09-2801 U.S. v. Sonnenberg

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Sentencing
Career offender enhancement

A conviction for strict liability statutory rape is not a violent felony under the sentencing guidelines’ career offender enhancement.

“In McDonald we expressed doubt as to whether the Wisconsin statutory rape law ‘could qualify as categorically “violent and aggressive” and therefore [be considered] similar in kind to the enumerated offenses in the residual clause,’ McDonald, 592 F.3d at 814, and we are persuaded by our sister circuits’ interpretations of statutory rape laws that encompass conduct similar to conduct covered by the Minnesota statute. In United States v. Thornton, 554 F.3d 443, 449 (4th Cir. 2009), the Fourth Circuit held that a conviction under a Virginia statute was not a ‘violent felony’ for purposes of the Armed Career Criminal Act: ‘Although nonforcible adult-minor sexual activity can present grave physical risks to minors, and although states are entitled to criminalize nonforcible adult-minor sexual activity to protect minor victims from these risks, such risks are not sufficiently “similar, in kind as well as in degree of risk posed to the examples”‘ listed in § 4B1.2(a)(2). 554 F.3d at 449, quoting Begay, 553 U.S. at 143. Similarly, the Ninth Circuit found in United States v. Christensen, 559 F.3d 1092, 1095 (9th Cir. 2009) (internal citation omitted), that a Washington state felony was not a violent crime under Begay ‘because statutory rape may involve consensual sexual intercourse, it does not necessarily involve either “violent” or “aggressive” conduct.’ Similarly, the Eleventh Circuit held in United States v. Harris, 608 F.3d 1222, 1233 (11th Cir. 2010), citing Begay, 553 U.S. at 144-45, that a conviction for sexual battery of a child under age sixteen did not constitute a crime of violence under the Armed Career Criminal Act’s residual clause because the statute, viewed categorically, imposed strict liability and covered a broad range of conduct. The court concluded that it could not say that a violation of the statute ‘typically’ involves ‘purposeful, “violent,” and “aggressive” conduct.'”

Vacated and Remanded.

09-2801 U.S. v. Sonnenberg

Appeal from the United States District Court for the Western District of Wisconsin, Moody, J., Hamilton, J.

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