USA. v. Riley

• Citation: 183 F.3d 1155
• Decision Date: 04 February 1999
• Docket Number: No. 98-50199,98-50199
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HENRY NASH RILEY, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1155

183 F.3d 1155 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HENRY NASH RILEY, Defendant-Appellant.

No. 98-50199

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 4, 1999--Pasadena, California

Filed July 26, 1999

Frank Mangan, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Stephen F. Miller, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-96-02235-MLH.

Before: Harry Pregerson, Robert Boochever, and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:

We consider here the appeal of Henry Nash Riley ("Riley") concerning his 96 month sentence for bank robbery and the district court's decision finding him a career offender under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") S 4B1.1. In particular, Riley contests the determination that he had previously been convicted of two violent crimes.

FACTS AND PROCEDURAL HISTORY

In November 1996, Riley entered a San Diego-area federally insured credit union and presented a bank teller with a note stating: "This is a hold up. I have a gun. Give me all your money." Complying with the demand, the teller promptly provided Riley with $5,639. The money contained pre-recorded bait bills and a tracking device. Shortly thereafter, the San Diego police picked up the tracking device's signal and arrested Riley.

Riley subsequently pled guilty to one count of unarmed bank robbery, a violation of 18 U.S.C. S 2113(a). A Presentence Report ("PSR") found that Riley had two prior felony convictions: a 1994 federal bank robbery, and a 1991 attempted simple rape in Louisiana. Since the PSR deemed these prior convictions "crimes of violence," under U.S.S.G. S 4B1.1, Riley was elevated to the status of a "career offender" for purposes of calculating his offense level. As a result, Riley's offense level was raised from 22 to 32 and his criminal history category from IV to VI. After a subtraction for acceptance of responsibility, Riley's offense level as calculated in the PSR was 29. This resulted in a guideline range of 151-188 months.

The district court agreed with the PSR, finding that Riley's two prior convictions were crimes of violence, and deemed Riley a career offender under U.S.S.G. S 4B1.1. The court then departed downward from level 29 to level 23 ¹ and sentenced Riley to 96 months plus three years supervised release. We have jurisdiction pursuant to 28 U.S.C. S 1294(a) and we affirm.

ANALYSIS

I.

The district court's determination that Riley is a career offender is an interpretation of the Sentencing Guidelines we review de novo. See United States v. Bailey, 139 F.3d 667, 667 (9th Cir. 1998); United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990).

II.

We confront a single issue: whether a conviction for the crime of "simple rape" under Louisiana Revised Statute Section 14:43² qualifies as a crime of violence under the Sentencing Guideline's career offender provision.³ Under U.S.S.G. S 4B1.1, Riley is considered a career offender if he has at least two prior felony convictions for crimes of violence.⁴ A "crime of violence" is defined in U.S.S.G.S 4B1.2(a)(2) as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . involves con-duct that presents a serious potential risk of physical injury to another."⁵

To make such a determination, we employ a categorical approach and do not examine the actual conduct underlying Riley's conviction. See Taylor v. United States , 495 U.S. 575, 600-02 (1990); United States v. Hasan, 983 F.2d 150, 151 (9th Cir. 1992). Instead, we analyze only the elements of the crime charged. See United States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992).⁶ Thus, we must decide whether the statutory definition of attempted simple rape under Louisiana law fits within U.S.S.G. S 4B1.2(a)(2) as involving "conduct that presents a serious potential risk of physical injury to another." See also United States v. Young, 990 F.2d 469, 472 (9th Cir. 1993).

To decide this, we must compare our past interpretation of crimes of violence under U.S.S.G. S 4B1.2 with the parameters of the Louisiana statute. Riley's reliance on United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) is unavailing. Potter was convicted of "rape by force" which the court treated as a conviction under California Penal Code 261(2). See id. at 1238-39. While the court noted as irrelevant that other provisions of California's 1981 rape statute might define rape in a way that would not constitute a violent felony, see id. at 1236-37 & n.4, this statement was dictum. Consequently, Potter did not decide the "violent crime" issue.⁷

However, particularly relevant is United States v. Wofford, 122 F.3d 787, 792 (9th Cir. 1997), where we held that grand theft from a person is a violent crime. That the crime involved "direct physical contact between the perpetrator and the victim" was significant to our determination. Id. at 793. Thus, we observed that "[w]hen [the thief] confronts the victim and seizes property from the victim's person, the criminal creates a serious risk of physical injury to another. . . . Even though the thief might sometimes . . . avoid immediate detection by his victim, he risks such a confrontation at every encounter." Id. at 794.⁸

Personal contact is, of course, part and parcel of simple rape or its attempt. At its essence, simple rape is "the act of anal or vaginal sexual intercourse with a female who is deemed legally incapable of resisting or intelligently consenting, whether she consents or not, or when the consent is fraudulently obtained." State v. Simmons, 621 So.2d 1135, 1138 (La. Ct. App. 1993). As in Wofford, no matter how committed, every time a perpetrator engages in or attempts to engage in an act of rape, some contact with the victim is achieved. Such close proximity coupled with the nature of this offense creates an atmosphere that fosters the potential for physical confrontation. Even in its least violent form, simple rape under the Louisiana statute could result in physical injury to the victim.

For example, if the victim realized at any point that the perpetrator was not her husband or if the victim came out of her stupor, the situation could easily escalate into a violent confrontation. While every episode of simple rape may not result in physical injury to the victim, the guideline only requires that there be a "serious potential risk of physical injury," not that the injury in fact occur. See id. at 794 n.4⁹. We have noted that " `the typical crime of violence does not have to result in violence, . . . the risk of physical force [alone] is sufficient.' " United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) (quoting United States v. Gonzales-Lopez, 911 F.2d 542 (11th Cir. 1990)). Moreover, our case law teaches that actual physical injury to the victim is not determinative. Rather, it is sufficient that "the offense generally pose[s] a serious risk of physical injury to the victim." United States v. Wood, 52 F.3d 272, 276 (9th Cir. 1995) (emphasis added).

Riley argues that simple rape is not a crime of violence because it is merely sex by trickery, deceit, or negligence rather than by force. We rejected a similar argument in United States v. Williams, 110 F.3d 50, 52 (9th Cir. 1997). There, we held that, under U.S.S.G. S 4B1.2(a)(2), kidnaping committed by deception, rather than force, constituted a crime of violence, because kidnaping "by its very nature, involves a substantial risk of physical violence."¹⁰ See also United States v. Sherbondy, 865 F.2d 996, 1008-09 (9th Cir. 1988). Moreover, in United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), we held that child stealing by conduct that either maliciously, forcibly or fraudulently takes or entices away thechild offers the same risk of physical injury as kidnaping and therefore is a crime of violence under U.S.S.G.S 4B1.2(a)(2).

By definition, simple rape can be achieved by trickery or deception. It is nonetheless a crime against the bodily integrity of the victim. Cf. In the Interest of M.T.S., 609 A.2d 1266, 1274, 1277-78 (N.J. 1992). "That deception may be used to effect . . . [the rape] does not erase the ever-present possibility that the victim may figure out what's really going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint." United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc). Further, rape also subjects the victim to the physical risks associated with sexually transmitted diseases and pregnancy. Cf. United States v. Shannon, 110 F.3d 382, 387-89 (7th Cir. 1997) (en banc). As such, it creates a serious potential risk of physical injury and is therefore a crime of violence under U.S.S.G. S 4B1.2(a)(2).

Our own analysis suggests that simple rape is more akin to crimes we have previously deemed inherently violent, see Wofford, 122 F.3d at 787 (grand theft from a person); Wood, 52 F.3d at 272 (indecent liberties with a child); Lonczak, 993 F.2d at 180 (child stealing); United States v. Huffhines, 967 F.2d 314 (9th Cir. 1992) (possession of a silencer), than those considered not to be so. See United States v. Innie, 7 F.3d 840 (9th Cir. 1993) (being an accessory after the fact); Sahakian, 965 F.2d at 740 (being a felon in possession of a firearm); United States v. Sparks, 87 F.3d 276 (9th Cir. 1996) (attempted home invasion).¹¹ Moreover, while simple rape is potentially of a different order than forcible rape which the Commentary to U.S.S.G. S 4B1.2 explicitly considers a violent crime,¹² it remains an event no less serious and potentially dangerous than larceny, child stealing or kidnaping. ¹³

Riley attempts to characterize this crime as...