Saturday, January 31, 2015

The First Vacated Sentence of 2015

In the Tenth Circuit, in a published decision, anyway (the Court vacated a sentence in an earlier unpublished decision where the district court found a fair possibility that the district court imposed a lengthier sentence for purposes of rehabilitation, an error thanks to this Supreme Court case).
The published decision is United States v. Wray, and it was litigated, successfully, by Matthew Belcher, an AFPD in Denver.
The issue: whether a prior Colorado conviction for "sexual assault -- 10 years age difference" (in the Court's words: "in essence, a statutory rape conviction") qualified as a crime of violence under USSG 2K2.1 & 4B1.2 
The Holding: Categorically speaking, it does not.
The Analysis:
The Court addresses two potential avenues:
(1) whether the conviction qualifies as a crime of violence because it is a "forcible sex offense" under Application Note 1 to 4B1.2; and/or
(2) whether the conviction qualifies as a crime of violence under the residual clause of 4B1.2 (a residual clause identical to the one the Supreme Court will determine is either void for vagueness or not in Johnson v. United States)  
The bifurcated analysis is a great reminder that you need to know, and pay attention to, the enumerated offenses in Application Note 1. It is also a great reminder that the Guidelines' crime-of-violence provision is different, in this respect, from the violent felony provision in the Armed Career Criminal Act (although, earlier in this decision, the Tenth Circuit tells us that the analysis is essentially the same).
In holding that statutory rape is not a "forcible sex offense," the Court:
  • reviews a different definition of "crime of violence" in USSG 2L1.2 (applicable in immigration-related offenses), a definition that includes statutory rape, and, in a solid display of statutory interpretation, concludes that the absence of statutory rape in Application Note 1 means that Note 1 was not meant to include it as a crime of violence (espressio unius est exclusion alterius) (somewhat inexplicitly, the government actually cited 2L1.2 in support of its argument); and
  • holds that consensual sex, considered nonconsensual solely because of the age of the victim, does not qualify as "forcible" conduct.
The Court spent some time distinguishing a few prior cases, and finding one, United States v. Dennis, that supported its conclusion. It also relied somewhat heavily on an unpublished decision from the Fourth Circuit. So, when researching an issue, don't forget the unpublished decisions. Some courts of appeals never cite them, but the Tenth Circuit is not one of those courts.   

In holding that statutory rape does not qualify as a crime of violence under the residual clause (an offense that "involves conduct that presents a serious potential risk of physical injury to another"), the Court held that:
  • the commission of a strict liability, negligence, or recklessness offense is not a crime of violence; and
  • statutory rape is a strict liability offense, at least where the statute at issue does not require that the defendant know the victim's age.
 Sentence vacated. Case remanded for resentencing.

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