UNITED STATES of America, Plaintiff-Appellee, v. Alvin James PIERCE, Defendant-Appellant.
No. 00-4701.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 28, 2001. Decided Jan. 10, 2002.
MCFL, 479 U.S. at 260, 107 S.Ct. 616 (emphasis added).
If MCFL had not mentioned NRWC, I might question its continuing vitality. The amount of deference shown to legislative judgment certainly differs between NRWC and MCFL. Compare NRWC, 459 U.S. at 210, 103 S.Ct. 552 (“[W]e accept Congress‘s judgment that it is the potential for such influence that demands regulation.“), with MCFL, 479 U.S. at 260, 107 S.Ct. 616 (“Regulation that would produce such a result demands far more precision than
Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge WILKINS joined. Judge GREGORY wrote a dissenting opinion.
OPINION
NIEMEYER, Circuit Judge.
We are presented with the single issue of whether Alvin Pierce‘s prior conviction for taking indecent liberties with a child, in violation of
I
On April 21, 1999, Alvin Pierce robbed a branch of the Branch Banking & Trust in Charlotte, North Carolina; on July 30, 1999, Pierce robbed a branch of the Wachovia Bank in Charlotte; and on August 11, 1999, Pierce robbed a branch of Central Carolina Bank in Charlotte. After being indicted for bank robbery and bank larceny in connection with each incident, in violation of
In sentencing Pierce as a career offender, the district court relied on two prior felony convictions, one in 1995 for bank robbery, in violation of
In concluding that the indecent liberties offense did indeed constitute a crime of violence, the district court “specifically noted that the particular incident involved a young seven year old daughter of [Pierce‘s] girlfriend.” When defense counsel noted that the age of the victim was not stated in the charging document, the court
The victim stated that this defendant made her watch dirty movies. She stated that he made her touch his penis and that he had fondled her genital area. The child was examined by a doctor and there had been no penetration evident, but the vaginal area was irritated. The victim also stated that this had happened on numerous occasions when her mother was away from the home and that this had begun at age six. The victim, when examined by a doctor, tested positive for Chlamydia, which is a sexually transmitted disease.
Pierce objected to the district court‘s use of the parole services report because it violated the categorical approach mandated for considering predicate offenses.
In addition, Pierce took the witness stand and testified on his own behalf, denying that he took any indecent liberties with the child. He stated that the charge was “concocted” as the result of a custodial dispute and clarified that the child was his seven-year old daughter.
From the district court‘s judgment, Pierce noticed this appeal raising only the issue of whether the district court erred in finding that his prior conviction for indecent liberties with a child was a crime of violence for the purpose of applying career-offender status. He argues that under the categorical approach, the court should not have considered facts not contained in the charging document and that the charging document itself only alleges, in statutory language, a violation of
II
Section 994(h) of Title 28 directs that the United States Sentencing Commission provide sentences “at or near the maximum” for defendants convicted of crimes of violence or drug crimes if those defendants have also twice previously been convicted for crimes of violence or drug crimes. Section 4B1.1 of the Sentencing Guidelines, which implements Congress’ directive, thus enhances sentences for defendants who are “career offenders.” This section defines a “career offender” as any defendant who (1) is at least 18 years old at the time he commits the instant offense; (2) is convicted of a felony that is either a crime of violence or a drug offense; and (3) has at least two prior felony convictions of either a crime of violence or a drug offense.
As used in
- has as an element the use, attempted use, or threatened use of physical force against the person of another, or
- is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a potential risk of physical injury to another.
The question presented in this case, therefore, is whether the North Carolina felony offense of taking indecent liberties with a child falls within the federal definition of a crime of violence because it is either a “forcible sex offense” or an offense which, “by its nature, presents a serious potential risk of physical injury to another.” This is a question of law that we review de novo. United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996).
In answering this question, we use the required categorical approach, which takes into account only the definition of the offense and the fact of conviction. United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998); United States v. Wilson, 951 F.2d 586, 588 (4th Cir.1991). The principles for application of this approach were adopted from the analogous analysis prescribed in Taylor v. United States, 495 U.S. 575, 588-90, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in which the Supreme Court applied the same categorical approach to determine whether burglary was a predicate crime of violence for armed-career-offender status under
When the definition of the predicate offense is ambiguous and does not reveal whether it is a crime of violence, we may discover the nature of the offense for which the defendant was actually convicted by looking at the charging document and the jury instructions. See Kirksey, 138 F.3d at 124. But in permitting this, we have admonished that the inquiry must never “involve[ ] a factual inquiry into the facts previously presented and tried.” Id. at 124-25.
In the case before us, the district court relied upon the parole services report that was contained in the record but was not included in the charging document to point out that the victim was seven years old. Pierce correctly notes, however, that this use of the parole services report was improper. Use of parole services reports or other noncharging documents could lead to the very factual inquiry that the categorical approach prohibits. Indeed, this case presents a relevant example. The report consulted by the district court provided details about how Pierce was alleged to have engaged in a sexual act with a seven year old girl by touching her and having her touch him. Yet, in his sworn testimony before the district court, Pierce denied engaging in that conduct and asserted, to the contrary, that the charge was drummed up by his girlfriend in retaliation for disputing the young girl‘s custody. The sentencing proceeding in this case could never have been the appropriate forum for the resolution of that factual dispute. Thus, under the categorical approach in Kirksey, the district
While we could look to the charging document and the contents of jury instructions, the charging document in this case adds no facts to the statutory elements alleged and there were no jury instructions because Pierce pleaded guilty. Therefore, we are left with analyzing the nature of the offense itself. Because the offense under consideration was a state offense, we look to state law to understand whether a conviction under state law amounts to a crime of violence as defined by federal law.
Pierce was convicted for violation of
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
- Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
- Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14–202.1(a) .
The North Carolina courts have stated that
Undoubtedly [the statute‘s] breadth is in recognition of the significantly greater risk of psychological damage to an impressionable child from overt sexual acts. We also bear in mind the enhanced power and control that adults, even strangers, may exercise over children who are outside the protection of home or school.
Banks, 370 S.E.2d at 407 (quoting State v. Hicks, 79 N.C.App. 599, 339 S.E.2d 806, 809 (1986)).
The government argues in response that under
Following the contours of the categorical approach set out by the Supreme Court in Taylor and by this court in Kirksey, we use a “general approach,” applying “uniform, categorical definitions to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof, and that are likely to be committed by career offenders, regardless of technical definitions and labels under state law.” Taylor, 495 U.S. at 590, 110 S.Ct. 2143; see also Kirksey, 138 F.3d at 124 (limiting inquiry to fact of conviction and definition of the offense). Accordingly, this court must examine the offense as a category of criminal conduct defined by the statute and not “the particular facts underlying those convictions.” Taylor, 495 U.S. at 600, 601, 110 S.Ct. 2143.
Thus, when examining the indecent liberties statute involved in this case, which has been defined repeatedly by the North Carolina Supreme Court, we recognize first that the statute was enacted to provide broad protection against sexual abuse, a particularly pernicious form of personal injury, of the most vulnerable members of our society. As the North Carolina courts have observed, the statute is written in broad terms as part of its specific design to protect against the heightened risk of injury that comes when impressionable children are the victims. See Banks, 370 S.E.2d at 407 (recognizing the “significantly greater risk” of injury to children from “overt sexual acts“). By emphasizing the breadth of protection provided by
Relying on the breadth of the North Carolina statute, our dissenting colleague maintains that a conviction under the North Carolina indecent liberties statute is not a conviction for a crime of violence. He rests his position on the propositions that (1) the language of the North Carolina statute is so broad that it criminalizes conduct beyond that which presents a serious risk of physical injury, and (2) the statute may be violated in a “vast array of means” that poses no risk of physical injury. This position, however, fails on two accounts.
First, the Sentencing Guidelines provide a broad definition of a crime of violence, aiming at a crime that not only causes physical injury but also a crime that, by its nature, could cause physical injury. Thus, the Guidelines expressly list arson and burglary of a dwelling as crimes of violence. See
Second, our dissenting colleague‘s position is inconsistent with available empirical data relating to the application of the North Carolina indecent liberties statute. In most instances, convictions under this statute have involved offenses committed in close proximity to victims so as to create a serious risk of physical injury. A review of North Carolina appellate decisions since 1980 that apply the indecent liberties statute reveals that in 98% of the cases, the crime is committed in situations where the victim is in such close proximity to the perpetrator that the victim was exposed to the serious risk of injury.* We have held that in determining whether a particular offense, which may be committed in both violent and nonviolent ways, is a crime of violence, “most” of the instances of the offense should present a serious risk of physical injury in order to be a crime of violence. See United States v. Martin, 215 F.3d 470, 475 (4th Cir.2000); cf. United States v. Johnson, 246 F.3d 330, 334 (4th Cir.2001) (noting that when “most instances” do not present a risk of physical injury, the offense is not a crime of violence).
Thus, because the North Carolina indecent liberties statute protects against the risk of physical injury and its violation therefore presents a serious risk of physical injury, such a violation categorically is a crime of violence.
We come to this same conclusion also because the North Carolina statute protects against a “forcible sex offense,” which the Sentencing Guidelines also define to be a crime of violence.
It would thus appear that North Carolina‘s indecent liberties statute, as interpreted by the North Carolina courts, protects not only against the serious risk of physical injury but also against the application of constructive force created by the nature of the relationship of adult and child. Either aspect would satisfy the Sentencing Guidelines’ definition of a “crime of violence.”
North Carolina‘s own take on the indecent liberties statute which Pierce violated is similar to the Sentencing Guideline‘s take on an analogous federal law of sexual abuse. Sections 2241 and 2242 of Title 18 prohibit aggravated sexual abuse and sexual abuse, respectively, and
Accordingly, whether we look at North Carolina‘s characterization of its indecent liberties statute which Pierce violated, or the federal characterization of an analogous federal law, the conclusion is the same that taking indecent liberties with a minor amounts to a crime of violence under
In reaching this conclusion, we join every other circuit that has considered the question, even though the underlying factual circumstances in those cases involved either a sexual touching or a statute that required a sexual touching. See United States v. Meader, 118 F.3d 876, 885 (1st Cir.1997) (holding that statutory rape offense was a crime of violence for career offender purposes); United States v. Kirk, 111 F.3d 390, 395-96 (5th Cir.1997) (holding that conviction of indecency with a child involving sexual contact is a crime of violence); United States v. Shannon, 110 F.3d 382, 389 (7th Cir.1997) (en banc) (holding that second degree sexual assault of a child, requiring sexual contact, is a crime of violence); United States v. Taylor, 98 F.3d 768, 773 (3d Cir.1996) (holding that statutory rape conviction for which facts supported allegation of use of physical force, was a crime of violence); United States v. Passi, 62 F.3d 1278, 1282 (10th Cir.1995) (holding that sexual abuse of a minor involving contact is a crime of violence for purposes of calculation of offense level); United States v. Wood, 52 F.3d 272, 277 (9th Cir.1995) (holding that conviction under indecent liberties statute, where criminal information included facts that victim was five years old and sexual contact occurred, was crime of violence); United States v. Bauer, 990 F.2d 373, 375 (8th Cir.1993) (holding that statutory rape offense was a crime of violence). But the violence in each of these cases was not necessarily the touching—as the touching itself may not cause injury—but rather it was either a “forcible sex offense” or an offense that, “by its nature, presents a serious potential risk of physical injury to another.”
Accordingly, the judgment of the district court is
AFFIRMED.
GREGORY, Circuit Judge, dissenting:
Fidelity to the text of the Sentencing Guidelines together with respect for our precedent requires me to conclude that North Carolina‘s offense of indecent liberties is not a “crime of violence” under
The majority correctly recognizes that we are required to use a “categorical approach,” and correctly states that this approach prohibits us from taking into account the parole services report or the defendant‘s testimony. We may only consider the definition of the offense and information contained in the charging documents. The majority also correctly recognizes that the indictment involved in
I.
A.
This Court has repeatedly addressed the issue of whether a particular crime is a “crime of violence” under the “otherwise clause” of
in assessing whether a particular offense satisfies the “otherwise clause” of [
USSG § 4B1.2(a)(2) ], a sentencing court must confine its factual inquiry to those facts charged in the indictment. If the sentencing court cannot glean the circumstances surrounding the defendant‘s commission of the crime from the indictment, the question for the sentencing court becomes whether that crime, in the abstract, involves conduct that presents a serious potential risk of physical injury to another.United States v. Dickerson, 77 F.3d 774, 776 (4th Cir.1996) (internal quotation marks & citations omitted) (emphasis added); United States v. Martin, 215 F.3d 470, 473 (4th Cir.2000) (quoting Dickerson).
The commentary to the guidelines indicates the same approach. In explaining how the “otherwise clause” should be applied, the commentary states that “[o]ther offenses are included as ‘crimes of violence’ if ... the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved the use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.”
From this, it should be readily apparent that the relevant inquiry is whether the conduct presents a serious risk of physical injury by its nature, not whether the legislature was motivated by a desire to reduce the risk of injury when it enacted the prohibition. We do not look at the “aims” or “purposes” of the statute, except to the extent they shed light on the range of conduct prohibited by the offense. If we are unaware of the conduct of the specific offender, we endeavor to understand whether a serious potential risk of physical injury is inherent in the range of conduct prohibited by the offense. Using the language of our prior cases, we ask whether the offense presents a serious risk “in the abstract.”2 Using the language of the sentencing guidelines, we ask whether the offense “by its nature” presents such a risk. The majority‘s approach, in contrast, reduces to an argument that North Carolina‘s indecent liberties statute is a crime of violence because its purpose is to protect children from the harms of sexual abuse.
On numerous occasions, we have found offenses to present a serious potential risk of physical injury because of the substantial risk of physical confrontation during the commission of the crime. For example, in United States v. Custis, 988 F.2d 1355 (4th Cir.1993), we held that attempt-
On another recent occasion, we looked at the instrumentality of the offense to determine whether it presented a serious risk of physical injury. In United States v. Johnson, 246 F.3d 330 (4th Cir.2001), we held that the offense of knowing possession of a sawed-off shotgun presented a serious risk of physical injury and was thus a crime of violence. We did so because the type of weapon involved created a serious risk of physical injury. Id. at 334 (“The crime involved in this case requires the court to consider whether the possession of a certain type of weapon creates a serious risk of physical injury to another.“). A sawed-off shotgun is inherently dangerous and lacks usefulness except for purposes which would cause physical injury. Id. at 334; see also United States v. Brazeau, 237 F.3d 842, 845 (7th Cir.2001) (holding possession of sawed-off shotgun always presents a serious potential risk of physical injury); United States v. Allegree, 175 F.3d 648, 651 (8th Cir.), cert. denied, 528 U.S. 958, 120 S.Ct. 388, 145 L.Ed.2d 303 (1999) (same); United States v. Fortes, 141 F.3d 1, 6-8 (1st Cir.1998) (same); United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993) (same). And in United States v. Thompson, 891 F.2d 507, 510 (4th Cir. 1989), we held that the South Carolina offense of pointing a firearm at another person qualified as a violent crime for purposes of “career offender” status because of the substantial risk of physical force that is “invariably present” in that offense. In each of these cases, we looked at the intrinsic circumstances of the offense and determined that a serious risk of physical injury was present.
In contrast, when the generic conduct involved in a particular offense does not carry with it a serious risk of physical injury, we have held that the offense is not a crime of violence under
In Johnson, we noted that the facts demonstrated why many instances of the offense would not present a serious risk of injury. Id. The guns possessed by the defendant were buried in his backyard. Id. We stated that “[a]ny ‘serious potential risk of physical injury to another’ depends upon a speculative chain of events in which [the offender] recovers the guns and then brandishes them in the presence of another person. Such violent conduct may often underlie a charge of gun possession, but it is not a necessary element of that offense.” Id.
Finally, we were unswayed by the status of the offender as a felon. “While a felon in possession of a firearm may pose a statistical danger to society, we refuse to interpret this statistical threat as evidence of specific intent on the part of an individual defendant.” Id.
We have also held that the offense of bank larceny is not a crime of violence. United States v. Martin, 215 F.3d 470, 475 (4th Cir.2000). In Martin, our critical analysis was that “[a]lthough some bank larcenies may present a risk of physical confrontation, bank larceny may be committed by numerous means that present no such risk.... The vast array of means of committing bank larceny that pose no potential risk of physical injury to another, let alone a serious one, precludes a determination that the offense in the abstract is a crime of violence.” Id.
Based on these precedents, I must conclude that North Carolina‘s offense of taking indecent liberties with a child is not a crime of violence. As the majority correctly notes, the range of conduct prohibited by the statute is extremely broad. See ante at 286. The North Carolina Supreme Court has repeatedly held that “the legislature enacted
By enacting such a broad statute, North Carolina may have accomplished its purpose of giving maximum protection to children, but it also prohibited more conduct than that which presents a serious risk of physical injury. As in Martin‘s analysis of bank larceny, the repeated interpretations of North Carolina‘s statute indicate that there are a “vast array of means of committing” indecent liberties with a child “that pose no potential risk of physical injury to another, let alone a serious one.”3 Martin, 215 F.3d at 475. Whether
a particular instance of conduct presents a serious risk of injury is ultimately a matter of degree—or the attenuation of the risk. In making the determination, we must attempt to measure the likelihood that the prohibited conduct will result in violence. Here, I do not think North Carolina‘s offense qualifies.4 “A court must ... tread carefully when interpreting the ‘otherwise’ clause. Conjecture or speculation about possible harm is not sufficient to create a crime of violence under
Under North Carolina law, the offender‘s purpose for committing the act (to sexually gratify himself), and the requirement that the act be committed “with” (which includes presence and constructive presence) a child are the important elements of the offense.5 “The evil the legis-lature sought to prevent in this context was the defendant‘s performance of any immoral, improper, or indecent act in the presence of a child ‘for the purpose of arousing or gratifying sexual desire.’ Defendant‘s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.” State v. Hartness, 326 N.C. 561, 391 S.E.2d 177, 180 (1990) (quoting
The majority relies on the status of the offender vis-a-vis the victim in holding that the offense is a crime of violence. The government also stresses the relationship of the offender to the victim, stating that “the risk of violence is implicit in size, age and authority position of the adult in dealing with a young and helpless child.”7
Attempting to turn a fatal weakness into a strength, the majority relies on the purpose of North Carolina‘s statute to provide broad protection to children and to prevent injury. As should be clear, however, our precedents require us to focus on the intrinsic nature of the conduct prohibited, and require us to make an independent judgment about whether that conduct presents a serious risk of physical injury. Martin, 215 F.3d at 475; Johnson, 953 F.2d at 115; Custis, 988 F.2d at 1363-64; Hairston, 71 F.3d at 118. We cannot simply acknowledge the truth that many forms of sexual abuse lead to physical injury, accept that reducing this risk was the purpose of the statute, and conclude that the offense, by its nature, presents a serious risk of physical injury. Not even North Carolina has made the leap required for the latter conclusion (and, if North Carolina had, it would be inappropriate for us to defer to it). We must look at the range of conduct encompassed by the statute. A statutory purpose to prevent injury is simply not enough unless it has been translated into a statutory prohibition coextensive with that purpose.8 Here, the indecent liberties statute was written to prohibit acts falling beyond those that present a serious risk of physical injury.9
In looking to North Carolina‘s motivation for enacting the statute, the majority also improperly defers to state law to interpret
It seems to us to be implausible that Congress intended the meaning of “burglary” for purposes of
§ 924(e) to depend on the definition adopted by the State of conviction. That would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct “burglary.”
In the present case, the majority makes a similar error. In Taylor, the lower court made the sentencing enhancement dependent on technical definitions and labels under state law. Here, the majority makes the sentencing enhancement dependent on the state‘s asserted aim or purpose for enacting the statute. Either way, the application of the sentencing enhancement becomes improperly dependent upon state law. See id.; Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-20, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (holding that absent plain indication to the contrary, federal law should not be interpreted so that its application is dependent on state law); United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (same). If another state enacted the very same law, and then stated (or left its courts’ statements uncorrected) that the purpose of the law was to protect the virtue of children, irrespective of any risk of physical injury, would the majority then say that the offense, considered in the abstract, was not a crime of violence? Presumably so. The contradiction of Taylor is apparent. The offense would, or
Rather than making the “career offender” enhancement dependent on state law, the majority should have answered the question, as a matter of federal law, whether the offense intrinsically involved conduct presenting a serious risk of physical injury. As discussed above, this question must be answered in the negative. See also Brandon, 247 F.3d at 195 (finding it impermissible under Taylor to rely on state‘s designation of possession of drugs as involving distribution for purposes of
II.
The majority also holds that the taking of an indecent liberty with a child is a “forcible sex offense.” I cannot agree. As an initial matter, I note that the phrase “forcible sex offense” does not appear in the guideline; rather, it appears in the commentary to the guideline.
The majority finds that the offense is a “forcible sex offense” because “North Carolina courts have consistently held that constructive force may be inferred in sexual abuse cases involving children.” First, as discussed above, Taylor precludes making the phrase “forcible sex offense” dependent on state law. Second (and perhaps more importantly), North Carolina‘s indecent liberties statute does not require any force, constructive or otherwise. It only requires an indecent liberty in the presence of a child—and constructive presence suffices. Hartness, 391 S.E.2d at 180-81. Each of the cases cited by the
III.
Finally, the majority attempts to buttress its conclusion by stating that it “join[s] every other circuit that has considered the question....” No other circuit, however, has considered the question presented here.11 Nor has any other circuit employed the reasoning the majority uses here.12 The majority acknowledges that in each of these prior cases, the offense re-
IV.
The majority points to
- contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
- contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or - the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person....
North Carolina‘s indecent liberties statute, in contrast, does not even require attempted contact. Nor does it require any of the same aggravating factors, punishing both conduct of which the victim is unaware and otherwise consensual conduct with a child under 16. Consequently, there is substantially less risk of injury.
Much more closely analogous federal statutes are
The majority also states that if an offense may be committed in both violent and non-violent ways, it is a crime of violence if “most” of the instances of the offense present a serious risk of physical injury. The majority further states that this was the holding of Martin. The majority is wrong on both fronts. With respect to our precedent, we had no occasion in Martin to address the question of whether every instance of an offense had to present a serious risk of physical injury in order for that offense to qualify as a crime of violence. Our statement that “most, if not all, instances of an offense” should present a serious risk of physical injury in order for the sentencing enhancement to apply was merely another way of expressing the specific holding of that case, viz., that bank larceny is not a crime of violence because of the “numerous” ways the offense could be committed without a serious risk of injury. Martin, 215 F.3d at 475. I interpret “most, if not all” to mean “at least most, and maybe all.” In other words, the question remained open after Martin. The majority‘s statement that the offense is a crime of violence if “most” of the instances of the offense present a serious risk of injury is a non sequitur.
Finally, I am not persuaded by the majority‘s statistics. First, the majority does not tell us how many of the cases in which the opinion specified that the defendant violated
Second, using these statistics as the majority does is not in keeping with the holdings of Martin and Dickerson, which demand that we consider the offense in the abstract. Dickerson, 77 F.3d at 776; Martin, 215 F.3d at 473. The majority fails to satisfactorily relate its statistics to this ultimate inquiry of the nature of the offense. Notwithstanding the majority‘s numbers, there are a multitude of ways this offense can, and may have been, committed without resulting in prosecution or a conviction, much less a reported decision with information sufficient for the majority to include it in its statistics. Martin, 215 F.3d at 473. Convictions are merely a reflection of the realities of enforcement. It may well be that prosecutors in North Carolina agree that many instances of the offense create a low risk of injury, and that it is not worth expending scarce resources in enforcing the statute in these cases. In addition, many of the low risk occurrences of the offense may be difficult to detect. But whether the State foregoes prosecution, or is simply unable to detect the violation, the conduct is covered by the statute. The majority‘s data speaks only to convictions under the statute, not the inherent nature of the myriad of ways the statute can be violated. Given these flaws, the majority‘s empirical data is not compelling.
V.
The taking of indecent liberties with a child is reprehensible. But such conduct does not permit us to take liberties with the sentencing guidelines. I respectfully dissent.
ROGER L. GREGORY
UNITED STATES CIRCUIT JUDGE