Employing a categorical approach, we held in United States v. Eirby,
I. BACKGROUND
We rehearse the background of the case to the extent needed to frame the issue on appeal. Since the appellant’s sentence followed a guilty plea, we glean the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez,
In 2008, the appellant was haled into a Maine state court for, inter alia, two counts of gross sexual assault of a child under the age of 14. See Me.Rev.Stat. tit. 17-A, § 253(1)(B). The indictment charged in pertinent part that the appellant had on two separate occasions “engage[d] in a sexual act with [E.O.], not his spouse, who had not in fact attained the age of 14 years.” The appellant was 29 years old at the time of the offense, and the victim (whose age was known to the appellant) was 12 years old. The appellant pleaded guilty to these charges and the state court sentenced him to a substantial prison term.
The convictions resulted in the appellant’s classification as a sex offender with a lifetime registration requirement under both federal and state law. See 42 U.S.C. §§ 16911(4), 16915(a)(3); Me.Rev.Stat. tit. 34-A, §§ 11203(7)(A), 11203(8)(A), 11225-A(3). Shortly after his release from custody in 2011, the appellant flouted not only these registration requirements but also the reporting obligations imposed as a condition of his state-court probation. As a result, the state reincarcerated him as a probation violator.
The appellant did not learn his lesson. Upon his provisional release from custody, he absconded. The Maine authorities issued a warrant, which led to the appellant’s apprehension in Miami. It later came to light that, during his time on the run, the appellant allegedly committed a sex crime in New York involving a four-year-old girl. Those charges were pending at the time of sentencing in this case.
In May of 2013, a federal grand jury sitting in the District of Maine charged the appellant with being a sex offender who had traveled in interstate commerce without registering or updating his registration. See 18 U.S.C. § 2250(a). In due course, the appellant entered into a plea agreement (the Agreement) with the government. The Agreement contained a stipulated total offense level of 13. Although the Agreement did not specify the appellant’s criminal history category (CHC), the parties agreed to limit their sentencing recommendations to the guideline sentencing range (GSR) eventually determined by the district court.
Arriving at the appropriate CHC proved to be contentious. The PSI Report treated the appellant’s two prior convictions for gross sexual assault as effectively yielding a single sentence, see USSG § 4A1.2(a)(2), generating three criminal history points, see id. § 4Al.l(a). After accounting for
The appellant accepted these calculations, but the government demurred. It argued that an additional criminal history point should be assessed because gross sexual assault under section 253(1)(B) is a crime of violence within the meaning of USSG § 4B1.2(a) (part of the so-called career offender guideline). See id. §§ 4Al.l(e), 4A1.2(p). This single point had decretory significance in the sentencing calculus: it catapulted the appellant into CHC V, elevating the GSR to 30 to 37 months and paving the way for a more onerous sentence.
In resolving this contretemps, the district court found Eirby controlling and assessed the disputed criminal history point. Consequently, the higher GSR applied, and the court imposed a 37-month top-of-the-range term of immurement. This timely appeal followed.
II. ANALYSIS
This is a rifle-shot appeal: the appellant asks us to disallow the disputed criminal history point and, in the bargain, to abrogate our decision in Eirby. In support, he submits that a strict liability sex offense cannot be classified as a crime of violence in light of the Supreme Court’s decision in Begay v. United States,
We start by noting the circumscribed scope of our inquiry. It is beyond peradventure that the appellant’s two convictions for gross sexual assault under section 253(1)(B) were properly counted as yielding a single sentence that merited three criminal history points. The sole issue on appeal is whether a violation of section 253(1)(B) constitutes a crime of violence, thus necessitating an additional criminal history point. See USSG § 4Al.l(e).
The term “crime of violence” is derived from the career offender guideline, which sets forth a two-part definition:
The 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, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Id. § 4B1.2(a). Here, the predicate offense — a violation of section 253(1)(B) — is punishable by a term of imprisonment that exceeds one year. See Me.Rev.Stat. tit. 17-A, § 1252(2)(A). That offense, however, does not have as an element the use, attempted use, or threatened use of physi
In determining whether an offense constitutes a crime of violence under this definition, we employ the familiar categorical approach. See Taylor v. United States,
Against this backdrop, we turn to the statute of conviction that underlies the challenged criminal history point. A person is guilty of gross sexual assault under section 253(1)(B) “if that person engages in a sexual act with another person and ... [t]he other person, not the actor’s spouse, has not in fact attained the age of 14 years.” “Sexual act” is defined separately as “[a]ny act between 2 persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other.” Me.Rev.Stat. tit. 17-A, § 251(1)(C)(1). Maine’s highest court has held that gross sexual assault of a minor is a strict liability offense and that the use of force need not be proven to secure a conviction. See State v. Keaten,
We proceed next to the residual clause of the career offender guideline.
Under the similarity-of-risk test, this court has not wavered in holding that strict liability sex crimes against minors, such as statutory rape, are crimes of violence. See, e.g., Eirby,
The appellant does not seriously dispute that our precedents dictate the result of the similarity-of-risk analysis. The statute underlying the predicate offense at issue here prohibits sexual acts with children from birth to age 13. Such conduct is attended by a risk of physical injury more serious and more certain than that posed by the conduct needed to trigger the statute discussed in Eirby, which applied only to 14- and 15-year-old victims.
While one might conjure up an intimate sexual act between an adult and a child under the age of 14 that would not pose a serious potential risk of injury to the child, that surely would not be the ordinary case.
This brings us to the appellant’s core contention: that, despite the serious potential risk of injury, Begay dictates that a strict liability sex crime against a minor cannot be a crime of violence because such a crime encompasses conduct that is not “purposeful, violent, and aggressive.” Although adopting this doctrinal approach would require us to abrogate Eirby, the appellant insists that we should do so notwithstanding the law of the circuit doctrine. In his view, such an abrogation is permissible because supervening Supreme Court authority justifies this panel in departing from Eirby. See United States v. Chhien,
This proposal has a certain superficial allure. The Begay Court admittedly added a gloss to the similarity-of-risk inquiry, opining that a predicate offense ordinarily must be both similar in risk and “roughly similar, in kind” to the enumerated crimes of burglary, arson, extortion, and use of
In our view, the Begay Court’s “purposeful, violent, and aggressive” language was never meant to establish an inflexible standard. See Williams,
To hold otherwise would drain the crime of violence taxonomy of any coherent meaning. For example, the requisite mens rea of an offense informs, but does not control, the purposefulness analysis. Cf. Begay,
We think it apparent that the driving force behind Begay was the Court’s desire to limit application of the stringent penalties imposed by the ACCA (and equally by the career offender guideline) to those predicate felonies involving conduct that is not only dangerous but also indicative of a willingness to inflict harm on an identifiable victim. To this end, the Begay Court sought to restrict armed career criminal treatment to those who “might deliberately point the gun and pull the trigger.”
The short of it is that the presence or absence of typically purposeful, violent, and aggressive conduct serves as a general guide in discerning whether an offense is sufficiently “similar in kind” to the exemplar crimes. But this guidance may be supplemented by “common sense and real
Taking this common-sense path, we are confident in concluding that intimate sexual contact by an adult with a young child is no less indicative of a willingness to “point the gun and pull the trigger” than, say, burglary of a dwelling. Typically, the offense conduct of a child molester demonstrates a willingness to impose himself on a person who is smaller, weaker, and inexperienced. See Eirby,
We think it is worth noting that sexual offenses against young children are often punished far more severely than offenses like burglary. For example, federál law imposes a 30-year mandatory minimum sentence — and a lifetime minimum for repeat offenders — for engaging in a sexual act with a child under 12. See 18 U.S.C. § 2241(c). Mistake of age is no defense. See id. § 2241(d). Maine also punishes sex crimes against young children severely. See Me.Rev.Stat. tit. 17-A, §§ 253(1)(B), 1252(2)(A) (authorizing sentence of up to 30 years for sexual acts with a child under 14). By contrast, Maine allows sentences up to 10 years for simple burglary of a dwelling.
To say more would be to paint the lily. We conclude that Begay’s “purposeful, violent, and aggressive” formulation is a guide, not a straitjacket. Common sense and real-world experience remain important factors in applying the career offender guideline’s residual clause. Here, those considerations help to make pellucid that gross sexual assault of a child under the age of 14 is a crime of violence. This aligns with our prior precedents, and we so hold.
We add a coda. Even if Begay creates a series of immutable boxes that must be checked before a predicate crime can fit within the confines of the career offender guideline — and we do not think that it does — gross sexual assault of a child younger than 14 checks those boxes.
It cannot be gainsaid that purposeful conduct is the norm among violations of section 253(1)(B). The sexual act underlying the offense — “direct physical contact between the genitals of one and the mouth[,] anus[,] [or] genitals of the other,” Me.Rev.Stat. tit. 17-A, § 251(1)(C)(1)— typically involves affirmative and deliberate conduct by the perpetrator. See Unit
We think, too, that in the mine-run of cases the commission of a sexual offense such as is proscribed by section 253(1)(B) will create a serious risk of violent and aggressive behavior. The disparity in age between the adult perpetrator and the young victim, coupled with the deliberate nature of the forbidden conduct and the physical contact with the intimate parts of the victim, “creates a risk, not generally present during the commission of a drunk driving offense, that the perpetrator will intentionally use force.” Daye,
In an effort to blunt the force of this reasoning, the appellant relies on a number of circuit court decisions. We find these precedents unpersuasive for two reasons. First, the majority of cases hawked by the appellant deal with offenses encompassing sexual contact with children older than those protected by section 253(1)(B). See, e.g., United States v. Van Mead,
Second, some of them interpret Begay to mean that strict liability offenses are categorically beyond the purview of the residual clause. See, e.g., United States v. Owens,
To be sure, two of the appellant’s cases conclude that a particular offense targeting younger minors is not a crime of violence. These cases, however, are easily distinguishable.
In United States v. Goodpasture, 595 F.3d 670 (7th Cir.2010), the statute sub judice targeted victims under 14 years of age, but prohibited even “kissing and fondling.” Id. at 670-72. Thus, it was much less plausible that the offense conduct was typically violent or aggressive. So, too, the statute at issue in United States v. Thornton,
III. CONCLUSION
We need go no further. For the reasons elucidated above, we hold that gross sexual assault of a minor under section 253(1)(B)
Affirmed.
Notes
. Begay construed the term "violent felony” as used in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), which we have consistently equated with the term "crime of violence” as used in the career offender guideline. See United States v. Willings,
. The Supreme Court recently asked for new briefing on whether the ACCA’s parallel residual clause is unconstitutionally vague. See Johnson v. United States, No. 13-7120, - U.S. -,
. This comparative assessment is bolstered by Maine's sex offender registration provisions, which classify section 253(1)(B) as a "sexually violent offense,” and section 254(l)(A-2) (the crime at issue in Eirby) as merely a “sex offense.” See Me.Rev.Stat. tit. 34-A, § 11203(6)(B), (7)(A).
. The lack of an explicit age disparity in section 253(1)(B) is of little consequence. Though the statute in Eirby specified a 10-year minimum age spread, a de facto age spread of at least five years is embedded in the statute at issue here. After all, an offender in Maine would have to be at least 18 years of age in order to be criminally charged as an adult. See Me.Rev.Stat. tit. 15, §§ 3003(14), 3101(2)(A), 3103(1)(A).
. While federal law does not specifically criminalize burglary of a dwelling, we note that an analogous federal crime — burglary of a bank — carries a maximum penalty of 20 years and no minimum penalty unless aggravating factors are present. See 18 U.S.C. § 2113(a), (e).
. In this regard, Williams is particularly instructive because the predicate offense at issue there — trafficking of a minor for prostitution, 18 U.S.C. § 2423(a) — is a strict liability offense with respect to the victim's underage status. See United States v. Tavares,