The Volokh Conspiracy - 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.

	[Jonathan Adler, September 5, 2009 at 10:52am] Trackbacks 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.