United States v. Sanchez , 226 F. App'x 852 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-8039
v. (D . W yo.)
RA YM ON D D UA NE SANC HEZ, (D.C. No. 05-CR-239-B)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Background
Pursuant to a plea agreement, Raymond Sanchez pled guilty to felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A t
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
sentencing, the district court applied the Armed Career Criminal Act’s (ACCA)
fifteen year mandatory minimum sentence, 18 U.S.C. § 924(e), and Sanchez did
not object. On appeal, Sanchez contends for the first time one of the convictions
used to support his sentence was not a crime of violence under the ACCA. W e
affirm.
Analysis
Because Sanchez did not lodge this specific objection in the district court,
we review for plain error. See United States v. Traxler, 477 F.3d 1243, 1248
(10th Cir. 2007). 1 “Plain error occurs when there is (i) error, (ii) that is plain,
which (iii) affects the defendant’s substantial rights, and which (iv) seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).
W hen a felon is found to be in possession of a firearm under 18 U.S.C. §
992(g), the ACCA requires a mandatory minimum fifteen year sentence if the
felon was previously convicted of three violent felonies. See 18 U.S.C.
§ 924(e)(1). The district court determined Sanchez’s criminal history included
the requisite number of violent felonies for the mandatory minimum sentence to
apply. Sanchez challenges the use of a 1982 conviction in the state of Wyoming
for second degree sexual assault as one of the violent felonies. He contends the
1
Sanchez raised a different objection to the pre-sentence report, which he
later w ithdrew .
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statute defining the offense does not meet the standard of a “violent felony”
articulated in the federal statute. A violent felony is defined as follow s:
[T]he term “violent felony” means any crime punishable by imprisonment
for a term exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another . . .
18 U.S.C. § 924(e)(2)(B).
The 1982 version of the W yoming statutes, under which Sanchez was
convicted, prescribes the offense of second degree sexual assault as:
Any actor who inflicts sexual intrusion on a victim commits sexual assault
in the second degree if, under circumstances not constituting sexual assault
in the first degree . . . [t]he actor is in a position of authority over the
victim and uses this position of authority to cause the victim to submit . . . .
W yo. Stat. Ann. § 6-4-303 (1982).
Sanchez devotes his brief to demonstrating this offense does not “ha[ve] as
an element the use, attempted use, or threatened use of physical force against the
person of another,” as mentioned in 18 U.S.C. § 924(e)(2)(B)(i). W hile Sanchez
is correct the use of force is not an explicit element of the W yoming sexual
assault statute, he ignores the second category of violent felonies described in
subsection (ii) of the federal statute. Under that subsection, a felony can still be
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classified as violent if it “involves conduct that presents a serious potential risk of
physical injury to another . . .” 18 U.S.C. § 924(e)(2)(B)(ii).
Our decision in United States v. Rowland leads us to conclude the conduct
defined by the W yoming statute presents such a risk. 357 F.3d 1193 (10th Cir.
2004). In Rowland, the defendant challenged the district court’s determination
that a sexual battery conviction qualified as a violent crime. The state statute
criminalized “the intentional touching, mauling or feeling of the body or private
parts of any person sixteen (16) years of age or older, in a lewd and lascivious
manner and without the consent of that person.” Id. at 1195 (quoting Okla. Stat.
Ann. tit. 21, § 1123(B)). The federal sentencing guideline at issue in Rowland
similarly defined a “crime of violence” as an offense “involv[ing] conduct that
presents a serious potential risk of physical injury to another.” Id. at 1195(quoting USSG §4B1.2(a)(2)). The defendant contended, since even the mere
nonconsensual touching of an arm or a leg in a lew d and lascivious manner would
violate the statute, the statute did not necessarily proscribe conduct which would
present a serious potential risk of physical injury. Id. at 1196. Although we
recognized the crime of sexual battery could be committed without imposing a
physical injury upon the victim, we nevertheless held “[t]he serious risk of bodily
injury is a constant in cases involving sexual battery.” Id. at 1198. 2 Rowland
2
Our analysis is bolstered by a recent Supreme Court case which clarified
that the probability of the risk materializing into an actual injury need not be very
high. James v. United States, -- U.S. --, 127 S.Ct. 1586, 1597 (2007) (“[Section]
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forecloses Sanchez’s argument that his sexual assault conviction – one which
required “sexual intrusion” – did not present a serious potential risk of physical
injury to the victim.
W e discern no error, let alone plain error.
AFFIRM ED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
924(e)(2)(B)(ii)'s residual provision speaks in terms of a ‘potential risk.’ These
are inherently probabilistic concepts. Indeed, the combination of the two terms
suggests that Congress intended to encompass possibilities even more contingent
or remote than a simple ‘risk,’ much less a certainty.”) (footnote omitted).
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