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Is “Sexual Battery” A “Crime of Violence”?

The question would seem to answer itself. Isn't "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

Antonio Wynn pleaded guilty to possession of cocaine with intent to distribute. Wynn had previously been convicted of assaulting a peace officer and pleaded guilty to “sexual battery” under Ohio Rev. Code § 2907.03. The district court concluded both constituted “crimes of violence for purposes of the federal sentencing guidelines, resulting in a longer sentence, but on appeal two judges on the Sixth Circuit were not so sure.

The reason for the uncertainty was that the relevant Ohio statute defines “sexual battery” to include actions that do not necessarily involve a threat or use of force as an element of the offense. For this reason, Judge Moore (who wrote for the majority) and Judge Gibbons were not sure that Wynn’s guilty plea necessarily constituted a prior conviction of a “crime of violence” because the plea had not specified the subsection of the statute that covered his alleged offense. Given the expansiveness of the relevant Ohio statute, the fact of conviction and the statutory definition of the offense alone were not enough to establish what Wynn had been convicted of an action with the requisite level of “violent and aggressive” conduct under United States v. Begay. Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn’s offense in the presentence investigation report – which indicated that Wynn’s conduct had been violent.

Judge Friedman, sitting by designation from the Federal Circuit, dissented, concluding it was proper for the district court to rely upon the factual recitation of Wynn’s prior offense. Wynn had failed to challenge any of the factual allegations contained in the presentence investigation report and, Judge Friedman concluded, the relevant facts “leave no doubt that the generic state crime to which he pleaded guilty was categorically a crime of violence.” Further, Judge Friedman argued, the district court could “take judicial notice of publicly available Ohio judicial records that show unequivocally that the state sexual battery offense of which Wynn was convicted was a ‘crime of violence.’”

UPDATE: Perhaps coincidentally, another Sixth circuit panel split over how to define a "crime of violence" in another case released Friday, United States v. Young.

ChrisTS (mail):
I'm puzzled by the court's decision. I understand not wanting someone's crime to be presumed genuinely violent if the statute does not require genuine violence for the offense. But, what, exactly, did the court think would constitute sufficient evidence that the battery had been violent in the usual sense of the term?
9.5.2009 11:06am
martinned (mail) (www):

According to an August 2001 Cuyahoga County Adult Probation
Department presentence report, the following is known: On October 21, 2000, at 4:00 a.m. the defendant, his friend, and his friend's girlfriend went to the home of the girlfriend's 16-year-old female cousin, after a night of drinking. The juvenile girl went upstairs to lay down, and the defendant followed her into her bedroom. After a brief conversation, the defendant started rubbing the girl's leg, but she told him to stop. He initially stopped, however, he began touching her again as she tried to leave the room. The defendant forced the girl onto her bed and removed her clothes. The girl screamed, and the defendant placed his hand over her mouth. She told the defendant that she could not breath[e], and he removed his hand. The defendant then opened the girl's legs and inserted his penis into her vagina. After the defendant finished moving, the girl got up and told her cousin what happened.

That has to be the moste neutral description of a rape I have ever read. I'm all for neutrality and objectivity in judicial proceedings, but you can overdo it.
9.5.2009 11:07am
martinned (mail) (www):
Also, how's this for dicta (p. 15):


Additionally, because Wynn's conviction involves crack cocaine, the district court should consider the Supreme Court's recent pronouncements in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), and Spears v. United States, --- U.S. ---, 129 S. Ct. 840 (2009), and any other relevant precedents.

I suspect the District Court would have figured that out on its own, even without this helpful suggestion...
9.5.2009 11:13am
GV:
The majority's position on the PSR is unquestionably right. Every circuit to consider the issue (including, seemingly, the Sixth before this case) had so held. The PSR is not a reliable document when it comes to the facts of the defendant's prior conviction. I suspect anyone who is familiar with a PSR is aware of that. Often times, the probation officer will scan the police report or look at a witness's complaint -- not exactly the most reliable description of what happened. The probation officer will not do his own investigation. It is not uncommon to have the facts of the prior conviction as they are recited in the PSR be laughably (or perniciously) wrong. It should also be noted that if the defendant had admitted those facts during a plea colloquy in state court, those facts could have been used to narrow the statute of conviction.

The dissent's point that the facts here were never disputed below is odd because if the defendant had realized that those facts could have been used against him -- contrary to the law in every circuit -- he would have objected to them, and then there would have been a mini trial over the issue. Indeed, if the dissent's view became the law, every defendant would object in every case and there would have to be lots of mini-trials at sentencing. That's the reason why the Supreme Court doesn't allow courts to use documents that could be disputed to characterize a defendant's prior conviction.

I think this is a case where a judge who probably rarely gets criminal cases (the dissenting judge is from the federal circuit) saw an injustice in one case and tried to bend the law to come to the just outcome. But that rule would wreck havoc in the system and waste a lot of time. If people want to see this particular guy get punished more harshly, the district court on remand can still use its post-Booker sentencing discretion to give him a higher sentence.
9.5.2009 12:03pm
Dave N (mail):
I agree the majority got it right for the reasons GV states in his post.

I know I am sounding like a broken record, though, but why was this case prosecuted by the feds in the first place (other than the defendant would most likely get more federal time than state time)? This was an arrest by local police after a traffic stop with no apparent federal involvement:
The underlying facts of this case are not in dispute. On December 30, 2006, Cleveland police officers stopped Wynn's car for speeding and changing lanes without signaling. During the stop, police noticed a plastic bag containing a white substance, later identified as crack cocaine, in plain view. Wynn was arrested, and the police discovered more crack cocaine upon a search of the car. All told, Wynn possessed 44.7 grams of crack cocaine at the time of his arrest.
As I have commented on other threads, if the feds are not involved in the investigation or arrest, the case should stay in state court.
9.5.2009 12:14pm
John (mail):
There is confusion here between (a) what the defendant did and (b) what he was convicted of. For sentencing, (b) is the relevant item, and, because the specified crime he was convicted of is defined ambiguously (in terms of violence) the court could not hold that it was a crime of violence.

Suppose the defendant's prior had been fraud--not a crime of violence--but the facts showed that in the course of the crime he had beaten up the victim, and the fraud conviction was a plea bargain that dropped the assault charge. Was the "fraud" a crime of violence so as to justify a harsher sentence for the next conviction? I don't think so.
9.5.2009 12:15pm
ChrisTS (mail):
This is all very helpful. I love having a cadre of excellent lawyers to help me figure out cases like this. (And, pro bono, too!)
9.5.2009 12:22pm
AJK:


Suppose the defendant's prior had been fraud--not a crime of violence--but the facts showed that in the course of the crime he had beaten up the victim, and the fraud conviction was a plea bargain that dropped the assault charge.


That's not really a good analogy, since violence is never one of the elements of fraud. In this case, the crime sometimes encompasses violent behavior, and some times does not. It's not obvious to me that if it were conclusively established that the defendant's crime did involve violence, the conviction shouldn't count.
9.5.2009 12:23pm
Duffy Pratt (mail):
It sounds to me too like the court got it right given my understanding of what crime of violence means for these enhanced punishments. When I was clerking we had two sentencings in a row that highlighted this fairly well.

First, there was an incompetent burglar. He had been caught convicted twice before of burglarizing apartments. He was never armed, and actually didn't even seem to be very good at getting into the apartments. The third time, he had an unladed gun on his possession but didn't brandish. I actually forget what his federal crime was (probably drug related), but he was sentenced with prior violent crime because of his failed burglaries, and went away for something like 25 years.

Then there was the serial rapist. He had been convicted twice before of statutory rape. The statutory rapes were of pre-teen girls done at knife point. One of them was cut pretty badly during the rape, and also suffered some fairly bad vaginal injuries. The state plea bargained for the statutory rapes. His third offense was a rape of a woman, also underage, on an Indian Reservation. The statutory rapes, of course, were not violent crimes. So he was sentenced to something like 2-4 years for his third violent rape.

These mandatory enhancing statutes, at least in a large group of cases, are really stupid.
9.5.2009 12:30pm
Soronel Haetir (mail):
One difference that jumps to mind with Cristy's example though is that burglary is specifically listed in the statute IIRC. If my recollection is correct on that point then the categorical analysis would be skipped.
9.5.2009 12:36pm
Oren:

Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn's offense in the presentence investigation report -- which indicated that Wynn's conduct had been violent.

Why rely on the PSR -- his guilty plea is an admission to the original indictment (or information, if that's how they roll in OH).
9.5.2009 12:43pm
Falafalafocus (mail):
I want to know what supra shoes has to say on the subject. I feel that the topic is incomplete without his expertise.
9.5.2009 12:51pm
PeteP:
Proving yet again that 'The Law' is bullshit, it works on the childish 'principles' of 'I know what you are , but what am I ?' during name-calling games, and 'you didn't say the magic word'.

WTF does this have to do with JUSTICE and WHAT'S RIGHT ???

Nothing.

Please. I'm sorry. Thank you. May I ? Pretty please ? Excuse me.

Now I get out of punishment for what I did, right ? I said the magic words.

uh huh.
9.5.2009 2:21pm
pete (mail) (www):

WTF does this have to do with JUSTICE and WHAT'S RIGHT


It lets people know beforehand what the punishment for their crimes will be before pleading or comitting them and prevents us from becoming a nation ruled by the whims of men, rather than by law.

I think that this guy got off lightly too, but you should be mad at Ohio for lumping in multiple types of crimes under one definition not the lawyers who pointed out Ohio's sloppiness.
9.5.2009 2:42pm
Jay:
This Fifth Circuit blog post sums up the difficulties another circuit has had dealing with the relatedly issue of what constitutes a "forcible sex offense."

The border circuits are especially burdened with these issues because of the huge number of illegal reentry cases where the main issue on appeal is whether a defendant was correctly sentenced based on his prior convictions.
9.5.2009 3:13pm
Mike McDougal:

That has to be the moste neutral description of a rape I have ever read. I'm all for neutrality and objectivity in judicial proceedings, but you can overdo it.

Please re-write it for us.
9.5.2009 3:32pm
GV:
Oren said:

Why rely on the PSR -- his guilty plea is an admission to the original indictment (or information, if that's how they roll in OH).

A guilty plea is an admission that you committed the crime, nothing more. You're not necessarily admitting the factual allegations in the indictment. You have to plead guilty to the indictment to admit the facts in the indictment. For example, imagine you're charged with violating statute 1.2 (an assault statute) and the charge claims that you violently beat the victim to death. By pleading guilty, you are admitting to the bare elements of an assault charge. That's it. You are not admitting you beat someone to death (unless, of course, you expressly plead guilty to the charge).

John said:

There is confusion here between (a) what the defendant did and (b) what he was convicted of. For sentencing, (b) is the relevant item, and, because the specified crime he was convicted of is defined ambiguously (in terms of violence) the court could not hold that it was a crime of violence.

This also isn't quite right. For sentencing purposes, what the defendant actually previously did can be relevant, even if he wasn't convicted of it. For example, in the federal system, even if you had been previously acquitted of a charge, the judge could still use those facts to raise your sentence. On the other hand, for these categorical Guideline enhancements, which raise your guideline range, the court can only look to the statute of conviction (or certain narrowing documents that are beyond dispute, such as the transcript of the guilty plea colloquy where the defendant admits to exactly what he did). That means that in this case, the precise facts of the defendant's prior conviction are irrelevant for purposes of the Guideline enhancement. Those same facts, however, can be used to enhance the defendant's sentence using the district court's sentencing discretion to give an above-Guideline sentence. (But since all we know about the prior conviction is found in the PSR, the district court probably won't do that unless the Government brings real evidence to court.)

A lot of this is very confusing, and many judges don't get it. In any given case, applying these rigid rules can result in blatant injustice. Sometimes people who commit really horrible prior crimes won't receive a federal enhancement because the state statute they were convicted under can reach a broad array of conduct, some of which isn't that bad. On the other hand -- and in my experience, this is much more common -- you can have a defendant who committed some stupid petty prior conviction but will receive a very harsh federal sentencing enhancement. In fact, it's not uncommon to receive more time on the federal enhancement than you did on the state charge to begin with. I just had a client who served less than a month for his prior conviction (which involved no weapons or violence) and that state conviction increased his federal sentence (he had illegally re-enterd the United States) by about four years.
9.5.2009 3:35pm
Soronel Haetir (mail):
Illegal re-entry should in fact result in draconian penalties. Would love to see it be a capital offense.
9.5.2009 4:59pm
Avatar (mail):
Isn't part of the problem the original sentencing? If you've got the guy cold on a rape charge, why are you plea bargaining in the first place? (And, by extension, if you did in fact plea the charge down, does that mean you didn't have him cold on the more serious charge... which should indicate, at least theoretically, that the defendant didn't do it?)

Certainly plea bargaining has advantages when it comes to using fewer resources. But if the system is going to use past crimes as a sentencing guide (which, hey, it ought to), then plea bargaining is going to have the net effect of causing people convicted of later crimes to receive reduced sentences for those crimes as well.
9.5.2009 5:17pm
jccamp (mail):
This just seems, as so many appellate cases are, based on sloppy work by someone on the government's payroll, in this case the probation officer in preparing a pre-sentence investigation report, which draws conclusions and assumes facts without providing exhibits or documentation for same. The 6th CCA judges concluded that a PSI was insufficiently reliable to base sentencing (enhancement) upon. That sounds right to me, especially since the writer failed to back up his narrative with copies of court documents he probably had sitting on his desk. Not very confidence inspiring...

I presume all will be right again at the District Court level, when someone gets off his/her ass and obtains the documents called for by case law. ('the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.')
9.6.2009 12:50am
Dave N (mail):
jccamp,

I disagree that it was sloppy. Rather, it was an intervening Supreme Court precedent (Begay v. United States) that made circuit precedent obsolete.

Begay was decided after Wynn was sentenced but while his appeal was pending.
9.6.2009 2:20am
jccamp (mail):
I don't know that prior to the cited case, a judge may have simply accepted the probation officer's narrative, absent any documentation or verification of the ostensible facts, when those specifics are being used to classify a sentencing level. If the probation officer had somewhere discovered the details as described, why not just include or attach the source material for reference? The PSI has never been just a recitation of some history. it includes the PO's recommendations, and should always be self-contained in terms in being able to judge the validity of the recommendations. Some certified copy of the conviction record is almost certainly required in order to make that prior conviction affect the new sentence (It has been for some time in my jurisdiction). It seems like a no-brainer to me that if the factual details (of the prior conviction) are to be similarly weighed before sentence, a PO would give more than his/her recitation of the details, especially since the charging document is probably incorporated into the court file or conviction record somewhere.

Just an opinion, I guess, but this struck me as plain sloppy work by the PO, who probably already had the back-up and just didn't bother attaching it (them?).
9.6.2009 9:59am
Chris Hundt (www):
Unless I'm missing something, jccamp, you misunderstand the reasoning of the appeals court.

Moreover, such a holding, declaring PSRs to be non-Shepard documents, is consistent with Shepard's decree that Taylor "require[s] that evidence of [a] generic conviction be confined to records of the convicting court," Shepard, 544 U.S. at 23, because a PSR prepared for a federal- district-court sentencing can never be a record of a convicting state court.

I don't see how this flaw could have been overcome by introducing more "reliable" evidence at the time of sentencing.
9.6.2009 2:01pm
Chris Hundt (www):
Actually, now that I read your posts again, it seems that you may have been suggesting simply that they include in the PSR more records from the convicting court which might indicate what specifically he was pleading to, in which case I misunderstood you earlier, and retract that comment.
9.6.2009 2:08pm
Oren:
GV, thanks for explaining the distinction.

Followup question (if you would be so kind), when pleading guilty the State usually presents some evidence ("If we went to trial, the State would call Officer Krupkee to testify..."). Are those in the same category as the PSR?
9.6.2009 5:28pm
jccamp (mail):
Chris -

Sorry that was confusing. In so many pleas, especially in state courts, the defendant may be pleading to a lesser crime for a negotiated (lower) sentence. Typically, there is no recitation at sentencing as to the alleged or accepted facts. Rather, the defendant changes a prior "not guilty" plea to "guilty" for a specific charging document, and then some element(s) of the charging document is dropped or modified as part of the plea. While some judges may require the defendant to make an admission under oath in open court, specifying the elements of the crime to the judge's satisfaction, that is far from ordinary practice. The official record of conviction may be, in fact, a fingerprint card with a bare bones listing of the actual crimes that the defendant is convicted of, with no factual details. So, in such an example, the actual facts (in the charging document) may describe a higher level of crime than the record of conviction represents, or the conviction may be for a crime without an element of violence while the actual factual details may include a violent act by anyone's standards. You can see where this process leads to confusion, since the procedure has been less about details and more about identifying what statute was violated.

In this instance, there was not confusion about a difference in statutes charged and statutes convicted, but rather about difference elements required within a single sort of omnibus sex crimes statute.

I was suggesting that the probation officer must have had some suggestion of what the defendant in this case actually admitted to in the prior conviction, but neglected to include that documentation (or neglected to obtain it but rather relied on someone's verbal recollection.). Referring only to my specific experience, the details of these pesky past convictions (with all kinds of different statutory definitions) come up time and again at the time of sentencing, and not obtaining the official records and having them on hand is sloppy work. Any defense attorney worth a hoot is going to make the government meet its burden and demonstrate the absolute basis for enhancements. Judges won't (and shouldn't) accept a verbal representation from someone in government about what can be acquired as an official record. This appellate decision merely mandates what, hopefully, most judges were already doing.
9.6.2009 7:53pm
Chris Hundt (www):
jjcamp,

Thanks for the clarification. Makes a lot of sense.
9.6.2009 8:09pm
ChrisTS (mail):
Hmm. So, now, I am [re]confused.

Let me ask this: do most of the commenters think the court was, in effect, throwing the legislature's and/or the PO's 'sloppiness' back in its and/or his/her
face[s]? In which case, I return to my original question: what, exactly, did the court think would constitute sufficient evidence that the battery had been violent in the usual sense of the term?

Further, if this is what most think was happening in the decision, then why would the court not more explicitly indicate the kind of documentation that would have been sufficient?
9.6.2009 8:18pm
GV:
Oren wrote:

Followup question (if you would be so kind), when pleading guilty the State usually presents some evidence ("If we went to trial, the State would call Officer Krupkee to testify..."). Are those in the same category as the PSR?

No, because the defendant, when pleading guilty, will have admitted to those facts. (As I'm sure you know, after the State makes those representations, the judge will ask the defendant or his attorney whether those facts are true.) What the federal probation officer will typically do when this happens is obtain a copy of the transcript of the plea colloquy. That will be attached to the pre-sentence report. Facts that the defendant admits to in the state proceeding may be used to narrow the statute of conviction.

ChrisTS wrote:

Let me ask this: do most of the commenters think the court was, in effect, throwing the legislature's and/or the PO's 'sloppiness' back in its and/or his/her
face[s]? In which case, I return to my original question: what, exactly, did the court think would constitute sufficient evidence that the battery had been violent in the usual sense of the term?

The court wasn't throwing anyone's "sloppiness" back at them. The probation officer has a certain role to play in compiling the pre-sentence report. He's supposed to get a copy of the defendant's criminal history. He will typically interview the defendant and occasionally talk to his family members. But the job of the probation officer is not to figure out the precise facts of the defendant's prior conviction. As I mentioned above, many probation officers will just copy what a police report says or what the indictment says. But he won't double check to make sure those are accurate or interview fact witnesses from the prior offense. (Whether it's ethical for the probation officer to include such facts in his report when he has no idea whether it's true is another story . . . )


Further, if this is what most think was happening in the decision, then why would the court not more explicitly indicate the kind of documentation that would have been sufficient?

Because what documents are acceptable are so well settled -- with some exceptions -- that it's probably not worth repeating over and over again. In essence, it's documents whose recitation of the facts are beyond dispute. One example would be the transcript of the guilty plea colloquy. Another would be the judgment of conviction. Yet another would be the indictment, when the judgment of conviction indicates the defendant plead guilty to the indictment. I suspect the opinion says this somewhere. The list comes from this U.S. Supreme Court case, which you should read if you're interested in learning about this area of the law.
9.6.2009 9:21pm
jccamp (mail):
"But the job of the probation officer is not to figure out the precise facts of the defendant's prior conviction."

I don't want to quibble over minutiae, but in many jurisdictions, the probation officer actually conducts a "pre-sentence investigation" (the PSI mentioned in this case), makes factual determinations and conclusions, and then makes recommendations as to sentencing, based on, among other things, those prior convictions, and other factors such as "acceptance of responsibility" and whether the defendant play a "leadership role" in the criminality. The PO actually his to interpret the meaning of the past convictions when assigning a numeric level for sentencing.

Both the government and the defense are furnished copies of the PSI, both have the opportunity to agree or contest the individual conclusions of the probation officer, and the ultimate decision is made by the judge, who can accept or reject, in whole or in part, the pre-sentence investigation. However, the probation officer is the original author of the sentencing recommendation, which is then deconstructed and argued, etc, before the judge makes final determination. As GV points out, however, in practice, "many probation officers will just copy what a police report says or what the indictment says.". Unfortunately, I think that is completely accurate.
9.6.2009 10:17pm
GV:
jccamp, I think you're reading my statement a bit out of context. With context, I think we agree: The probation officer certainly investigates. As I noted, he will often interview the defendant, talk to the defendant's family, interview a victim (if there is one), and order the defendant's criminal history report. But he won't investigate the facts of the defendant's prior convictions, other than perhaps jotting down what a police report says and recording what certain judicially noticeable documents say.
9.6.2009 10:51pm
ReaderY:
As Judge Gregory noted in his dissent in United States v. Pierce, 278 F.3rd 282 (2002), holding that North Carolina's "indecent liberties with a minor" statute is a crime of violence within the meaning of the Armed Career Criminal act on grounds that sexual conduct always risks harm to minors, these types of statutes can cover conduct which, however reprehensible, simply cannot be characterized as violent. As Judge Gregory noted, North Carolina's indecent liberties statute had been held to include a wide range of conduct, from consensual conduct with a person not of age to peeping-Tom type behavior done entirely without the minor's knowledge or (as in a hidden videocamera case) without the defendant being physically present. While state statutes are free to cover emotional and moral harm and risks to children's development and socialization, these goals should not be conflated with the physical harm which is the locus of the definition of "violence".
9.6.2009 11:03pm
jccamp (mail):
GV -

"But he won't investigate the facts of the defendant's prior convictions..."


I think you're correct, at least most of the time. I was actually surprised that there was a statute called "sexual battery" which contains crimes termed "non-violent." Maybe this PO assumed that any sexual battery was, per se, a crime of violence, although he did provide a brief narrative (which hardly sounded non-violent to me). I guess what I'm saying is that most prior convictions seem to be self-evident in terms of what they represent. This case was unusual in that a certified record of the conviction might have been misleading in automatically making that crime of violence assumption just from looking at the term "sexual battery."

Anyway, I'm sure we both agree that certainly no judge should rely on anything other than certified and verifiable records which are unequivocal in their meaning, and not merely the report narrative of a probation officer. I wonder what the District Court judge was thinking when he (she?) let this one by.
9.6.2009 11:32pm
Soronel Haetir (mail):
jccamp,

Having read quite a few ACCA appeals, there are actually many such cases where the statutory definitions are broad enough to not be an automatic predicate offense. More likely of course is that the sure losers just don't get litigated.

But even things like prison escape statutes may contain non-reporting as one form of violation. A case was heard on that one during the current SCOTUS term, with non-reporting deemed to not be a qualifying offense.
9.7.2009 12:37am

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