United States v. Wray, 2015 U.S. App. LEXIS 1333

Background

Defendant Reginald Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months; the PSR treated two prior Colorado felonies as "crimes of violence," raising his base offense level under U.S.S.G. § 2K2.1(a)(2).
One predicate conviction was Colorado sexual assault under Colo. Rev. Stat. § 18-3-402(1)(e) (sexual penetration where victim is 15–16 and actor is ≥10 years older).
Both parties agreed the statute does not qualify under § 4B1.2(a)(1)’s elements test (use of force); dispute focused on whether it is a "forcible sex offense" under Application Note 1 or fits the residual clause of § 4B1.2(a)(2).
Government argued statutory-rape offenses that negate legal consent are per se "forcible sex offenses" or at least fall within the residual clause; Wray argued Begay and related precedent exclude such strict-liability age-based offenses from the residual clause.
The Tenth Circuit applied the categorical approach, examined Begay, James, and Sykes, and evaluated whether the Colorado statute is a strict-liability-type offense such that Begay’s exception bars inclusion in the residual clause.
Court concluded § 18-3-402(1)(e) is effectively strict liability with respect to the victim’s age (the mens rea does not apply to age), therefore Begay’s exception excludes it from the residual clause and it is not a categorical "crime of violence." Case remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Colo. Rev. Stat. § 18-3-402(1)(e) is a "forcible sex offense" under App. Note 1 to U.S.S.G. § 4B1.2	Gov: age-based inability to consent makes the offense categorically forcible; § 2L1.2 commentary (which lists statutory rape) supports inclusion	Wray: statute permits factual consent; "forcible" implies element of force or lack of factual consent, so statute is not categorically forcible	Not a per se "forcible sex offense" under § 4B1.2 App. Note 1
Whether § 18-3-402(1)(e) falls within § 4B1.2(a)(2)’s residual clause ("otherwise involves conduct presenting serious potential risk of physical injury")	Gov: sex with minors carries a serious risk and should be within the residual clause	Wray: Begay and Sykes require excluding strict-liability age-based crimes that do not reflect purposeful, violent, aggressive conduct	Court: statute is a strict-liability–type offense as to victim age; Begay exception applies; conviction not within residual clause
Whether the mens rea "knowingly" applies to the victim’s age element	Gov: the sexual act has mens rea; absence of age mens rea is irrelevant	Wray: Colorado statute’s mens rea does not apply to age, making age element strict liability	Court: agreed with Wray; "knowingly" does not apply to victim’s age, so statute is strict liability in that respect
Whether court must reach vagueness challenge to § 4B1.2	Gov: not directly argued here	Wray: § 4B1.2 void for vagueness	Court: did not reach vagueness claim because conviction not a crime of violence under § 4B1.2

Key Cases Cited

James v. United States, 550 U.S. 192 (risk-comparison approach for residual clause)
Begay v. United States, 553 U.S. 137 (residual clause covers crimes similar in kind to enumerated offenses; excludes strict-liability/negligence-type crimes)
Sykes v. United States, 564 U.S. 1 (emphasized risk-level comparison; limited Begay but did not wholly abrogate it)
United States v. Dennis, 551 F.3d 986 (10th Cir.) (statutory child-sex offenses without force are not per se "forcible sex offenses")
United States v. McDonald, 592 F.3d 808 (7th Cir.) (statutory rape treated as strict-liability with respect to age element)
United States v. Vigil, 334 F.3d 1215 (10th Cir.) (distinguished aggravated incest from statutory rape for crime-of-violence analysis)
United States v. Sandoval, 696 F.3d 1011 (10th Cir.) (post-Sykes two-part analysis: risk and Begay similarity inquiry)
United States v. Maldonado, 696 F.3d 1095 (10th Cir.) (applying two-step residual-clause analysis post-Begay)