UNITED STATES of America, Plaintiff-Appellee, v. Terrance Tyrone DAVIS, Defendant-Appellant.
No. 16-10789
United States Court of Appeals, Eleventh Circuit
November 7, 2017
Brandy B. Hambright, Hicks Matranga & Hambright, Mobile, AL, for Defendant-Appellant.
Before ED CARNES, Chief Judge, ROSENBAUM, and HIGGINBOTHAM,* Circuit Judges.
ED CARNES, Chief Judge:
This is an ACCA “violent felony” issue case. So here we go down the rabbit hole again to a realm where we must close our eyes as judges to what we know as men and women. It is a pretend place in which a crime that the defendant committed violently is transformed into a non-violent one because other defendants at other times may have been convicted, or future defendants could be convicted, of violating the same statute without violence. Curiouser and curiouser it has all become, as the holding we must enter in this case shows. Still we are required to follow the rabbit.
I. FACTS AND PROCEDURAL HISTORY
Terrance Tyrone Davis was convicted of being a felon in possession of a firearm, in violation of
In 2012 Davis was indicted in Alabama state court for first degree rape. The indictment stated that “Davis ... a male, did engage in sexual intercourse with [the victim], a female, by forcible compulsion, in violation of [Alabama‘s first degree rape statute].” He pleaded guilty to the lesser included felony offense of first degree sexual abuse, in violation of
In 2015 Davis was again convicted, this time for being a felon in possession of a firearm. The presentence investigation report determined that he was an armed career criminal based on three earlier convictions: (1) a 1998 conviction for third degree robbery, in violation of
Davis objected to using his sexual abuse conviction to enhance his sentence under the ACCA, contending that based on the Supreme Court‘s decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), it does not qualify as a violent felony. Over his objection, the district court concluded that the conviction does categorically qualify as a violent felony and the court treated him as an armed career criminal subject to the 15-year mandatory minimum sentence. Davis was sentenced to 188 months, which was eight months above the mandatory minimum and at the low end of his advisory guidelines range.
II. THE ACCA FRAMEWORK
Under the ACCA, a defendant who is convicted of being a felon in possession of a firearm is subject to a 15-year mandatory minimum sentence if he has three prior convictions “for a violent felony or a serious drug offense.”
- has as an element the use, attempted use, or threatened use of physical force against the person of another; or
- is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
“Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo.” United States v. Gundy, 842 F.3d 1156, 1160 (11th Cir. 2016). The answer here depends on whether one of the elements required by the statute of conviction is “the use, attempted use, or threatened use of physical force against the person of another.”
To determine whether the statute of conviction “has as an element the use, attempted use, or threatened use of physi-
We apply federal law in interpreting the ACCA, but state law in determining the elements of state offenses, keeping in mind that state law is what the state supreme court says it is. Johnson, 559 U.S. at 138, 130 S.Ct. at 1269 (explaining that when deciding whether a prior conviction is a “violent felony” under the ACCA, “[w]e are ... bound by [a state court‘s] interpretation of state law, including its determination of the elements of [the statute of conviction]“); Braun, 801 F.3d at 1303 (“We are bound by federal law when we interpret terms in the ACCA, and we are bound by state law when we interpret the elements of state-law crimes.“); Estrella, 758 F.3d at 1249 n.4 (explaining that “the question we are answering here is whether those elements as defined by state law, including state court decisions,” qualify for a federal sentence enhancement); United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (“[W]e look to [state] case law to determine whether a conviction under [a state statute] necessarily involves the employment of ‘physical force’ as that term is defined by federal law.“).
The Supreme Court has held that we must first employ what is known as the “categorical approach.” Hill, 799 F.3d at 1322. Under that approach, regardless of what the true facts are, “we presume that the state conviction rested upon the least of the acts criminalized by the statute ....” Esquivel-Quintana v. Sessions, 581 U.S. 385, 137 S.Ct. 1562, 1568, 198 L.Ed.2d 22 (2017) (alterations and quotation marks omitted); see, e.g., Braun, 801 F.3d at 1307. And then we must decide if the least of the acts criminalized includes the use, attempted use, or threatened use of physical force against another person,
The inquiry is more complicated if there are multiple ways to commit the crime that the statute defines. If that is so, as it often is, we have to determine whether the statute is indivisible, meaning that it includes multiple ways of committing the same offense, or is instead divisible, meaning that it lists multiple offenses. Mathis, 136 S.Ct. at 2249. If the statute is indivisible, we use the categorical approach. In that case a conviction under it qualifies as a violent felony only if all of the acts criminalized in the statute involve the use of physical force against the person of another.
But if the statute is divisible, we employ a modification of the categorical approach, aptly known as the “modified categorical approach,” to determine “which crime in the statute formed the basis of the defendant‘s conviction.” Gundy, 842 F.3d at 1162. Under the modified categorical approach, we can look at certain judicial records, such as the indictment or the plea colloquy, in order to determine which of the multiple crimes listed in the statute the defendant was convicted of commit-
The question we face in this appeal is whether Alabama‘s first degree sexual abuse statute, as interpreted by the Alabama Supreme Court, necessarily includes as an element the use, attempted use, or threatened use of violent physical force.
III. DIVISIBILITY OF FIRST DEGREE SEXUAL ABUSE
A person commits the crime of sexual abuse in the first degree if:
- He subjects another person to sexual contact by forcible compulsion; or
- He subjects another person to sexual contact who is incapable of consent by reason of being physically helpless or mentally incapacitated.
There are three methods for determining whether a statute is divisible. See Gundy, 842 F.3d at 1163. First, “the statute on its face may resolve the issue.” Id. (quotation marks omitted). Second, “[i]f a precedential state court decision makes clear that a statute‘s alternative phrasing simply lists alternative methods of committing one offense, such that a jury need not agree on which alternative method the defendant committed in order to sustain a conviction, then the statute is not divisible.” Id. (quotation marks omitted). And third, “if state law fails to provide clear answers, federal judges [may look at] the record of a prior conviction itself ... for the sole and limited purpose of determining whether the listed items are elements of the offense.” Id. (quotation marks omitted).
On its face
It is clear from Davis’ plea colloquy that he was convicted of sexual abuse by forcible compulsion. When Davis pleaded guilty to first degree sexual abuse, the prosecutor described the factual basis of the plea as follows:
[T]he State would expect to show that on or about March 5th of 2011 here in Mobile County the victim who was 17 years of age entered the defendant‘s apartment. And while she was in his apartment the defendant assaulted her and during the assault he placed his hands on her vaginal area, that a wit-
ness — well, she was able to leave and the witness observed her leaving. And she was sent to USA Children‘s and Women Hospital.
And Davis agreed with the State‘s recounting of those facts. There is nothing in the plea record or elsewhere to indicate that the victim was physically helpless or mentally incapacitated as those terms are defined in the Alabama Code. See
Davis contends that sexual abuse by forcible compulsion under
The Alabama Code defines forcible compulsion as “[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”
The fact that there are three ways of satisfying the forcible compulsion element does not, however, make forcible compulsion divisible. If “[the] jury need not agree on which alternative method the defendant committed in order to sustain a conviction, then the statute is not divisible.” Gundy, 842 F.3d at 1163 (quotation marks omitted). And under Alabama case law, the jury does not need to agree on which type of forcible compulsion a defendant used in order to convict him of sexual abuse by forcible compulsion. See Powe v. State, 597 So.2d 721, 726-28 (Ala. 1991) (addressing the three types of forcible compulsion to determine whether there was sufficient evidence to convict the defendant under at least one type). Sexual abuse by forcible compulsion is not itself divisible, so we use the categorical approach to determine whether it qualifies as a violent felony under the ACCA.
IV. CATEGORICAL ANALYSIS OF SEXUAL ABUSE BY FORCIBLE COMPULSION
The Alabama Code defines sexual abuse by forcible compulsion as simply “subject[ing] another person to sexual contact by forcible compulsion.”
The sexual contact element of sexual abuse by forcible compulsion cannot satisfy the elements clause‘s “physical force” requirement because it does not require any “violent force.” See Johnson, 559 U.S. at 139-40, 130 S.Ct. at 1269-71 (emphasis omitted). Because sexual contact, as defined by
The forcible compulsion element appears to require either the use, attempted use, or threatened use of violent force. The statute defines “forcible compulsion” as physical force that overcomes earnest resistance, an express threat that places a person in fear of immediate death or serious physical injury, or an implied threat that places a person in fear of immediate death or serious physical injury.
The first of those is the Alabama Supreme Court‘s Powe decision. See 597 So.2d at 722. The defendant, a 40-year-old man, was convicted of first degree rape of his 11-year-old daughter, N.S., by forcible compulsion in violation of
In deciding that the facts in Powe were sufficient to prove that the defendant had committed the crime of rape by forcible compulsion in violation of
The Alabama Supreme Court in Powe also looked to a decision of the Pennsylvania Supreme Court that had “[held] that the term ‘forcible compulsion,’ as used in Pennsylvania‘s rape statute, includes not only physical force or violence but also moral, psychological, or intellectual force used to compel a person to engage in sexual intercourse against that person‘s will.” Powe, 597 So.2d at 727-28 (citing Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217, 1226 (1986)). The Pennsylvania Supreme Court had reasoned that:
There is an element of forcible compulsion inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion ... derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ... without the use of physical force or violence or the explicit threat of physical force or violence.
Id. (quoting Rhodes, 510 A.2d at 1227) (second and third alteration in original) (emphasis added).
The Alabama Supreme Court in Powe noted that “[a]lthough there is authority from other jurisdictions refusing to apply reasoning similar to that employed in [Etheridge and Rhodes], we find the reasoning applied in Etheridge and Rhodes to be the most logical.” Id. at 728 (citation omitted). It concluded that “a jury could reasonably infer that Powe held a position of authority and domination with regard to his daughter sufficient to allow the inference of an implied threat to her if she refused to comply with his demands.” Id. The court explained that its holding was:
limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. The reason for the distinction between cases involving children as victims and those involving adults as victims is the great influence and control that an adult who plays a dominant role in a child‘s life may exert over the child. When a defendant who plays an authoritative role in a child‘s world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the “wrongness” of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse. Moreover, fear of the parent resulting from love or respect may play a role as great as or greater than that played by fear of threats of serious bodily harm in coercing a child to submit to a sexual act.
Id. at 728-29 (emphasis added).
Davis contends that the Powe decision shows that an Alabama conviction for sexual abuse by forcible compulsion does not necessarily include as an element the use, attempted use, or threatened use of physical force against the person of another.2 Reluctantly, we agree. Despite
The government contends that Powe “has no application here” because that decision is “narrow and fact-confined.” Even so, the Supreme Court requires that we are to “presume that the state conviction rested upon the least of the acts criminalized by the statute,” Esquivel-Quintana, 137 S.Ct. at 1568 (alterations and quotation marks omitted). And the least of the acts criminalized by
The government argues that most of the language in the Powe decision is mere dicta that is not binding on Alabama courts or federal courts. See Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“[D]icta is not binding on anyone for any purpose.“). The government argues that the Powe decision‘s actual holding is that where there is evidence the child victim was afraid of the defendant, who is an adult in a position of domination and control over the child, a jury can consider their relationship in finding that the defendant used forcible compulsion.
The Powe opinion does contain some dicta, as many opinions do. See Evans v. Stephens, 407 F.3d 1272, 1292-93 (11th Cir. 2005) (Carnes, J., concurring) (“Indeed, when one looks for it, dicta appears to be scattered across the opinions of this Court like wildflowers in a spring meadow.“). For example, the Alabama Supreme Court wrote that “[i]f the victim is young, inexperienced, and perhaps ignorant of the ‘wrongness’ of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable.” Powe, 597 So.2d at 729. But there were no
It is less clear whether the Powe decision‘s discussion of “an implied threat of some sort of disciplinary action” is dicta. The decision does not say what the victim feared from her father — it could have been physical force or something less. See id. at 723, 729. There are all kinds of parental disciplinary actions that do not involve physical force. And even if that language in Powe is dicta, a later decision by the Alabama Supreme Court makes clear that a jury can find that the defendant used forcible compulsion for purposes of
In Higdon v. State, 197 So.3d 1019, 1020 (Ala. 2015), the defendant was a 17-year-old intern at a day care facility. He performed oral sex on a 4-year-old student and was convicted of first degree sodomy by forcible compulsion. Id. Even though there was no evidence that the child feared him in any way, see id., the Alabama Supreme Court held that the Powe decision applied and explained that:
[R]egardless of the defendant‘s age, when determining as a matter of law the sufficiency of the evidence of an implied threat from which a jury may infer the element of forcible compulsion, the trial court may consider from the child victim‘s perspective, among other factors, the difference in age or physical maturity between the defendant and the child victim and the defendant‘s conduct and exercise of a position of authority or control over the child victim.
Id. at 1022 (emphasis omitted).
Under the Higdon decision, forcible compulsion for purposes of
We realize, of course, that the facts in this case do not involve a minor child victimized by an adult in a position of authority in that child‘s life. The transcript of the plea hearing, which we have looked at as part of the modified categorical approach, shows that the victim was 17 years old and does not indicate that the defendant was related to the victim or otherwise had a position of authority over her. But the true facts matter little, if at all, in this odd area of the law. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; Hill, 799 F.3d at 1322.
Davis’ sentence is VACATED and the case is REMANDED for resentencing without the ACCA sentence enhancement.
ROSENBAUM, Circuit Judge, concurring in all but parts of footnote 4 in the panel opinion:
Though I concur generally in the panel opinion, I write separately to explain why I cannot join parts of footnote 4. I disagree that, when the facts and law we considered in United States v. Vail-Bailon, 868 F.3d 1293, 1305-07 (11th Cir. 2017) (en banc), are properly accounted for, Vail-Bailon is materially distinguishable from the case here.1 Specifically, I take issue with two of footnote 4‘s statements: (1) “The non-violent force situations put forward by the defendant in [Vail-Bailon] were, in the majority‘s view, farfetched ones that had never led to a prosecution and were extremely unlikely to ever do so.” Maj. Op. at 604 n.4 (citing Vail-Bailon, 868 F.3d at 1305-07); and (2) “And in Vail-Bailon there was no state supreme court decision
In Vail-Bailon, we considered whether Florida felony battery qualifies as a “crime of violence” under the elements clause. Florida felony battery has two elements: a person must (1) “[a]ctually and intentionally touch[] or strike[] another person against the will of the other;” and (2) “[c]ause[] great bodily harm, permanent disability, or permanent disfigurement.”
As relevant in responding to the panel‘s statements in footnote 4 here, the Vail-Bailon majority opinion tried to overcome these problems in two ways. First, it argued that grievous bodily injury as required by the second element of felony battery cannot occur as the result of a mere touching, except in the case of “far-fetched hypotheticals,” so it is practically impossible to commit felony battery by mere touch. Vail-Bailon, 868 F.3d at 1306. And second, it asserted that even if felony battery could occur by mere touch, Florida would not prosecute such cases. Id. at 1306 (“Nor has Vail-Bailon shown that prosecution under Florida Statute § 784.041 for the conduct described in the hypotheticals is a realistic probability.“).
With respect to the argument that felony battery by mere touch cannot realistically occur, that assumption, as a matter of fact — and as many emergency-room doctors can attest — is simply not correct. As I have previously noted, “everyday experience tells us an unexpected touch can result in a start that causes a person to jerk involuntarily and sometimes, consequently, to injure himself. Indeed, some people tap or tickle another just to see their involuntary reactions, though they no doubt think at the time that they are engaging in harmless pranks.” Id. at 1320 (Rosenbaum, J., dissenting).
So to firm up its conclusion that Florida felony battery necessarily always involves the “use of physical force,” the Court in Vail-Bailon next asserted that Florida would not prosecute cases of felony battery involving mere touch. Id. at 1306 (“Nor has Vail-Bailon shown that prosecution under Florida Statute § 784.041 for the conduct described in the hypotheticals is a realistic probability.“). Three points undermine that conclusion.
First, Florida courts have been clear in concluding that a prosecution under
Second, only a handful of the numerous cases prosecuted under
And finally, because grievous bodily injury can and does at times result from mere touch, and because
For these reasons, I respectfully suggest that if, in the Court‘s Vail-Bailon opinion, we had properly accounted for the facts and law at issue in that case, we would find the facts here to be materially indistinguishable from those there.