United States v. Velázquez
| Decision Date | 26 January 2015 |
| Docket Number | No. 14–1295.,14–1295. |
| Citation | 777 F.3d 91 |
| Parties | UNITED STATES of America, Appellee, v. José L. VELÁZQUEZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
J. Hilary Billings, Assistant Federal Defender, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before LYNCH, Chief Judge, SOUTER,* Associate Justice, and SELYA, Circuit Judge.
Employing a categorical approach, we held in United States v. Eirby, 515 F.3d 31 (1st Cir.2008), that the strict liability offense of engagement in a sexual act with a 14– or 15–year–old minor by a person at least 10 years older constituted a crime of violence and, thus, qualified as a predicate offense under the career offender guideline, USSG § 4B1.2(a)(2). See id. at 38. Defendant-appellant José L. Velázquez invites us to abrogate that holding, asserting that a subsequent Supreme Court decision has relegated it to the scrap heap. After careful consideration, we decline the appellant's invitation and affirm his sentence.
We rehearse the background of the case to the extent needed to frame the issue on appeal. Since the appellant's sentence followed a guilty plea, we glean the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte–Nuñez, 771 F.3d 84, 86 (1st Cir.2014).
In 2008, the appellant was haled into a Maine state court for, inter alia, two counts of gross sexual assault of a child under the age of 14. SeeMe.Rev.Stat. tit. 17–A, § 253(1)(B). The indictment charged in pertinent part that the appellant had on two separate occasions “engage[d] in a sexual act with [E.O.], not his spouse, who had not in fact attained the age of 14 years.” The appellant was 29 years old at the time of the offense, and the victim (whose age was known to the appellant) was 12 years old. The appellant pleaded guilty to these charges and the state court sentenced him to a substantial prison term.
The convictions resulted in the appellant's classification as a sex offender with a lifetime registration requirement under both federal and state law. See42 U.S.C. §§ 16911(4), 16915(a)(3); Me.Rev.Stat. tit. 34–A, §§ 11203(7)(A), 11203(8)(A), 11225–A(3). Shortly after his release from custody in 2011, the appellant flouted not only these registration requirements but also the reporting obligations imposed as a condition of his state-court probation. As a result, the state reincarcerated him as a probation violator.
The appellant did not learn his lesson. Upon his provisional release from custody, he absconded. The Maine authorities issued a warrant, which led to the appellant's apprehension in Miami. It later came to light that, during his time on the run, the appellant allegedly committed a sex crime in New York involving a four-year-old girl. Those charges were pending at the time of sentencing in this case.
In May of 2013, a federal grand jury sitting in the District of Maine charged the appellant with being a sex offender who had traveled in interstate commerce without registering or updating his registration. See18 U.S.C. § 2250(a). In due course, the appellant entered into a plea agreement (the Agreement) with the government. The Agreement contained a stipulated total offense level of 13. Although the Agreement did not specify the appellant's criminal history category (CHC), the parties agreed to limit their sentencing recommendations to the guideline sentencing range (GSR) eventually determined by the district court.
Arriving at the appropriate CHC proved to be contentious. The PSI Report treated the appellant's two prior convictions for gross sexual assault as effectively yielding a single sentence, seeUSSG § 4A1.2(a)(2), generating three criminal history points, see id. § 4A1.1(a). After accounting for the remainder of the appellant's criminal record and his commission of the offense of conviction while on probation, see id. § 4A1.1(d), the Report recommended that the appellant be placed in CHC IV. Paired with the agreed offense level, this placement resulted in a GSR of 24 to 30 months.
The appellant accepted these calculations, but the government demurred. It argued that an additional criminal history point should be assessed because gross sexual assault under section 253(1)(B) is a crime of violence within the meaning of USSG § 4B1.2(a) (). See id.§§ 4A1.1(e), 4A1.2(p). This single point had decretory significance in the sentencing calculus: it catapulted the appellant into CHC V, elevating the GSR to 30 to 37 months and paving the way for a more onerous sentence.
In resolving this contretemps, the district court found Eirby controlling and assessed the disputed criminal history point. Consequently, the higher GSR applied, and the court imposed a 37–month top-of-the-range term of immurement. This timely appeal followed.
This is a rifle-shot appeal: the appellant asks us to disallow the disputed criminal history point and, in the bargain, to abrogate our decision in Eirby. In support, he submits that a strict liability sex offense cannot be classified as a crime of violence in light of the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).1 Because the classification vel non of a criminal offense as a crime of violence poses a purely legal question, our review is de novo. See United States v. Williams, 529 F.3d 1, 3 (1st Cir.2008).
We start by noting the circumscribed scope of our inquiry. It is beyond peradventure that the appellant's two convictions for gross sexual assault under section 253(1)(B) were properly counted as yielding a single sentence that merited three criminal history points. The sole issue on appeal is whether a violation of section 253(1)(B) constitutes a crime of violence, thus necessitating an additional criminal history point. SeeUSSG § 4A1.1(e).
The term “crime of violence” is derived from the career offender guideline, which sets forth a two-part definition:
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, 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.
Id.§ 4B1.2(a). Here, the predicate offense—a violation of section 253(1)(B)—is punishable by a term of imprisonment that exceeds one year. SeeMe.Rev.Stat. tit. 17–A, § 1252(2)(A). That offense, however, does not have as an element the use, attempted use, or threatened use of physicalforce against the person of another. By the same token, the offense is not one of the enumerated crimes delineated in the career offender guideline—burglary of a dwelling, arson, or extortion. Nor does the offense involve the use of explosives. The question, then, is whether the offense comes within the career offender guideline's residual clause; that is, whether the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a).
In determining whether an offense constitutes a crime of violence under this definition, we employ the familiar categorical approach. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Williams, 529 F.3d at 4. Under this approach, we focus on “the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quoting Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)) (internal quotation marks omitted). Where, as here, the predicate offense is a state offense, we glean the elements from the statute of conviction as interpreted by the state's highest court. See United States v. Hart, 674 F.3d 33, 41 (1st Cir.2012).
Against this backdrop, we turn to the statute of conviction that underlies the challenged criminal history point. A person is guilty of gross sexual assault under section 253(1)(B) “if that person engages in a sexual act with another person and ... [t]he other person, not the actor's spouse, has not in fact attained the age of 14 years.” “Sexual act” is defined separately as “[a]ny act between 2 persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other.” Me.Rev.Stat. tit. 17–A, § 251(1)(C)(1). Maine's highest court has held that gross sexual assault of a minor is a strict liability offense and that the use of force need not be proven to secure a conviction. See State v. Keaten, 390 A.2d 1043, 1045 & n. 6 (Me.1978). A violation of this statute is punishable by up to thirty years' imprisonment. SeeMe.Rev.Stat. tit. 17–A, § 1252(2)(A).
We proceed next to the residual clause of the career offender guideline.2 Our first inquiry is whether, in the typical case, the conduct underlying the offense poses a “serious potential risk” of injury equivalent to that of its closest analog among the exemplar crimes. James, 550 U.S. at 203, 127 S.Ct. 1586. In this context, the Supreme Court has construed the phrase “potential risk” to require only a realistic probability (not a certainty) that the offense conduct will result in injury. See id. at 207–08, 127 S.Ct. 1586.
Under the similarity-of-risk test, this court has not wavered in holding that strict liability sex crimes against minors, such as statutory rape, are crimes of violence. See, e.g., Eirby, ...
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