United States v. Christensen ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30402
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00267-EFS
DUSTIN CHRISTENSEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
May 7, 2007—Seattle, Washington
Filed March 23, 2009
Before: Procter Hug, Jr., M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
3683
UNITED STATES v. CHRISTENSEN 3685
COUNSEL
Christina L. Hunt, Office of the Federal Public Defender,
Spokane, Washington, for the appellant.
George J.C. Jacobs, III, Office of the U.S. Attorney, Spokane,
Washington, for the appellee.
OPINION
W. FLETCHER, Circuit Judge:
Dustin Christensen pled guilty to being a felon in posses-
sion of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924, an offense carrying a maximum sentence of ten years. At
the government’s request, the district court enhanced Chris-
tensen’s sentence to fifteen years under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his
previous conviction of three “violent felon[ies].”
One of Christensen’s three prior violent felony convictions
arose out of a guilty plea to statutory rape in violation of
Washington Revised Code § 9A.44.079. Based on Begay v.
United States, 128 S. Ct. 1581 (2008), we hold under the cate-
gorical approach of Taylor v. United States, 495 U.S. 5753686 UNITED STATES v. CHRISTENSEN
(1990), that a conviction for statutory rape under § 9A.44.079
does not constitute a violent felony under the ACCA. We
reverse and remand to the district court for further proceed-
ings in light of this opinion.
I. Background
Christensen has a history of drug abuse and other problems
with the law, including prior felony convictions. In early
2004, he had outstanding warrants for his arrest for third
degree theft and for failure to report to the Washington State
Department of Corrections. Hoping to get her son help with
his drug abuse, Christensen’s mother informed the Spokane
County Sheriff’s Office that Christensen would be in the
parking lot of a Petco Store on the afternoon of February 17,
2004. When Christensen and his mother drove into the park-
ing lot, he was arrested without incident. He had two bullets
(but no gun) in his backpack.
Christensen pled guilty to being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924.
The maximum sentence for being a felon in possession of
ammunition is ten years. See id. § 924(a)(2). However, the
government sought to enhance the sentence under the ACCA
based on three prior convictions for “violent felon[ies].” Id.
§ 924(e)(2)(B). The mandatory minimum sentence under the
ACCA is fifteen years. See id. § 924(e)(1).
One of the felonies on which Christensen’s sentence
enhancement was based was a conviction for statutory rape in
violation of Washington Revised Code § 9A.44.079. Whether
Christensen’s sentence was properly enhanced turns on
whether that conviction constituted a “violent felony” under
the ACCA. Section 9A.44.079(1) provides:
A person is guilty of rape of a child in the third
degree when the person has sexual intercourse with
another who is at least fourteen years old but less
UNITED STATES v. CHRISTENSEN 3687
than sixteen years old and not married to the perpe-
trator and the perpetrator is at least forty-eight
months older than the victim.
“Consent by the victim is not a defense” to a charge of statu-
tory rape under § 9A.44.079. State v. Heming, 90 P.3d 62, 63
(Wash. Ct. App. 2004).
The district court analyzed Christensen’s violation of
§ 9A.44.079 under the categorical approach of Taylor. The
court felt itself bound by our opinion in United States v.
Asberry, 394 F.3d 712 (9th Cir. 2005), which construed the
phrase “crime of violence” under § 4B1.2 of the United States
Sentencing Guidelines. The definition of “crime of violence”
in § 4B1.2 is almost word-for-word the same as the definition
of “violent felony” in the ACCA. In Asberry, we concluded
that statutory rape is categorically a “crime of violence” under
§ 4B1.2 because even consensual sexual intercourse “between
adults and adolescents ages fifteen and younger creates a
‘serious potential risk of physical injury.’ ” Id. at 718. Based
on Asberry, the district court concluded that Christensen’s
conviction for statutory rape categorically constituted a “vio-
lent felony” under the ACCA. The district court did not reach
the question whether Christensen’s conviction constituted a
violent felony under the modified categorical approach.
The district judge sentenced Christensen to the fifteen-year
minimum sentence mandated by the ACCA. The judge was
clearly uncomfortable with that sentence. He did not mini-
mize the importance of Christensen’s prior criminal history,
but made clear at the sentencing hearing that he would have
sentenced him to less than fifteen years if he had not been
compelled to do so by the ACCA:
[I]t seems to me that the Ninth Circuit precedent
compels this outcome . . . . And I say that not to
assuage my conscience in this case at all but rather
to say that we find ourselves in this spot, it seems to
3688 UNITED STATES v. CHRISTENSEN
me, because there was a failure to consider the facts
of this case.
This is a two bullet prohibited person case brought
by a mother trying to help her son and avoid risk to
the public and to her son, and under those circum-
stances, one would have wished for greater under-
standing of that dynamic and a greater respect for
that effort so that there was at the greatest a ten-year
maximum in this case.
But I do respect the right of the Department of
Justice to say this is a serious felon who deserves to
be put away for a long time. I would have wished for
a different view of this so that we didn’t get our-
selves in an ACCA status.
When this case was first before us, we affirmed in an
unpublished memorandum disposition based on Asberry. See
United States v. Christensen, No. 06-30402, 2007 WL
1544714 (9th Cir. May 25, 2007). After we filed our memo-
randum disposition but before the mandate issued, Christen-
sen petitioned for rehearing. While that petition was pending,
the Supreme Court decided Begay, which construed “violent
felony” under the ACCA. For the reasons that follow, we con-
clude that Begay requires us to grant the petition for rehear-
ing. Based on Begay, we now hold that under the categorical
approach, Christensen’s conviction for statutory rape in viola-
tion of § 9A.44.079 does not constitute a violent felony under
the ACCA.1 We reverse and remand for further proceedings.
1
Christensen also contends that his Sixth Amendment rights were vio-
lated because the government failed to charge the ACCA sentence
enhancement in his indictment and to prove to a jury beyond a reasonable
doubt that his prior convictions were for violent felonies. In our earlier
unpublished memorandum disposition, we held that Christensen’s Sixth
Amendment rights were not violated. We do not revisit that holding.
UNITED STATES v. CHRISTENSEN 3689
II. Discussion
A. Categorical Approach
The ACCA requires a minimum sentence of fifteen years
for individuals who violate 18 U.S.C. § 922(g) and have three
prior convictions for a “violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1) (emphasis added). The central
question in this appeal is whether, under the categorical
approach, statutory rape qualifies as a “violent felony.”
[1] The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year”
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 pre-
sents a serious potential risk of physical injury to
another.
Id. § 924(e)(2)(B) (emphasis added). Statutory rape qualifies
as a “violent felony” only if it comes within the italicized
catch-all clause — “otherwise involves conduct that presents
a serious potential risk of physical injury to another.” Id.
§ 924(e)(2)(B)(ii).
[2] The Supreme Court construed the catch-all clause of the
ACCA in Begay, 128 S. Ct. at 1581. The question in Begay
was whether driving under the influence of alcohol (“DUI”)
under New Mexico law qualified as a “violent felony” under
the catch-all clause. See id. at 1583-84. The Court held that
it did not. See id. at 1583, 1588.
[3] The Court used an ejusdem generis analysis, concluding
that crimes covered by the catch-all clause must involve con-
3690 UNITED STATES v. CHRISTENSEN
duct similar to the conduct in the four crimes specifically
named in the statute:
In our view, the provision’s listed examples —
burglary, arson, extortion, or crimes involving the
use of explosives — illustrate the kinds of crimes
that fall within the statute’s scope. Their presence
indicates that the statute covers only similar crimes,
rather than every crime that “presents a serious
potential risk of physical injury to another.”
Id. at 1584-85 (emphasis in original). The Court went on:
In our view, DUI differs from the example crimes
— burglary, arson, extortion, and crimes involving
the use of explosives — in at least one pertinent, and
important, respect. The listed crimes all typically
involve purposeful, “violent,” and “aggressive”
conduct. . . .
By way of contrast, statutes that forbid driving
under the influence, such as the statute before us,
typically do not insist on purposeful, violent, and
aggressive conduct; rather, they are, or are most
nearly comparable to, crimes that impose strict lia-
bility, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all.
Id. at 1586-87 (emphasis added).
The Court specifically rejected the approach of the dissent,
which would have analyzed the risk of harm posed by the
behavior without regard for whether the defendant’s crime
involved “purposeful, violent, and aggressive” conduct:
Were we to read the statute without this distinc-
tion, its 15-year mandatory minimum sentence
would apply to a host of crimes which, though dan-
UNITED STATES v. CHRISTENSEN 3691
gerous, are not typically committed by those whom
one normally labels “armed career criminals.” . . .
The statute’s use of examples (and the other consid-
erations we have mentioned) indicate the contrary.
The dissent’s approach . . . would likely include
these crimes within the statutory definition of “vio-
lent felony,” along with any other crime that can be
said to present “a serious potential risk of physical
injury.”
Id. at 1587.
[4] Because the Court in Begay used the conjunction “and,”
all three of its criteria — “purposeful, violent, and aggressive”
— must be satisfied. We do not decide whether statutory rape
is necessarily “purposeful” as the Court used that word in
Begay. But because statutory rape may involve consensual
sexual intercourse, Heming, 90 P.3d at 63, it does not neces-
sarily involve either “violent” or “aggressive” conduct. We
therefore conclude that a conviction for statutory rape in vio-
lation of Washington Revised Code § 9A.44.079 does not
qualify under the categorical approach as a violent felony
under the ACCA.2
B. Modified Categorical Approach
[5] The district judge did not reach the question whether
under the modified categorical approach Christensen commit-
ted a “violent felony” under ACCA. Nor did the parties brief
that question on appeal. We remand to allow the district court
to consider the question in the first instance.
2
It is evident from our discussion that our earlier holding in Asberry that
statutory rape is a “crime of violence” under U.S.S.G. § 4.B1.2 may no
longer be good law. However, because the continuing vitality of Asberry
is not before us, we do not address this issue.
3692 UNITED STATES v. CHRISTENSEN
III. Conclusion
For the foregoing reasons, we hold that statutory rape under
Washington Revised Code § 9A.44.079 is not categorically a
“violent felony” within the meaning of the ACCA. We with-
draw our unpublished memorandum disposition, 2007 WL
1544714 (9th Cir. May 25, 2007), with respect to this issue,
reverse the decision of the district court, and remand for fur-
ther proceedings in light of this opinion.
REVERSED AND REMANDED.