                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         June 20, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-8039
          v.                                               (D . W yo.)
 RA YM ON D D UA NE SANC HEZ,                       (D.C. No. 05-CR-239-B)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

                                       Background

      Pursuant to a plea agreement, Raymond Sanchez pled guilty to felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A t


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
sentencing, the district court applied the Armed Career Criminal Act’s (ACCA)

fifteen year mandatory minimum sentence, 18 U.S.C. § 924(e), and Sanchez did

not object. On appeal, Sanchez contends for the first time one of the convictions

used to support his sentence was not a crime of violence under the ACCA. W e

affirm.

                                       Analysis

      Because Sanchez did not lodge this specific objection in the district court,

we review for plain error. See United States v. Traxler, 477 F.3d 1243, 1248

(10th Cir. 2007). 1 “Plain error occurs when there is (i) error, (ii) that is plain,

which (iii) affects the defendant’s substantial rights, and which (iv) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

      W hen a felon is found to be in possession of a firearm under 18 U.S.C. §

992(g), the ACCA requires a mandatory minimum fifteen year sentence if the

felon was previously convicted of three violent felonies. See 18 U.S.C.

§ 924(e)(1). The district court determined Sanchez’s criminal history included

the requisite number of violent felonies for the mandatory minimum sentence to

apply. Sanchez challenges the use of a 1982 conviction in the state of Wyoming

for second degree sexual assault as one of the violent felonies. He contends the



      1
         Sanchez raised a different objection to the pre-sentence report, which he
later w ithdrew .

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statute defining the offense does not meet the standard of a “violent felony”

articulated in the federal statute. A violent felony is defined as follow s:

      [T]he term “violent felony” means any crime punishable by imprisonment
      for a term exceeding one year, or any act of juvenile delinquency involving
      the use or carrying of a firearm, knife, or destructive device that would be
      punishable by imprisonment for such term if committed by an adult, that--
             (i) has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or
             (ii) is burglary, arson, or extortion, involves use of explosives, or
             otherwise involves conduct that presents a serious potential risk of
             physical injury to another . . .

18 U.S.C. § 924(e)(2)(B).

      The 1982 version of the W yoming statutes, under which Sanchez was

convicted, prescribes the offense of second degree sexual assault as:

      Any actor who inflicts sexual intrusion on a victim commits sexual assault
      in the second degree if, under circumstances not constituting sexual assault
      in the first degree . . . [t]he actor is in a position of authority over the
      victim and uses this position of authority to cause the victim to submit . . . .

      W yo. Stat. Ann. § 6-4-303 (1982).

      Sanchez devotes his brief to demonstrating this offense does not “ha[ve] as

an element the use, attempted use, or threatened use of physical force against the

person of another,” as mentioned in 18 U.S.C. § 924(e)(2)(B)(i). W hile Sanchez

is correct the use of force is not an explicit element of the W yoming sexual

assault statute, he ignores the second category of violent felonies described in

subsection (ii) of the federal statute. Under that subsection, a felony can still be




                                          -3-
classified as violent if it “involves conduct that presents a serious potential risk of

physical injury to another . . .” 18 U.S.C. § 924(e)(2)(B)(ii).

       Our decision in United States v. Rowland leads us to conclude the conduct

defined by the W yoming statute presents such a risk. 357 F.3d 1193 (10th Cir.

2004). In Rowland, the defendant challenged the district court’s determination

that a sexual battery conviction qualified as a violent crime. The state statute

criminalized “the intentional touching, mauling or feeling of the body or private

parts of any person sixteen (16) years of age or older, in a lewd and lascivious

manner and without the consent of that person.” Id. at 1195 (quoting Okla. Stat.

Ann. tit. 21, § 1123(B)). The federal sentencing guideline at issue in Rowland

similarly defined a “crime of violence” as an offense “involv[ing] conduct that

presents a serious potential risk of physical injury to another.” Id. at 1195

(quoting USSG §4B1.2(a)(2)). The defendant contended, since even the mere

nonconsensual touching of an arm or a leg in a lew d and lascivious manner would

violate the statute, the statute did not necessarily proscribe conduct which would

present a serious potential risk of physical injury. Id. at 1196. Although we

recognized the crime of sexual battery could be committed without imposing a

physical injury upon the victim, we nevertheless held “[t]he serious risk of bodily

injury is a constant in cases involving sexual battery.” Id. at 1198. 2 Rowland

      2
         Our analysis is bolstered by a recent Supreme Court case which clarified
that the probability of the risk materializing into an actual injury need not be very
high. James v. United States, -- U.S. --, 127 S.Ct. 1586, 1597 (2007) (“[Section]

                                          -4-
forecloses Sanchez’s argument that his sexual assault conviction – one which

required “sexual intrusion” – did not present a serious potential risk of physical

injury to the victim.

      W e discern no error, let alone plain error.

      AFFIRM ED.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




924(e)(2)(B)(ii)'s residual provision speaks in terms of a ‘potential risk.’ These
are inherently probabilistic concepts. Indeed, the combination of the two terms
suggests that Congress intended to encompass possibilities even more contingent
or remote than a simple ‘risk,’ much less a certainty.”) (footnote omitted).

                                          -5-
