United States v. Defabian C. Shannon

ostensibly rely reasoning qualified particular job, did not on this otherwise do a decision, reaching its employer statutorily proscribed dismissed from dis- objection as “too a read- narrow[ ]” EEOC’s criminating against her on the basis of her ing opinion. Maj. op. of the district court’s disability. sentence, appears It 372. how- together, reasoning quot- Taken of the ever, continues to be influ- statute, paragraph ed conflicts with the faulty reasoning enced of the district case, posture prior reasoning of the and the court. majority. of the Third, suggests the final sentence plaintiffs fatally claim is flawed because her II. Toyota heavy

work at was not medium or By opinion, work, majority effectively nul- regarded so she could not be as a lifies the ADA insofar “qualified respect applies individual” with as it to claims medium heavy impairments work. This curious statement based on to an individual’s abili- First, question ty flawed for two reasons. to work. factually addition to plaintiff “qualified flawed, of whether was a individu- opinion is at odds with the statu- al” under the statute is not before the court. tory history, interpretations regu- of the The issue was never briefed or decided below latory agency Accordingly, and the case law. properly and is not before this court. Sec- respectfully dissent. ond, question “quali- of whether one is a fied individual” is directed at whether one perform

can the essential functions of the job

particular being sought, jobs impairment impossible

which one’s make 12111(8) (“The

do. See U.S.C. term ‘qualified disability’ individual with a means America, UNITED STATES of who, disability an individual with a with or Plaintiff-Appellee, accommodation, without per- reasonable can employ- form the essential functions of the position ment that such individual holds or SHANNON, Defabian C. Defendants desires.”). question of whether one is a Appellant. “qualified entirely independent individual” is No. 95-2367. of the determination of whether one has a disability. United Appeals, States Court of Finally, majority suggests in the last Seventh Circuit. sentence paragraph plaintiffs Argued 3, Jan. 1996. claim is flawed because “she made no show- perform that she ever was able to medi- Sept. Decided 1996. heavy um or work.” Plaintiff has no obli- Reargued En Banc Dec. 1996. gation prove that she once was able to do April Decided 1997. job but became unable as a result of her Toyota. work at This is not a workers’ com- Rehearing May Denied 1997. pensation legislative history claim. As the clear, disability makes cause of “[t]he

always irrelevant to the determination of dis-

ability.” H.R.Rep. 101-485(111), No. at 29

(1990), reprinted in 1990 U.S.C.C.A.N. 451- plaintiffs disability Whether is caused defect, disease, injury birth ques-

tion at issue is whether or not she is dis-

abled, is, substantially major limited activity compared

life average with an

person. If she is disabled and if she is (argued), Office of the

Mel S. Johnson Milwaukee, WI, Attorney, United States Plaintiff-Appellee. Rosen, (argued), Michael Holzman

Mark S. Holzman, Waukesha, WI, for De- Rosen & fendant-Appellant. POSNER, Judge, and

Before Chief COFFEY, FLAUM, CUMMINGS, RIPPLE, MANION, EASTERBROOK, WOOD, EVANS, KANNE, ROVNER, Judges. Circuit POSNER, Judge. Chief Shannon, defendant, pleaded Defabian possession being a felon in guilty in 1995 to firearm, of 18 U.S.C. in violation to 115 922(g)(1). He was sentenced challenges the sen- prison, months grounds. panel before on several tence argued found merit appeal his was challenges, of his one Cir.1996), reject the others on and we By opinion. a vote of panel’s of the basis that the district panel held enhancing defendant’s base had erred in conviction previous offense level because assault, judge classified which the for sexual decided to rehear a crime of violence. We in order to consider the case en banc question of the circumstances important against perpetrated upon which a sexual offense a minor not non the 13 old was involving rape. the use force nevertheless forcible The use of force is not an assault, meaning second-degree element of crime of violence within the so finding sentencing guidelines. question necessary no on the finding conviction. Nor was there a of forc- The normal base offense level for the rape ible when Shannon was sentenced for possession crime of a felon in of a contrary, judge sexual assault —on the is a firearm but the defendant has sentencing hearing “you said at the ha- “prior felony ... conviction of a crime of pled requires ven’t to a crime here that violence,” the base offense level rises to 20. anything use of force or like that.” In his (6). 2K2.1(a)(4)(A), §§ See U.S.S.G. proceeding vig- federal criminal Shannon has guidelines a define crime violence as a orously allegation contested the of forcible punishable by impris- state or federal offense rape present and has offered to evidence “(i) onment for more than a that either evidentiary hearing it is false. An would be use, use, attempted has as an element the necessary to determine the nature of the against threatened use of force rape. (ii) another, person burglary judge The district refused to hold such a arson, extortion, dwelling, involves use of hearing. He considered himself bound explosives, or otherwise involves conduct that principle, recognized in- most circuits presents a serious risk of own, cluding our that the characterization of 4B1.2(1). injury to another.” U.S.S.G. previous conviction offered to enhance the charged 1992 Shannon had been with defendant’s federal sentence is to be based second-degree child, sexual assault of a charged (or, on the facts in the indictment under law committed here, information), deeper without a in- anyone who “has sexual contact or sexual quiry into the circumstances of the offense. intercourse with who has not at- (7th E.g, United States v. 22 F.3d 736 948.02(2). tained the of 16.” Wis.Stat. Cir.1994); Palmer, United States v. 68 F.3d complaint alleged The criminal facts that if (2d Cir.1995). disposed We are not believed showed that had Shannon commit- abandon principle, is contained rape. ted a forcible But the information filed itself, guideline commentary U.S.S.G. against him omitted all except these facts 4B1.2(1), Application Note and which is girl name and the date of birth of the necessary greatly complicating avoid sen- that he had indeed had sexual intercourse tencing hearings offsetting gain. little (not contact”) mere “sexual with her. Shan- principle only We have deviated from this permitted plead non guilty impossible when it was otherwise to deter- information, which means that he admitted proper mine the classification of the offense only the facts contained in it—intercourse sentencing guidelines under the and —a criti- girl awith who we know from the date of cal condition not satisfied here —the deviation birth in years the information was 13 require did hearing to resolve contested months old at the time of the act. Shannon Sebero, factual issues. United States v. years was 17 10 months old when the crime (7th 1075, 1078 Cir.1995); F.3d see also Unit was committed and 19 he was sen- Spell, ed States 44 F.3d tenced to in prison three for the of- Cir.1995); Smith, United States v. fense. The maximum sentence for second- (10th Cir.1993). 724, 733-34 degree sexual assault Wisconsin is 10 evidentiary It is true that an hearing on a years. previous defendant’s part conduct is often a rape Forcible is of course a crime of sentencing process guide- under the violence, permitted peek so that if we were lines. We need look no further than the behind the information allega and credit the ease; present judge the district in- further complaint tions in the we could affirm the hearing creased the sentence after a in which difficulty. sentence without But this course he found that Shannon had committed a mur- open is not to us. There has never been der for which charged. he had not been But judicial finding that the sexual act that dealing uncharged Shan- conduct there is no judge the district considerable time can on which charging document majority of evidentiary hearing is cases. unavoidable. rely; an go charging Allowing parties behind The criminal touched off evidentiary result in an hear- could document proceeding against the sexual-assault Shan- sentencing proceedings— most federal ing in might thought charging non document. previous merely in those in which un- it and the critical difference between brought in to enhance charged conduct information, however, is that the information federal criminal de- most sentence —because was the of the conviction and sentence basis and consid- have a criminal record fendants allegations and all were admitted and mandatory part of that record is eration established, must be while the com- deemed guidelines. sentencing under allegations plaint factual that are contains require evidentiary contested and would conduct, true, uncharged Current hearing We are told that confirm. just occasionally in- typically rather than may some the criminal be states sentencing, in federal because the volved only charging document. that is When typically a subset charge is limited to so, judge might disput- have to determine gave criminal conduct that rise defendant’s it, although alleged probably facts in ed ounce of cocaine charge example, an —for alternative, analogy by better doctrine actually a kilo. See U.S.S.G. when he’s sold judge would estoppel, of collateral be for the (relevant conduct). But criminal 1B1.3 only required consider minimum facts current, old, history with not conduct. deals support that the conviction—the facts judge required go were If the district (or admitted) must have found in the been charging to determine document behind proceeding. earlier history, the criminal eviden- the defendant’s are Confined as we to the informa exploring tiary the circumstances burden tion, we whether sexual inter must decide be in potentially crimes would borne old forcible, course, not shown or conceded to be in every ease which the defendant had year a 13 is a violence with old crime of heavy It history. be a bur- criminal would meaning guidelines, issue within the frequency not because of the den though federal crime is one law even but also which it would have to be borne v. by defined state law. United States evidentiary of the unusual difficulties because (7th Cir.1995). 159, 161 Phipps, 68 F.3d exploring in uncertainties involved crimi- any government argues that felonious may many that have occurred nal conduct act with a minor should be deemed either jurisdictions years ago and in remote from force, incapable the minor is involve because sentencing. It the current is not that of consent, giving recognized or to legally guidelines direct surprising presents risk involve a serious conduct computing criminal judge, a defendant’s (A “risk” physical injury. definition give primary pre- history, to attention his certain, rather probable potential hence See U.S.S.G. 4A1.1. vious convictions. actual; appears risk” “potential than to be course, just uncharged guideline.) redundancy mur- in the An inference Of physi der, an upward could have based of violence from mere unconsented-to contact, government’s reason for uncharged rape. forcible cal first departure on 4A1.3(e); every with a Ruffin, arguing v. felonious sexual act States United U.S.S.G. (7th Cir.1993). violence, per But minor is a crime of would upward se 997 F.2d 343 any It wash this circuit. would transform departures exceptional; are enhancement on touching has history the law criminal uneonsented-to the basis of defendant’s (And violence, 4Al.l(f), in felony a crime of a made into is automatic. under section pocket, cluding person’s a crime picking prior crime of violence is one sentence violence, not a mandatory that we held is crime grounds for enhance- ment.) supra, 22 at 740- judicial v. F.3d Limiting inquiry com- United States States, 41; Lowe 923 F.2d history v. United putation of the defendant’s (7th Cir.1991); v. also States thus see United charging document saves to the formal Mathis, (D.C.Cir.1992), injury year Pennsylvania, 963 F.2d 406-10 to a 13 old though disagree with some courts us on this. does not create a serious such risk to a 13 Mobley, v. E.g., year United States 40 F.3d Illinois. The states with low (4th Cir.1994); ages minority. United States McVi of consent are a distinct (1st Cir.1990). car, They simply wrong in their assess- risks; they may ment of the be less averse to ruling As for felonious sexual act states; they may risk than other be less with a minor creates a “serious risk child-protective; they may consider physical injury,” suggestion un- inapt regulating statutes an instrument for argument govern- dermined at oral when the teenage sex. No inference can be drawn lawyer goals ment’s conceded that the behind year that these states consider sex with a 13 forbidding laws sex with minors are various a 14 girl old or old to be harmless to the goal protecting and need not include the they they right. point or that if do are Our the minor from a serious risk of only, again, once that a serious risk injury. correctly implies, This concession physical injury automatically cannot be in- view, our that these laws must be considered statutory-rape ferred from the existence pun- one one to see the conduct whether question law. To make the answer to the particular ished law under which the whether felonious sex with a minor is a crime defendant was convicted involves a serious of violence a mechanical function of the laws states, physical injury. risk of In some such arbitrary of the different states would be Illinois, it ais to have sex with a unsup- because would make distinctions (under age under the of 18 17 if there portable physical on the basis of the risk of factors, aggravating are no such as a sub- injury, that risk a constant across discrepancy ages). stantial 720 ILCS (once only states and the relevant criterion 5/12-15, persons marry Yet can 5/12-16. side) the use of force is set to one age parental approv- Illinois at the of 16 with guideline; guidelines’ would undermine the unlikely al. 750 ILCS It is therefore 5/203. goal bringing of about a reasonable uniformi- age that the consent the Illinois statute ty in sentencing; federal and would treat purpose was chosen with the in mind of question “crime violence” as á of state protecting physical minors from the conse- rather than federal law. quences of sex. cannot be certain We about requirement surrogate this because the eases from might Some other circuits be consent parents might the minor’s be taking approach suggested by read as thought adequate protect teenagers to those government deeming any and thus feloni might physically injurious for whom sex be per ous sex act with a minor a se crime of whether because of medical conditions distinguished, violence. Most of them can be immaturity sheer pregnan- that would make however, involving child, prepubeseent cy unlikely at once to be averted contra- incest, or other aggravating factors ception physically hazardous to mother none, appears so far as from the court’s point only fetus. But the that a concern recitation, factual top was the minor at the physical injury with cannot be read off auto- age range the relevant aggravating with no matically punishing from a statute sex with present. factor See United States v. Ve minors. (5th 418, lazquez-Overa, 100 F.3d 422 Cir. 1996); Another reason 768, for this conclusion is Taylor, United States v. 98 F.3d (3d wide Cir.1996); Bauer, variance in the above which sex 774 United States v. (8th Cir.1993) with a minor curiam); is not made felonious in (per 990 F.2d 373 any aggravating Iowa, absence of factors. Rodriguez, United States v. 979 F.2d 138 (8th for example, only Cir.1992); Wood, the minor need have United States v. (9th 702.5, Cir.1995); reached the Iowa Stat. F.3d 272 United States v. (10th Pennsylvania and in Reyes-Castro, Cir.1993); she need have 13 F.3d 377 3121(6). Passi, turned 13. Pa.CSA 18 The U.S. v. United States (10th population biologically homogeneous; Cir.1995); INS, Ramsey 55 F.3d 580 Cir.1995) curiam). sex does not physical (per create serious risk of (1994). Criminology sug- & government’s J.Crim.L. A modification recently governmental focus of Only has the be for the approach would gested teenage pro- state’s sex shifted to the particular with whether concern judge to decide pregnancy, had young girls the defendant sexu- statutory-rape law tection of diseases, the risk possible psycholog- a concern with was based on ally violated transmitted any classify if it injury early physical commencement ical harms incident a crime of violence. that law as social activity, possible violation adverse of sexual age below which 16 the has made teenage preg- consequences of and economic activity a minor is felonious. nancy of wedlock. The ex- and births out injury consequence aas physical likelihood statutory-rape traordinary variety of state year a 15 old than greater with of sex is leg- of state and the well-known failure laws likely to younger child is year old. The a 17 up to date keep their sex laws islatures knowledge about judgment, less poorer of the Ameri- changing sexual mores will money, all of which deficits sex, and less single impute people make it difficult can likely will use or insist that she make it less laws, goal alone a goal statutory-rape let effective measures partner use that her physical injury. centering on the risk of is also pregnancy and disease. She prevent case, however, we need To decide this expectant responsible likely less to be goals grounds of the not characterize fetus. mother, danger to her so there is matter of or for that Wisconsin statute thinking that the grounds for Wis- are These minors. specific punishing law sex with with risk be concerned consin statute guideline re that the crime of violence All all, it can against this injury after but serious offense “in quires is that the defendant’s age of fixing of a lower argued that the potential risk of a serious volves” of states is than a number consent Wood, supra, 52 injury, States v. F.3d United danger to a 15 evidence the concern that not that that risk be great. Wis- injury is not from sex statute, creating the offense. animates statute second-degree sexual-assault consin’s par ground moreover, inter- And it is common between not limited to sexual contact, just defen course; deciding can what it includes sexual ties fondling are to look at the a breast offense was we free noninvasive dant’s be as purpose of or informa through clothing charged for the in the indictment facts buttock sexually. tion; to the minimum arousing the fondler Wis.Stat. are not confined we (The 948.01(5)(a). might disturb a contact create the offense. Such that would conduct unlikely highly we can young person, but it would was whether issue discussed earlier facts, injury. From the fact we can physical not whether go deeper to cause into the equate far.) mere sexual seems to the defen the statute facts are that go Those ar- intercourse, it could be just to sexual intercourse contact dant had sexual animating not with old, concern is gued year old. contact, year not a 15 with a 13 injury to sex. physical incident ground, covers a lot of statute The Wisconsin violence not be crime of and some of character- complication, so far as A further a 13 intercourse with ground. But sexual particular state’s purpose izing the behind a crime of violence is in our view year old concerned, lies statutory-rape law is meaning guidelines, of the because within original purpose Their origins of these laws. present a serious risk it does minors virginity of female protect unlikely to have a injury. year A old is 13 marriage- order, turn, protect their fertility and of the disease appreciation full girl’s ability, as a or woman’s most viewed knowledge intercourse, an accurate risks of gravely impaired and one precious asset disease-preventive mea contraceptive and Comment, “Adolescents virginity. loss sures, maturity a rational to make and the Promiscuity Analysis An of Texas’ Jeopardy: pre and benefits comparison of the costs Assault,” 29 Houston for Defense Sexual See, Mark A. e.g., intercourse. marital 583, (1992); Michelle Ober- 586-87 L.Rev. al., Between “Communication et Schuster man, Into Re-evalu- “Turning Girls Women: Be- Physicians About Sexual Law,” 5 Adolescents Statutory Rape ating Modem 388 Prevention,” which he could not do if he had havior and Risk 150 Archives consented s Adolescent Medicine 906

Pediatric & it. (1996); Webster, A. A. Berman Linda Stuart year incapa- To the extent that 13 old is Greenspan, R. & Joel “Surveillance Gon appreciating ble of the full risk and conse- Primary Secondary Syphilis orrhea and intercourse, quences ensuing of sexual her Adolescents, Among United States —1981- (or abortion) pregnancy parturition must 1991,” Morbidity Mortality Wkly.Rep. 42 & quasi-involuntary be considered at least 1993). SS-3, 13, p. (Aug. 1 No. Further considered, therefore, physi- could well be more, very young girl preg who becomes injury pregnancy cal even if the is normal. quite likely good nant take care of year signifi- And sex with a 13 old creates a fetus, pregnancy herself and her and so the Indeed, pregnancy. cant risk of the risk dangerous will be more to both than if she appears to have materialized here. Shan- possibly were older. For this reason pregnant, non’s victim became she believes well, biological pregnancy reasons as of a statutory rape, gave as the result of the year high-risk preg 13 old is considered a By birth. of when Shannon was nancy the risk is a risk of —and rape, sentenced for that he had fathered five injury to the mother as well as to the fetus or children, appears whom second also See, Fraser, baby. e.g., Alison M. John E. product statutory rape. be the Ward, Young Broeker & R.H. “Association of pregnancy year arguably of a 13 old is Age Reproductive Maternal With Adverse physical injury clearly in itself and creates a Outcome,” (1995); N.Eng.J.Med. secondary physical injury substantial risk of Felice, Nelson W. Davidson & Marianne E. complications to mother or fetus from Pregnancy,” in Comprehensive “Adolescent (there pregnancy is no information in the (Stan Adolescent Health Care 1035-36 presentence investigation report, from which Friedman, B. ford Martin Fisher & S. Ken having the facts about Shannon’s fathered 1992). Schonberg neth eds. taken, are children about the health of the complications pregnancy medical victim); child of his 13 and the plainly are physical injury. a form of What guideline grade physical injury by does not pregnancy Pregnancy about the itself? re- gravity. sulting rape routinely considered a It is true that the class of sex offenses grave bodily injury. E.g., form of United guideline commentary to which the refers in Yankton, States v. examples a list of of crimes of violence is Cir.1993); State, Fenelon v. 629 So.2d “forcible sex offenses.” All forcible sex of- (Fla.App.1993); People Sargent, violence; fenses are crimes it does not (1978). Cal.App.3d Cal.Rptr. 150 113 Many follow that no nonforcible ones are. Apart from being the nontrivial discomfort of states still criminalize fornication and adul- sickness, pregnant edema, (morning fatigue, tery; these adult nonforcible sex offenses pain, etc.), weight gain, giving back birth is plausibly thought could not be crimes of vio- intensely painful; pregnancy and when the is lence. It does not follow that sexual inter- undesired, involuntary and the discomfort year course awith 13 old is not a crime of pain redemptive have no features and so guideline violence. The burglary itself lists genuine stand forth as a form of and serious home, arson, extortion, of a and crimes in- physical injury, just as in the of an ease volving (a explosives the use of as crimes that surgical procedure pertinent undesired ex- sterilization). personal injury. create a serious risk of Ar- ample being involuntary Most especially son and surgical involving explo- crimes procedures cause discomfort and pain; may sives by-products dangerous physical be more we bear these cure or safety greater injury illness; year having avert a than a 13 old’s inter- when there course; greater avert, burglary is injury no but and extortion illness to be by-products pure injury. dangerous. burglars pains become No less Most take one person operated doubts that a who avoid an occupant is encounter with the of the see, mistake damages pain burgled dwelling, e.g., can recover for United v. States (7th suffering operation, Cir.1995), inflicted King, 62 F.3d 896 trolling prepubescent greater blackmail or child much extortion involves involves risk of threat, any physical injury organs bribes than let alone to the child’s sexual rather yet penetration, all actuality, extortion is there is it no pregnancy creates violence— most, risk; much, of violence.” perhaps classified as a “crime United pedophilia (1st DeLuca, Cir. does not penetration. States involve So Shannon’s 1994). examples given guideline suggested arbitrary. test We need not suggest adopt comprehensive thus a liberal test serious risk It is enough test. (as in classify have held personal injury classify we reasonable test would ing attempted burglary year crime of vio intercourse with a 13 old as conduct Sandies, lence, United States v. F.3d that creates a injury serious risk of Davis, Cir.1996); United States v. and hence as a crime of violence within the (7th Cir.1994)), and it meaning sentencing guidelines 16 F.3d 212 is a test give passes. that intercourse with a the term. length opinion From statutory rape of this and the

We are mindful that contrary judgment panel majority, a “morals of the it thought more often of as offense” violence”; apparent interpretive should be might is- than as “crime of it is a guilty be sue difficult one. We cannot be certain well doubted whether gotten right. that we have make one a difference morals offense would more dan punishment 14 and possessor than between level level 20 gerous of a firearm can, depending had such an on the defendant’s criminal who never committed offense. history, great. example, for a lay statutory For But neither the classification defen- History Category IV, concerning dant Criminal rape opinion nor our the sound sentencing judgment range difference is penological between ness 27 to 33 of 51 to 63 commission an offense result months and one months. of such should Table). 5, pt. (Sentencing ch. A punishment posses in a for a felon in U.S.S.G. So bonus important it is the issue be is relevant to our resolved sion firearm decision. (so correctly. urge Sentencing By We defining crime of violence far as rele Commis- here) clarify guide- “involves sion to crime of violence vant as a crime that conduct particularly presents line —more as our decision leaves a serious risk of another,” physical injury Sentencing proper unresolved the treatment cases art, statutory rape which the victim of the made the term one of su Commission above the perseding lay meaning. making And of 13. entirely turn on the risk of classification Affirmed. injury, the Commission withdrew to base courts discretion enhance MANION, Judge, with whom Circuit punishment posses of a felon in ment KANNE, joins, Judge, concurring. Circuit soundness, a judgment sion on as a agree court’s conclusion that theory policy, penological matter of assessing a defendant’s criminal histo basing particular such on a an enhancement ry, sentencing court is confined to the type of crime. Judicial discretion charging facts set out in document when extinguished, is not but confined to the defining a under “crime of violence” U.S.S.G. upward depart decision down whether 4B1.2(1). properly § court followed computed

ward the sentence accor Lee, 22 United States v. F.3d Cir. guidelines. dance 1994), the facts refusing to look at limit lawyer asks us to “crime of Shannon’s charges than the in the indictment which (other violence” to those offenses than sex pleaded guilty. Shannon prepubescent rape) incest or involve (pedophilia). children These are concur with the court’s conclusion crimes also 13-year-old society. engaging girl But peculiar in our that Shannon’s horror injury in crime of physical risk in sexual intercourse is a violence added cases “presents serious offspring incest is the risk of deformed because act itself injury ensue, physical potential [her].” while risk of pregnancy should sex with presented type That act alone a threat of serious dures used for this of determination. dissent, part In III physical injury, meriting of his concurrence and the enhancement. Judge Coffey explains great view, however, detail my In the risk of importance leaving to federal and state injury referred to in the Guideline must be legislatures defining the role of crimes of intercourse, confined to the act of not the violence and the are sub- minors possible consequences develop, that could jected through to such violence sexual inter- pregnancy Although it such as or disease. extremely important course. It is usually pregnancy danger- true that is more Commission, Sentencing approval with the 13-year-old ous for than a more mature Congress, judges upon our own whim or woman, that should not be relevant when study, determine what is and what is not a applying possible longer- the Guideline. The applicable “crime of violence” under the Sen- consequences term of sexual intercourse with tencing Judges usurp Guideline. should not 13-year-old are not kinds of risks that Still, legislative willing function. I am hindsight justi- even reflect violence that opinion to concur with the court’s which is enhancing preg- fies a sentence. Pubescent limited to this violation of the Wisconsin stat- child, nancy risky for mother and general ute rather than a declaration that abortion, mother, while a risk to the obvious- statutory Wisconsin’s other state’s ly portends a violent end the unborn. rape per law is se a “crime of violence” under Nevertheless, consequences these are too at- 4B1.2(l)(ii). I also underscore the court’s tenuated from the actual crime—the sexual Commission, request Sentencing potential act itself —to be included under the approval Congress, look into injury. risk of If the result of sexual contact “statutory rape” “illegal underage whether were at issue instead of the sexual contact sex” should be added as a “crime of violence” itself, many nonviolent crimes would be re- under this Guideline. 4B1.2(l)(ii). named “violent” under Application interpreting

findings legislative proce- the usual at Id. 740. "statutory prison The refers to twenty this crime as which carries a maximum term of rape,” $10,000. accurately years but it is more referred to as and a maximum fine of Wis.Stat. child, second-degree 948.02(2), felony §§ sexual of a assault Ann. 939.50. Lee, against involving offense a minor not the reliance on use The en banc original panel majority in this like that the nevertheless a crime violence of force case, sentencing guide- has the criminal com- placed meaning within the bounds,” thereby relegating dis- plaint “off lines.” To direct our efforts towards answer- analyzing the “crime of vio- trict courts to question such would be to mischarac- law, question complicated lence” as a issue terize the in the 1992 facts related criminal one of straightforward rather fact.2 than a complaint against and incorpo- filed Shannon compelled point glaring out the flaws feel Investigation into his rated Presentenee Re- approach, among being inherent in this them (“PSR”); port wit: perpetuation of arbitrariness in decision- March, in Mr. [S]ometime Shannon Consider, making. example, majori- 4/27/77) (dob grabbed [his victim] ty’s of whether Shannon’s offense discussion and brought wrist her to a house located risk presented physi- a “serious Racine, ... [in] Wisconsin. He then harm”; greater length at cal as I discuss dragged her down the stairs into the base below, disregards it completely terms you ment. Then he asked her “will fuck (which statute makes the relevant Wisconsin ran [The me.” stated no and victim] it to have sexual intercourse up her, stairs. Mr. ran behind Shannon age under contact with an individual grabbed her arms and took her back sixteen) concludes, somehow without ei- victim] into the [The basement. stated the legal support, that sec- ther medical or floor. defendant threw her onto the She ond-degree of a child sexual assault push tried to him off she was but if “crime of the victim is thirteen violence” strong enough. Mr. Shannon then took younger. months of and ten upset victim] her clothes was [The off. The admits that it is uncertain “that crying and told him she wanted leave. gotten right” acknowledges it we laughed her and eventu defendant holding “leaves limited unresolved ally have intercourse. [The her to forced proper of cases treatment which finally victim] when the defendant states victim of 13.” I is above the submit up, put her her get allowed she clothes that this abandon and aside court should east on, out upstairs, and ran back went rule set forth restrictive having [The door. denied consent victim] permit sentencing judges to consider all facts ed sex the defendant. [to] charging the basic docu- contained within ments, including complaint the criminal both Thus, complaint Shannon’s information, determining when whether case, formed the assault which basis prior is a “crime conviction violence” against subsequent information filed Only under 4B1.2. the U.S.S.G. then him, abundantly that his makes clear conduct judges confidently proclaim we that district Even was both and violent. forcible “get right” undertaking shall one criminal com- “[t]he concedes responsibilities the most entrusted to serious alleged plaint facts that believed showed sentencing. them — rape.” a forcible that Shannon had committed is, therefore, that this beyond dispute It is a necessary point

I find it out that the employed situation which violent today, we and from our issue address force during assault of a sexual flows, course analysis necessarily is not as the ma- majority appar- thirteen Indeed, old child. jority frames it. court is only prohibits ently Lee not important believes that ques- consider the asked “to considering judges factual tion of circumstances which a sexual judicial making peek ted to credit the 2. The efficiencies associated with behind information "crime determinations based on the allegations complaint of violence" we could affirm the are illustrated added). fact-intensive majority’s (emphasis difficulty." sentence without that, permit- we ”[I]f statement were allegations contained within complaint charging e.g., the criminal is a document. See complaint, ignore Baldwin, but also allows us to 441, the State v. 101 Wis.2d reality alleged (1981) dark 742, the violent crime with- (referring N.W.2d to both charging in that document. subscribe to complaint “charging and information as interpretation neither and shall artic- documents”). As we undertake this discus- ulate the issue in this case as whether sion, I procedural believe that a bit of infor- second-degree defendant’s sexual assault of a regarding mation the nature role of the child constitutes a “crime of violence” within complaint criminal order. “The com- 4B1.2, meaning § of the U.S.S.G. where plaint is a written statement of the essential complaint against the criminal filed him or constituting facts charged,. offense It clearly her demonstrates that force was em- may upon be made information or belief. It offense, ployed to commit the but the subse- upon shall be made oath before a district quently-filed information, which mandate attorney judge____” Wis.Stat.Ann. factually state law is not as detailed as the added). (emphasis 968.01 Once the com- complaint, to evidence such use fails offorce. filed, plaint initially it challenged be point inquiry It is from this that we must judicial before a officer to test whether its proceed. factual qualifi- content meets the threshold demonstrating probable cation cause. Unique I. The Nature and Role of the Wis.Stat.Ann. 970.03. A defendant Complaint in Wisconsin Criminal Pro- thereafter entitled to contest the facts set cedure judge (judicial officer, forth therein before a IWhile am confident that the rule set independent magistrate) they determine support forth in Lee lacks in the U.S.S.G. and are sufficient to finding proba- establish a precedent, is also inconsistent with circuit so, If ble cause. he or she does the State including this court’s en bane decisions establishing bears the burden of Hudspeth, United States v. 42 F.Sd 1015 defendant, probability, in all committed the — Cir.1994) (en banc), denied, cert. U.S. charged jurisdiction. crime within the court’s -, (1995), 115 S.Ct. 132 L.Ed.2d 260 Alternatively, may opt the defendant Madison, and United States v. and, preliminary waive his or her hearing (7th Cir.1982), denied, cert. 459 turn, admit that there exist sufficient facts U.S. 103 S.Ct. 74 L.Ed.2d 971 therein for him or her to be bound over for (1983) (“In order for a to be well 970.02(4). trial. Wis.Stat.Ann. surrounding advised of all the facts the de Thus, filed, before an information can be one background fendant’s imperative things of two must have occurred: the de- that he be upon allowed to draw a wealth of fendant must have been bound over for trial concerning information the defendant’s back preliminary hearing judicial after the and a ground, from up his date of birth to and finding probable made, cause has been including the moment of sentencing.”), I shall alternative, in the the defendant waived the initially offer some regarding observations hearing and admitted that the facts set forth Wisconsin procedure, for it is mani complaint were sufficient to warrant a fest that the fails to understand the bindover. charging nature of the document known as the in a Wisconsin criminal Here, mistakenly comes to proceeding. “[tjhere the conclusion that has never been judicial finding that the sexual act that Shan- decision, From the outset of its the en perpetrated non upon the 13 majority erroneously banc attempts to trivi- rape.” forcible charged Shannon was importance alize the not of Wisconsin’s criminal complaint by rape,” with “forcible implying is somehow does offense, recognize charging the nature of a document thus it is true only “might that it thought that no Wisconsin charg- guilty as a court has found him contrary, rape.” document.” On the one of “forcible Nor was Shannon con- versed 940.225(2), Wisconsin law realizes that violating § victed of a sexual as-

393 Thus, just as can be filed. a requires of force as information the use sault offense 940.225(2)(a) heart, body human cannot without a § live Wis.Stat. See element. just (‘Whoever one cannot a chicken as without sexual contact or sexual ... [h]as egg, having an the information person by or first cannot another use with intercourse complaint. a exist criminal Because without guilty is of second threat of or violence” force assault). only charge it serves not the defendant was degree Shannon sexual crime, probable (and of) but also to establish charged convicted the second- committed, the cause that crime was child, in violation degree assault very nature, complaint, by required is 948.02(2), although is not an § force of factually more detailed than be much crime, cer- was most element of this there complaint, in order that it information. tainly finding” time of the “judicial a at the probable might meet the cause test before a hearing em- probable that Shannon cause judicial officer, questions must of answer who he committed ployed and violence when force what, charged with and where the was when offense. If the his sexual assault place, why or took alleged offense offenses rules of had to consider Wisconsin chosen being charged, particular person was have realized procedure, would complainant reliable or and how fact, was, judicial finding.3 a there Townsend, informant, State v. 318 N.W.2d reveals, foregoing As the discussion 24, (1982), whereas an 107 Wis.2d 26 Wisconsin, necessary complaint is only need contain the defen- information in- prerequisite filing step” “first name, the location and date —a dant’s any prosecu- and all criminal formation —in charged, which he is offense for or she integral part the court tions forms an statutory a citation as well as to the section 970.01(2) (‘When § a record. See Wis.Stat. violated, have been all of which are alleged to without a warrant is arrested forth for the benefit of the defendant as set judge, complaint be brought shall before overriding purpose court.4 well as the (“If 971.02(1) forthwith.”); filed Wis.Stat. “is law to of an information under Wisconsin charged with a defendant charges against a defendant inform complaint ... no information or indictment defense; notice prepare can him he so has had a shall filed until the defendant be Nye, key 100 Wis.2d factor.” State examination.”); rel. preliminary ex State (Wis.App.1981). “The N.W.2d Johnson, N.W.2d Cholka v. that when an well settled law Wisconsin (Purpose preliminary examina- Wis.2d 704 contains a citation statuto- information violated, there exists alleged tion is to determine whether ry to have been section probable charge necessarily as to the contained it all of the cause carries with reference complaint charged The criminal under that complaint). within of the offense elements might thought part second-degree In a sexual as- well be Id. section.” case, therefore, information, the information thing no for there is such sault charges particular viola- freestanding, generis information defendant sui 948.02(2), at a certain complaint, no committed Without a tion state Wisconsin. is, place transpire preliminary hearing in order for an information took 3. That either a filed. probable cause as to the at which a found allegations forth in filed factual set 971.03, effectively codifies 4. Wis.Stat. (including against that he evidence Shannon following in Wiscon- form the information the sin, “grabbed ... ... victim] the wrist [his legal sub- illustrates the lack of factual dragged the stairs threw her onto her down charging to such documents: stance eventually to have forced her floor ... and STATEOF WISCONSIN intercourse”), prelimi- Shannon waived the County .... nary complaint's hearing admitted In____ Court. We cannot definitive- contents. ascertain factual The State Wisconsin ly, appeal, wheth- transmitted on from the record vs. ____ Defendant). hearing (Name preliminary er a was conducted I, county, hereby right attorney waived his to such for said whether Shannon .... district ...., day of the court that the ... hearing. other had inform We do know one or the statute, earlier, by place, need not mandate of Wisconsin time the information victim, factually citation to was less than recite the information detailed probable the defendant put complaint, statute is sufficient to had been cause a sex crime judicial on notice he is accused of before officer and Shan- established involving (or, a child below 16. the bound for non was over trial alternative- ly, preliminary had waived the Shannon light of requirements, In these which are judicial a hearing before officer thus to the laws of specific State of Wisconsin’s complaint). admitted the facts of the procedure, rule set forth under the pleaded guilty basis of When Shannon on the adopted by majority, a in Lee the federal information, pleading he was to the same the sentencing judge many would in instances be specific (second-degree crime sexual assault unable ascertain factual detail look- child) charged in complaint. the criminal ing any charging document —whether set forth in did complaint The facts the or, complaint alternatively, a an informa- be disappear, complaint magically nor did the few, any, which contains if facts —filed tion record, integral part be an cease to of the a if with Wisconsin court to determine a merely pled guilty because Shannon “crime of violence” is manifest. just “bare bones” information. But does Lee words, places complaint Lee the criminal “off a act” performs “disappearing that —it bounds,” and a could find little factual complaint naught, detañed holds the for guidance in the information. As a result of resultingly unduly penalizes which sentenc- reasoning, this fallacious decision were jurisdic- ing judges simply because certain apply prosecutions, to state clever defense tions, Wisconsin, provide like defendants Wisconsin, attorneys in well aware protection greater proba- requiring complaint fact-intensive is “off-bounds” at hearing, ble cause based on the alle- factual sentencing, would clients advise their gations within complaint, contained be- reading complaint waive of the and waive may fore he or she be bound for trial. over preliminary hearing, keeping thus out of necessary reach of the court the facts to later majority’s argument and its adherence appropriate an impose do not sentence. way overlook to Lee also in which sexual believe that the U.S.S.G. were intended to so typically charged assault are offenders cleverly tightly bind the hands prosecuted in the State of Wisconsin. Obviously, district courts. evidenced as actuaUy Whether not violence attends the Congress’ § enactment of 18 U.S.C. sexual assault of a chüd under the principle which codifies the “[h]o limita- likely pursu- perpetrator charged wül be placed shall be tion on the con- information 948.02(2),5 § ant to avoiding Wis.Stat. thus character, cerning background, and con- prosecutors the need for to establish that duct of an convicted offense force was used order to a convic- obtain may a court of which re- United States example, twenty-year tion. old For male impos- ceive and consider purpose thirteen, engaged in who has sex with a sentence,” ing appropriate this concur- year girl might very or fifteen fourteen ring/dissenting opinion is consistent with the 948.02(2) charged § well be under whether views our House and Senate. actually employed he in- force or not. The formation would be the Both and information filed same whether force not, against Shannon charging were documents was used and would set forth jurisdiction give statutory and both served to the court elements of the the stat- crime and try him second-degree for the crime of ute number. because reason- sexual assault of a approved by child. As referred to majority— Lee—now year county 19 ..at said employs the defendant did who An individual violence in the (state crime)____contrary sexually assaulting section .... course of a child 940.225(2) pursuant

the statutes. charged § to Wis.Stat. ..., ..., ("Second Degree Assault”), Dated Sexual an offense Attorney requires proof .... District of the "use or threat of offense, § Wis.Stat. 971.03. force or violence” for conviction. This plaint proceeding through preliminary absolutely prohibits court from found, beyond hearing probable factual de- going information for at which cause tail, Clark,” prosecutor, that a defendant who brutal- it is evident “Michael drafts the infor- sexually young girl in Wisconsin ly assaults mation in accordance 971.03. with Wis.Stat. 948.02(2) could charged reads, under and who It enhanced under his sentence never I, Clark, attorney Mil- Michael district 4B1.2, there exist no would U.S.S.G. County, hereby waukee inform the court solely upon the limit- way —based day July, that on the 1st charging docu- ing reference to one defendant, county at said John exclusively known the informa- ments Smith, intentionally, unlawfully did and fe- prior find that his conviction was tion —to loniously have a sexual intercourse with is, assuming That that of violence.” “crime Doe, person, not Jane who had attained age in judge know the victim’s the the would years contrary age age, the of sixteen of to below, (which, explain I shall place as first 948.02(2)of section the statutes. ease), factually always be the scant the any is that of evidence the information bereft defendant, Smith, subsequently is con- physically actions were violent. defendant’s second-degree victed of sexual assault of a short, emphasize strongly enough I cannot later, release, child. his he Years after only way sentencing a court can possession pleads guilty to in of a felon actually violence attend- determine whether a firearm violation of U.S.C. is to least review the ed Shannon’s crime § 922(g)(1). sentencing, At the district document, charging initial and fundamental judge majority’s as the looks to as well complaint. today, and of ill- reasoning as a result these advised limit himself or her- decisions must lines, majority’s Along these reli- same self to of the information in deter- a review wholly with its on Lee is inconsistent ance mining prior conviction for whether Smith’s arbitrarily years fix at to fourteen desire a second-degree sexual assault constituted second-degree age which the sexual below “crime the information re- of violence.” But per constitutes a se “crime assault child ferred is of facts that to above devoid simply, Quite there exist no of violence.” making would of assistance in that deter- judges, which federal trial means sentencing judge at- mination. The could information, only with a “bare bones” faced majority’s holding that tempt on the to rest a the victim of sec- could determine whether year “sexual with a 13 old is intercourse years ond-degree sexual assault was thirteen meaning of the a crime of violence within the younger of the date of the crime’s old or as guidelines,” prosecutor recall but commission, thereby rendering such crime assault ease was defendant’s sexual applica- of violence under one required is state information § us of of the Let as- tion 4B1.2 U.S.S.G. intentionally, unlaw- did the “defendant sume, example, Smith” is “John feloniously fully intercourse 948.02(2) have sexual § charged pursuant to Wis.Stat. age person a who had not attained the Doe,” with sexually assaulting “Jane a fifteen with Thus, child, Milwaukee, years age.” without sixteen July of of complaint, sentenc- filing fact-specific gleaning a After com- Wisconsin. 940.225(2), § second-degree to relieve victim of a child than Wis.Stat. like the sexual assault 948.02(2), pun- felony," § a BC under "Class experience confronting his or traumatic $10,000 by a fine a ishable maximum and/or open testifying aggressor while be- her court twenty years. prison up term of Wis.Stat.Ann. specifics jury judge a fore Charging a § defendant under 939.50. 940.225(2) reason, prose- aggressor's this violent acts. For frequently § avoided out concern charge frequently of- cutors Wisconsin sexual psychological well-being the mental and second-degree sexual assault fenders with is, young That when confront- child-victims. child, 948.02(2), § when the facts of even under with a which the threat of force or ed case in support charge of would second-de- case child, sexually assault violence used force, gree involving use assault sexual prosecutors charge oft-times elect Wisconsin 948.02, 940.225(2). set rather forth in the defendant under Wis.Stat. ing judge factually would be unable to determine whether such conduct is set forth fifteen, within the information. age whether the of the victim was age.6 fourteen or thirteen As because, among Shannon ais felon earlier, problem stated the solution reasons, second-degree he was convicted obvious—abandon the rule set forth in Lee child, sexual assault of a defined under Wis- judges sentencing allow to consider the consin law as contact or inter- “sexual allegations (including age) factual contained at- yet course with a who has not complaint. within the criminal At the 948.02(2). age tained the of 16.” Wis.Stat. least, dealing only since we are majority’s application of Lee convenient- statute, ought bring we ly ignores charged the fact that Shannon’s at which sexual with a child con- to, intercourse inextricably offense was linked and arose of, comport stitutes a “crime prior of violence” out his sexual assault conviction. is, Only statute. then would the That Shannon would not be labeled “felon,” confidently possession and therefore felon in be able to address the firearm, sexually had he assaulted “crime of under Lee’s violence” issue restric- such, years. minor of 16 under the As particularize period tive rule and of con- (as sentencing judge should be entitled to finement to the individual criminal before it) majority “peek in- describes behind” the court. formation, in to all fairness the defendant as whole, society well as to as a and be allowed Support II. The Rule in Lee Lacks in the consider the factual contents of the criminal Guidelines Case Law complaint, permit does not but Lee this. only appears The rule in misguid- Lee not blind reliance on Lee is also ed when scrutinized relative to Wisconsin guideline evident in its that assertion “the procedure, it also support but lacks itself, commentary 4B1.2(a), § Ap U.S.S.G. in either the Guidelines case law. Initial- 2,” plication recognizes Note “that the char ly, the misconstrues the effect of acterization previous of a conviction offered § the U.S.S.G. 1B1.3 on offense for which to enhance the defendant’s federal sentence “formally” charged; namely, Shannon was alleged is to be based on the facts in the being firearm, a possession felon in of a here, (or, information), indictment § 922(g)(1). violation of 18 U.S.C. Under deeper inquiry without a in to the circum 1B1.3, § sentencing court is not limited to However, stances of the offense.” even the conviction, only considering offense of reading 4B1.2(a), § most careful Applica may adjustments but also make for “all acts tion specific Note fails to reveal the words ... willfully by the caused defendant ... to refers as “indictment” or that during occurred the commission of the fact, commentary In “information.”'7 offense of ... in preparation [or] conviction simply does not even make mention of the lB1.3(a). § that offense.” U.S.S.G. In- charging documents, various forms of much sofar posses- the crime of felon in distinguish among less them or limit a court’s sion of a firearm is both state of character inquiry § under 4B1.2 informations and (i.e., felon) (i.e., being a an act possessing Rather, only. explains indictments firearm), § requires a judge 1B1.3 district court look to “the conduct to appraise all conduct stemming (i.e., relevant expressly charged) set forth in the count offense, from the regardless elements in of which the defendant was convicted.” did, against 6. The information filed Shannon Other offenses [under are included the definition fact, include date his victim’s of birth. "crime of where ... set violence"] conduct case, this is (i.e., oftentimes and the not expressly charged) forth in the count of legislature require prosecutors speci- does not which the defendant was convicted involved use fy of sexual assault victims in an or, informa- nature, explosives presented its tion. physical injury serious risk to anoth- section, er. Under this the conduct of which the 4B1.2., 2, reads, 7. Application § U.S.S.G. Note defendant was convicted is the focus of our in- part: quiry. relevant 4B1.2, engaged prior 2. mation that a defendant Application Note Shan § U.S.S.G. resulting adult in a crimi- similar conduct (second-degree a count convicted of non was Here, charged child) nal conviction.” was that was set forth Shannon assault sexual § 948.02(2), under Wis.Stat. an offense (i.e., charged”) in both com “expressly terms, which, by express require does words, information. plaint and proof prosecu- force for conviction. The information, less served complaint, no complaint and tor could have filed a subse- charge” same “expressly Shannon setting alleged quent information forth assault of a second-degree sexual crime 940.225(2), pro- § violation Wis.Stat. Thus, language of com when the child. “[wjhoever ... has contact vides sexual case, mentary it is applied to Shannon’s sexual with another intercourse complaint issued quite evident person by consent of that without use Shannon could and should have been against guilty or violence” is threat of force sentencing judge deter considered felony. Although my I agree colleagues mining nature the sexual assault con they state “the also make clear that viction. The Guidelines judge upward here could have based an de- of which the defendant was “the conduct 4A1.3(e) § parture [under on the ] U.S.S.G. inquiry.” our convicted is focus uncharged rape,” forcible now codified as 4B1.2, Application § Note Con U.S.S.G. 940.225(2), assault in I fail under- then, only charging sidering, docu logic in prohibiting stand their the sentenc- must Wisconsin law that refer ment under going “behind” the informa- com conduct is the criminal a defendant’s facts forth in tion when the set me apparent 4B1.2 plaint, supported would have a conviction under ei- to allow for the the U.S.S.G. drafted 948.02(2) 940.225(2), §or but one ther among various states’ docu differences alleged those in the subse- crimes was requirements in procedural crimi ments and quent information.8 cases, not limit a Wisconsin nal and does support in the lacking In addition to text the specifically to infor judge’s consideration Guidelines, support rule is without the Lee’s imposing or when sen mation indictment Supreme in case from the Court or law either tence enhancements. Supreme There no Court this circuit. exists Lee with The rule in is also inconsistent adopt suggest that should precedent to we provisions upward sen- Guidelines’ for the position perpetuated in Lee and the outlined uncharged tencing con- departures based unexplained. majority, the for reasons 4A1.3(e) U.S.S.G., § trial States, duct. Under 495 110 Taylor U.S. United “may imposing (1990), a sentence judges 2143, 109 consider L.Ed.2d 607 decision S.Ct. applicable fit departing from the otherwise the has seen to circumscribe that limit, an did consider issue range” if reliable infor- the Court guideline there exists pregnancy ensuing today the that the that filed declared 8. It should be noted violating against charged both him with Shannon fifteen sexual assault of fourteen or 948.02(2) § Wis.Stat. Wis.Stat. a defendant's crime one of child does not render assault”), 940.225(l)(a) (“First degree § sexual hand, 940.225(l)(a) § violence. On contact or the latter of which forbids "sexual sexual contact also criminalizes unconsented-to person another without sexual intercourse with "great bodily that harm”— or intercourse causes pregnancy or and causes consent of always will be deemed "violent” conduct hodily person.” great harm Had this to § as of the U.S.S.G. I am confused under 4B1.2 not been excluded from the infor- second count if a defendant to how the would know (because possible plea bargain mation filed 940.225(l)(a) charged violating who record), undisclosed in or for other reasons violence” when infor- committed a "crime of majority, being might the limited Lee's how mation, require specific such which does not information, looking only rule to at details, ground whether would fail indicate offense was resolved whether Shannon’s (being charge pregnancy was his victim's for hand, first-degree violence?” On one "crime of per only if the victim is se of violence crime 940.225(l)(a) §in fel- as set forth sexual assault "great bodily years) or harm" to his below intercourse onizes unconsented-to violence). (always being per se crime pregnancy, majority has victim but the that results in analogous today: Taylor preclude sentencing the one before us does examining court sentencing underpin- the factual extent to which a can look nings prior underlying previous a defendant’s convictions facts “violent felonies” might order properly apply enhancing a sentence under the Armed multiple ACCA and 924(e)(1) determine offenses Act, Career Criminal U.S.C. occurred on one or As a more ‘occasions.’ (“ACCA”). The an en- ACCA authorizes matter, practical a district court must look prison hanced term for a defendant who is beyond charging papers judgment (1) being possession convicted of a felon in conviction these documents alone (2) previous a firearm and has “three convic- rarely provide the court with the district by any ... tions court for a violent necessary detailed to deter- information offense, both, drug a serious committed on multiple mine whether occurred another____” offenses one occasions different from on one or more A ‘occasions.’ district 924(e)(1). Thus, 18 U.S.C. intent court’s examination basis factual ACCA, Congress enacting like the prior convictions does defendant’s U.S.S.G., impose prison enhanced amount to a retrial those (third-time upon terms violent criminals re- crimes____ court is not peaters), like the defendant in this case. The upon second-guess called valid Supreme “generally,” Court concluded that convictions, rather, merely state court “requires the ACCA the trial court to look determining [prior] whether the con- only to fact of conviction and the statuto- victions resulted from one occasion ry prior applying definition offense” in more than one occasion. Taylor, the terms the statute. U.S. at 601-03, (citation omitted). S.Ct. at It cautioned Id. 1018 n. 3 against approach require “an that would then, Clearly, has created sentencing court engage an elaborate evidentiary unwarranted concern “the factfinding process regarding the defendant’s of exploring burden the circumstances of old prior Taylor offenses.” Id. every potentially crimes would be borne any way Court not infer in did that it was ease which the defendant had a criminal sentencing judges concerned about consider- history”; patently this is inconsistent with document, charging the initial whether it experience courts, of the trial well charging paper,” an “indictment or other Supreme Court precedent. and circuit complaint. (empha- such as criminal Id. Moreover, light in that Hudspeth the fact added). sis Lee, was decided it is evident that the after majority reaches out and makes an end-run subsequently This court has in clear held Hudspeth, stating disregard around in of our unambiguous language Taylor banc en decision that “[w]e have deviated should be as prohibi- not construed a strict principle only from [Lee’s] it when was oth- against resorting tion to documents that are impossible to erwise determine the proper part sentencing court pur- record for classification of the offense under the sen- poses. Hudspeth, United v. 42 See States tencing guidelines and —a critical condition (en (7th Cir.1994) banc). F.3d 1015 As noted not satisfied here —the deviation did not re- above, may before ACCA enhancement quire hearing a to resolve contested factual apply, sentencing a court must determine issues.” defendant, fact, that a in prior has three felonies, convictions for violent and that these Taylor Hudspeth strong support lend separate offenses were committed on proposition sentencing a court Hudspeth, In an occasions. en banc case may charging consider the document known subsequent decided to we observed that complaint purposes criminal in apply order properly, to the ACCA a applying sentencing the “crime of violence” sentencing necessarily court must have re- enhancement under 4B1.2. As we held record, including course to the entire Hudspeth, both sentencing may a court look even complaint and indictment. “beyond charging papers We held: judgment § 4B1.2. The time and to the contents under U.S.S.G. effort and even conviction” properly apply expended making such a determination on police reports order to Quite unquestionably eclips- crime-by-crime Id. a basis penalty enhancement. ACCA rule, simple logic is associated with a simply, the of Lee’s which confines es glance complaint.9 to at criminal sentencing 4B1.2 determination fact-intensive court’s only charged “the a review of facts equally unconvincing I find information,” 22 F.3d relevant indictment argument that the so-called “burden” associ 739, Taylor, is not irreconcilable with conducting evidentiary hearing with an ated superseded unquestionably has been but it be “in would increased most federal sentenc in Hud- subsequent our en bane decision ing proceedings” if Lee were abandoned. sentencing may If a court speth. federal (and do) Sentencing may routinely courts (i.e., beyond charging look into the record evidentiary hearings to hold determine police reports, then papers) contents of matter in the is “reli whether contested PSR why I fail review the to understand cannot factoring before such information able” into complaint single on file —a document criminal See, sentencing e.g., decision. United pages. on as few as one or two contained (7th Nowicki, v. 870 F.2d States engaging in an cry This be a far would Cir.1989) (“trial judge permitted to consid fact-finding process.” “elaborate factors, variety including er reliable unsupported prac- wrongdoing raises defen evidence of which the my reasoning, argu- charged convicted.”); has objection tical line of dant been Mustread, judges permit sentencing v. 42 F.3d that we United States (7th Cir.1994) (judge rely the facts set forth in a criminal 1101 entitled to consider complaint, impose “heavy upon PSR inaccu we will burden” unless shown be rate). “greatly compli- replete acknowledg district courts and Caselaw is sentencing offsetting contain gain.” cate] with little ments that PSR and should conclusion, my knowledge, “any helpful This information does which would Madison, sentence,” accurately experience imposing of trial 689 F.2d at reflect information, First, including hearsay judges. great evidenced reliable gone juvenile lengths to which the has crimes committed evidence past determining defendant and evidence of whether sexual intercourse charged Taylor, dismissed. a thirteen old constitutes a “crime were 543; violence,” removing complaint from dis- F.3d at 870 F.2d at 407. The Nowicki judge may judge’s actually places trict consider all informa consideration unless, objection, greater upon particular judge upon proper burden tion than if made rules the information set forth such were otherwise words, requires Lee sen- is somehow inaccurate unreliable. available. PSR (i.e., 533; tencing judges approach Taylor, the nature F.3d at United States Coonce, Cir.1992). “crime of violence” versus a “non-violent crime”) majority forgotten that in every committed in Wiscon- The seems to have fact, us, law, speaks question of than case before the record sin as a rather the unlawfully, feloniously especially convincing regard Intentionally, in this had think has little burden in encountered with a who had not sexual intercourse looking beyond periodically the information filed (16) age the to wit: attained Sixteen breath, against example, Shannon. For in one name], contrary to [victim's the d/o/b: 4/27/77 majority explains the "the filed that information 948.01(2) form Statute Sec in such case against except all him omitted ... facts name against peace provided dig- made and girl date birth of the that he had indeed nity of the State of Wisconsin. (not had 'sexual con- intercourse mere quickest reading of the one-sentence Even the thereafter, however, tact') my Shortly with her.” that is found information reveals Shannon’s colleagues go to state that “Shannon was 17 on therein, expended has nowhere but years 10 com- months crime was meager go beyond factual con- little effort its mitted.” what source did the From determining in as of date tents Shannon's quotation? Certainly draw informa- tion, simply of the crime's commission. which set forth Shannon: 400 Cantero, in explained court did conduct such a United States v. itself “provide determining procedure— district court must

hearing to in assist whether or PSR) necessarily evidentiary (as hearing— but not an in defendant described parties may argue in contested Majors had murdered Randi in 1991. Shan- (7th 1407, sentencing issues.” 995 F.2d 1412 formally charged non had not even been Cir.1993) (holding judge’s par- review (much of), through less convicted either ties’ written submissions was sufficient information, complaint or in a homicide resolving disputed him in factual assist mat- Majors’ death, yet connection the dis- ter). emphasized that “[a]n We Cantero judge properly hearing trict conducted on evidentiary hearing need not be on afforded imposed the murder and an enhancement ‘right’ because is to a demand there no hear- finding by preponderance after of the evi- ing.” Id. had, fact, participated dence that Shannon in that fatal assault. It is inconceivable to judge sentencing in this case conclud- of conducting me how the burden an eviden- ed, allegations on the basis of tiary proceeding prior uncharged on conduct complaint the criminal were “off bounds” and (the murder), for preliminary 1991 which no evidentiary did thus he not conduct an hear- hearing place, actually has ever taken ing as to those facts. were it not greater than that which would attend a hear- unnecessary imposed by for the limitations prior charged conduct —conduct that Lee, judge sentencing could have enter- subject previously judge’s had been to a thor- and, request a hearing tained a ough scrutiny preliminary at hearing discretion, exercise his it would have been probable for which cause was found. proper perfectly deny for him to such a request. allegations The factual set forth in Even were we to an assume that evidentia- complaint previously criminal had been ry hearing necessary would be to confirm the preliminary tested hearing under the veracity of the sexual assault facts set forth probable (or, proof cause standard alterna- (and two-page in- tively, through admitted the defendant his PSR), corporated into the this would preliminary hearing). waiver of the It expenditure have involved but minimal “preponder- “well-settled” that the similar Indeed, time and effort. judge the district proof ance ap of the evidence” standard of inquiry would undertaken such an had plies sentencing in the federal context. he not been constrained But I Lee. em- (7th Bailey, 982, v. 97 United States F.3d phasize that necessity there nowas for such Cir.1996); Porter, see also United States hearing before district judge, much less (7th Cir.1994); 23 F.3d United any requirement that the trial conduct Masters, States v. evidentiary hearing. an A criminal defen- denied, Cir.1992), cert. 508 U.S. dant who is sentenced in a federal (1993). S.Ct. light L.Ed.2d 245 entitled, not automatically court is to an evi- comparable proof standards of dentiary hearing issues; on contested factual apply preliminary hearing at both a in Wis rather, the determination whether to admit cause) (probable consin and in the federal hearing evidence a formal lies within (preponderance context of the evid judge. the discretion of the trial Fed. ence),10 it necessity difficult see the 32(c)(1) (with R.Crim.P. respect to relevant inquiring second time —into factual —a sentencing, factual issues at may, “the court allegations complaint. set forth in the Cer permit parties discretion tainly, intro- discretion, it would not abuse of evidence”). testimony Cantero, duce or other As we under for judge the district under “by preponderance naiy hearing, Proof a the of evidence” proba- there must be a "reasonable [i.e., requires showing a that bility some event or fact is that a likelihood] crime has been not,” i.e., likely probable likely "more than committed and that the defendant committed it just possible. rather than ter, given specified locality].” United States v. [on Saul a date and in a 270, (7th Cir.1995). Williams, F.3d Similarly, 60 280 State v. 104 Wis.2d 310 N.W.2d (1981). probable prelimi- order to establish cause at a 601

401 dant, just, evidentiary fair, it deny to be reasonable an to these circumstances that be allowed to draw imperative he hearing. upon concerning a wealth of information goal Judge Evans that our agree background, the his date defendant’s from sentencing proceed- “enlightened should up including the moment birth to and of factually accurate informa- ings on based sentencing. important to While sentencing judges to tion.” This would allow judge the the defendant for to know mix information in deter- a broad consider a whether the defendant suffered as bat- a mining whether a crime was “crime tered child from abusive alcoholic and/or rejecting comprehensive the In violence.” parents which could have contributed to by myself procedure advocated approach and psychological pattern which oft-times his Evans, Judge decision activity, manifests itself in violent criminal plethora casts a flies in the face of and aside equally important likewise it only circuit ruling case law not from this presiding judge know all de- country. Whether sentenc- but across the rely prior the criminal criminal contacts with law ing judge chooses to fendant’s chooses, agencies. are he We not on file whether enforcement discretion, to conduct an inde- rights the exercise of concerned with individual’s but evidentiary hearing, our ease law pendent right general public of the also free____ Supreme that Court is clear and that live defendant, judge may sentencing a “[w]hen readily apparent 1314. It is inquiry broad in appropriately conduct rule, judge’s which limits a Lee’s restrictive scope, largely either as the kind unlimited inquiry “crime of violence” to the information consider, may he or the of information only, directly in face or indictment flies (quotations it come.” source from very principles detailed in Madison and omitted). 543; Taylor, 72 F.3d at see also companion cases as well as the recent en 1314; Madison, 689 F.2d at United States Hudspeth of this court. banc decision — Watts, -, 136 U.S. S.Ct. And, third, gain might a dis- what better (1997) (“[Sentencing courts L.Ed.2d 554 judge sentencing pro- upon trict bestow consider various broad discretion applica- a uniform cess itself than foster information.”); Williams v. New kinds of there is no tion of U.S.S.G. Under York, L.Ed. 69 S.Ct. U.S. particular judge will assurance that district (1949) (“[S]entencing tradi- courts have same, similar, impose if sentences constitutionally a de- tionally and considered against two different criminals with similar behavior, past even no fendant’s criminal being punished for same who are records behavior.”)-, conviction resulted crime; factually judge may have a whereas Coonce, (“[A] sentencing 961 F.2d at him or in one information before her detailed judge can and should consider defendant’s instance, may not be the case in another such might make history in order he entire (i.e., prosecuted under the where the crime pun- proper as to the an informed decision procedure). ishment.”). Wisconsin rules of long recognized the We have judges requires that trial again, Lee judicial investi- Once role this crucial extensive “guessing game” engage an ill-advised guaranteeing gation determining, as operate in just, simply a vacuum when process itself is both fair and law, given criminal, sexual assault but for matter of whether for the sake of the convicted Madison, Even the society’s to a “crime of violence.” benefit well. amounted discussion, con- explained: majority, after exhaustive court it whether has that it is not certain cedes sentencing stage of the trial is one of today. I do not believe “gotten right” parts important most of the criminal sentencing of criminals should be re- process. be well In order by precluding game to a of chance surrounding duced advised all facts considering crimi- judges from background, particularly district defendant’s specific conduct the commission nal’s judge’s obligation view of triggers application public, crime that general well as to the defen- them, provisions quantifying repeat-offender of the of the no means a facile Guidelines, or ACCA and the that unifor- undertaking. complicat- This task is further tomity which the subscribes is con- U.S.S.G. ed the State for a obtains conviction guess-work. ducive to disjunctive possesses multiple crime that ele- noted, previously ments. As Wis.Stat. Finally, I to in wish note addition 940.225(l)(a) felonizes “sexual contact or one, complicating to such as this cases would person with- intercourse another prove completely unworkable certain other preg- out of that consent causes sentencing judges instances. If are bound great bodily nancy or harm to person.” magic what the and Lee deem as knowing jury’s documentary labels “information” or Without basis for convic- “indict- ment,” tion, then crimes from the states of Con- would a “minimum fact” such a under Cir.) (2d (Conn.Gen.Stat.Ann. § necticut 54- statute be one which demonstrated that the Cir.) (Haw.R.Penal (1994));11 Hawaii defendant’s unconsented-to sexual inter- (Kan.Stat. 7);12 (10th Cir.) Proc. and Kansas victim, pregnancy course to resulted his (1995))13 §Ann. 22-2905 can never be con- showing brought one that such behavior convictions, sidered and counted criminal bodily harm,” “great about or both? Fur- jurisdictions’ proceedings for those criminal thermore, majority’s reasoning compels rely very on charging same document sentencing judges ignore findings to of fact throughout, “complaint.” known as the In required made trial if at such facts were not words, charging document relied support to the defendant’s conviction. upon throughout proceed- the entire criminal I am provides convinced Lee—which complaint, complaint only, is a and a foundation for the rea- neither an information nor an In indictment. soning doubly only erroneous. Not does —is view, my argues this state of affairs also unnecessarily Lee improperly restrict convincingly legal placing most for docu- sentencing judge’s federal “crime of violence” complaint equal ment to as referred (as discussed), inquiry opinion incor- also footing with the indictment informa- and/or rectly holds that the Wisconsin crime of majority, hand, tion. The on the other person” “theft from the a violent of- dicta, opines, albeit in that “the better alter- Although fense. set facts forth Lee ... judge native would be for the to consider established that the defendant two ac- only the minimum facts within [contained complices “grabbed both the victim’s] [of complaint] required support the convic- forcibly arms and held them her behind tion —the facts must have been found back, (or ripping her admitted) removing while coat and proceeding.” the earlier ” purse, panel majority her coin approach, somehow desperate This which I find to be a concluded that this attempt crime was a “crime of reconciling Lee with eommonsense (1) practical application and the violence” because: it “is pro- neither of- cedure, problems will fense that has as an create additional element the use or sentencing judges. Identifying attempted or the so- threatened use force case, called “minimum facts” much nor specifically less is it one of the offenses listed Connecticut, (2) if, rules, charged by pursuant 5(c)(2) all "[f]or crime Rule these 26, 1983, May prosecu- open right the state defendant on or after has waived in court his hearing; preliminary may complaint tion be or information.” (3) if, 7(c) rules, pursuant to Rule of these (1994). Conn.Gen.Stat.Ann. 54-46 open right defendant has waived in court his an indictment. 12. Pursuant Rule 7 Hawaii Rules of 7(b). Haw.R.Penal Proc. Criminal Procedure: (1995), provides, 13.Kan.Stat.Ann. 22-2905 felony may prosecuted by complaint A under part: relevant following three conditions: aWhen defendant is over bound to a district (1)if respect judge the district trial, prosecuting attorney shall file probable has preliminary found cause at a an information office the clerk of the hearing and has committed defendant to court, charging district the crime for which the pursuant answer in the circuit court to Rule defendant was bound over. is in If 5(c) rules; of these proper he as the used form information. 2,” when, person” application the even as is § 4B1.2 note in U.S.S.G. the “theft from case, (2) vio- person] the the violence or the threat that from [theft and the claim often injury ... Lee risk is lence attended their crime. itself is a a “pose[s] substantial case, conjecture example classic a and specula- and such thus little more than First, perfectly folly leaving 740-41. the illustrates the the 22 F.3d at tion.” sentencing judge by limiting in dark that an offense the his are clear Guidelines the inquiry it to “bare bones” criminal “involves conduct “crime violence” potential charge set forth information. Accord- a serious risk the presents that another,” County regardless of to the records of the Milwaukee physical injury to Office, fact, Attorney’s it in a or whether is District most the crime’s formal elements January period recent nine-month between a crime of violence in the Guidelines. listed as 4B1.2(l)(ii). thirty Initially, September we must and there were some U.S.S.G. and for the arrests convictions the cognizant of the fact “theft from “theft from Milwaukee, City person” rob- within the in that of person” is an included crime see, Wisconsin, e.g., (twenty-five) the of these in- bery vast State of State, something 820 volved the use of force take N.W.2d Moore Wis.2d (1972), “robbery” expressly against re- from victim his or her will value and that (e.g., purse el- forcibly snatching from an “crime of violence” ferred to as a derly throwing in- commentary accompanying 4B1.2. The female victim and her ground). Many of crime of “theft these incidents involved herently nature violent obvious, ground, just person” is not from its victim thrown from the rob- and assault an included offense of forms of violence designation as choking, fracturing reality pushing, such as bery, from the stark but also Only a than not of the victim. handful perpetrator more often resorts to extremities (three) objective. falling The Lee the assaults were classified as violence to achieve his “grey area” threats or menac- majority attempted downplay the serious- within where record, ing glances body language, rather than forth in that ness of the crime set force, employed to and re- mistakenly likening pickpocketing.14 actual were take property the victim without con- legislature, based move from the Wisconsin (such information, bicycle).15 type This upon convincing has determined sent child’s crime, submit, fraught is' of- of also person” “theft from not punishable much as violence does fense five (which $10,000 “pick-pocketing” the label of imprisonment and a In order deserve fine. misdemeanor, result, frequently panel can be treated as to achieve their desired record, property). clearly depending upon the value of ignored facts engaged Lee The statistics recited above demonstrate defendant established sentencing judges in a better purse-snatching. would be far in a forcible and violent justice if the Lee Furthermore, they disingenuously position to a render cited candidly recognized, just plainly “pick- had portion lists of the Guidelines which itself, Lee also stark purse-snatching, facts of but pocketing violent [and] non-forcible in most cases “theft from the purse shopping reality theft of a from such as per- person” does involve violence and should be of “theft from the cart” as illustrations comment, 2B1.1, under the as a crime of violence considered son of another.” U.S.S.G. (as (n. 7). light “vio- In nature most U.S.S.G. opposed But non-violent cases, panel lent”) person” from the Lee exception rather than the “theft are thefts rule, charge when it referred to the Gov- prosecutors often was mistaken and Wisconsin (that crimes are indeed purse-snatchers with ernment’s claim such piek-poeketers cited, previously exam- legislature 15. the Moore case does even rec- 14. The Wisconsin ognize charged candid- ple, which the Lee from crimes the defendant was theft “pick-pocketing” "purse- ly to as sixty-three year referred after he robbed snatching" they to de- are terms of art used warning repeatedly to "hol- her not woman while — general falling "theft conduct under the scribe scream.” 197 N.W.2d at ler or person” statute. violence) “speculation” crimes of as mere or known Wisconsin as the criminal “conjecture.” dealing question 22 with of F.3d at We must when the whether or recognize of a that the offense theft not the sexual assault crime was “crime of That, nature, repeat, person, by only proper its violence.” I is the involves physical injury way and can whether vio- a substantial risk is determine of actually violence.” lence the commission of the therefore a “crime of attended abundantly crime. And this court has made reasons, foregoing For the court guideline that “the structured to clear is (overturn) adopt set Lee and should aside require court im- the district to tailor the approach by more sensible taken our sister posed sentence to the crime commit- actual Spell, circuits in 44 F.3d United States 936 defendant____” particular ted Unit- (11th Cir.1995), Gacnik, States v. and United Michalek, ed States v. (10th Cir.1995). 50 F.3d 848 These cases do Cir.1995) added). (emphasis meaningless among make distinctions not charg- names various classifications and/or disagree IWhile with the route taken documents, permit the sen- but instead in analyzing whether the crime tencing judge to well-informed and consid- be violence,” dp us before is a “crime of concur “easily produced all er and evaluated court majority’s with the that ultimate conclusion documents, including judgment of convic- Shannon’s sexual assault of a thirteen tion, charging plea agreement, pre- papers, presented potential a “serious risk of court, report adopted by the sentence and physical injury” to his victim and thus a sentencing findings judge.” Spell, majority’s opinion, violent offense. The as at 939. an approach F.3d Such would be goes, victory far it as for common sense Hudspeth, harmonious with our decisions in (whether they because children be 14 or Taylor, many and as Madison well age) years physically are and emotion- Supreme decisions of the Court and other immature, ally especially and thus vulnerable country, emphasizing circuits across in physical to the risk of harm inherent in felo- comprehensive the need for a broad and activity, including nious sexual but not limit- inquiry by judges. dangers pregnancy ed to the sexually and view, however, my In transmitted diseases. Physical III. “Serious Potential Risk of logic holding that act of sexual Injury” intercourse vis-a-vis the defendant Shannon ease, majority’s analysis poses potential physical serious risk of adhering misguided year-old to Lee’s rule injury certainly for reasons to a thirteen also unconvincing, at best exclu- involving focuses almost extends to those situations child- sively age victim, on the of the defendant’s victims age the tender of fourteen fif- and child, second-degree 13, 14, and asks A whether the sexual teen. whether falls assault of parameters a child is “crime of violence” within the set forth the Wis- statute, years which, alia, when the victim is thirteen ten consin inter serves age opposed months of problems child four- address the social concomitant and making teen fifteen. In teenage the course associated pregnancy and ille- judicial pronouncement legislative gitimacy. on this logical reasoning the absence of question, majority engages great any empirical in a support, I medical can- and/or gratuitous commentary deal of concerning agree not with the decision Wisconsin’s sexual assault of child statute. holding pronouncing restrict embarking Instead of second-degree the circuitous route sexual assault of a child is a employed majority, (i.e., expressing presents crime of violence a serious disapproval of prohibiting state laws injury) only sex risk of minors, this court should hold that a federal those instances where the victim of the as- sentencing judge any years can review all sault is thirteen ten months of documents, charging including then, Obviously, document under.16 holding such a judicial analysis 16. To protects the extent that as our ages children between the 13 and 948.02(2), old, scrutiny recognized limited to a of Wis.Stat. must be second-degree follow sexual legislature’s would the Wisconsin at odds with (or, matter, boy girl inter- assault of a the act determination child) conceiving any person yet capable could below or contact with course felony. dealing We are be a of violence.” sixteen is a “crime 948.02(2) only, exclusively statute Criminal Code the Wisconsin victims, or territo- not the state both female applies law male and my previous panel explained As I ry.17 it should obvious children of either legislature, dissenting opinion, the Wisconsin are at risk of harm from this sex consideration, has this due classified activity, after type particularly of sexual offense,” “sexually a re- felony as violent physically larger, is perpetrator older and Up, 15, IS or the victim is gardless whether is often case. See Wis.Stat.Ann. of seq. et younger. 948.01(6). Wis.Stat.Ann. 980.01 948.02(2); §§ (West.Supp.1995). Additionally, om- we must not overlook the majority Initially, I de- observe that danger nipresent (perhaps that force even great pregnancy attention to deal of votes force) of or mortal the threat use of is more with physical a risk of harm associated compel than not to child to often used teen-age activity. majority states (or in) engage engaging continue in sexual year signifi- old that “sex with a 13 creates activity. agree regard, this pregnancy,” risk of and somehow seems cant Circuit, Tenth which has observed that danger year to 15 old of to believe “the attempts sexually “when older injury great.” No- from sex is not physical always ... is touch child there a substan- ex- opinion does the where physical tial risk that force will be used to (or provide any medical treatise plain compliance.” ensure child’s United theory risk support) its that the evidence 377, Reyes-Castro, v. 13 379 States F.3d pregnancy is less physical of harm Cir.1993) and/or (10th added). (emphasis For years “significant” who are 14 or 15 for those reason, question those circuits to address the years rather and ten months.18 age of than 13 whether sex crimes with children are of Indeed, pregnancy, respect with there in the “crimes of have answered violence” certainly 14- in the most a risk for children Wood, Id.; 52 affirmative. United States v. year age because it is 15 bracket Cir.1995) (“the 272, (9th 275 risk of F.3d certain) likely (though by no means size, implicit au- age violence age group physi- young women in this will be thority dealing position of the adult likely to cally mature and thus more able and Bauer, child”); v. United States offspring. conceive (8th Cir.1993) (“sexual 373, intercourse 375 age a female child under the of 16 danger becoming were with pregnant

If the of consideration, pur- majori- ... a crime of violence for enhancement paramount as the 979 Rodriguez, ty’s suggests, poses.”); then United States pregnancy discussion of al., reasoning only younger. et majority's confusing See Mark A. Schuster "Commu has created Physicians presumption sexual assault of a minor is nication Between Adolescents Prevention,” of older than a "crime violence” if victim is and Risk About Sexual Behavior (the age younger years 13 10 months 12 and than & Adolescent Medicine 150 Archives Pediatrics of victim). of Shannon’s (a (1996) grades study 9 of adolescents in 906 12); al., through Webster et "Surveil Linda A. Although the Wis- we are concerned Secondary Primary lance for Gonorrhea and statute, sixty-eight noting consin it is worth Adolescents, Among Syphilis 1981— United States legal age percent set of of all states have 1991,” Mortality Morbidity Wlcly.Rep. No. 42 & higher. Matyanne at See consent sixteen 13, 1993) ("some SS-3, (Aug. highest p. 1 Analysis Lyons, Jeopardy: Adolescents in An of year gonorrhea among ... were 15 to 19 rates of Assault, Promiscuity 29 Texas' Sexual Defense for al., olds”); of Alison et "Association M. Fraser (Fall 1992). least Rev. 608 At Hous.Law Reproductive Young Age Maternal With Adverse legal twenty-five age utilize a four states Outcome," (1995) (teen N.Eng.J.Med. 1113 332 legal age and five have set consent age "signifi had mothers at 18. Id. at 28 n. 135-37. others reproductive higher out cantly adverse risk” of medical authorities cited 18. The comes). holding support their find- do confine sex) (about ings dangers 13 or to children Cir.1992) (crime question, dressed the it would been F.2d 138 lascivious violence).19 acknowledge forced to that Wisconsin’s sexu- acts with a crime of child is 948.02, statute, al assault Wis.Stat. is actu- employed Even Shannon had not the use of ally scope more limited in than its federal violence, force or risk of serious Consider, counterparts. example, injury to his child-victim would still have (“Sexual Exploitation U.S.C.A. present properly been offense would his Children”), criminalizes, among which regarded as a “crime violence” within use, things, employment, persuasion, in- the Guidelines definition. ducement, enticement, “any or coercion of Because the Wisconsin sexual assault of a [person eighteen minor under the child statute to 14 and 15 extends olds years] engage any sexually explicit ...' victims, younger my colleagues as well as purpose producing any conduct for ground,” by a lot comment that it “covers depiction visual such conduct.” When they apparently mean that it is too Congress § 2251 in enacted its over- broad opin- and too inclusive. riding psy- concerns were ion, tense, using past also states that chological pornogra- harms to child attendant age 16 “Wisconsin had below which made phy exploitation: sexual and/or activity sexual with minor is I felonious.” production [T]he use of children of language might very am concerned that this materials, sexually explicit including photo- argued invalidating well be the terms of videos, graphs, films, computer images, statute, creating the Wisconsin thus a vacu- depictions, and other is a visual form of um in interpretation of Wisconsin law physical sexual can result abuse which year where 14-15 old victims of this crime harm, both, psychological to the Therefore, I point are concerned. wish to ... children involved and its continued shortcoming majority out another existence child causes the victims of sexual opinion: namely, failure to its make clear continuing haunting abuse harm those anywhere application that the decision its children in years. future exclusively limited to the federal Sentenc- 104-208, A, I, 101(a) (em- § Pub.L. Title Div. ing Guidelines and does not affect Wiscon- added). phasis sin’s sexual assault of child statute. It still Interestingly, Congress § amended 2255 remains a have sexual contact or (the statutory defining section “minor” for intercourse with a [male female] 2251) application §in in 1984 and raised age under the 16 in state Wisconsin. of of years years age from 16 to 18 below 948.02(2). § Wis.Stat.Ann. exploitation the sexual of a child is majority today Insofar as the has taken criminal. legislature currently Wisconsin’s liberty mini-legislature to act as deems sexual contact with an individual attempted has to rewrite Wisconsin’s sexual younger being inherently than 16 as harmful. statute, puzzled assault why I am it fails to Perhaps Wisconsin, the time has come that anywhere opinion address in its and avoids states, majority “keeps as the [its] sex laws Congress view of the States United con- up to changing date with the mores of cerning age at which sexual and, contact with people” American like our gov- federal a child necessarily poses ernment, a “serious risk of increasing consider that threshold physical injury.” age eighteen years age. Had the ad- recently 19. The Fifth Circuit held that the We typically Texas think it that such obvious crimes "indecency crime of quarters, child sexual occur generally con- in close and are tact,” 21.11(a)(1), § perpetrated by upon Tex.Penal Code Ann. was a an adult a victim who is weaker, smaller, purposes "crime of violence” experienced, for of 18 U.S.C. not and less 16(b). § Velazquez-Overa, generally susceptible United States acceding 100 but is also Cir.1996). language F.3d 418 In power authority figures. similar the coercive adult 4B1.2, 16(b) little, that any, section defines "crime of A child if has resources to deter any felony "by violence” as physical offense that the use na- an adult force intent on ture, circumstances, physical touching involves substantial risk that the child. In such may force ... significant used----" in Ve- there court risk that force lazquez-Overa sexually molesting may perpetrate reasoned be used to the crime. violence,” explaining: children was a "crime of Id.

407 have a protected believes that because some states legislatively has also Congress Wisconsin, age consent than it fol- lower the threat under from children is, can be drawn “[n]o That lows form abuse. of sexual violence inference year sex a 18 old “every facility these states consider requires § 13041 42 U.S.C.A. they girl ... to be harmless to or that by the Government operated Federal they right” danger and that to a do are “the provi- individuals involved with hires year physical injury from, sex age 18 of child under the to children sion (much great.” fail to less understand background checks to conduct care services” accept) logic. to the stark contrast employees. this federal Under statement, preceding has con- crime,20 statute, “[a]ny a sex convictionfor presumption cluded that a can be drawn victim, or involving drug child offense sex olds states which criminalize with 13 ground denying employ- felony may be for dismissal____” believing per harmful to are correct se The statute further ment or a female child-victim. “[cjonviction crime of a provides that if it crime be considered than a sex My colleagues’ apparent that sexual belief fitness to re- on an individual’s bears activity pose a children danger does not safety well-being sponsibility sharp fourteen fifteen is in 13041(e) (emphasis children.” U.S.C.A. reasoning contrast added). foregoing provisions Would Congress, of the United —18 Members States § 2251 and 42 U.S.C.A. 13041— U.S.C.A. hearings and (following who have determined suggest that our federal powerfully then debate) children that all below the government contact with believes that sexual exploitation, must be protected psychological- per physically se minors is psy- inherently physically is both ly every child to each and under the harmful It ma- chologically harmful. that the seems years? clear that the age Is it not of jority seeking is the lowest common denomi- are, provisions the statute in of Wisconsin bottom,” i.e., in a search nator a “race to fact, age parameters well within the estab- age territory for the state or with the lowest by Congress sexual contact lished for when relations, cut-off of consent for sexual whose of child constitutes a crime violence? with a for age yardstick be used as then I both must an- questions that submit injury risk determining physical when the of such, no affirmatively, and as find swered majority present. Perhaps from sex is in the conclusion that basis likewise that because some states believes year assault of thirteen old is a (while speed per have a limit of 70 miles hour violence, the same crime crime of whereas adopted speed a maximum of 55 others have against a fourteen or fifteen committed speed of mph), driving at the more excessive not. somehow is just majority necessarily as safe. 70 is Is holding proper on the side that err majority’s critique of the Wisconsin The (13 years rath- permissive most standard charge end does not with its law find, years) possibly that we er than 16 can go My colleagues on to statute is too broad. rea- accepting more instead Wisconsin’s “animating question whether the concern” (shared by sixty-eight sonable determination injury is the incident “physical the statute states, 17, that it percent supra) see n. I sex.” entertain no such doubt. Protect- is a crime to have sexual intercourse (under 16) from the risk of ing children age of sixteen? contact with a child below the psychological injury is physical as well as majority argues “a concern obviously one of reasons that Wisconsin physical injury cannot be read off automati- properly forbids sexual contact inter- mi- cally punishing from a statute sex with persons.21 with such course statute, sexually assaulting found in a child was to be crime” is not defined in the nor "Sex term limited sex offenses. Chapter Against is the to violent Life and entitled “Crimes Bodily Security,” which is further evidence assault, as a sexual 21. The crime described legislature, which eyes in of Wisconsin connoting physical Prior violence. term when the Wisconsin citizens, crime of its acts for and on behalf legislature special created a harm, grave thereof. physical involves risk dealing chapter in its criminal code with crimes 948), against (Chapter children offense nors,” support proposition (Wis.1968), and in of this upon it 158 N.W.2d 288 is based long-standing principle that “the minor [is] jurisdictions discusses with lower experience immature in both mind and (as ages of consent than men- protected should be from his own bad previously), points tioned but it also to states judgments____” Id. at 158 N.W.2d 288. Illinois, higher age such as which have a legislature’s recognition The Wisconsin (18). age consent While consent children, many beyond times even those six- 18, may marry Illinois is one in Illinois at the years age, ability cope teen lack the age parental permission. of 16 with Because and emotional conse- permits persons in Illinois the 16-18 actions, quences particularly of their consent, marry parental bracket conduct, context of sexual evident unlikely claims that “it is therefore 48.375, enactment Wis.Stat. which re- quires minors under that the of consent the Illinois statute old to obtain parental obtaining consent before an abor- purpose was chosen with mind of tion. Aside from the obvious moral issues protecting minors conse- implicating one’s decision to terminate the quences little, of sex.”22 While makes child, life an unborn Wis.Stat. 48.375 any, grant parents sense for a state to explains that “[i]mmature minors lack the authority engage to allow their children to ability fully to make informed choices that act, felonious sexual otherwise submit into account ... both immediate and take young people in the 16- long-range consequences” and that “[t]he age category physically are neither nor medical, psychological emotional and conse- emotionally prepared for respon- the various quences of abortion and of childbirth are challenges sibilities and of the marital con- lasting, serious particularly and can be tract. I am confident that it patient Similarly, is immature.” I have dissenting previous noted from a requires parental reason that Illinois decision consent unemancipated this court that “minor chil- young person may before a enter into what knowledge, experience, dren lack the important will be their most contract in life: mature, judgment informed, to make well- marriage. agree even if I were to reasoned decisions.” Hartigan, Zbaraz v. majority’s analysis of Illinois law is Cir.1985) 1548-49 n. 6 proper persons age and group 16-18 J., (Coffey, Thus, dissenting). general as a physical are not at risk of the psychologi- and rule, they are unable to enter into valid sex, cal harms from I fail to see how this is contracts, performance or to consent to the relevant to the Wisconsin statute under con- of surgical procedures. medical and Id. here, 13,14, sideration which forbids sex with respect procedure abortion, With to the year and 15 olds.23 dilemma “[t]he and confusion that is in- stantly upon fragile, thrust young in female general Wisconsin’s rule that “... the con- her may decision to bear a child result tract of a [one minor who has not attained psychological, psychiatric, and moral scars 21], age necessaries, other than for. that, frequently, all too never heal. Added to either void or option,” voidable at his this mental strain anguish is a consider- Kiefer Motors, Inc., 20, 23, v. Fred Howe 39 Wis.2d ation of variety the almost physi- endless 22. explains ruling The damage psychological, physical that “as for and social —in — any felonious sexual act with a minor creates a consequences terms of the various that can fol- physical injury,' 'serious risk of low from acts of intercourse with minors." suggestion argument was undermined at oral government's lawyer when the conceded that the arguably inconsistency While there is be- goals forbidding behind laws sex with minors are age age tween Illinois’ of consent and the goal protect- various and need not include the (with permits marriage parental which it con- ing the physical minor from a serious risk of sent), inconsistency there is no such in the State injury.” I do not find such to be the case. law, person of Wisconsin. Under Wisconsin Although government's lawyer reply did to may many, parental permission, contract to panel's questioning the en banc that the Illinois age if he or she is "between the of 16 legislature and 18 "might protecting be” concerned with years." provision Wis.Stat.Ann. 765.02. This seventeen psychological olds from the intercourse, fully 948.02(2), harms consistent with of sexual he made clear that makes experience "our would lead us to it a crime to believe that the have sexual intercourse or contact legislatures are concerned about all kinds of awith who has not attained the of 16. us to consider the direct at 1549- The Guidelines Id. having an abortion.” cal risks added). physical, only, physical These same harm but would be (emphasis risk of we present at moral risks are psychological if the fact that remiss we overlooked (i.e., as- act sexual moment the sexual psychological harm which results from grave sault) place. pregnancy takes resulting with a sexual contact and intercourse both concedes such when majority even physical can often manifest itself child (or parturition “pregnancy explains that long-term manifestations ways. Among the abortion) quasi- at least considered must be greater inci- childhood sexual abuse are considered, involuntary could well be trust, self-doubt, depression, loss of dence preg- therefore, injury if the physical even abuse, self-mutilation, frequently alcohol Notwithstanding this nancy is normal.” Guidry, Mark behavior. Harlan suicidal statement, jumps the conclu- Family Abuse: Role Childhood Sexual activity risks of sexual that the various sion Family Physician Physician, American only present for a child thirteen are somehow (Feb.1995). The sexual abuse of No. younger age or but ten months of years and may the release of cer- child also stimulate fifth fourth or children their not for those elevated, which, persistently hormones years, tain early teenaged very trying year of the “detrimental, long-term fit include has also seen effects can have whom Wisconsin its well-intentioned parameters within include body.” Id. These effects can protecting teenagers. laws disturbances, headaches, appetite sleep disor- disturbances, ders, nausea gastro-intestinal physical a concern for arguing palpitations, the en- muscle ten- safety vomiting, does not lie behind heart somehow statute, majori- of the Wisconsin sion, actment Id. fainting, fatigue, and dizziness. applies law ty that the Wisconsin also notes exposure danger that to sex There is also the inter- as sexual contact well sexual down the young will break at such majority, According sexual to the course. engaging in sexual be- child’s resistance fondling, though it such as contact havior, age-inappropriate and lead to further child, unlikely “highly “disturb[ing]” might well result behavior that sexual Therefore, according injury.” physical cause 104-208, A, Ti- injury. Div. physical Pub.L. majority, may not conclude to the we 101(a)(8). statute, I, § tle “animating concern” was with legislature’s of the aforementioned recognizing that all injury. agree wisely either sexual present, forbids risks are (i.e., fondling) is example contact” of “sexual with a child. contact intercourse or sexual injury likely a direct to cause (as physical manifesta- opposed to an indirect sug- majority strongly In addition harm, infra). psychological discussed tion is too the Wisconsin statute gesting (fon- a child contact with (i.e., ground”) lot of that it “covers a broad to the more than not leads dling) more often purpose behind the claiming that the behavior, inter- injurious such as physically against the protect not to children statute is minor, pedophilia with course and/or harm, the Wis- physical it criticizes risk of “potential risk of serious this reason a for setting improperly legislature while consin injury” present when the even gen- this about personal its own views forth “only” of unlawful conduct consists initial characterizing “statu- legislation, class of eral Furthermore, even fondling. touching or antiquated “morals laws as tory rape” [sic] to the level that does not rise sexual contact leg- majority “state chastises offenses.” The activity carries with advanced sexual Wisconsin’s) including (presumably islatures” child will resist and risk that up laws to “fail[ing] keep their sex to for force, perhaps even perpetrator will resort mores changing sexual date with the force, accomplish his ends mortal argu- part of its people.”24 As American uncontrollable. urge becomes present sexual “statutory rape” law that the Wisconsin ment Reyes-Castro, 13 F.3d at 379. disagree morality. with both I of sexual extraordinary assumes dard comment 24. This rather accept I were to (a) propositions. even if "changing of the Ameri- sexual mores readily apparent reasoning, majority's quantified, and people” measured or can can be a child sexual assault of (b) Wisconsin’s duty me that legislatures have a to conform the state fact, is, parameters of well within vaguely statute defined national stan- laws to this their date,” majority old-fashioned, predomi- is “out asserts or that the sole and statute, purpose nant behind originally this when en- laws of this kind were enacted “to acted, protect “virginity” was to protect virginity minors in and/or of female “marriageability” minors. The protect marriageability.” order their of female majority (again claims without documented The author of the cites but two law support) “governmental concern with general proposition,25 review articles for this teenage “only recently” sex” has shifted from notwithstanding prop- the fact that our and— protect virginity an archaic desire to female er focus mandates that we consider the Wis- sexually “pregnancy, such concerns as consin statute —fails to even mention diseases, possible psychological transmitted legislative history from the relevant thirtieth early harms incident to commencement of (1848). state to be admitted to the Union activity, possible sexual adverse social fact, although majority speculates consequences teenage and economic preg- comments that Wisconsin’s sexual assault of nancy Again and births out of wedlock.” a child statute is somehow a relic disagree majority, must con- earlier, conjecture Victorian era or finds (with possible excep- cerns listed above no'support history. legislative More diseases), sexually tion of transmitted while twenty years ago advisedly than certainly current, still are no means amended its criminal code so that the crime vintage. problems of “recent” These sexually assaulting a child would cover many years, they been us for con- (i.e., “persons” victims of both sexes instead provide justification strong tinue to “females”). just Compare Wis.Stat.Ann. forbidding Wisconsin’s law sexual intercourse (1996); § § 948.02 Wis.Stat.Ann. 940.225 or sexual contact with a child.27 (1975), (1955).26 and Wis.Stat.Ann. 944.10 “possible refers ad- modern, statute, gender-neutral Wisconsin’s verse social and economic consequences of protect which serves to children both sexes teenage pregnancy and births out of wed- from the risk of. harm involved lock” as one of the “recent” concerns that activity, cannot in fairness be charac- might justify the Wisconsin law. There is terized as “out of date.” (i.e., nothing speculative “possible”) about the I am at a loss to understand the consequences adverse flowing teenage 948.02(2) suggestion of the Wisconsin wedlock, pregnancy and births out of nor are Code, Criminal protect which serves to chil- phenomena these “recent.” The Wisconsin exploitation, dren from sexual prohibiting somehow law sexual contact or intercourse morality. the national point standard of sexual dangers making As careful to out the broad earlier, explained Congress, presump- generalizations our concerning which origins the historical laws, tively represents the collective views of the of such and made clear that "because most people," "American has declared that gender-neutral the sexual states have statutory now enacted exploitation (hav- laws, years rape of children under legislative intent behind most of 1984) per been increased apparently from 16 to 18 in protection these statutes is the mi- physically psychologically se general." harmful. See nors in Id. 18 U.S.C.A. It is inconceivable how the statute, applied 26. Before it is true that the law can claim that the Wisconsin victims, only to female but this criminalizes sexual does not mean contact with individu- protect age, virginity that the law was als under 16 intended to “covers a lot of Other, ground" marriageability changed along or that of female minors. this law has not and/or justifications more obvious mind, with the "sexual for the law people" mores come to American of prevent teenage such as preg- the need to the national standard was raised from 16 (discussed nancy below). illegitimacy to 18. 25.One majority opin- articles cited in the Department 27. The Wisconsin of Health and ion states that “some Family commentators believe that Services has maintained statistics on original purpose making statutory rape teenage pregnancy and births out-of-wedlock for special ‘protect (the offense was to past years. virtuous maidens' at least the seventeen In 1995 protect or to marriageability of minor fe- most recent for which numbers are avail- Comment, able), 2,731 males.” Jeopardy: “Adolescents in there were births in Wisconsin to Analysis An Promiscuity young Texas’ surprisingly, Defense for women 17 or under. Not Assault," 583, Sexual ninety-one percent 29 Hous.L.Rev. 586-87 of these births were to un- (1992). However, See, teenagers. author of this article was e.g., Department married young women rose age births to unmarried protects the minor primarily a minor 1994); from in 1970 to 76% see also prob- medical 30% psychiatric, and physical, States, Ta- Abstract the United evils Statistical lems, to curb the twin but it also serves 1996). society, As a we illegitimacy. ble No. 98 ed. teenage pregnancy process learning that a wide 200,000 younger 18 are girls than year, “Each problem children, range of social ills are linked to the many pregnan- from unwanted illegitimacy. The authors of a recent Airs Plan Shogren, Clinton Elizabeth cies.” (Sun., Births, study of crime in America have summarized L.A. Times Jan. Teen to Curb statistics, sig- 1997) alarming and their 5, President of the rather The current at A13. nificance, follows: recently described States the United “intolerably Now, mid-1990s, per- in America as teenage birth rate more than 30 improvement high,” despite percent some modest and more than 70 cent of all births childbearing “Teenage By years. Id. recent of all black births are out of wedlock. important social issue century, according to reli- continues to be turn of the teenage percent studies have shown of all Ameri- projections, because able likely poorly educat- percent minority are more to be of all mothers can births and 80 likely night to face a lifetime and more of wedlock. Each ed births will be out America, for Health Statis- go National Center children poverty.” four out of ten tics, Report No. 5 Monthly sleep Vital Statistics who live in their without fathers (Dee.1996). study recent observes: homes, As one upward percent of 60 will impact major part public spend health and the so- some of their childhood

Both the socially costs of adolescent This is ‘the most and individual without fathers. cietal consequential family genera- known. The financial of our pregnancy are well trend childbearing (in early are adolescent of David Blankenhom of costs tion’ the words young values), moth- high, and the human costs and it the Institute for American Ad- their children are substantial. implications. ers and Senator has seismic social likely to com- mothers are less Moynihan olescent warned [Daniel Patrick] likely and are more plete their education society allows a years ago that a oppor- and economic to have limited career grow up large young men to number welfare, tunities, to have rely in their lives asks for and without fathers marriages and future unintended failed always gets chaos. We have come almost They likely also are less pregnancies. are point in America where we need- older women to have the skills than boys many young asking prisons to do for higher have a inci- parenting ed to do. what fathers used pregnancy-related complications, dence of al., Body Mor- Bennett et Count: William J. anemia, cephalo- hypertension, such as America’s Poverty ... And How to Win al disproportion. pelvic (1996). Drugs 196 Against Crime and War Abortion, and Spitz, “Pregnancy, Alison M. areas, including Milwaukee In some urban 1980, Among Adolescents Birth Rates U.S. Wisconsin, illegitimacy County in the State of 1996) 3, 1990,” (Apr. 275 JAMA 989 (statistically longer no an aberration (discussing girls aged 13 to 19 adolescent the norm. speaking), but is closer years). See, the Norm: e.g., Single Moms Almost J¡,7.7% Milwau- Have universally accepted that most teen- Unmarried Women It is Journal, Babies, County State today kee pregnancies occur out of wedlock. in contrast Apr. at 3D. period from 1970 to During the time Brown,” “Murphy or the teenagers to the TV character for unmarried “the rate [birth] (two who pop singer “Madonna” individuals virtually interruption.” without has risen Statistics, notoriety praise as gained and received 45 have for Health National Center (Dec. in our modern soci- single mothers Report No. 5 successful Monthly Vital Statistics out-of- 1996) ety), who have children most women (reporting proportion of teen- 1996). (December (Center Family for Health 1995” and Services Health Statistics), Deaths “Wisconsin Births and Infant younger, poorer, changing and wedlock are less able sexual mores.” law undoubtedly provide a child. of kind stable home their Id. would leave more only (reporting single-parent unprotected ag- children that almost half of and serve gravate previous- those social ills that I have County pover- in Milwaukee in families live ly discussed. ty). profound consequences The social teenage pregnancy illegitimacy and are majority that is correct the “sexual society costly borne all of the form of people “chang- mores” the American are programs (including social welfare federal (and better, add), ing” not for the I and programs such as Aid to Families with De- I that this moral erod- would add decline has Children), pendent placement, foster care family, ed the American which is the rates, higher sys- crime and an educational life, heart and bloodline of this nation. How- struggle attempting tem that must while ever, just society becoming because our dysfunctional teach students who come from sexually permissive more does not mean that family backgrounds. light high In of the goal pro- our citizens have forsaken the accompany social and economic costs that tecting exploitation children and ongoing disintegration of our most vital mor- dangers activity. associated with sexual principles, al values and I fail to understand true, Judge recently It is as Chief Posner suggest how the can that Wiscon- observed, “contemporary pop- that American sin’s sexual assault of a child statute is too noteworthy ular culture” is for its “sex-satu- (because 13,14 protects broad children vulgarity.” Culligan rated Baskerville v. years age). only conclude, just I can Co., (7th Cir.1995). Int’l dissenting opin- Justice did in a Sealia recent freedom, Uninhibited sexual births out-of- ion, my colleagues esteemed in the ma- wedlock, drug-use, certainly and violence are jority living “must be in another world.” (if emphasized glorified) by the entertain- Com’rs, County County Board Wabaunsee industry. “popular ment But culture” does — Umbehr, -, -, U.S. 116 S.Ct. story, heavily not tell the whole for it is 2361, 2373,135 (1996). L.Ed.2d 843 Certain- prevalent biased favor of the values ly Congress, reflecting the United States California, states like and in some areas general population, views of agrees along the Eastern seaboard. The entertain- fourteen and fifteen old children de- industry, by large, ment is based protected serve to be from the manifest dan- pockets “progressive” these of so-called sexu- sex, gers passage as evidenced of 18 morality, trendy al but mores of these U.S.C. 2251 and U.S.C. dis- little, any, if locales bear resemblance supra. cussed chastises state more traditional views of the legislatures allegedly “fail[ing] keep (and Average particu- Americans. citizens up their sex changing laws to date with ... Midwest) larly thankfully those in the sexual mores.” Not is such commen- not precept abandoned the basic moral tary also, view, presumptuous, my protected children must be from sexual ex- improper. say ask: ‘Who are we to nor, ploitation, before, as discussed has the any democratically-elected legislature state Congress United States abandoned this view. keep has failed to its laws in tune with the We do not have to look examples far for will people?” foregoing As the discus- instance, impulse. this commendable For demonstrates, sion majority’s portrayal than ago, outpouring less two Wisconsin’s law as out of date is public disgust outrage jeans forced man- erroneous, for the forbidding law sex with ufacturer Calvin Klein to cancel an advertis- children under the of 16 addresses some ing campaign scantily-clad featured pressing current problems. my social teenagers sexually suggestive poses. opinion, the law is as current as this morn- groups pro-family organiza- Women’s ing’s burgeoning headlines about unwed properly tions alike criticized the ads for teenage crime, pregnancy, children, welfare de- sexually exploiting public and the pendency. If the State of Wisconsin were to agreed, prompting pull Calvin Klein to enact consent, See, statute with a lower e.g., Span, Sexy offensive ads. Paula such a law presumably would Spark receive the Inquiry: Calvin Klein Ads FBI In- majority’s blessing being “up vestigation to date with Exploita- to Determine Child

413 Violated, Post, weigh to in with own Sept. er for this court tion Laws Were Wash. legislation; particu 1995, personal views of state I think it is obvious that at Al. prevent larly legislation designed to when that is to strong laudable desire same protect public safety safeguard also ex- exploitation of children sexual mankind., of the why representatives good common of all “Under plains the elected to retain the system government by have chosen created our Consti people of Wisconsin courts, engage tution, to making up legislatures, it a law it is with a child under utility legisla or intercourse contact decide on the wisdom and words, notwith- Ferguson Skrupa, v. In other sixteen old. tion.” U.S. majority’s ill-advised commen- standing 1028, 1030, 10 L.Ed.2d 83 S.Ct. anything (1963). old-fashioned or tary, I do not find Federal courts were created not to statute. boards, out of date about Wisconsin “look[ing] legislative as review sit Legislature over the shoulder of the State that the sexual assault of indisputable It is revising to satis [their] with a view toward child, any violates anoth- like offense which every passed Legislature.” Act faction immo- rights, smacks of er individual’s basic Thornburg, Floyd v. F.Supp. just repugnant rality. nearly But it is (D.C.N.C.1985). As Harlan once ob Justice today, “that majority does suggest, as the served, morality domain of sexual “the thought as a statutory rape is more often pre-eminently a matter of state concern” and ‘crime than as a violence’] ‘mmols offense’ accordingly, court “should slow a federal might doubted whether well be [that] legislation to interfere with state calculated offense would make being guilty of a morals Roth v. United protect morality.” a fire- dangerous possessor of one a more crime, States, 476, 502, 1304, 1318, veiy root of sex 354 U.S. 77 S.Ct. arm.” At the (1957) (Harlan, against concurring, committed child 1 L.Ed.2d 1498 J. whether it be re- towards adult, majority lies an utter indifference dissenting grounds). on other The human’s perpe- spect another the fact appears to be uncomfortable with life. fm well, is, extent, does knows full but nevertheless us to an trator the crime before care, helpless her victim whether his or this dis- “morals offense.” I do not share psychological- physically comfort, forever legislation shaped shall be for much scarred, being left to face life ly citizenry, often the moral sensibilities depression as societal as well riddled particularly, its Judeo-Christian more of such role, not an individual mistrust. Would as a federal heritage. It is not our menacing character be more repulsive and court, suggest legislation which is per- possessor of a firearm than a dangerous By improper. en- morally-based is somehow committed a sexual as- son who had never commentary, gaging in the court will such Very outside the would sault? few steadily only encourage who would those forget negative. cannot respond in the We upon chip away moral at the foundations great every right we citizens of built, that with which our nation and which enjoy, corresponding obli- country there is a country keeping well in our served us so (interpreting govern actions gation to our In the case of Miller strong. vibrant and law) good of in accordance with the common Bend, City Civil South 904 F.2d 1081 unfortunately has all mankind. constitutionality Cir.1990), which involved the disregard efforts to chosen to Wisconsin’s dancing, I banning nude noted of a state law obligation upheld. insure that this people dissenting opinion that in a establish, through right have a “to each state agree if I Even were democratically representatives, elected their law, I would not critique of the Wisconsin they choose to in which the moral climate because, a consti- join opinion in this absent 1106. live and raise their children.” kind, Id. at improp- challenge tutional of some Child”) within it. Most repeatedly does not lie Although refers to the Assault strictly as a “morals” notably, assault of a child acts of fornication sexual offense, Wisconsin deems legislature specifically has (§ 944.16), (§ 944.15), adultery prostitution chapter statutory to "Crimes devoted entire (§ 944.33), (§ among 944.30) pandering oth- Morality," Wis.Stat. Against Sexual see ers, being "moral crimes." 944.01-.36, ("Sexual § 948.02 §§ and Wis.Stat. omitted). Miller, opinion (quotation In I am of the Id. A distin- law].” this case as guished president courts should possible, at all former of the American “[i]f Association, Smith, people, give effect to the even Bar Chesterfield once ob- will upholding express laws that when it means served: viewpoints conception today are asked to solve [C]ourts reflect good may by seg- common not be shared problems they for which are not institu- vocal, ments so-called intellectual mi- tionally equipped, or at least not as well my Judge nority.” colleague Id. As Manion equipped government as other areas of dissent, correctly stated his own Miller legislature]. [such as the wisdom, need, “[d]etermining propri- or possible, judicial As far as forums should ety legisla- of laws is the role of an elected doing only be reserved for that which can- ture, judiciary.” not the federal Id. at 1135. not be done elsewhere. Many might social theorists and revisionists public perceives The American the courts agree forbidding that a law jaek-of-all aas trades available to furnish sexual intercourse or sexual contact with a may the answer to whatever trouble them. person age under the of sixteen “covers a lot prosecuted peace a war be or Shall made? ground” essentially an out-of-date life, begin? What is or when does death age” “morals offense.” These “new theorists integration Shall racial be achieved preaching

would be better off their sermon busing away of children to far schools? Francisco, Vegas, City, in Las New York San prisons How shall and mental institutions pockets permis- or in other isolated of sexual operated? power be plants Shall nuclear majority’s siveness where the stated sexual built, so, be where? ... Is affirma- socially acceptable. mores seem to be more really tive action inverse discrimination? Wisconsin, however, people spo- have particular age what pose [At does sex ken, through duly representa- their elected potential physical injury” “serious risk of tives, they and have made it clear that wish a child?] society to live in a punishes as feloni- 325, 294 Id. at N.W.2d 437. ous acts of sexual intercourse or contact upon We should not take it ourselves as age with a child under the of sixteen. Unlike judges sitting federal in review of a state majority, second-guess I refuse to passes statute which constitutional muster to by criticizing determination the statute as too application limit the of the Wisconsin law broad, date,” suggesting, “out establishing, in particular any input without common-sense, contrary logic to all qualified psychiatric experts, medical or designed protect the law is not children workers, (13 psychologists, or social a rule physical injury. from the risk of under) that is at odds with the terms of (for (below 16). at which a is a “child” though the statute Even purposes forbidding of a law sexual inter- decision is limited to the federal child) course or legislative contact with a context and does affect Wis- judicial Courts, law, not a my colleagues determination. consin opted have to en- federal, ill-equipped whether state gage lengthy are in a discussion of whether the legislate they because are “without the bene- crime ais “crime of violence” when the vic- fit input and, of citizen years age, or a trained staff to search tim is 13 criticizing while out, weigh, balance, comprehend” statute, they com- the Wisconsin fit seen (such plex and apply controversial social issues reasoning refuse to their to those activity presents at which young years children who are but 14 or 15 physical injury” “serious risk of age. Applying heavy to a mixture of the eco- child). Co., Wangen analysis accepted v. Ford Motor 97 nomic legal writing, now 260, 324-25, Wis.2d (Coffey, 294 N.W.2d 437 discusses such matters as a J., dissenting). “presumptuous It would inability thirteen engage old’s in a court, for this which does not and meaningful analysis cannot “cost-benefit” of sexual (due have the public hearings benefit of information, and con- relations to her lack of expression on). stituent opinion, money, to ‘commend’ respect my and so With due sponte sua any specific change colleagues majority, [Wisconsin whose eommen- sentencing judges very interesting, how should deal with fu- tary agree well be insight little into the ture cases in which the victim of can offer the sexual economics child, assaulting for the sexually age. assault crime was 14 or 15 offense of pri- crime are associated with this concerns majority’s problematic discussion of moral, marily physical, psychological, and the Wisconsin law would not have been nec- engage in It not our role to economic. is essary if the court had reasoned accor- (or analysis any kind of eval- economic Supreme precedent dance with Court and uation), legislature clearly the Wisconsin circuit, post-Lee including case law from this qualified than this court to deter- is far more Hudspeth, sentencing and ruled that how assault and must be mine should judge to look to was entitled Wisconsin, and at within the state of defined part sentencing as of the broad not) (or at risk what inquiry mandated statute and federal case activity. I physical injury from sexual While See, 3661; Watts, e.g., Tay- law. 18 U.S.C. every aspect of agree do not with each and lor, Madison, hold, supra. We should Judge concurring opinion in this Manion’s Hudspeth respect prop- we did in case, certainly my colleague is correct when ACCA, application sentencing that a er majority decision is “sub- he states judge applying § 4B1.2 of the Guidelines is ject merely based to criticism because it is precluded “examining not the factual any judicial impulses, upon not upon our own underpinnings prior convic- of defendant’s any legis- legislative findings or of the usual tions,” police contents of revealed procedures type used for this of deter- lative reports, complaint, the criminal basic By attempting mination.” in effect to re- documents record. 42 F.3d at 1018 n. 3. statute, by making draft Wisconsin majority’s analysis fundamentally The essentially legislative pronounce- its own inconsistent, upon and thus built a foundation consent, proper age on the ments hand, quicksand and mire. On the one majority into the realm has crossed the line majority permit sentencing judge would law-making, properly is a function journey through the entire delve into legislative left to the branch of Government etc.) (police reports, conducting when record separation powers doctrine em- under the evidentiary hearing granting an before an bodied in our Constitution. upward departure prior uncharged on based (e.g., criminal conduct the 1991 murder of Conclusion IV. Majors). agree procedure Randi I that this decision, majority cast as well as proper was and is both and consistent with outstanding on the record of the blemish it our case law. when comes rendering Seventh Circuit for well-reasoned ascertaining prior charged the nature of statutory law and decisions based case offense, judge can so that same authority. un- tentative and Guidelines, properly apply and the the ACCA (which holding includes the admission certain does an about-face and chooses that we have cannot be certain “[w]e Hudspeth ignore court’s most recent gotten right”), ignores parameters es- very criminal decision and bar review of the legislature and tablished the Wisconsin Although complaint in the record. the com- improperly criticizes the Wisconsin statute as part par- plaint should be considered as broad, date, being too out and somehow information, pro- cel of the under Wisconsin with the risks sex- not concerned cedure, a kind of “Berlin erects intercourse or contact with a child. The ual around the document known as the Wall” psy- has offered neither medical nor information, sentencing and states that support essentially legislative chiatric for its judge may “peek that barrier in behind” presents a determination that this crime determining prior conviction was whether potential physical injury” lim- “serious risk of wall, the for a of violence. Behind that crime years victims who are 13 ited those dark,” sit “in the district will have to younger. months of Further- ten and well-informed unable to make reasoned more, (unnecessarily) the decision is because prior of whether the defendant’s years assessment scope limited in to victims thirteen crime. younger, as to conviction was for violent age or it creates confusion Although prefer approach sentencing judges may I in order that federal would scope proper attempt ability comply focuses on the to the best of their (i.e., judge’s inquiry permitting a rule reli- with the ill-advised dictates of Lee and still in the criminal ance on the facts set forth prior be able to determine whether a PSR), I complaint and the defendant’s eoneur arising in was for a conviction judgment my this case because undoubtedly “crime of violence.” This will (which legis- is shared the Wisconsin view already create more work for the overbur- lature), the sexual assault crime issue require prosecutors dened state them to risk of presents a serious time-honored, abandon Wisconsin’s injury, whether the victim is or 15 codified, procedure filing mention age. information. 971.03. How- Wis.Stat.Ann. today’s decision is not reiterate ever, Sentencing ad- unless Commission binding on the State of Wisconsin and is (and appeal I dresses the issues raised application m limited to the of 4B1.2 feder should), majority agree with the that it I can Nevertheless, sentencing al cases. the deci way misguided see no other to overcome the creating sion’s confusion even in Lee, majority rule which the has unfortu- this limited context is considerable. Follow nately perpetuate today’s chosen deci- today’s decision, if a defendant reasons, foregoing sion. For all of the I appears before federal court for sentenc part, judgment, concur in concur in the ing, prior and has a Wisconsin conviction for part. dissent in second-degree sexual assault of a child wherein the victim was or 15 EVANS, Judge, concurring. Circuit (as 13), opposed sentencing judge will I concur in quandary. the result reached the ma- will be barred reviewing only charging jority, although agree I document with a number of the procedure under Wisconsin’s criminal points by Judge Coffey separate made in his specific nature must include facts opinion. importantly, agree Most with him surrounding the commission of the defen that we should overrule United States v. complaint. dant’s crime —the criminal Com (7th Cir.1994), give F.3d 736 our trial Townsend, pare v. State 107 Wis.2d 318 judges authority broad to consider all reli- (1982) (In Wisconsin, N.W.2d 361 the com deciding prior able information in whether a plaint questions must answer of who was regard conviction—without to its name —was what, charged why particular person goal a “crime of violence.” The should be being charged, and how reliable was the enlightened sentencing proceedings based on information), complainant or State factually Shannon, accurate information. If (Wis. Nye, 100 Wis.2d 302 N.W.2d 83 alleged complaint, truly grabbed (An App.1981) information a Wisconsin victim, young dragged flight her down a proceeding need contain but a cita basement, stairs to a threw her to the floor alleged tion to the statute to have been vio her, raped he committed a crime of lated). time, At the same result of the today violence and should be treated fed- brought confusion about de past eral court as a with a vicious cision, sentencing judge guid will lack regard event on his record without ance from this court on how to deal with the name attached to his state conviction. Dis- him, case before for as the concedes judges trict every day, make factual calls proper the court has left “unresolved the they permitted, sentencing should be at a treatment of cases in which the victim of the hearing, yes-he-did to make a or no-he-didn’t statutory rape is above the [sic] 13.” presented call like the one in this case. The Perhaps lesson to be derived from logic scheme that forecloses today’s prosecu- decision is that Wisconsin inquiry escapes of this sort me. plethora tors in order to forestall a of base- legal challenges, less henceforth will be

forced repeat every to recite and each and previously

factual detail set forth in crim- information,

inal drafting Notes this Guideline COFFEY, Judge, concurring Circuit Congress Sentencing do not show that or the part, concurring in judgment potentially Commission intended for a harm- dissenting part. consequence ful replace of a nonviolent act to itself, thereby upgrade the nonviolent act I concur majority’s with the en banc deci- sion that nonviolent acts into “violent” ones. Yet that Shannon’s conviction for sexually assaulting would a thirteen focusing be the effect of on future child1 prior constitutes a “crime of violence” for physical risks to the victim instead of the purposes enhancement under actual crime committed the defendant. the U.S.S.G. 4B1.2. I cannot aside, consequences Other sexual intercourse join reliance on United States 13-year-old girl by itself creates a Lee, (7th Cir.1994), 22 F.3d 736 in dramati- potential injury. serious risk of cally limiting the nature and role of the completed, When the act is so risk of system within Wisconsin’s crimi- personal injury of that act. need not We procedure. nal mistakenly this court speculate happen what else could as a result question held that “the of whether the of- encounter, because the sexual encoun- fense for which [a] defendant was convicted ter injury require- itself meets the risk of ... constituted a ‘crime of violence’ ment of the Guideline. 2K2.1(a)(4)(A) purposes §§ of U.S.S.G. willing go While I am along with that 4B1.2 turns on whether the conduct set forth holding, subject narrow it is still to criticism in the information on which his conviction is merely because it is upon based our own presented based describes conduct that judicial impulses, upon any legislative injury serious risk of to another.”

Case Details

Case Name: United States v. Defabian C. Shannon

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 23, 1997

Citation: 110 F.3d 382

Docket Number: 95-2367

Court Abbreviation: 7th Cir.