United States v. Wray

• Decision Date: 27 January 2015
• Docket Number: No. 14–1086.,14–1086.
• Citation: 776 F.3d 1182
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Reginald Jerome WRAY, a/k/a Raymond Anderson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

776 F.3d 1182

UNITED STATES of America, Plaintiff–Appellee

v.Reginald Jerome WRAY, a/k/a Raymond Anderson, Defendant–Appellant.

No. 14–1086.

United States Court of Appeals, Tenth Circuit.

Jan. 27, 2015.

Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady, Federal Public Defender, on the briefs), Denver, CO, for Defendant–Appellant.

Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States Attorney, on the brief), Denver, CO, for Plaintiff–Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

Opinion

KELLY, Circuit Judge.

Defendant–Appellant Reginald Jerome Wray pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 77 months' imprisonment and three years' supervised release. The issue we resolve on appeal is whether Mr. Wray's prior conviction for “Sexual Assault–10 Years Age Difference” under Colo.Rev.Stat. § 18–3–402(1)(e) constitutes a “crime of violence” as that phrase is used in U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing because we conclude the prior conviction does not qualify as a “crime of violence.”

Background

Mr. Wray's presentence investigation report (PSR) concluded that he had two prior felony convictions for “crime[s] of violence,” U.S.S.G. § 2K2.1(a)(2), based upon two prior Colorado convictions: one for felony menacing and the other for “sexual assault–10 years age difference.” Regarding the sexual assault conviction, Colo.Rev.Stat. § 18–3–402(1)(e) provides:

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:

* * *

(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim.

Mr. Wray objected to the use of this conviction as a predicate for increasing his base offense level from 20 to 24. He argued that a violation of the statute did not constitute 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).

The district court acknowledged that the Supreme Court's decisions in Begay and Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), made application of Tenth Circuit precedent to Mr. Wray's case less than straight-forward. Nevertheless, the district judge concluded that this circuit's prior decisions required him to find that the sexual assault conviction constituted a “crime of violence.”

Discussion

Our review of whether a defendant's prior conviction constitutes a crime of violence under U.S.S.G. § 4B1.2 is de novo. United States v. Dennis, 551 F.3d 986, 988 (10th Cir.2008).

Under U.S.S.G. § 2K2.1(a)(2), a defendant convicted under 18 U.S.C. § 922(g) is assigned an offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” The commentary to § 2K2.1 directs us to consult the career-offender guideline, § 4B1.2, for the definition of “crime of violence.” That section defines “crime of violence” as:

[a] [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.

U.S.S.G. § 4B1.2(a) (emphasis added). Application Note 1 to § 4B1.2 further provides that “ ‘crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” (emphasis added).

Both Mr. Wray and the government agree that the sexual assault conviction does not constitute a “crime of violence” under the elements approach of § 4B1.2(a)(1).¹ Accordingly, we consider only the government's arguments that the prior conviction (1) is a “forcible sex offense” under to Application Note 1, or (2) comes within the residual clause of § 4B1.2(a)(2) (i.e., is one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”).

A. The Categorical Approach and the Residual Clause

The “crime of violence” definition set forth in the career-offender guideline, § 4B1.2, is virtually identical to the definition of “violent felony” contained in the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(2)(B) ; see James v. United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Thus, this court and other federal courts of appeals have applied the Supreme Court's ACCA “violent felony” analysis in cases interpreting § 4B1.2's definition of “crime of violence.” Dennis, 551 F.3d at 988 ; see also United States v. Rooks, 556 F.3d 1145, 1149–50 (10th Cir.2009) ; United States v. McDonald, 592 F.3d 808, 810 (7th Cir.2010). Our approach, therefore, is guided by a line of Supreme Court cases interpreting the scope of § 924(e)(2)(B).

To determine whether a prior conviction constitutes a crime of violence, we employ a categorical approach. United States v. Perez–Jiminez, 654 F.3d 1136, 1140 (10th Cir.2011). That is, “we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” James, 550 U.S. at 202, 127 S.Ct. 1586 ; Begay, 553 U.S. at 141, 128 S.Ct. 1581. With regard to § 4B1.2(a)(2)'s residual clause, the categorical approach requires us to focus on the elements of the offense and ask whether those elements “are of the type that would justify its inclusion within the residual provision.” James, 550 U.S. at 202, 127 S.Ct. 1586. It is not “requir[ed] that every conceivable factual offense covered by a statute ... necessarily present a serious potential risk of injury.” Id. at 208, 127 S.Ct. 1586. “Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. Thus, in considering Mr. Wray's sexual assault conviction, we do not look to the particular facts of the offense, nor do we examine the most or least culpable means of violating the statute. We ask only whether the elements of that offense are such that the commission of the crime, “in the ordinary case,” presents a serious potential risk of physical injury.

Employing the categorical approach in James, the Court considered whether the defendant's prior conviction for attempted burglary “otherwise involv[ed] conduct that presents a serious potential risk of physical injury to another.”² James, 550 U.S. at 201, 127 S.Ct. 1586. Turning to the statutory language for guidance, the Court noted that the enumerated offenses preceding the residual clause “provide one baseline from which to measure” whether certain offenses properly fall within the scope of that clause. Id. at 203, 127 S.Ct. 1586. The Court employed a risk-comparison approach, comparing the risk posed by attempted burglary to the risk posed by the offense's closest analog among the enumerated offenses. Id. The Court concluded that attempted burglary is a “violent felony” under the residual clause because attempted burglary poses the “same kind of risk” as completed burglary—namely, the potential risk of “violent confrontation” between an attempted burglar and innocent bystander. Id. at 204–05, 127 S.Ct. 1586. The Court emphasized that the focus of the inquiry is on potential, rather than actual or factual, risk. Id. at 207–08, 127 S.Ct. 1586.

The following year, the Supreme Court decided Begay, where it considered whether the defendant's felony driving under the influence (DUI) convictions were violent felonies under the ACCA's residual clause. 553 U.S at 140–41, 128 S.Ct. 1581. While conceding that drunk driving indeed poses a “serious potential risk of physical injury to another,” the Court nonetheless concluded that Begay's DUI offenses were not covered by the statute. The enumeration of specific crimes in the statutory language indicated Congress' intent that the residual clause “cover[ ] only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” Id. at 142, 128 S.Ct. 1581. Thus, the residual clause covers only those offenses “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Id. at 143, 128 S.Ct. 1581.

With this interpretation in hand, the Begay Court concluded that the risk posed by drunk driving is not the same kind of risk posed by the enumerated offenses. The enumerated crimes “all typically involve purposeful, violent, and aggressive conduct.” Id. at 144–45, 128 S.Ct. 1581 (internal quotations omitted). That type of conduct “makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Id. at 145, 128 S.Ct. 1581. DUI statutes, on the other hand, do not target purposeful, violent, and aggressive conduct. Rather, those crimes are more analogous to “crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have any criminal intent at all.” Id. at 145, 128 S.Ct. 1581. A prior conviction for one of these crimes, then, sheds no light on the likelihood that such person will engage in the kind of deliberate behavior “associated with violent criminal use of firearms.” Id. at 147, 128 S.Ct. 1581.

The most recent authority on the scope of the ACCA's residual clause is Sykes. Mr. Sykes contended that his prior conviction for vehicle flight from law enforcement was not a “violent...