United States v. Velazquez

2015 | Cited 0 times | First Circuit | January 26, 2015

United States Court of Appeals For the First Circuit

No. 14-1295





Defendant, Appellant.



[Hon. D. Brock Hornby, U.S. District Judge]


Lynch, Chief Judge, Souter,* Associate Justice, and Selya, Circuit Judge.

J. Hilary Billings, Assistant Federal Defender, for appellant. Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

January 26, 2015

* Hon. David H. Souter, Associate Justice (ret.) of the Supreme Court of the United States, sitting by designation.

SELYA, Circuit Judge. Employing a categorical approach,

we held in United States v. Eirby, 515 F.3d 31 (1st Cir. 2008),

that the strict liability offense of engagement in a sexual act

with a 14- or 15-year-old minor by a person at least 10 years older

constituted a crime of violence and, thus, qualified as a predicate

offense under the career offender guideline, USSG §4B1.2(a)(2).

See id. at 38. Defendant-appellant José L. Velázquez invites us to

abrogate that holding, asserting that a subsequent Supreme Court

decision has relegated it to the scrap heap. After careful

consideration, we decline the appellant's invitation and affirm his



We rehearse the background of the case to the extent

needed to frame the issue on appeal. Since the appellant's

sentence followed a guilty plea, we glean the facts from the plea

agreement, the change-of-plea colloquy, the unchallenged portions

of the presentence investigation report (PSI Report), and the

transcript of the disposition hearing. See United States v.

Almonte-Nuñez, 771 F.3d 84 , 86 (1st Cir. 2014).

In 2008, the appellant was haled into a Maine state court

for, inter alia, two counts of gross sexual assault of a child

under the age of 14. See Me. Rev. Stat. tit. 17-A, § 253(1)(B).

The indictment charged in pertinent part that the appellant had on

two separate occasions "engage[d] in a sexual act with [E.O.], not


his spouse, who had not in fact attained the age of 14 years." The

appellant was 29 years old at the time of the offense, and the

victim (whose age was known to the appellant) was 12 years old.

The appellant pleaded guilty to these charges and the state court

sentenced him to a substantial prison term.

The convictions resulted in the appellant's

classification as a sex offender with a lifetime registration

requirement under both federal and state law. See 42 U.S.C.

§§ 16911(4), 16915(a)(3); Me. Rev. Stat. tit. 34-A, §§ 11203(7)(A),

11203(8)(A), 11225-A(3). Shortly after his release from custody in

2011, the appellant flouted not only these registration

requirements but also the reporting obligations imposed as a

condition of his state-court probation. As a result, the state

reincarcerated him as a probation violator.

The appellant did not learn his lesson. Upon his

provisional release from custody, he absconded. The Maine

authorities issued a warrant, which led to the appellant's

apprehension in Miami. It later came to light that, during his

time on the run, the appellant allegedly committed a sex crime in

New York involving a four-year-old girl. Those charges were

pending at the time of sentencing in this case.

In May of 2013, a federal grand jury sitting in the

District of Maine charged the appellant with being a sex offender

who had traveled in interstate commerce without registering or


updating his registration. See 18 U.S.C. § 2250(a). In due

course, the appellant entered into a plea agreement (the Agreement)

with the government. The Agreement contained a stipulated total

offense level of 13. Although the Agreement did not specify the

appellant's criminal history category (CHC), the parties agreed to

limit their sentencing recommendations to the guideline sentencing

range (GSR) eventually determined by the district court.

Arriving at the appropriate CHC proved to be contentious.

The PSI Report treated the appellant's two prior convictions for

gross sexual assault as effectively yielding a single sentence, see

USSG §4A1.2(a)(2), generating three criminal history points, see

id. §4A1.1(a). After accounting for the remainder of the

appellant's criminal record and his commission of the offense of

conviction while on probation, see id. §4A1.1(d), the Report

recommended that the appellant be placed in CHC IV. Paired with

the agreed offense level, this placement resulted in a GSR of 24 to

30 months.

The appellant accepted these calculations, but the

government demurred. It argued that an additional criminal history

point should be assessed because gross sexual assault under section

253(1)(B) is a crime of violence within the meaning of USSG

§4B1.2(a) (part of the so-called career offender guideline). See

id. §§4A1.1(e), 4A1.2(p). This single point had decretory

significance in the sentencing calculus: it catapulted the


appellant into CHC V, elevating the GSR to 30 to 37 months and

paving the way for a more onerous sentence.

In resolving this contretemps, the district court found

Eirby controlling and assessed the disputed criminal history point.

Consequently, the higher GSR applied, and the court imposed a 37-

month top-of-the-range term of immurement. This timely appeal



This is a rifle-shot appeal: the appellant asks us to

disallow the disputed criminal history point and, in the bargain,

to abrogate our decision in Eirby. In support, he submits that a

strict liability sex offense cannot be classified as a crime of

violence in light of the Supreme Court's decision in Begay v.

United States, 553 U.S. 137 (2008).1 Because the classification

vel non of a criminal offense as a crime of violence poses a purely

legal question, our review is de novo. See United States v.

Williams, 529 F.3d 1 , 3 (1st Cir. 2008).

We start by noting the circumscribed scope of our

inquiry. It is beyond peradventure that the appellant's two

1 Begay construed the term "violent felony" as used in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), which we have consistently equated with the term "crime of violence" as used in the career offender guideline. See United States v. Willings, 588 F.3d 56 , 58 n.2 (1st Cir. 2009) (calling the terms "nearly identical in meaning, so that decisions construing one term inform the construction of the other"); United States v. Williams, 529 F.3d 1 , 6 (1st Cir. 2008) (similar). We proceed, therefore, to treat the terms interchangeably.


convictions for gross sexual assault under section 253(1)(B) were

properly counted as yielding a single sentence that merited three

criminal history points. The sole issue on appeal is whether a

violation of section 253(1)(B) constitutes a crime of violence,

thus necessitating an additional criminal history point. See USSG


The term "crime of violence" is derived from the career

offender guideline, which sets forth a two-part definition:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. §4B1.2(a). Here, the predicate offense — a violation of

section 253(1)(B) — is punishable by a term of imprisonment that

exceeds one year. See Me. Rev. Stat. tit. 17-A, § 1252(2)(A).

That offense, however, does not have as an element the use,

attempted use, or threatened use of physical force against the

person of another. By the same token, the offense is not one of

the enumerated crimes delineated in the career offender guideline

— burglary of a dwelling, arson, or extortion. Nor does the

offense involve the use of explosives. The question, then, is

whether the offense comes within the career offender guideline's


residual clause; that is, whether the offense "otherwise involves

conduct that presents a serious potential risk of physical injury

to another." USSG §4B1.2(a).

In determining whether an offense constitutes a crime of

violence under this definition, we employ the familiar categorical

approach. See Taylor v. United States, 495 U.S. 575 , 602 (1990);

Williams, 529 F.3d at 4. Under this approach, we focus on "the

statutory definition of the prior offense, and do not generally

consider the particular facts disclosed by the record of

conviction." James v. United States, 550 U.S. 192 , 202 (2007)

(quoting Shepard v. United States, 544 U.S. 13 , 17 (2005))

(internal quotation marks omitted). Where, as here, the predicate

offense is a state offense, we glean the elements from the statute

of conviction as interpreted by the state's highest court. See

United States v. Hart, 674 F.3d 33 , 41 (1st Cir. 2012).

Against this backdrop, we turn to the statute of

conviction that underlies the challenged criminal history point.

A person is guilty of gross sexual assault under section 253(1)(B)

"if that person engages in a sexual act with another person and

. . . [t]he other person, not the actor's spouse, has not in fact

attained the age of 14 years." "Sexual act" is defined separately

as "[a]ny act between 2 persons involving direct physical contact

between the genitals of one and the mouth or anus of the other, or

direct physical contact between the genitals of one and the


genitals of the other." Me. Rev. Stat. tit. 17-A, § 251(1)(C)(1).

Maine's highest court has held that gross sexual assault of a minor

is a strict liability offense and that the use of force need not be

proven to secure a conviction. See State v. Keaten, 390 A.2d 1043 ,

1045 & n.6 (Me. 1978). A violation of this statute is punishable

by up to thirty years' imprisonment. See Me. Rev. Stat. tit. 17-A,

§ 1252(2)(A).

We proceed next to the residual clause of the career

offender guideline.2 Our first inquiry is whether, in the typical

case, the conduct underlying the offense poses a "serious potential

risk" of injury equivalent to that of its closest analog among the

exemplar crimes. James, 550 U.S. at 203. In this context, the

Supreme Court has construed the phrase "potential risk" to require

only a realistic probability (not a certainty) that the offense

conduct will result in injury. See id. at 207-08.

Under the similarity-of-risk test, this court has not

wavered in holding that strict liability sex crimes against minors,

such as statutory rape, are crimes of violence. See, e.g., Eirby,

515 F.3d at 38; United States v. Cadieux, 500 F.3d 37 , 45-47 (1st

Cir. 2007); United States v. Richards, 456 F.3d 260 , 264-65 (1st

Cir. 2006); United States v. Sacko, 247 F.3d 21 , 24-25 (1st Cir.

2 The Supreme Court recently asked for new briefing on whether the ACCA's parallel residual clause is unconstitutionally vague. See Johnson v. United States, No. 13-7120, 2015 WL 132524 (U.S. Jan. 9, 2015). The appellant in this case has not advanced such a constitutional challenge.


2001); United States v. Sherwood, 156 F.3d 219 , 222 (1st Cir.

1998); United States v. Meader, 118 F.3d 876 , 884 (1st Cir. 1997).

We explained in Eirby that "child-molestation crimes 'typically

occur in close quarters, and are generally perpetrated by an adult

upon a victim who is not only smaller, weaker, and less

experienced, but is also generally susceptible to acceding to the

coercive power of adult authority figures.'" 515 F.3d at 38

(quoting Sherwood, 156 F.3d at 221). With an eye to "the statutory

description of the offense conduct, the baseline age of the minor,

and the chronological spread between the age of the minor and the

age of the perpetrator," we concluded that in the typical case of

sexual contact between a 14- or 15-year-old minor and an adult 10

years her senior, there exists a realistic probability that force

will be used. Id. Relatedly, we discussed in Sacko evidence that

young adolescents (even those professing to consent to sexual

activity) face an increased risk of sexually transmitted disease

and traumatic injury from intercourse. See 247 F.3d at 23-25.

The appellant does not seriously dispute that our

precedents dictate the result of the similarity-of-risk analysis.

The statute underlying the predicate offense at issue here

prohibits sexual acts with children from birth to age 13. Such

conduct is attended by a risk of physical injury more serious and

more certain than that posed by the conduct needed to trigger the


statute discussed in Eirby, which applied only to 14- and 15-year-

old victims.3

While one might conjure up an intimate sexual act between

an adult and a child under the age of 14 that would not pose a

serious potential risk of injury to the child, that surely would

not be the ordinary case.4 Typicality is the watchword; and the

existence of outliers does not suffice to remove an offense,

otherwise eligible, from the sweep of the career offender

guideline. See James, 550 U.S. at 208 (observing that "[o]ne can

always hypothesize unusual cases in which even a prototypically

violent crime might not present a genuine risk of injury").

This brings us to the appellant's core contention: that,

despite the serious potential risk of injury, Begay dictates that

a strict liability sex crime against a minor cannot be a crime of

violence because such a crime encompasses conduct that is not

"purposeful, violent, and aggressive." Although adopting this

doctrinal approach would require us to abrogate Eirby, the

3 This comparative assessment is bolstered by Maine's sex offender registration provisions, which classify section 253(1)(B) as a "sexually violent offense," and section 254(1)(A-2) (the crime at issue in Eirby) as merely a "sex offense." See Me. Rev. Stat. tit. 34-A, § 11203(6)(B), (7)(A). 4 The lack of an explicit age disparity in section 253(1)(B) is of little consequence. Though the statute in Eirby specified a 10-year minimum age spread, a de facto age spread of at least five years is embedded in the statute at issue here. After all, an offender in Maine would have to be at least 18 years of age in order to be criminally charged as an adult. See Me. Rev. Stat. tit. 15, §§ 3003(14), 3101(2)(A), 3103(1)(A).


appellant insists that we should do so notwithstanding the law of

the circuit doctrine. In his view, such an abrogation is

permissible because supervening Supreme Court authority justifies

this panel in departing from Eirby. See United States v. Chhien,

266 F.3d 1 , 11 (1st Cir. 2001) (describing narrow exceptions to law

of the circuit doctrine).

This proposal has a certain superficial allure. The

Begay Court admittedly added a gloss to the similarity-of-risk

inquiry, opining that a predicate offense ordinarily must be both

similar in risk and "roughly similar, in kind" to the enumerated

crimes of burglary, arson, extortion, and use of explosives. 553

U.S. at 143. The Begay majority concluded that the strict

liability offense of driving under the influence of alcohol (DUI)

was unlike the enumerated offenses because it did not "typically

involve purposeful, violent, and aggressive conduct" and,

therefore, was not predictive of future armed career criminal

behavior. Id. at 144-45 (internal quotation marks omitted). Some

other courts of appeals read Begay as categorically removing strict

liability sexual offenses from the sweep of the career offender

guideline's residual clause. See, e.g., United States v. McDonald,

592 F.3d 808 , 814 (7th Cir. 2010). After close perscrutation,

however, we conclude that Begay does not demand this result.

In our view, the Begay Court's "purposeful, violent, and

aggressive" language was never meant to establish an inflexible


standard. See Williams, 529 F.3d at 7 (explaining that

"[a]djectives like 'purposeful' and 'aggressive' denote qualities

that are ineluctably manifested in degree and appear in different

combinations [and] are, therefore, imprecise aids"). One size does

not fit all; and purposefulness, violence, and aggression need not

invariably be attributes of an offense in order to bring that

offense within the compass of the residual clause.

To hold otherwise would drain the crime of violence

taxonomy of any coherent meaning. For example, the requisite mens

rea of an offense informs, but does not control, the purposefulness

analysis. Cf. Begay, 553 U.S. at 152 (Scalia, J., concurring)

(noting that enumerated crimes involving the use of explosives can

be committed recklessly or even negligently). As to violence and

aggression, even burglary of a dwelling — an enumerated offense

under the career offender guideline — cannot be described, "at

least in most instances, as purposely violent or necessarily

aggressive." Williams, 529 F.3d at 7 n.7.

We think it apparent that the driving force behind Begay

was the Court's desire to limit application of the stringent

penalties imposed by the ACCA (and equally by the career offender

guideline) to those predicate felonies involving conduct that is

not only dangerous but also indicative of a willingness to inflict

harm on an identifiable victim. To this end, the Begay Court

sought to restrict armed career criminal treatment to those who


"might deliberately point the gun and pull the trigger." 553 U.S.

at 146. The predicate offense at issue in Begay — DUI — did not

pass this test. See id. at 148; see also id. at 146 (identifying

reckless tampering with a consumer product under 18 U.S.C.

§ 1365(a) as a poor fit for the residual clause). We have drawn on

this distinction in prior cases. Compare United States v.

Holloway, 630 F.3d 252 , 261-62 (1st Cir. 2011) (holding that

reckless battery generally is not a crime of violence), with United

States v. Dancy, 640 F.3d 455 , 468-70 (1st Cir. 2011) (holding that

reckless assault and battery of a police officer is a crime of

violence because its additional elements "require the prosecution

to prove the defendant knew that there were one or more victims who

could be injured by the defendant's actions, and yet nonetheless

acted with disregard of probable harmful consequences or in a way

that created a high degree of likelihood [of] substantial harm to

a potential victim" (alteration in original) (internal quotation

marks omitted)).

The short of it is that the presence or absence of

typically purposeful, violent, and aggressive conduct serves as a

general guide in discerning whether an offense is sufficiently

"similar in kind" to the exemplar crimes. But this guidance may be

supplemented by "common sense and real world experience." Sykes v.

United States, 131 S. Ct. 2267, 2280 (2011) (Thomas, J.,


concurring). Any other approach would elevate formalism over


Taking this common-sense path, we are confident in

concluding that intimate sexual contact by an adult with a young

child is no less indicative of a willingness to "point the gun and

pull the trigger" than, say, burglary of a dwelling. Typically,

the offense conduct of a child molester demonstrates a willingness

to impose himself on a person who is smaller, weaker, and

inexperienced. See Eirby, 515 F.3d at 38. Such a predator, unlike

a typical DUI offender, places a known and identifiable victim at

serious risk. What is more, by engaging in intimate sexual acts

with a child, the perpetrator inevitably places himself in a

position to inflict harmful, even deadly, physical force on a

vulnerable victim. Seen in this light, sexual offenses against

children are not dissimilar to crimes that are unarguably crimes of

violence, such as kidnapping and forcible rape. Cf. 18 U.S.C. §

2241 (classifying sexual acts with children under 12 alongside

forcible rape as a form of "aggravated sexual abuse"). Given these

characteristics, a conviction for gross sexual assault of a minor

can fairly be said to be "associated with a likelihood of future

violent, aggressive, and purposeful [career offender] behavior."

Begay, 553 U.S. at 148.

We think it is worth noting that sexual offenses against

young children are often punished far more severely than offenses


like burglary. For example, federal law imposes a 30-year

mandatory minimum sentence — and a lifetime minimum for repeat

offenders — for engaging in a sexual act with a child under 12.

See 18 U.S.C. § 2241(c). Mistake of age is no defense. See id.

§ 2241(d). Maine also punishes sex crimes against young children

severely. See Me. Rev. Stat. tit. 17-A, §§ 253(1)(B), 1252(2)(A)

(authorizing sentence of up to 30 years for sexual acts with a

child under 14). By contrast, Maine allows sentences up to 10

years for simple burglary of a dwelling.5 See id. §§ 401(1)(B)(4),

1252(2)(B). This hierarchy of penalties is a rough proxy for the

seriousness of the crimes and for the potential risk of harm.

To say more would be to paint the lily. We conclude that

Begay's "purposeful, violent, and aggressive" formulation is a

guide, not a straitjacket. Common sense and real-world experience

remain important factors in applying the career offender

guideline's residual clause. Here, those considerations help to

make pellucid that gross sexual assault of a child under the age of

14 is a crime of violence. This aligns with our prior precedents,

and we so hold.

We add a coda. Even if Begay creates a series of

immutable boxes that must be checked before a predicate crime can

5 While federal law does not specifically criminalize burglary of a dwelling, we note that an analogous federal crime — burglary of a bank — carries a maximum penalty of 20 years and no minimum penalty unless aggravating factors are present. See 18 U.S.C. § 2113(a), (e).


fit within the confines of the career offender guideline — and we

do not think that it does — gross sexual assault of a child younger

than 14 checks those boxes.

It cannot be gainsaid that purposeful conduct is the norm

among violations of section 253(1)(B). The sexual act underlying

the offense — "direct physical contact between the genitals of one

and the mouth[,] anus[,] [or] genitals of the other," Me. Rev.

Stat. tit. 17-A, § 251(1)(C)(1) — typically involves affirmative

and deliberate conduct by the perpetrator. See United States v.

Daye, 571 F.3d 225 , 234 (2d Cir. 2009). This is especially so

since a violation of section 253(1)(B), which refers only to

younger children, will usually be characterized by awareness of the

victim's underage status. See Office of Juvenile Justice &

Delinquency Prevention, U.S. Dep't of Justice, NCJ 208803,

Statutory Rape Known to Law Enforcement 2 (2005) (noting that no

more than 5% of offenders were strangers to the juvenile victim).

We think, too, that in the mine-run of cases the

commission of a sexual offense such as is proscribed by section

253(1)(B) will create a serious risk of violent and aggressive

behavior. The disparity in age between the adult perpetrator and

the young victim, coupled with the deliberate nature of the

forbidden conduct and the physical contact with the intimate parts

of the victim, "creates a risk, not generally present during the

commission of a drunk driving offense, that the perpetrator will


intentionally use force." Daye, 571 F.3d at 233. We recognize

that, as with burglary of a dwelling, physical force is neither an

element nor an inevitable concomitant of the offense; but it blinks

reality to say that the risk that force will be used to carry out

the crime is less than significant. See Cadieux, 500 F.3d at 46.

When a sexual offense involves a particularly young victim — and

under section 253(1)(B), the victim may be, say, a three-year-old

toddler — it is much more likely that violent force and aggressive

behavior will actually be used than in the commission of a burglary

of a dwelling. See United States v. Howard, 754 F.3d 608 , 609-10

(8th Cir. 2014) (holding that offense involving sexual intercourse

with victim under 14 years of age is crime of violence); Daye, 571

F.3d at 231, 234 (holding that offense involving sexual acts with

victims aged 15 or younger is crime of violence).

In an effort to blunt the force of this reasoning, the

appellant relies on a number of circuit court decisions. We find

these precedents unpersuasive for two reasons. First, the majority

of cases hawked by the appellant deal with offenses encompassing

sexual contact with children older than those protected by section

253(1)(B). See, e.g., United States v. Van Mead, ___ F.3d ___, ___

[ 2014 WL 6863679 , at *5] (2d Cir. 2014); United States v. Harris,

608 F.3d 1222 , 1225 (11th Cir. 2010); United States v. Christensen,

559 F.3d 1092 , 1093 (9th Cir. 2009); United States v. Dennis, 551

F.3d 986 , 990 (10th Cir. 2008).


Second, some of them interpret Begay to mean that strict

liability offenses are categorically beyond the purview of the

residual clause. See, e.g., United States v. Owens, 672 F.3d 966 ,

972 (11th Cir. 2012); McDonald, 592 F.3d at 814. As we already

have explained, we do not believe that Begay goes so far.

To be sure, two of the appellant's cases conclude that a

particular offense targeting younger minors is not a crime of

violence. These cases, however, are easily distinguishable.

In United States v. Goodpasture, 595 F.3d 670 (7th Cir.

2010), the statute sub judice targeted victims under 14 years of

age, but prohibited even "kissing and fondling." Id. at 670-72.

Thus, it was much less plausible that the offense conduct was

typically violent or aggressive. So, too, the statute at issue in

United States v. Thornton, 554 F.3d 443 (4th Cir. 2009), targeted

13- and 14-year-old victims. See id. at 445 n.2. But unlike

section 253(1)(B), that statute has as an element a lack of force.

See id.


We need go no further. For the reasons elucidated above,

we hold that gross sexual assault of a minor under section

253(1)(B) is categorically a crime of violence within the purview

of the career offender guideline. See Williams, 529 F.3d at 7

(deciding, post-Begay, that trafficking of a minor for prostitution


is a crime of violence).6 The district court's criminal history

calculation was, therefore, unimpugnable.


6 In this regard, Williams is particularly instructive because the predicate offense at issue there — trafficking of a minor for prostitution, 18 U.S.C. § 2423(a) — is a strict liability offense with respect to the victim's underage status. See United States v. Tavares, 705 F.3d 4 , 20 (1st Cir. 2013).


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