the career offender provision. Under that provision, a defendant is subject to an enhanced sentence if (i) he was eighteen years old at the time he committed the instant offense; (ii) that offense was either a crime of violence or a controlled substance offense; and (iii) he had at least two prior felony convictions for either crimes of violence or controlled substance offenses. USSG § 4B1.1(a). In this instance, the first and third requirements are not in issue. The appellant was forty-five years of age when he first encountered the minor and his criminal history includes the requisite number and kind of predicate offenses. Thus, this appeal turns on whether any of the offenses to which the appellant pleaded guilty in the court below qualify as crimes of violence. This poses a quintessentially legal question, which engenders de novo review. United States v. Eirby, 515 F.3d 31, 37 (1st Cir.2008).

For sentencing purposes, the term "crime of violence" is a term of art. The guidelines define a crime of violence as:

[A]ny 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.

USSG § 4B1.2(a) (emphasis supplied).

Here, none of the offenses of conviction explicitly includes an element of force. By the same token, none of them falls within the statutory enumeration of specified crimes. Consequently, we concentrate our attention on the underscored statutory language — variously known as the "residual clause" or the "otherwise clause" — and inquire whether any of the offenses of conviction presents "a serious potential risk of physical injury to another."

In pursuing this inquiry, we must follow a two-step approach. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).³ That approach pertains both when a court is attempting to characterize a predicate offense and when a court is attempting to characterize a current offense. See United States v. Bell, 966 F.2d 703, 706 (1st Cir.1992).

This two-step approach is categorical: the court's analysis is "restricted to an examination of how the legislature has defined the crime, without any concomitant inquiry into the details of defendant's actual criminal conduct." United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994); see Taylor, 495 U.S. at 600, 110 S.Ct. 2143. If the court determines that a violation of the statute in question necessarily involves each and every element of a violent crime, then the offense is deemed a crime of violence and the inquiry is at an end. See Eirby, 515 F.3d at 37; Winter, 22 F.3d at 18.

If, however, the statute's text is broad enough to criminalize both violent and non-violent conduct, the court must embark on the second step of the Taylor pavane. In so doing, it may not undertake a mini-trial of a putative predicate offense, but it may inspect the record of conviction in order to determine whether a defendant was actually charged with an offense that involved violent or potentially violent conduct. See United States v. Richards, 456 F.3d 260, 263 (1st Cir.2006). To satisfy that criterion "the jury must have been required to find (or, in a guilty plea context, the defendant necessarily must have admitted) all the elements of a violent felony." Id.

To trigger the career offender enhancement, it is only necessary that one of the twelve offenses of conviction qualifies as a crime of violence. For that reason, we need look no further than the convictions under 18 U.S.C. § 2423(a) — and we need not go past the first step in the Taylor pavane.⁴

We begin our analysis with the penalty involved in the offense: those who violate section 2423(a) are subject to a term of imprisonment of "not less than 10 years or for life." Id. Thus, the level of punishment easily satisfies the requirement that, to qualify as a crime of violence, an offense must be punishable by incarceration for more than one year. See USSG § 4B1.2(a).

We move next to risk of harm. In this circuit, it is common ground that most "indecent sexual contact crimes perpetrated by adults against children categorically present a serious potential risk of physical injury." United States v. Cadieux, 500 F.3d 37, 45 (1st Cir.2007) (emphasis in original); see, e.g., Eirby, 515 F.3d at 38 (applying principle to a fourteen- or fifteen-year-old girl); United States v. Sherwood, 156 F.3d 219, 221 (1st Cir.1998) (applying principle to molestation of a child under age thirteen); United States v. Meader, 118 F.3d 876, 884 (1st Cir.1997) (applying principle to statutory rape of a girl under fourteen); see also Richards, 456 F.3d at 264 (reasoning in same vein in violent felony case); United States v. Sacko, 247 F.3d 21, 22 (1st Cir.2001) (same).

These decisions recognize that illicit sexual activity between an adult and a minor (at least a minor below a certain age) poses a significant risk that force will be used in the consummation of the crime. See Eirby, 515 F.3d at 38. This risk arises because such offenses "typically occur in close quarters, and are generally perpetrated by an adult upon a victim who is not only smaller, weaker, and less experienced, but is also generally susceptible to acceding to the coercive power of adult authority figures." Sherwood, 156 F.3d at 221 (citing United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir.1996)). Moreover, when the illicit activity involves sexual intercourse, it poses an additional risk of harm due to the possible transmission of social or venereal diseases. See United States v. Carter, 266 F.3d 1089, 1091 (9th Cir.2001); Sacko, 247 F.3d at 24.

The appellant offers no compelling rejoinder to this long line of well-reasoned precedents. He does, however, suggest that his situation is distinguishable. The distinction, he says, is that his case is "once removed" from the potentially harmful conduct because he himself was not sexually active in the commission of any of the charged...