APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 13-CR-00198-RM-1).
Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady, Federal Public Defender, on the briefs), Denver, Colorado, for Defendant - Appellant.
Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before KELLY, HARTZ, and MATHESON, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Reginald Jerome Wray pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 77 months' imprisonment and three years' supervised release. The issue we resolve on appeal is whether Mr. Wray's prior conviction for " Sexual Assault - 10 Years Age Difference" under Colo. Rev. Stat. § 18-3-402(1)(e) constitutes a " crime of violence" as that phrase is used in U.S.S.G. § § 2K2.1(a)(2) and 4B1.2. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing because we conclude the prior conviction does not qualify as a " crime of violence."
Mr. Wray's presentence investigation report (PSR) concluded that he had two prior felony convictions for " crime[s] of violence," U.S.S.G. § 2K2.1(a)(2), based upon two prior Colorado convictions: one for felony menacing and the other for " sexual assault - 10 years age difference." Regarding the sexual assault conviction, Colo. Rev. Stat. § 18-3-402(1)(e) provides:
(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
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(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim.
Mr. Wray objected to the use of this conviction as a predicate for increasing his base offense level from 20 to 24. He argued that a violation of the statute did not constitute a " crime of violence" in light of the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
The district court acknowledged that the Supreme Court's decisions in Begay and Sykes v. United States, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), made application of Tenth Circuit precedent to Mr. Wray's case less than straight-forward. Nevertheless, the district judge concluded that this circuit's prior decisions required him to find that the sexual assault conviction constituted a " crime of violence."
Our review of whether a defendant's prior conviction constitutes a crime of violence under U.S.S.G. § 4B1.2 is de novo. United States v. Dennis, 551 F.3d 986, 988 (10th Cir. 2008).
Under U.S.S.G. § 2K2.1(a)(2), a defendant convicted under 18 U.S.C. § 922(g) is assigned an offense level of 24 " if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The commentary to § 2K2.1 directs us to consult the career-offender guideline, § 4B1.2, for the definition of " crime of violence." That section defines " crime of violence" as:
[a] [A]ny 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.
U.S.S.G. § 4B1.2(a) (emphasis added). Application Note 1 to § 4B1.2 further provides that " 'crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." (emphasis added).
Both Mr. Wray and the government agree that the sexual assault conviction does not constitute a " crime of violence" under the elements approach of § 4B1.2(a)(1). Accordingly, we consider only the government's arguments that the prior conviction (1) is a " forcible sex offense" under to Application Note 1, or (2) comes within the residual clause of § 4B1.2(a)(2) (i.e., is one that " otherwise involves ...