                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-3823
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    * Appeal from the United States
                                          * District Court for the
      v.                                  * Western District of Missouri.
                                          *
Arnold D. Eastin,                         *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: October 11, 2005
                                 Filed: April 4, 2006
                                  ___________

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
                              ___________

BENTON, Circuit Judge.

       Arnold Dean Eastin pled guilty to one count of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The district court1 imposed the
minimum 15-year sentence for offenders with three prior "violent felony" convictions
under 18 U.S.C. § 924(e). Eastin appeals, arguing that his prior convictions are not
violent felonies and that the district court committed constitutional error under Blakely
v. Washington, 542 U.S. 296 (2004). Jurisdiction being proper under 28 U.S.C. §
1291, this court affirms.

      1
      The Honorable Dean Whipple, Chief United States District Judge for the
Western District of Missouri.
                                            I.

       The presentence investigation report (PSR) indicated that Eastin had four prior
California felony convictions: first-degree residential burglary with assault, second-
degree residential burglary, second-degree burglary of a vehicle, and incest. The PSR
classified each offense as a "violent felony" under the Armed Career Criminal Act
(ACCA) and recommended the 15-year mandatory minimum sentence for armed
career criminals. See 18 U.S.C. § 924(e)(1). Eastin objected to the PSR's
classifications of his vehicle burglary and incest convictions.2 The district court ruled
that all the prior offenses were violent felonies, and sentenced Eastin to the statutory
minimum of 15 years.

       Eastin first contests the district court's conclusion that his incest conviction is
a violent felony. This court reviews de novo whether a prior offense is a violent
felony under the ACCA. United States v. McCall, 439 F.3d 967, 969 (8th Cir. 2006)
(en banc); United States v. Lindquist, 421 F.3d 751, 753 (8th Cir. 2005).

       The ACCA imposes a mandatory minimum 15-year sentence if a defendant is
convicted of being a felon in possession of a firearm, and has three prior violent
felony convictions. 18 U.S.C. § 924(e)(1). A "violent felony" includes "any crime
punishable by imprisonment for a term exceeding one year" that "involves conduct
that presents a serious potential risk of physical injury to another." Id. §
924(e)(2)(B)(ii). In determining whether the prior offense is a violent felony under
this clause, this court applies a formal categorical approach, looking only to the fact
of conviction and the statutory definition of the offense, not the particular facts
underlying the conviction. McCall, 239 F.3d at 970. Where the statute is


      2
       Eastin never contests the PSR's sentence recommendation, or the district court's
conclusion that the two prior convictions for first-degree and second-degree
residential burglary are "violent felonies."

                                           -2-
overinclusive – encompassing both violent and non-violent felonies – the court may
examine the charging documents, jury instructions, terms of a plea agreement,
transcript of colloquy between judge and defendant, or other comparable judicial
record to determine whether the defendant's conduct constitutes a violent felony. Id.
at 973. See also Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1259-60
(2005); Taylor v. United States, 495 U.S. 575, 602 (1990).

       Eastin was convicted of violating California Penal Code § 285, which makes
incest a felony crime. At the time of his conviction in 1986, the statute provided:

      Persons being within the degrees of consanguinity within which
      marriages are declared by law to be incestuous and void, who intermarry
      with each other, or who commit fornication or adultery with each other,
      are punishable by imprisonment in the state prison.

Cal. Penal Code § 285 (1986). According to the indictment, Eastin pled guilty to two
counts of incest for sexual intercourse with his 16-year-old daughter. He was
sentenced to 44 months in prison.

       Eastin argues that because the California incest statute did not criminalize
violence (or behavior that presents a risk of violence), it is not a violent felony under
the ACCA. Eastin is correct that incest is not per se a violent felony, as it can be
committed by two consenting adults without violence. However, the statute is broad
enough to proscribe incestuous intercourse between adults and minor children, which
this court consistently holds presents a serious potential risk of physical injury to the
child. See United States v. Anderson, 438 F.3d 823, 825 (8th Cir. 2006) (criminal
sexual conduct); United States v. Montenegro-Recinos, 424 F.3d 715, 717-18 (8th
Cir. 2005) (lewd and lascivious acts upon a child), cert. denied, 126 S. Ct. 1386
(2006); United States v. Mincks, 409 F.3d 898, 900 (8th Cir. 2005) (statutory sodomy
and statutory rape), cert. denied, 126 S. Ct. 1345 (2006); United States v. Alas-Castro,
184 F.3d 812, 813 (8th Cir. 1999) (sexual assault of a child); United States v. Bauer,

                                          -3-
990 F.2d 373, 375 (8th Cir. 1993) (statutory rape); United States v. Rodriguez, 979
F.2d 138, 140-41 (8th Cir. 1992) (lascivious acts with a child). Even if the sexual act
with a child were consensual, such conduct between individuals of differing physical
and emotional maturity carries a substantial risk that physical force may be used,
causing injury to the child. See Anderson, 438 F.3d at 825, quoting Alas-Castro, 184
F.3d at 813. Moreover, when the relationship is incestuous between parent and child,
there is an even greater risk of physical injury to the child given the inherent power
asymmetry and age difference. See, e.g., United States v. Melton, 344 F.3d 1021,
1027-28 (9th Cir. 2003); United States v. Vigil, 334 F.3d 1215, 1220 (10th Cir. 2003);
United States v. Campbell, 256 F.3d 381, 396-97 (6th Cir. 2001); United States v.
Martinez-Carillo, 250 F.3d 1101, 1106 (7th Cir. 2001).

       As the California incest statute criminalizes both violent and non-violent
conduct, the district court did not err in examining Eastin's indictment to determine
the nature of his conviction, which confirmed incestuous intercourse with his 16-year-
old daughter. See McCall, 439 F.3d at 973-74. By this court's precedent, the district
court correctly concluded that Eastin's incest conviction is a violent felony under the
ACCA.3

                                           II.

       Eastin asserts that the district court committed constitutional error in violation
of Blakely v. Washington, 542 U.S. 296 (2004), by making independent fact findings
about his prior offenses to support the ACCA sentence enhancement. This court has
consistently rejected the claim that a jury must determine whether a prior conviction
is a violent felony, as this is a legal question for the district court. See United States

      3
       Eastin also contends (and the United States concedes) that his prior felony
conviction for second-degree burglary of a vehicle is not a violent felony. This court
need not address this issue, as Eastin has three predicate violent felony convictions
without considering the vehicle burglary offense.

                                           -4-
v. Smith, 422 F.3d 715, 727 (8th Cir. 2005), cert. denied, 126 S. Ct. 1112 (2006);
United States v. Strong, 415 F.3d 902, 906-07 (8th Cir. 2005), cert. denied, 126 S. Ct.
1121 (2006); United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005). Accordingly,
the district court did not err in finding the facts necessary to support the sentence
enhancement.

       Finally, Eastin attacks the constitutionality of the sentencing guidelines as
mandatorily applied by the district court. Eastin did not raise this challenge before the
district court, so this court reviews only for plain error. See United States v. Pirani,
406 F.3d 543, 549-50 (8th Cir. 2005) (en banc), cert. denied, 126 S. Ct. 266 (2005).
As Eastin was sentenced to the mandatory minimum under the ACCA, he received the
most favorable sentence available. See United States v. Painter, 400 F.3d 1111, 1111
(8th Cir. 2005) (a sentence mandated by § 924(e) does not violate United States v.
Booker, 543 U.S. 220 (2005)), cert. denied, 126 S. Ct. 731 (2005); United States v.
Torres, 409 F.3d 1000, 1004 (8th Cir. 2005), citing United States v. Vieth, 397 F.3d
615, 620 (8th Cir. 2005), cert. denied, 125 S. Ct. 2560 (2005). Thus, this court finds
no plain error in the district court's application of the guidelines.

                                          III.

      The judgment of the district court is affirmed.

                        ______________________________




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