United States v. Lennox Buckley , 502 F. App'x 320 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENNOX BUCKLEY, a/k/a Jamaica Man, a/k/a Jamaic, a/k/a J.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00023-IMK-JKS-1)
Submitted: December 21, 2012 Decided: December 31, 2012
Before GREGORY, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Andrew R. Cogar, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lennox Buckley appeals the forty-six-month sentence
imposed upon him after he pled guilty to unlawful reentry into
the United States after having been previously deported because
he had been convicted of a felony, in violation of 8 U.S.C.
§ 1326(a), (b) (2006). Buckley’s sole contention on appeal is
that the district court erred in enhancing his sentence under
U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)
(2012) by construing Buckley’s 1992 Pennsylvania conviction for
indecent assault as a “crime of violence” as defined in
§ 2L1.2(b)(1)(A).
Whether the district court erred in characterizing a
defendant’s crime as a “crime of violence” under the Guidelines
is a question of law that is reviewed de novo. United States v.
Gomez, 690 F.3d 194, 197 (4th Cir. 2012). For defendants like
Buckley, who reentered the United States after having previously
been deported, USSG § 2L1.2(b)(1)(A)(ii) adds an enhancement to
the defendant’s base offense level if he has previously been
convicted of any felony “crime of violence.” Id.; United
States v. Bonilla, 687 F.3d 188, 190 (4th Cir. 2012). The
application notes define “crime of violence” as including
“forcible sex offenses (including where consent to the conduct
is not given or is not legally valid, such as where consent to
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the conduct is involuntary, incompetent, or coerced).” USSG
§ 2L1.2, cmt. n.1(B)(iii).
In determining whether any particular prior conviction
falls within the Guidelines definition of a “crime of violence,”
a sentencing court “must normally use a categorical approach
. . . , relying only on the fact of conviction and the elements
of the offense.” United States v. Donnell, 661 F.3d 890, 893
(4th Cir. 2011). In other words, the court’s inquiry must
determine not whether the defendant’s particular conduct
underlying the conviction was violent, but whether he was
ultimately held legally responsible for the commission of a
crime in which violence inheres. See Begay v. United States,
553 U.S. 137, 141 (2008); United States v. Chacon, 533 F.3d 250,
254 (4th Cir. 2008). Because the focus is on the scope of the
pertinent statute rather than on the particular conduct in which
the defendant engaged, a defendant can be taxed with having
committed a crime of violence only if the “full range” of
conduct covered by the statute, “including the most innocent
conduct proscribed by the statute,” falls within the scope of
the Guidelines definition. United States v. Diaz-Ibarra, 522
F.3d 343, 352 (4th Cir. 2008); see also Gomez, 690 F.3d at 198-
200.
In Buckley’s case, the district court applied the
§ 2L1.2(b)(1)(A) enhancement based on his Pennsylvania
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conviction of indecent assault under former 18 Pa. Cons. Stat.
Ann. § 3126 (West 1990). * In our view, none of the arguments
advanced by Buckley demonstrate that the version of § 3126 in
effect at the time of Buckley’s 1992 conviction prohibited any
conduct that would not be deemed a “forcible sex offense[ ]”
under USSG § 2L1.2, cmt. n.1(B)(iii). See Diaz-Ibarra, 522 F.3d
at 352.
As we have explained, a sex offense may be forcible
even if the pertinent statute does not require physical force or
compulsion. Chacon, 533 F.3d at 257-58; see also United States
*
In 1992, § 3126 provided, in pertinent part, that a
defendant is guilty of indecent assault if he has “indecent
contact with another not his spouse, or causes such other to
have indecent contact with him” and if:
(1) he does so without the consent of the other person;
(2) he knows that the other person suffers from a
mental disease or defect which renders him or her
incapable of appraising the nature of his or her
conduct;
(3) he knows that the other person is unaware that a
indecent contact is being committed;
(4) he has substantially impaired the other person’s
power to appraise or control his or her conduct by
administering or employing, without the knowledge of
the other drugs, intoxicants or other means for the
purpose of preventing resistance;
(5) the other person is in custody of law or detained
in a hospital or other institution and the actor has
supervisory or disciplinary authority over him; or
(6) he is over 18 years of age and the other person is
under 14 years of age.
18 Pa. Cons. Stat. Ann. § 3126(a) (West 1990); Commonwealth v.
Owens, 649 A.2d 129, 137-38 (Pa. Super. Ct. 1994).
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v. Diaz-Corado, 648 F.3d 290, 293-95 (5th Cir. 2011). Buckley
does not dispute that any nonconsensual sex offense is a
“forcible” sex offense and therefore a “crime of violence” for
§ 2L1.2(b)(1)(A) purposes. See USSG § 2L1.2, cmt. n.1(B)(iii);
Chacon, 533 F.3d at 256; Diaz-Corado, 648 F.3d at 295. Instead,
Buckley argues that the Pennsylvania statute’s prohibition of
indecent contact with someone who is “unaware” that the conduct
is occurring, see § 3126(a)(3), sweeps consensual sexual contact
within the statute’s ambit.
We disagree. To adopt Buckley’s position, we would be
required to conclude that a recipient of sexual contact could
“consent” to the contact while being entirely unaware of it.
Buckley cites no other court in support of either his contortion
of the plain meaning of the terms at issue or his suggestion
that awareness is not a precondition to consent, and we decline
to accept his invitation to be the first.
Nor does our review of the statute under which Buckley
was convicted suggest any other reason not to conclude that a
conviction under any of its provisions would constitute a
forcible sex offense and, consequently, a crime of violence for
purposes of USSG § 2L1.2(b)(1)(A). See Chacon, 533 F.3d at 256-
58; United States v. Romero-Hernandez, 505 F.3d 1082, 1089 (10th
Cir. 2007). The district court therefore properly applied the
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§ 2L1.2(b)(1)(A) enhancement to Buckley. See Diaz-Ibarra, 522
F.3d at 352.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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