Opinion
Case No. 2:97-cr-99-3
12-09-2014
United States of America v. Odell Arnold, AKA Shawn Malone
MEMORANDUM OPINION
This matter came before the court on December 5, 2014, for a hearing on the probation officer's report of a violation by the defendant of the conditions of his supervised release. The probation officer reported that defendant was sentenced on October 2, 2014, following his conviction by a jury of the offense of gross sexual imposition under Ohio Rev. Code §2907.05(A)(4). In his sentencing memorandum, defendant objected to the probation officer's conclusion that his state conviction constituted a Grade A violation. Defendant argued that it was a Grade B violation because the offense of gross sexual imposition, as it was charged in his state case, did not constitute a "crime of violence" as defined in United States Sentencing Guidelines ("U.S.S.G.") §4B1.2.
The government argues that because the offense of gross sexual imposition is classified as a crime of violence under Ohio law, see Ohio Rev. Code §2901.01(A)(9), it should also be a crime of violence under §4B1.2. However, whether a state offense is a crime of violence for purposes of §4B1.2 is a matter of federal law. United States v. Anglin, 601 F.3d 523, 527 (6th Cir. 2010). The government also notes that the Ohio offense of gross sexual imposition is analogous to 18 U.S.C. §2243, unlawful sexual contact with a victim under 16 years of age, a federal offense which is classified as a crime of violence under 18 U.S.C. §3156(a)(4)(C). However, the definition of "crime of violence" in §3156(a)(4)(C), by its express terms, only applies to "sections 3141-3150 of this chapter" governing pretrial and post-trial release from detention.
Section 4B1.2(a) provides:
(a) 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 another, 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.
Defendant was convicted of gross sexual imposition under Ohio Rev. Code §2907.05(A)(4), which provides:
No person shall have sexual contact with another, not the spouse of the offender; ... when ... the other person ... is less than thirteen years of age, whether or not the offender knows the age of that person.The Ohio statute does not fall within the scope of §4B1.2(a)(1), as it does not include the use of force as an element. Likewise, the Ohio statute is not burglary of a dwelling, arson, or extortion, or an offense involving the use of explosives. Thus, the issue presented is whether the offense "involves conduct that presents a serious potential risk of physical injury to another," frequently referred to as the "residual clause" in §4B1.2(a)(2).
In Begay v. United States, 553 U.S. 137 (2008), the Supreme Court held that to qualify under the residual clause, the offense had to be similar in risk to the crimes of burglary, arson, extortion and offenses involving explosives, which typically involve purposeful, violent and aggressive conduct. In Sykes v. United States, 131 S.Ct. 2267 (2011), the Supreme Court clarified that where the felony (1) is not a strict liability, negligence, or recklessness crime, and (2) is similar in the degree of risk to the offenses listed, the crime satisfies the residual clause. In that case, the Supreme Court held that the offense of knowing or intentional flight from a law enforcement officer by vehicle satisfied the residual clause language. Thus, under Sykes, the "levels of risk divide crimes that qualify [as crimes of violence] from those that do not." Id. at 2275.
The Sixth Circuit had held prior to Begay that the offense of sexual abuse based on sexual contact with a person less than twelve years old was a crime of violence. See United States v. Grundy, 178 Fed. Appx. 509 (6th Cir. 2006). After Begay, in United States v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008), the Sixth Circuit remanded a case involving sexual contact with a minor because the trial court did not apply the Begay standards, but did not foreclose the possibility that the government might be able to establish that the offense presented a serious potential risk of physical injury to another. After Sykes, the Sixth Circuit held in United States v. Willoughby, 742 F.3d 229, 242-243 (6th Cir. 2014), that the offense of sex trafficking of a minor through force, fraud, or coercion was a crime of violence for purposes of similar language found in the career offender guideline. The court noted that even if the prior conviction involved fraud rather than the use of force, the act of causing a minor to engage in prostitution presented a serious potential risk of physical injury to the victim, including the risk of physical injury from the sex act itself, and the risk of violence from johns and pimps. Id. at 242.
Whether the offense of gross sexual imposition in §2907.05(A)(4) is a crime of violence meets the first requirement in Sykes. Although the victim's age is a matter of strict liability, the mens rea of purpose applies to the sexual contact element of §2907.05(A)(4). See State v. Dunlap, 129 Ohio St.3d 461, 464 (2011). Thus, this is not an offense involving only recklessness, negligence or strict liability, such as in the case of an accidental touching.
The second part of the Sykes test is whether the risk of serious physical harm to the victim is comparable in severity to the risk presented by the offenses of burglary of a dwelling, arson, or extortion, or offenses involving the use of explosives. In an original sentencing hearing, the court is required to use the categorical approach under Taylor v. United States, 495 U.S. 575 (1990), in making this determination, and is limited to considering the statutory elements of the offense unless the statute includes different means of committing the crime, in which case the court can also consider court documents such as the indictment or transcripts of plea proceedings. However, this court is not so limited in determining the grade of a supervised release violation. "Rather, the grade of the violation is to be based on the defendant's actual conduct." U.S.S.G. §7B1.1 cmt. n. 1. In this case, the court must determine if the defendant's actual conduct presented a serious potential risk of physical injury to the victim commensurate with the type of risk posed by the offenses listed in §4B1.2(a)(2). See United States v. Cole, 528 Fed. Appx. 479, 481-482 (6th Cir. 2013).
The court concludes that the defendant's conduct in this case posed a serious potential risk of physical injury to the victim. Defendant was forty-one years of age when he had sexual contact with the twelve-year-old victim, the daughter of his girlfriend. As the Eighth Circuit noted post-Begay in United States v. Dawn, 685 F.3d 790, 796 (8th Cir. 2012), sexual contact between parties of differing physical and emotional maturity carries a substantial risk that physical force may be used in the course of committing the offense, even where the crime could be committed by mere sexual contact. See also Xiong v. INS, 173 F.3d 601, 607 (7th Cir. 1999)(a substantial risk of physical force against the victim exists where there is a substantial age difference between the defendant and the victim). Because a child is generally susceptible to acceding to the coercive power of adult authority figures and has very few, if any resources to deter the use of physical force by an adult intent on touching the child, there is a significant likelihood that physical force may be used to perpetrate the crime. See United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996).
The defendant entered the twelve-year-old's bedroom at night on more than one occasion and rubbed her breasts, buttocks, and vagina, both through and underneath her clothing. The defendant told the police that he had been drinking heavily. This situation presented a serious potential risk that the defendant, while under the influence of alcohol, would use force sufficient to cause physical injury to the victim, particularly if she resisted his advances. Although there was some evidence that the victim pretended to be asleep during these incidents, this could also potentially have emboldened the defendant to take whatever forceful action against the victim he wanted to achieve his sexual aims because she was offering no resistence. There was a serious potential risk that the defendant would believe that he could use physical force with impunity because he was acting at night under cover of darkness.
The level of risk in this case was comparable to or exceeded the serious potential risk of physical injury posed to the occupants of a home during the burglary of a dwelling. In a residential burglary, a serious potential risk of physical injury to the homeowners and/or the burglar is typically present due to the possibility of a violent encounter between the home owners and the burglar, even if the encounter is unplanned and something the burglar is hoping to avoid. In this case, the defendant's night-time entry into the victim's bedroom and his physical sexual contact with the victim were purposeful and deliberate, thereby enhancing the serious potential risk of physical injury. No evidence was presented that the victim was actually physically injured during these incidents. However, that does not preclude this offense from being a crime of violence, as §4B1.2(a)(2) only requires that the offense involve a "serious potential risk of physical injury" (emphasis supplied), not actual physical injury.
The court concludes that the defendant's actions in committing the offense of gross sexual imposition in this case qualify as a crime of violence under §4B1.2(a)(2), as those actions presented a serious potential risk of physical injury to the twelve-year-old victim. Defendant's conviction constitutes a Grade A violation. However, even assuming that the violation is properly classified as a Grade B violation, the court would have deviated upward from the advisory guideline range and imposed the same sixty-month sentence based on the court's analysis of the statutory sentencing factors, as stated during the violation hearing. Date: December 9, 2014
s/James L. Graham
James L. Graham
United States District Judge