United States v. Teeples ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30307
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00045-DWM
DAVID RAY TEEPLES,
OPINION
Defendant-Appellant.

On Remand from the United States Supreme Court
Filed January 5, 2006
Before: Mary M. Schroeder, Chief Judge,
James R. Browning, and A. Wallace Tashima,
Circuit Judges.
Per Curiam Opinion
59
60 UNITED STATES v. TEEPLES
COUNSEL
Melissa Harrison and John Rhodes, Assistant Federal Defend-
ers, Federal Defenders of Montana, Missoula, Montana, for
the defendant-appellant.
David G. Dennis and Joshua S. Van De Wetering, Assistant
U.S. Attorneys, U.S. Attorney’s Office, Great Falls, Montana,
for the appellee.
OPINION
PER CURIAM:
This matter is before us after the United States Supreme
Court vacated our earlier memorandum disposition and
UNITED STATES v. TEEPLES 61
remanded for further consideration in light of its recent opin-
ion in United States v. Booker, 125 S.Ct. 738 (2005). In this
appeal, David Ray Teeples challenges the district court’s
determination that, on the basis of his two prior convictions
for lewd and lascivious acts with a child under fourteen, he is
a career offender under the U.S. Sentencing Guidelines,
(“Guidelines”), U.S.S.G. § 4B1.1 (2003). Teeples argues that
the district court erred in holding that his convictions under
Cal. Penal Code § 288(a) (2004) are crimes of violence under
U.S.S.G. § 4B1.2 (2004).
[1] Upon further consideration, after Booker, we conclude
as we did earlier, that the district court correctly determined
that Teeples’s conviction was in fact a crime of violence. We
have previously held that “anytime an adult engages in sexual
contact with a four year old child, there is always a serious
potential risk of physical injury and ‘there is always a sub-
stantial risk that physical force will be used to ensure the
child’s compliance.’ ” U.S. v. Wood, 52 F.3d 272, 275 (9th
Cir. 1995) (quoting United States v. Reyes-Castro, 13 F.3d
377, 379 (10th Cir. 1993)). While Teeples’s victim was
twelve rather than four, “the risk of violence is implicit in the
size, age and authority position of the adult in dealing with a
child.” Id. Moreover, Teeples’s victim was his own daughter,
and we have recognized that the “special and unique dynamic
of a parent-child relationship,” coupled with “such factors as
age and the authority position of the offender contribute to the
risks inherent in the sexual abuse of a minor.” United States
v. Melton, 344 F.3d 1021, 1029 (9th Cir. 2003). The district
court did not err in finding Teeples’s conviction to be a crime
of violence and therefore sentencing him as a career offender.
[2] Given the current non-mandatory nature of the Guide-
lines, and the state of the record before us in this case, it is
not clear whether the sentencing judge might have sentenced
Teeples differently had he known he was not constrained by
the Guidelines. See United States v. Ameline, 409 F.3d 1073,
1083 (9th Cir. 2005) (en banc). We therefore REMAND to
62 UNITED STATES v. TEEPLES
the district court for the limited purpose of reconsidering Tee-
ples’s sentence under the now discretionary guidelines. We
ORDER the parties to notify the court within 10 days of the
filing of this opinion if either wants to pursue an Ameline
remand. See Ameline, 409 F.3d at 1084 (“When faced with an
unpreserved Booker/Fanfan error, the reviewing panel must
first determine if an eligible party wants to pursue the sub-
ject.”). We adhere to our prior memorandum disposition in all
other respects.