UNITED STATES of America, Plaintiff-Appellee, v. Leo ASBERRY, Defendant-Appellant.
No. 04-30009.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 17, 2004. Filed Jan. 11, 2005.
394 F.3d 712
AFFIRMED.
Fredric N. Weinhouse, Assistant United States Attorney, for the plaintiff-appellee.
Before: WALLACE, GOULD, and BEA, Circuit Judges.
GOULD, Circuit Judge:
Leo Asberry, Jr. appeals his sentence for possessing ammunition as a felon, in violation of
I
On December 15, 2003, the district court sentenced Asberry to seventy-seven months in prison and three years supervised release for violating
The Rape in the Third Degree conviction arose from conduct that occurred in February 1993. Asberry, then twenty-one, engaged in a sexual relationship with a fifteen-year-old female. Asberry was arrested on July 1, 1993 and charged with violating Oregon Revised Statute section 163.355, which reads: “A person commits the crime of rape in the third degree if the person has sexual intercourse with another person under 16 years of age.”
Asberry pled guilty. His plea stated: “I wish to plead GUILTY to the charge(s) of RAPE III[and] DELIVERY OF MARIJUANA . . . on the basis of HAVING HAD SEXUAL RELATIONS WITH [a minor] [and] HAVING BEEN PRESENT WHEN MARIJUANA WAS DELIVERED BY THIRD PERSON.” On the basis of his plea agreement, the Oregon state court found Asberry guilty of Rape
At Asberry‘s sentencing for violating
II
We first consider whether the district court erred in holding that a violation of Oregon Revised Statute section 163.355 is a “crime of violence” under United States Sentencing Guidelines sections 2K2.1(a)(2) and 4B1.2(a).3
We take a categorical approach to determining whether a state offense is a “crime of violence.” Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (requiring consideration of “the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted“). Under the categorical approach, we consider only the statutory elements of the offense to determine whether it meets the definition of “crime of violence” in the Guidelines. Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143.4
A
In United States v. Granbois, we held that “sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years and is at least four years younger than the perpetrator”
B
A consideration of Granbois and the concerns underlying it illuminate the issue before us. In Granbois, we held that a conviction for statutory rape was “sexual abuse of a minor” and, therefore, a per se “crime of violence” under the Sentencing Guidelines. 376 F.3d at 996. Although Guidelines section 4B1.2 does not explicitly list “sexual abuse of a minor” or “statutory rape” as a per se “crime of violence,” the commentary to Guidelines section 2L1.2 mentions that these offenses meet the definition of “crime of violence” under section 2L1.2. In Granbois, we held in the context of interpreting “sexual abuse of a minor” that “there is no indication that [‘crime of violence‘] is intended to mean something different” in section 4B1.2 than it does in section 2L1.2. 376 F.3d at 996 (quoting United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th Cir.2003)); see also United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003).
The evolution of the language of Guidelines section 2L1.2 supports this conclusion. Prior to 2001, sentencing under section 2L1.2 also used the definition of “crime of violence” in section 4B1.2, which included “forcible sex offenses” among the per se “crimes of violence” enumerated in the commentary. U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (2000).5 In 2001, the Sentencing Commission completed a comprehensive revision of section 2L1.2 and, among other changes, added a full definition of “crime of violence” with the parenthetical “(including sexual abuse of a child)” appearing after the term “forcible sex offenses” in the commentary. U.S. Sentencing Guidelines Manual app. C, amend. 632, 216-19 (2003); U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 1(B)(ii)(II) (2002). In 2003, the Sentencing Commission again amended the commentary to section 2L1.2 to list specifically “forcible sex offenses, statutory rape,[and] sexual abuse of a minor.” The Commission stated that the 2003 amendment “clarifies the meaning of the term ‘crime of violence’ . . . [because] [t]he previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor . . . also had to include as an element of the offense ‘the use, attempted use, or threatened use of physical force against the person of another.‘” U.S. Sentencing Guidelines Manual app. C, amend. 658, Reason for Amendment, 397-402 (2003) (emphasis added).
Therefore, the Commission has indicated that these amendments to section 2L1.2 merely clarified the meaning of the term “crime of violence” and provided elaboration regarding the offenses that are included within this category; the amendments did not change the definition of “crime of violence” that section 2L1.2 originally borrowed from section 4B1.2. These indications of the Commission‘s intent control interpretations of section 2L1.2, United States v. Garcia-Cruz,
C
Even if statutory rape were not a per se “crime of violence,” it would fall within the terms of Guidelines section 4B1.2 because that section includes conduct that “by its nature, presented a serious potential risk of physical injury to another.” U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (2003). Under this catch-all clause, the government must demonstrate: 1) commission of a felony; 2) that posed a serious potential risk; 3) of some form of physical injury to another.
To conclude that an offense falls within the definition of “crime of violence” in section 4B1.2, we need not determine that the charged conduct poses a certain or probable risk of physical injury, or that the victim suffered actual physical harm. It is sufficient that the nature of the conduct described in the statute of conviction generally poses a serious potential risk of any form of physical injury to the victim. Riley, 183 F.3d at 1159; Wood, 52 F.3d at 275-76.
Sexual intercourse with adults poses serious potential risks of physical injury to adolescents of ages fifteen and younger. Both sexually transmitted disease and the physical risks of pregnancy among adolescent females are “injuries” as the term is defined in common and legal usage. See Oxford English Dictionary (2d ed. 1989) (“Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage.“); Black‘s Law Dictionary (6th ed.1990) (defining “bodily injury” as “[p]hysical pain, illness or any impairment of physical condition” and “injury to the body . . . including . . . injury resulting from rape or attempted rape“); see also Pereira-Salmeron, 337 F.3d at 1154 n. 4; Riley, 183 F.3d at 1159 (“[R]ape also subjects the victim to the physical risks associated with sexually transmitted diseases and pregnancy. As such, it creates a serious potential risk of physical injury and is therefore a crime of violence under U.S.S.G. § 4B1.2(a)(2).“) (internal citation omitted).
Asberry argues that the logical conclusion of our analysis would result in much consensual sexual intercourse being considered a “crime of violence” under section 4B1.2 and that our reasoning is undermined by state marriage laws that allow persons under sixteen years of age to wed. We disagree. These activities are not crimes, let alone felonies. They are necessarily excluded from the definition of “crime of violence” under section 4B1.2, regardless of whether they pose a “serious potential risk of physical injury to another.” It is perhaps a logical fallacy to equate “legal” with “safe” in all cases. Some legal activities, whether high-risk sexual behavior between consenting adults or marital relations between very young adolescents, may pose a “serious potential risk of physical injury” to persons who choose to engage in them. But, if such risks exist, the legislative branch may have determined that competing values, such as individual autonomy or the promotion of marriage, outweigh the hazards, and that these activities will not be subjects for
In interpreting the phrase “crime of violence,” the Sentencing Commission directs us to determine whether the defendant‘s conduct was criminal, and to examine whether the conduct posed a “serious potential risk of physical injury to another.” It is certain that some legal activities create the possibility of physical injury. But our duty in this context is not to comment on the prudence of the criminal code or family law: under Guidelines section 4B1.2, after we determine that the conduct was criminal in nature and “presented a serious potential risk of physical injury to another” our inquiry is at an end.7
In light of our precedent in Granbois, indications that the Sentencing Commission intended the term “crime of violence” in the Guidelines to include statutory rape, and evidence that sexual intercourse between adults and adolescents ages fifteen and younger creates a “serious potential risk of physical injury,” we hold that a violation of
III
We next consider whether the district court erred in determining that Asberry‘s November 4, 1993 Rape in the Third Degree conviction and his November 4, 1993 Delivery of Marijuana for Consideration conviction are unrelated under Sentencing Guidelines section 4A1.2.8
Comment 3 to Guideline section 4A1.2 lists the criteria for determining whether a sentence is “related” for the purpose of computing a defendant‘s criminal history:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.
The structure of Comment 3 mandates a two-step approach. We first look to determine whether the sentences “were for offenses that were separated by an intervening arrest.” Id. If an intervening arrest did separate the offenses, our inquiry is over: the offenses are unrelated for the purposes of the Guidelines. United States v. Gallegos-Gonzalez, 3 F.3d 325, 328 (9th Cir.1993) (“[S]entences for offenses separated by an intervening arrest are always unrelated under section 4A1.2 as amended in 1991, regardless whether the cases were consolidated for sentencing.“). If there was no intervening arrest we consider whether the sentences nevertheless “resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.” U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n. 3; Gallegos-Gonzalez, 3 F.3d at 326-27.
Applying this framework here, we first note that the conduct underlying the Rape in the Third Degree conviction and the conduct supporting the Delivery of Marijuana for Consideration conviction were not separated by an intervening arrest. Asberry committed the statutory rape in February 1993, sold marijuana to an undercover agent on April 7, 1993, was arrested for Rape in the Third Degree on July 1, 1993, and was arrested for Delivery of Marijuana for Consideration on July 16, 1993. Because both offenses predate both arrests, neither arrest can be considered intervening; we address the second prong of the inquiry under section 4A1.2.
Asberry concedes that his offenses did not occur on the same occasion and were not part of a common scheme or plan. Instead, he argues that his convictions were “consolidated for trial or sentencing” because the state court entered both sentences in a single proceeding. In determining whether a district court erred in determining that convictions were “consolidated for trial or sentencing,” we consider factors including whether sentencing occurred 1) on the same day, 2) in the same court, 3) for the same or similar offenses, 4) pursuant to a single plea agreement, 5) under the same docket number, 6) after a formal consolidation order, and 7) under circumstances that resulted in concurrent sentences. Compare United States v. Chapnick, 963 F.2d 224, 228 (9th Cir.1992), superceded in nonpertinent part by U.S.S.G. § 4A1.2, cmt. n. 3, overruled in nonpertinent part by Buford, 532 U.S. at 64-66, 121 S.Ct. 1276, with United States v. Davis, 922 F.2d 1385, 1390-91 (9th Cir.1991) superceded in nonpertinent part by U.S.S.G. § 4A1.2, cmt. n. 3, overruled in nonpertinent part by Buford, 532 U.S. at 64-66, 121 S.Ct. 1276.
The reasons for this rule and the directive to consider such factors are not difficult to discern: the Sentencing Guidelines attempt to reflect the seriousness of a defendant‘s criminal history, and treating as unrelated offenses that a state court viewed as appropriate for consolidation for trial or sentencing might overstate the seriousness of the defendant‘s criminal conduct. See
Here, although Asberry was sentenced for Delivery of Marijuana for Consideration and Rape in the Third Degree in the same court proceeding pursuant to a single
IV
We finally address Asberry‘s contention that the district court committed reversible error in declining to depart from the Sentencing Guidelines.
In the Ninth Circuit, discretionary decisions of a district court not to depart from the Sentencing Guidelines are not subject to appellate review. United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990). We will, however, review a district court‘s decision not to depart if it erroneously believed that it lacked discretion to do so. United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993).
Asberry argues that the district court‘s statement, “I don‘t think this record warrants it, and I don‘t believe . . . I have the authority regardless,” brings his case within the latter category. We disagree. When a district court indicates both that it lacks discretion to depart and that, if it had discretion, it would nevertheless decline to exercise it, we lack jurisdiction to review its decision. United States v. Williams, 898 F.2d 1400, 1403-04 (9th Cir.1990) (holding that the appellate court lacked jurisdiction when “the district court concluded, ‘I do not find that I have the authority [to depart] in this case, nor do I find facts which would lead me to believe I should depart.’ “). This portion of the appeal is, accordingly, dismissed.
V
Asberry, raising a further issue, requests that we defer decision of this case pending the decisions of the United States Supreme Court in United States v. Booker and United States v. Fanfan. We decline to do so. Although this case involves a sentence imposed pursuant to the Guidelines, the district court did not enhance the sentence on the basis of factors, other than prior convictions, not found by a jury beyond a reasonable doubt. Deferring decision of this case is not warranted. United States v. Quintana-Quintana, 383 F.3d 1052, 1052-53 (9th Cir.2004).
AFFIRMED IN PART AND DISMISSED IN PART.
BEA, Circuit Judge, concurring:
I concur in all sections of Judge Gould‘s opinion except as to Sections II.B and II.C. I write separately, however, because although United States v. Granbois, 376 F.3d 993 (9th Cir.2004), controls here, I see it as wrongly decided, notwithstanding Judge Gould‘s faithful attempts to bolster its reasoning.
The primary issue in this appeal is whether Asberry‘s prior conviction for statutory rape is a “crime of violence” as defined by U.S. Sentencing Guidelines (“U.S.S.G.“) § 4B1.2, which governs Asberry‘s sentence enhancement. Section 4B1.2(a) provides:
[t]he term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, in-
volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The commentary to section 4B1.2 further explains a “crime of violence” includes “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2, cmt. n. 1 (emphasis added).
U.S.S.G. § 2L1.2, which governs sentence enhancements for an alien‘s unlawful reentry into the United States, provides:
“[c]rime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (2003) (emphasis added).1
In Granbois, we held the defendant‘s prior conviction for engaging in sexual contact with a minor in violation of
Granbois observed there was a difference between the “crime of violence” definitions in sections 2L1.2 and 4B1.2, but held it was immaterial:
We acknowledge that different words are used in some other definitions of “crime of violence” in the Guidelines and its notes. It would perhaps be clearer if the Commission used a more consistent definition. But there is no indication that the term is intended to mean something different for this provision than it does elsewhere.
Id. (quoting Pereira-Salmeron, 337 F.3d at 1153).
That language was dicta in Pereira-Salmeron because there we considered the section 2L1.2 “crime of violence” definition which contains the “sexual abuse of a minor” term. 337 F.3d at 1153. But Granbois considered the section 4B1.2 “crime of violence” definition, which does not contain the “sexual abuse of a minor” term.3 376 F.3d at 996. Granbois relied on Pereira-Salmeron‘s dicta to incorporate the section 2L1.2 “crime of violence” definition into the section 4B1.2 definition. Id. Thus, the language is part of Granbois‘s holding and is binding upon us. See Brand X Internet Serv. v. FCC, 345 F.3d 1120, 1130 (9th Cir.2003) (this court‘s three-judge panels are bound by the holdings of earlier three-judge panels).
Notwithstanding Granbois‘s binding effect here, it was wrongly decided for two reasons. First, in holding there is no difference between the “crime of violence” definitions in sections 4B1.2 and 2L1.2, Granbois ignores the inclusion of the “statutory rape” and “sexual abuse of a minor” terms in section 2L1.2, and the exclusion of those terms in section 4B1.2. Given such clear differences in text, to say the two sections mean the same is an approach contrary to basic principles of statutory construction. See Sosa v. Alvarez-Machain, — U.S. —, —, 124 S.Ct. 2739, 2754, 159 L.Ed.2d 718 (2004) (“when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.“).4
The intent of the U.S. Sentencing Guidelines Commission (“Commission“) in establishing sentencing criteria for unlawful reentry into the United States is likely different than for sentencing criteria for being a felon in possession of a firearm. See U.S. Sentencing Guidelines Manual app. C, vol. II at 401-02 (stating Amendment 658 changed the “crime of violence” definition for section 2L1.2 by adding “statutory rape” and “sexual abuse of a minor” so that “[t]he amended definition makes clear that the enumerated offenses are always classified as ‘crimes of violence,’ regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another.“). Indeed, our sister circuits have noted the Guidelines have different “crime of violence” definitions and have called on the Commission for clarification. See United States v. Shannon, 110 F.3d 382, 389 (7th Cir.1997) (en banc); United States v. Rutherford, 54 F.3d 370, 377 (7th Cir. 1995); cf. See United States v. Charles, 301 F.3d 309, 312 (5th Cir.2002) (en banc) (overruling prior cases which conflated the section 4B1.2(a)(2) “crime of violence” definition (i.e., “conduct that presents a serious potential risk of physical injury to another“) with the “crime of violence” definition from
Second, Granbois‘s reliance on Pereira-Salmeron was misplaced because Pereira-Salmeron considered the broader and more inclusive “crime of violence” definition under section 2L1.2, a definition dif-
With respect, Judge Gould‘s defense of Granbois in Section II.B of his opinion is beside the point. Section II.B observes that before 2001, the “crime of violence” definitions in sections 2L1.2 and 4B1.2 were, in relevant part, the same (e.g., both sections included the term “forcible sex offenses,” among others). Future amendments to section 2L1.2, however, diverged from section 4B1.2 (e.g., section 2L1.2 was amended to include “sexual abuse of a minor” and “statutory rape,” while section 4B1.2 still only included, in relevant part, “forcible sex offenses“). The Commission stated in commentary the amendment to section 2L1.2:
clarifies the meaning of the term “crime of violence” . . . [because] [t]he previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor . . . also had to include as an element of the offense “the use, attempted use, or threatened use of physical force against the person of another.”
U.S. SENTENCING GUIDELINES MANUAL app. C, vol. II at 401-02.
Judge Gould‘s Section II.B thus reasons the “amendments to section 2L1.2 merely clarified the meaning of the term ‘crime of violence’ and provided elaboration regarding the offenses that are included within this category; the amendments did not change the definition of ‘crime of violence’ that section 2L1.2 originally borrowed from section 4B1.2.” Although the amendment “clarified” the “crime of violence” definition as to section 2L1.2, it did not clarify the “crime of violence” definition as to section 4B1.2. The Commission has amended the commentary to section 4B1.2 twice since 2001, and has not seen fit to include the terms “sexual abuse of a minor” or “statutory rape” within the commentary to section 4B1.2 by either of those amendments. The Commission has, however, amended the commentary to section 2L1.2, including the terms “sexual abuse of a minor” and “statutory rape” under that section‘s definition of “crime of violence.” Whether those additions were a clarification to the term “forcible sex offenses” (shared by both sections 2L1.2 and 4B1.2), or were a more substantive change, is irrelevant here. Until the Commission either amends or “clarifies” the language in section 4B1.2, we should apply the text found within section 4B1.2, which governs Asberry‘s sentence enhancement, not the text found within section 2L1.2, which does not so govern. It is the role of the Commission, not the courts, to issue amendments to the U.S. Sentencing Guidelines. See Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).
Nevertheless, because Granbois is controlling here, we are bound by it. See Brand X Internet Serv., 345 F.3d at 1130. However, if we had the opportunity to reconsider Granbois as an en banc panel, I would conclude that the record here does
For the reasons expressed above, I separately concur in the judgment and all sections of Judge Gould‘s opinion except as to Sections II.B and II.C.
CARLOS T. BEA
UNITED STATES CIRCUIT JUDGE