Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 88 Rudolph T. Randa, Judge.
Before COFFEY, MANION, and KANNE, Circuit Judges.
DECIDED SEPTEMBER 3, 1996
Defabian Shannon challenges the sentence he received after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1). For the following reasons, we vacate the sentence and remand for resentencing.
On June 14, 1994, Shannon was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1) (Count I) and for intimidating a witness to the possession in violation of 18 U.S.C. sec. 1512(b)(1) (Count II). The court appointed Paul Barrett to represent Shannon. Mr. Barrett reached a deal with the government in which Shannon agreed to plead guilty to both counts. Thereafter a presentence report (PSR) was ordered and completed. On October 14, 1994, the government informed the district court that it intended to seek an increase in Shannon's sentence based on evidence that he had committed a homicide for which he was never charged. Soon after, Mr. Barrett withdrew as Shannon's attorney for health reasons and his colleague, Monika Neu, took on the case. Ms. Neu then filed a motion to withdraw the guilty plea, but a week later Shannon changed his mind and withdrew the motion, thus maintaining the original plea.
At a sentencing hearing held on December 15, 1994, the district judge found that Shannon's conviction for second degree sexual assault of a child (statutory rape) was a prior crime of violence which would affect his offense level under United States Sentencing Guideline (USSG) sec. 2K2.1(a)(4)(A). He further found that Shannon had threatened a witness, which would also impact his offense level under USSG secs. 2J1.2(b) and 3C1.1. Finally, the judge found that Shannon had participated in an uncharged homicide, which could justify an upward departure under USSG sec. 4A1.3, though no decision on whether to depart upward was made at that time. The case was then recessed with sentencing to continue a few days later. In the interim, fearing the magnitude of the potential sentence, Shannon's mother retained new counsel, Alan Eisenberg, who revived the motion to withdraw the guilty plea at the next hearing on December 19, 1994. The merits of the motion were debated in further proceedings on January 18 and February 15, 1995. Concerned that Shannon had not been properly informed of his potential sentence, the court granted the motion to withdraw and set the case for trial.
Mr. Eisenberg then withdrew and Michael Holzman, Shannon's current attorney, was appointed counsel in his stead. Mr. Holzman negotiated a new plea agreement in which Shannon pleaded guilty only to the firearm charge (Count I). Sentencing on the second plea was set for June 2, 1995 and a second PSR was ordered.
Before sentencing Shannon filed a motion to reopen the factual determinations made at the previous hearings regarding the sexual assault, intimidation of a witness (i.e., obstruction of justice), and homicide. The court denied this request, holding that its prior findings were the law of the case, [R.71:p.5,7] though at the hearing the court did consider and address specific defense objections to the PSR. [Id. at 7]
The court computed Shannon's sentence as follows: The finding that Shannon had previously been convicted of a violent felony (second degree sexual assault) increased his initial base offense level from 14 to 20. USSG sec. 2k2.1(a)(4). The obstruction of justice finding further increased it by two, USSG sec. 3C1.1, but Shannon's willingness to accept responsibility and provide complete information to the government decreased it by three, USSG secs. 3E1.1(a) & 3E1.1(b), for a total offense level of 19. Depending on a defendant's criminal history, an offense level of 19 yields a sentence between 30 and 78 months. Though only 22 years old, Shannon had a lengthy criminal resume that included car theft, retail theft, battery, damaging property, obstructing an officer, and sexual assault. His criminal history category therefore was computed at V, which combined with an offense level of 19 established a sentencing range of 57 to 71 months. However, there was persuasive evidence that Shannon had committed an uncharged murder, and the court decided to depart upward and impose a sentence of 115 months, five months short of the statutory maximum. See USSG sec. 4A1.3 (authorizing upward departure where "criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that [he] will commit other crimes").
Shannon appeals his sentence on three grounds. First, he argues the district court erred in determining that his prior conviction for statutory rape was a violent crime under the Sentencing Guidelines. Next, Shannon challenges the court's willingness to consider and ultimately believe evidence that he participated in an uncharged homicide and its concomitant decision to depart upward from the recommended sentence. Finally, he disputes the court's use of the doctrine of law of the case to bar reconsideration of its factual determinations on the obstruction of justice issue. We address each of these contentions in turn.
A. Whether Statutory Rape Is a Crime of Violence
Under the Sentencing Guidelines, the base offense level for the crime of possession of a firearm by a felon is dictated in part by the defendant's criminal history. United States v. Lee, 22 F.3d 736, 737 (7th Cir. 1994). If a defendant has a "prior felony conviction of . . . a crime of violence," his base offense level is 20. USSG sec. 2k2.1(a)(4)(A). The Sentencing Guidelines define a "crime of violence" as "any offense under federal or state law punishable by imprisonment" for more than a year that either:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG sec. 4B1.2(1).
Shannon pleaded guilty to second degree sexual assault under Wisconsin law. Shannon denies this constitutes a conviction for a violent felony for purposes of the Sentencing Guidelines. Second degree sexual assault in Wisconsin is a statutory rape offense: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony." Wis. Stat. sec. 948.02(2). By the terms of the statute, no physical force, or even the slightest threat of physical force, is necessary for a conviction; there is no "element" of force, threatened or otherwise, in the crime. That excludes the possibility that it is a crime of violence under the definition in sec. 4B1.2(1)(i).
Section 4B1.2(1)(ii) defines a crime of violence to include a conviction for conduct that "present[ed] a serious potential risk of physical injury to another." Here the criminal complaint alleged that Shannon forced his victim into a house, dragged her down the stairs into the basement, and then raped her. If we were permitted to credit such allegations, we would obviously conclude that Shannon had committed a crime of violence. But we cannot. The Guidelines plainly limit our inquiry into whether the offense "presented a serious risk of physical injury" to "an examination of the facts charged in the relevant indictment or information." Lee, 22 F.3d at 740. *fn1
The information in its entirety simply stated:
[Defendant] [i]ntentionally and feloniously had sexual intercourse with a person who had not attained the age of Sixteen (16 years), to wit: Josanthia S. Lawrence, d/o/b: 04/27/77, contrary to the form of the statute sec. 948.01(2), in such case made and provided and against the peace and dignity of the State of Wisconsin.
These facts standing alone do not suggest violence. They merely indicate that Shannon, who at the time was 17, had sex with a girl under the age of 16. (Because the date of birth was included, we know she was 13 years, 10 months old.) Confined to these sparse details, we cannot say Shannon's conviction for second degree sexual assault was a conviction for a crime of violence under sec. 4B1.2(1)(ii).
Which leaves us with the possibility that in Wisconsin second degree sexual assault is by its nature--that is, always, without regard to circumstance--violent. Based upon his own "viewing of many sexual assault victims [and] studies done by sexual assault units," the district judge adopted this position, concluding that second degree sexual assault poses an inherent risk of physical injury. We review this determination de novo. United States v. Bauer, 990 F.2d 373, 374 (8th Cir. 1993) ("Whether statutory rape is a violent crime is a legal, rather than a factual, determination and therefore is reviewed de novo.").
We are unable to accept the district court's reasoning. In United States v. Lee, the underlying facts disclosed a victim who was forcibly seized and had her coat ripped as one of three robbers took her purse. But the actual charge of conviction recited only the terms of the statute. On appeal we declined to hold that the crime of "theft from the person of another"--a crime also without an explicit element of violence--was an inherently violent offense since some such thefts, pick-pocketings for instance, can be essentially nonviolent. 22 F.3d at 740-41; cf. United States v. Smith, 10 F.3d 724, 733-34 (10th Cir. 1993) (second degree burglary conviction deemed not "crime of violence"). Admittedly, second degree sexual assault is a closer case, but the problem remains that although violence often accompanies the crime (as it likely did here), it is not essential to it. Under Wisconsin law, a boy one day over the age of 16 commits second degree sexual assault by having sex with his girlfriend the night before her 16th birthday. *fn2 Although certainly a crime in Wisconsin, like pick-pocketing, such conduct is not necessarily violent. Here, Shannon was 17 and the girl 13 years, 10 months. Though both immoral and criminal, many teenagers have nonviolent, non-coercive sex with no hint of physical injury. Without something in the indictment or information suggesting otherwise, we cannot simply presume violence attends this crime.
We are aware that the Eighth Circuit in United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992), held that the defendant's "lascivious acts with children of the tender age of ten," one of them his own daughter, was "by its nature a crime of violence" even though no element of coercion or violence appeared in the statute. Id. at 141. *fn3 At least three other circuits have relied on Rodriguez to reach the same conclusion where significant age disparities existed between the child and the defendant. United States v. Passi, 62 F.3d 1278, 1279, 1281-82 (10th Cir. 1995) (father pleads guilty to knowingly engaging in sexual acts with 13 year old daughter on federal property and stipulates to impregnating daughter); Ramsey v. INS, 55 F.3d 580, 581, 582-83 (11th Cir. 1995) (lawful permanent resident since 1976 convicted of lewd assault and attempted lewd assault of a child under 16 years in 1990 and 1993, respectively); United States v. Wood, 52 F.3d 272, 273-75 (9th Cir. 1995) (19 year old defendant convicted of taking indecent liberties with 4-5 year old victim); United States v. Reyes-Castro, 13 F.3d 377, 378-79 (10th Cir. 1993) (father pleads guilty to attempted sexual abuse of a child after initially being charged with sexually abusing 12 year old daughter); *fn4 see also United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995) (facts of the indictment control "crime of violence" determination; case remanded to district court to determine whether indictment (missing from record) for sexual battery suggested serious potential risk of violence).
Given how easily young bodies and minds can be damaged, and in light of the coercion naturally attending sexual acts with small children, we agree with cases like Rodriguez and Wood that such conduct involves a serious potential risk of physical injury and thus may be labeled a crime of violence under the Guidelines. Wisconsin recognizes the added graveness of sexual acts with young children. Had Shannon's victim been a 10 year old, as in Rodriguez, he could have been convicted of a much more serious offense: "(1) First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony." Wis. Stat. sec. 948.02(1). Coercion, and thus a serious potential risk of physical injury, can also be presumed where the indictment or information indicates a significant age disparity between the defendant and his victim, and especially where incest is at issue. See Passi, 62 F.3d at 1279, 1281-82 (incest); Ramsey, 55 F.3d at 581, 582-83 (significant age disparity); Reyes-Castro, 13 F.3d at 378-79 (incest). But here we have neither significant age disparity nor incest; the facts specified in the indictment could have related to a violent encounter or to routine teenage sex. Again, the girl was almost 14 and Shannon 17--a situation that is not inherently violent, whatever its legality or morality. Therefore, the district court erred in its determination that regardless of the facts specified in a criminal indictment or information, second degree sexual assault in Wisconsin is a crime of violence.
Our dissenting colleague makes several arguments why federal courts should deem second degree sexual assault in Wisconsin a violent felony for purposes of USSG secs. 2k2.1(a) and 4B1.2. The first argument is one of federal-state comity: because the Wisconsin legislature labeled second degree sexual assault an "assault"--as opposed to, say, "unlawful fornication"--and because it defines the crime as a "sexually violent offense" for purposes of its new civil commitment statute for sexually violent persons, see Wis. Stat. Ann. sec. 980.01 et seq. (West. Supp. 1995), federal courts applying the federal Sentencing Guidelines to federal convictions should consider it a crime of violence. [See Dissent at 31.] Relying on labels like "assault" is problematic. The word "assault" in Wisconsin bears several legal meanings, not all of which entail violence. For instance, Wisconsin's definition of "fourth degree sexual assault" encompasses even the slightest intentional sexual touching. Wis. Stat. sec. 940.225. A tortious assault and battery likewise can be physically harmless. See Trogun v. Fruchtman, 207 N.W. 2d 297, 310 (Wis. 1973) ("A battery or assault and battery in this state has been defined as an intentional contact with another which is unpermitted.").
Wisconsin does label second degree sexual assault a "sexually violent offense" in at least one civil context. [See Dissent at 32-33.] In 1993, after Shannon had pleaded guilty to second degree sexual assault, the State of Wisconsin enacted what it titled the "Sexually Violent Person Commitments" statute. Wis. Stat. Ann. sec. 980. (The statute was made effective June 2, 1994.) This statute created "a civil commitment procedure primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent persons." State v. Carpenter, 541 N.W.2d 105, 107 (Wis. 1995). In the definition section of the statute, second degree sexual assault is labeled a "sexually violent offense." This definition emerged out of an apparent legislative effort to identify all sex offenders who were being released from prison and who were considered "dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." Wis. Stat. Ann. sec. 980.01(7). (For a comprehensive analysis of the requirements and procedures of this statute see State v. Post, 541 N.W.2d 115 (1995).) Although this definition applies only to a statute governing civil commitments (a point the Wisconsin Supreme Court relied on in Carpenter to avoid ex post facto concerns), the dissent is highly critical because we do not unequivocally apply the "sexually violent offense" label to the federal Sentencing Guidelines. Although labels in criminal codes may be useful, at least when determining who is a career criminal, this court's determination under the Guidelines must, as a matter of federal law, be " 'independent of the labels employed by the various state's criminal codes.' " Smith, 10 F.3d at 733 (quoting Taylor v. United States, 495 U.S. 575, 592 (1990)). *fn5
In short, the Guidelines dictate that federal courts applying federal sentencing provisions to defendants convicted of federal crimes should employ federal standards when determining whether a prior conviction was for a violent felony. Section 4B1.2 of the Sentencing Guidelines rejects a "label-based" approach to defining the terms "crime of violence" and "prior felony conviction," both of which are at issue here. We have already laid out the objective federal criteria for establishing a "crime of violence." Those for identifying a "prior felony conviction" are likewise independent of state definitions and labels. Application Note 3 for sec. 4B1.2 states: " 'Prior felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." *fn6 (Emphasis added.) Thus, the Guidelines have established a uniform federal approach for determining whether a prior state or federal conviction was for a violent felony. That approach is nevertheless respectful of the diverse criminal laws of the various states. The severity of the potential punishment, which will vary widely from state to state, is key to identifying a prior felony conviction; and the elements of a state-defined offense often dictate whether the crime will be considered violent. The Guidelines merely specify one set of state-created criteria (length of sentence, elements of the crime, etc.) over another (felony vs. misdemeanor label, violent vs. nonviolent label, etc.) for determining when federal courts must deem state convictions prior violent felonies. It strikes us that under the dissent's approach a state could designate as "nonviolent" a crime that objectively "presented a serious potential risk of physical injury to another." USSG sec. 4B1.2(1)(ii). Would federal courts be bound by that designation to impose a lesser sentence for a subsequent federal crime? We think not. Regardless of whether a state labels as "violent" a crime that the Guidelines' analysis would denominate "nonviolent," or vice versa, federal courts are only bound to consider those factors that the Guidelines specify.
One primary goal of the Guidelines is uniformity. As the Tenth Circuit noted in United States v. Brunson, 907 F.2d 117 (10th Cir. 1990), were we to rely on state law to determine when a state felony conviction may be classified as a crime of violence under sec. 4B1.2, "the uniformity in sentencing the Guidelines [were] intended to ensure would be jeopardized. Criminals with similar records might receive vastly different sentences [for a federal crime] simply because their past [state] crimes were defined differently by different states." Id. at 121. The court concluded that "uniformity in sentencing may best be achieved by applying the Guidelines without strict reference to state criminal law definitions," noting that "not even the question of whether a prior state conviction constitutes a felony under sec. 4B1.1 is to be determined by state law." Id. Surely Wisconsin's definition of second degree sexual assault under a civil statute should not be allowed to dictate this court's application of sec. 4B1.2. We are aware of no case authority suggesting otherwise.
The dissent also disagrees with our holding that second degree sexual assault is not inherently a crime of violence. [See Dissent at 28.] We join our colleague's concern about the psychological, social, and moral damage caused by sex between teenagers. But the reality is that much teen sex (as opposed to sex between a full adult and a young child or teen) does not involve a serious risk of physical injury. Wisconsin makes a felon out of anyone, presumably even those under 16, who has sex with another under 16. A statute of such sweep inevitably criminalizes some nonviolent behavior, belying the possibility that the crime is inherently violent. Prosecutors may use their discretion and not bring criminal charges against two minors who engaged in "consensual" sex, but their conduct nevertheless violates state law. Conduct constituting second degree sexual assault cannot automatically be considered violent within the meaning of sec. 4B1.2.
Nor does the dissent's reliance on lack of legal consent save its inherently violent argument. [See Dissent at 40-41.] In Wisconsin, a minor's inability to consent to sex is a legal fiction, not a fact. The Wisconsin courts have made that abundantly clear. *fn7 Federal courts are not bound by a legal fiction (one that Wisconsin's courts at times discard) to declare contrary to reality that all sex--regardless of age disparity--involving someone under the age of 16 entails a serious risk of physical injury. Moreover, the dissent's consent argument proves too much. A victim's lack of consent cannot alone define a crime of violence, otherwise virtually all crimes, from Lee's purse snatching to embezzlement, would be crimes of violence.
Finally, the dissent advocates overruling Lee on the ground that it unnecessarily constrains the sentencing judge to the information or indictment, potentially permitting someone like Shannon to receive a lighter sentence than he deserves. [See Dissent at 47 et seq.] The dissent believes the sentencing judge should be able to consider the allegations contained in the criminal complaint, whether or not they are proven. The crux of the controversy centers on the proper interpretation of USSG sec. 4B1.2(1), Application Note 2, which states, in part, that a sentencing court looks to "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted" in determining whether a prior crime was violent. We agree with Lee and many of the other circuits which have addressed the issue that in light of the concerns behind Note 2, this language is best read as constraining the sentencer to consideration of the conduct set forth in the indictment or information. See supra, note 1; see also Fitzhugh, 954 F.2d at 254 ("[T]he [Sentencing] Commission has repudiated [our cases] which held that a sentencing court can look beyond the face of the indictment in considering this issue.").
The wisdom of this constraint is manifest in the present case. Shannon pleaded guilty to an information accusing him of having sex with a girl under the age of 16 who, the record suggests, was a former girlfriend with whom he had once been sexually active. He did not plead guilty to the allegations of violence in the criminal complaint; he vigorously denied that he forced the girl to have sex. But of course, there was no point in contesting the allegations because violence and lack of consent are irrelevant to a statutory rape conviction. The information that Shannon pleaded guilty to states only the facts necessary to satisfy the elements of the crime of second degree sexual assault, and nothing more. Under Lee, a federal court determining whether this constitutes a prior conviction for a crime of violence has only to look at the facts specified in the information and conduct the relatively straightforward analysis of sec. 4B1.2(1). But open the criminal complaint and consider its unproven allegations and, as the dissent indicates, defendants like Shannon will be entitled to call witnesses to rebut the accusations. Yet that is the very thing the most recent version of Application Note 2 was intended to preclude. Lee, 22 F.3d at 739-40. The inquiry necessary to resolve the factual disputes arising out of the ...