United States v. Christensen

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2009
• Docket: 06-30402
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30402 Plaintiff-Appellee, v.  D.C. No. CR-04-00267-EFS DUSTIN CHRISTENSEN, OPINION Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Argued and Submitted May 7, 2007—Seattle, Washington

Filed March 23, 2009

Before: Procter Hug, Jr., M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

3683 UNITED STATES v. CHRISTENSEN 3685

COUNSEL

Christina L. Hunt, Office of the Federal Public Defender, Spokane, Washington, for the appellant.

George J.C. Jacobs, III, Office of the U.S. Attorney, Spokane, Washington, for the appellee.

OPINION

W. FLETCHER, Circuit Judge:

Dustin Christensen pled guilty to being a felon in posses- sion of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924, an offense carrying a maximum sentence of ten years. At the government’s request, the district court enhanced Chris- tensen’s sentence to fifteen years under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his previous conviction of three “violent felon[ies].”

One of Christensen’s three prior violent felony convictions arose out of a guilty plea to statutory rape in violation of Washington Revised Code § 9A.44.079. Based on Begay v. United States, 128 S. Ct. 1581 (2008), we hold under the cate- gorical approach of Taylor v. United States, 495 U.S. 575 3686 UNITED STATES v. CHRISTENSEN (1990), that a conviction for statutory rape under § 9A.44.079 does not constitute a violent felony under the ACCA. We reverse and remand to the district court for further proceed- ings in light of this opinion.

I. Background

Christensen has a history of drug abuse and other problems with the law, including prior felony convictions. In early 2004, he had outstanding warrants for his arrest for third degree theft and for failure to report to the Washington State Department of Corrections. Hoping to get her son help with his drug abuse, Christensen’s mother informed the Spokane County Sheriff’s Office that Christensen would be in the parking lot of a Petco Store on the afternoon of February 17, 2004. When Christensen and his mother drove into the park- ing lot, he was arrested without incident. He had two bullets (but no gun) in his backpack.

Christensen pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. The maximum sentence for being a felon in possession of ammunition is ten years. See id. § 924(a)(2). However, the government sought to enhance the sentence under the ACCA based on three prior convictions for “violent felon[ies].” Id. § 924(e)(2)(B). The mandatory minimum sentence under the ACCA is fifteen years. See id. § 924(e)(1).

One of the felonies on which Christensen’s sentence enhancement was based was a conviction for statutory rape in violation of Washington Revised Code § 9A.44.079. Whether Christensen’s sentence was properly enhanced turns on whether that conviction constituted a “violent felony” under the ACCA. Section 9A.44.079(1) provides:

A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less UNITED STATES v. CHRISTENSEN 3687 than sixteen years old and not married to the perpe- trator and the perpetrator is at least forty-eight months older than the victim.

“Consent by the victim is not a defense” to a charge of statu- tory rape under § 9A.44.079. State v. Heming, 90 P.3d 62, 63 (Wash. Ct. App. 2004).

The district court analyzed Christensen’s violation of § 9A.44.079 under the categorical approach of Taylor. The court felt itself bound by our opinion in United States v. Asberry, 394 F.3d 712 (9th Cir. 2005), which construed the phrase “crime of violence” under § 4B1.2 of the United States Sentencing Guidelines. The definition of “crime of violence” in § 4B1.2 is almost word-for-word the same as the definition of “violent felony” in the ACCA. In Asberry, we concluded that statutory rape is categorically a “crime of violence” under § 4B1.2 because even consensual sexual intercourse “between adults and adolescents ages fifteen and younger creates a ‘serious potential risk of physical injury.’ ” Id. at 718. Based on Asberry, the district court concluded that Christensen’s conviction for statutory rape categorically constituted a “vio- lent felony” under the ACCA. The district court did not reach the question whether Christensen’s conviction constituted a violent felony under the modified categorical approach.

The district judge sentenced Christensen to the fifteen-year minimum sentence mandated by the ACCA. The judge was clearly uncomfortable with that sentence. He did not mini- mize the importance of Christensen’s prior criminal history, but made clear at the sentencing hearing that he would have sentenced him to less than fifteen years if he had not been compelled to do so by the ACCA:

[I]t seems to me that the Ninth Circuit precedent compels this outcome . . . . And I say that not to assuage my conscience in this case at all but rather to say that we find ourselves in this spot, it seems to 3688 UNITED STATES v. CHRISTENSEN me, because there was a failure to consider the facts of this case.

This is a two bullet prohibited person case brought by a mother trying to help her son and avoid risk to the public and to her son, and under those circum- stances, one would have wished for greater under- standing of that dynamic and a greater respect for that effort so that there was at the greatest a ten-year maximum in this case.

But I do respect the right of the Department of Justice to say this is a serious felon who deserves to be put away for a long time. I would have wished for a different view of this so that we didn’t get our- selves in an ACCA status.

When this case was first before us, we affirmed in an unpublished memorandum disposition based on Asberry. See United States v. Christensen, No. 06-30402, 2007 WL 1544714 (9th Cir. May 25, 2007). After we filed our memo- randum disposition but before the mandate issued, Christen- sen petitioned for rehearing. While that petition was pending, the Supreme Court decided Begay, which construed “violent felony” under the ACCA. For the reasons that follow, we con- clude that Begay requires us to grant the petition for rehear- ing. Based on Begay, we now hold that under the categorical approach, Christensen’s conviction for statutory rape in viola- tion of § 9A.44.079 does not constitute a violent felony under the ACCA.1 We reverse and remand for further proceedings. 1 Christensen also contends that his Sixth Amendment rights were vio- lated because the government failed to charge the ACCA sentence enhancement in his indictment and to prove to a jury beyond a reasonable doubt that his prior convictions were for violent felonies. In our earlier unpublished memorandum disposition, we held that Christensen’s Sixth Amendment rights were not violated. We do not revisit that holding. UNITED STATES v. CHRISTENSEN 3689 II. Discussion

A. Categorical Approach

The ACCA requires a minimum sentence of fifteen years for individuals who violate 18 U.S.C. § 922(g) and have three prior convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1) (emphasis added). The central question in this appeal is whether, under the categorical approach, statutory rape qualifies as a “violent felony.”

[1] The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B) (emphasis added). Statutory rape qualifies as a “violent felony” only if it comes within the italicized catch-all clause — “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).

[2] The Supreme Court construed the catch-all clause of the ACCA in Begay, 128 S. Ct. at 1581. The question in Begay was whether driving under the influence of alcohol (“DUI”) under New Mexico law qualified as a “violent felony” under the catch-all clause. See id. at 1583-84. The Court held that it did not. See id. at 1583, 1588.

[3] The Court used an ejusdem generis analysis, concluding that crimes covered by the catch-all clause must involve con- 3690 UNITED STATES v. CHRISTENSEN duct similar to the conduct in the four crimes specifically named in the statute:

In our view, the provision’s listed examples — burglary, arson, extortion, or crimes involving the use of explosives — illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another.”

Id. at 1584-85 (emphasis in original). The Court went on:

In our view, DUI differs from the example crimes — burglary, arson, extortion, and crimes involving the use of explosives — in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct. . . .

By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict lia- bility, criminalizing conduct in respect to which the offender need not have had any criminal intent at all.

Id. at 1586-87 (emphasis added).

The Court specifically rejected the approach of the dissent, which would have analyzed the risk of harm posed by the behavior without regard for whether the defendant’s crime involved “purposeful, violent, and aggressive” conduct:

Were we to read the statute without this distinc- tion, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dan- UNITED STATES v. CHRISTENSEN 3691 gerous, are not typically committed by those whom one normally labels “armed career criminals.” . . . The statute’s use of examples (and the other consid- erations we have mentioned) indicate the contrary.

The dissent’s approach . . . would likely include these crimes within the statutory definition of “vio- lent felony,” along with any other crime that can be said to present “a serious potential risk of physical injury.”

Id. at 1587.

[4] Because the Court in Begay used the conjunction “and,” all three of its criteria — “purposeful, violent, and aggressive” — must be satisfied. We do not decide whether statutory rape is necessarily “purposeful” as the Court used that word in Begay. But because statutory rape may involve consensual sexual intercourse, Heming, 90 P.3d at 63, it does not neces- sarily involve either “violent” or “aggressive” conduct. We therefore conclude that a conviction for statutory rape in vio- lation of Washington Revised Code § 9A.44.079 does not qualify under the categorical approach as a violent felony under the ACCA.2

B. Modified Categorical Approach

[5] The district judge did not reach the question whether under the modified categorical approach Christensen commit- ted a “violent felony” under ACCA. Nor did the parties brief that question on appeal. We remand to allow the district court to consider the question in the first instance. 2 It is evident from our discussion that our earlier holding in Asberry that statutory rape is a “crime of violence” under U.S.S.G. § 4.B1.2 may no longer be good law. However, because the continuing vitality of Asberry is not before us, we do not address this issue. 3692 UNITED STATES v. CHRISTENSEN III. Conclusion

For the foregoing reasons, we hold that statutory rape under Washington Revised Code § 9A.44.079 is not categorically a “violent felony” within the meaning of the ACCA. We with- draw our unpublished memorandum disposition, 2007 WL 1544714 (9th Cir. May 25, 2007), with respect to this issue, reverse the decision of the district court, and remand for fur- ther proceedings in light of this opinion.

REVERSED AND REMANDED.