United States v. Velazquez
777 F.3d 91
1st Cir.2015Background
- Defendant José L. Velázquez pleaded guilty to interstate failure-to-register as a sex offender (18 U.S.C. §2250) after prior Maine convictions for two counts of gross sexual assault of a child under 14 (Me. Rev. Stat. tit. 17‑A, §253(1)(B)).
- The Maine convictions were strict‑liability child‑sexual‑contact offenses (victim as young as 12) punishable by up to 30 years. State law treats these as "sexually violent offenses."
- The PSI treated the two Maine convictions as a single sentence (three criminal‑history points); the government sought one additional point under USSG §4A1.1(e), arguing the Maine offense is a "crime of violence" under USSG §4B1.2(a) (career‑offender guideline).
- The district court followed this court's prior precedent in United States v. Eirby, assessed the extra point, placed Velázquez in CHC V, and sentenced him to 37 months. Velázquez appealed, asking the court to overrule Eirby in light of Begay v. United States.
- The sole legal question on appeal: whether Maine gross sexual assault of a child under 14 categorically qualifies as a "crime of violence" under the career‑offender guideline's residual clause.
Issues
| Issue | Plaintiff's Argument (Velázquez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Maine gross sexual assault of a child <14 is a "crime of violence" under USSG §4B1.2(a)'s residual clause | Begay requires predicate offenses be "purposeful, violent, and aggressive," and strict‑liability sex offenses lack that mens rea; Eirby should be abrogated | Eirby controls: strict‑liability sexual offenses against young children typically present a serious potential risk of physical injury and are similar in kind to enumerated violent crimes | Affirmed: the offense is categorically a crime of violence; Eirby remains good law |
Key Cases Cited
- United States v. Eirby, 515 F.3d 31 (1st Cir. 2008) (held sexual act with 14–15‑year‑old by adult 10+ years older is a crime of violence)
- Begay v. United States, 553 U.S. 137 (2008) (ACCA residual clause requires predicate crimes be similar in kind to enumerated offenses)
- James v. United States, 550 U.S. 192 (2007) (similarity‑of‑risk test for residual clause requires realistic probability of injury)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for determining predicate offenses)
- United States v. Williams, 529 F.3d 1 (1st Cir. 2008) (post‑Begay treatment equating ACCA "violent felony" and guideline "crime of violence")
- United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (holding sexual acts with minors typically involve affirmative, deliberate conduct and risk of force)