                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         December 2, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-4050
          v.                                          District of Utah
 DARRELL EUGENE WASHINGTON,                     (D.C. No. 1:02-CR-34-01-DB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, 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). This case is

therefore submitted without oral argument.

                                     I. Background

      Appellant Darrell Washington was convicted by a jury of possessing with

intent to distribute crack cocaine and possessing ammunition as a convicted felon


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1), respectively.

These convictions gave Mr. Washington a base offense level of 32 pursuant to the

United States Sentencing Guidelines (U.S.S.G.). At the sentencing hearing, the

district court adopted the findings of the pre-sentence report and determined that

Mr. Washington should receive (1) a two-level “reckless endangerment during

flight” enhancement for fleeing officers when they attempted to arrest him, and

backing a car into a police vehicle, and (2) a three-level enhancement because he

qualified as a “career offender” based on two prior felony convictions for crimes

of violence. Mr. Washington did not object to the pre-sentence report. The

district court accordingly assigned Mr. Washington a base offense level of 37 and,

after determining that Mr. Washington fell into a criminal history category of VI,

sentenced him to 360 months imprisonment, the low end of the range.

       Mr. Washington filed an appeal on September 23, 2004, in which he

argued that he should not be classified as a career offender because one of his

prior felony convictions, unlawful sexual activity with a minor, is not a crime of

violence. He also claimed that his sentence enhancement by the district court

violated his Sixth Amendment right to a jury trial.

      After briefs were submitted, the Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005). In Booker, the Court extended its decision in

Blakely v. Washington, 542 U.S. 296 (2004), to the federal Sentencing Guidelines,


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holding that it is unconstitutional for a judge to make factual findings that would

increase the top of the guidelines range. See Booker, 125 S. Ct. at 756. To

remedy this constitutional defect in sentencing procedures, the Court struck down

the portions of the Sentencing Reform Act that made application of the

Guidelines mandatory. Id.

      We invited the parties to submit supplemental briefing on the Booker issue.

In his supplemental Booker brief, Mr. Washington concedes that the enhancement

for prior convictions is not a constitutional defect, but argues that the

enhancement for reckless endangerment does violate the Sixth Amendment.

Additionally, Mr. Washington argues that the district court committed non-

constitutional Booker error by enhancing his sentence after consulting the

Guidelines as if they were mandatory.

                                   II. Discussion

        A. Whether Mr. Washington Qualifies as a “Career Offender”

      To determine whether the defendant qualified as a “career offender,” the

district court considered the requirements of U.S.S.G. § 4B1.1. Under that

section, a defendant is a career offender if (1) he was “at least eighteen years old

at the time he committed the instant offense of conviction; (2) the instant offense

of conviction is a felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least two prior felony convictions


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of either a crime of violence or a controlled substance offense.” U.S.S.G. §

4B1.1. At issue here is whether Mr. Washington’s prior felony conviction for

unlawful sexual activity with a minor qualifies as a “crime of violence.” Mr.

Washington argues that the statute under which he was convicted contains no

“use-of-force” element and therefore the offense is not a crime of violence. 1

      The term “crime of violence” as used in § 4B1.1 is defined in § 4B1.2(a)

as:

      [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, involved
                   use of explosives, or otherwise involves conduct that
                   presents a serious potential risk of physical injury to
                   another.

Id. The commentary that accompanies this provision includes “forcible sex

offenses” within the ambit of the term “crime of violence.” Id. cmt., n.1.

Because the statute under which Mr. Washington was convicted does not include

the use, attempted use, or threatened use of physical force, his prior conviction

can only be considered a crime of violence if it satisfies the “otherwise involves”

criterion of § 4B1.2(a)(2).



      1
       Mr. Washington pleaded guilty to Utah Code Ann.§ 76-5-401.2, which
prohibits sexual activity with “a person who is 16 years of age or older, but
younger than 18 years of age. . . .”

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      In order to determine if a criminal conviction is properly categorized as a

crime of violence, we follow a categorical approach in which we look “only to the

fact of the conviction and the statutory definition of the prior offense.” United

States v. Austin, 426 F.3d 1266, 1270 (10th Cir. 2005) (citing United States v.

Hernandez-Rodriguez, 388 F.3d 779, 782 (10th Cir. 2004) (relying on Taylor v.

United States, 495 U.S. 575, 602 (1990))). If the statute in question is

ambiguous, in that it reaches conduct that could be both violent and nonviolent,

we are permitted to “look to the charging paper and judgment of conviction in

order to determine if the actual offense the defendant was convicted of qualifies

as a crime of violence.” United States v. Hernandez-Rodriguez, 388 F.3d 779, 783

(10th Cir. 2004) (internal quotation marks and citations omitted).

      Mr. Washington argues that, following this categorical approach, the Utah

statute under which he was convicted is ambiguous because it is broad enough to

encompass both violent and non-violent crimes. He further asserts that the other

documents available to this Court concerning his prior conviction do not resolve

the statute’s ambiguity in this case. Because neither the statute itself nor the

other available documents establish that Mr. Washington’s conviction for

unlawful sexual contact with a minor was a crime of violence, he argues that the

district court improperly enhanced his sentence for being a career offender.




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      We recently considered whether a conviction for unlawful sexual contact

with a victim who is part of a statutorily protected class of minors constitutes a

crime of violence in Austin. There, the defendant’s sentence was enhanced based

in part on a guilty plea for a statutory violation consisting of sexual contact with a

person less that fifteen years old. Austin, 426 F.3d at 1268. On appeal, the

defendant argued that the district court improperly characterized his prior

conviction as a crime of violence. Id. at 1269. After a thorough review of the

case law in our own circuit, as well as that of our sister circuits, we concluded

that “sexual abuse of a statutorily-protected, specific age group of minors,

including abuse through sexual contact, is generally, by its nature, considered a

‘crime of violence.’” Id. at 1278.

      In so concluding, we relied upon our holding in United States v. Rowland,

357 F.3d 1193 (10th Cir. 2004), that “a prior conviction for the nonconsensual

touching of the body parts of a victim over the age of sixteen, as prohibited by

state statute, created a risk of physical injury under § 4B1.2.” Austin, 426 F.3d at

1278. In Austin, we left open the question of whether touching the clothing

covering a minor child’s intimate parts would similarly “pose a serious risk of

physical injury for the purposes of § 4B1.2.” Id. at 1278, 1278 n.5.

      This case does not present us with the opportunity to resolve that question.

The prior felony relied upon by the district court during Mr. Washington’s


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sentencing was a plea of guilty to a Utah statute prohibiting “sexual intercourse

with [a] minor.” Utah Code Ann. § 76-5-401.2. Based on the plain language of

the statute, it is clear that Mr. Washington’s prior conviction was not limited to

the touching of clothing covering the minor victim’s intimate parts.

      Based upon our decision in Austin, we conclude that the trial court properly

characterized Mr. Washington’s prior felony conviction for unlawful sexual

contact with a minor as a crime of violence under § 4B1.2.

      B. Whether the District Court Improperly Enhanced the Sentence

      Mr. Washington also argues that the sentencing enhancements imposed by

the district court violate United States v. Booker, 125 S. Ct. 738 (2005). The

enhancement for reckless endangerment presents a constitutional Booker claim,

while the career offender enhancement presents a non-constitutional claim. See

United States v. Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir. 2005)

(distinguishing between constitutional and non-constitutional Booker errors).

Neither type of Booker error is structural. See id. at 734 (non-constitutional

Booker error is not structural); United States v. Dowlin, 408 F.3d 647, 668–69

(10th Cir. 2005) (constitutional Booker error is not structural). Because Mr.

Washington did not object below, we review both constitutional and non-

constitutional Booker errors under the familiar plain error standard. “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial


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rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (quoting United

States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.), cert. denied, 125 S. Ct. 510

(2004)).

      We recognize that both the first and second prongs of the plain error

analysis are satisfied for both the constitutional and non-constitutional Booker

errors. Addressing the third prong of plain error, we conclude that Mr.

Washington has failed to demonstrate that the constitutional error resulting from

the reckless endangerment enhancement affected his substantial rights. There are

two ways in which a defendant can comply with the third plain error prong. First,

he can show “a reasonable probability that a jury applying a reasonable doubt

standard would not have found the same material facts that a judge found by a

preponderance of the evidence.” United States v. Dazey, 403 F.3d 1147, 1175

(10th Cir. 2005). Second, he can establish a reasonable probability that the judge

would have imposed a sentence outside the Guidelines range if more leniency

were available. Id. Mr. Washington has demonstrated neither of these

probabilities.

      As to the first possible showing, in order to evaluate the effect on the

defendant’s substantial rights, we must “review the evidence submitted at the

sentencing hearing and the factual basis for any objection the defendant may have


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made to the facts on which the sentence was predicated.” Id. The uncontradicted

evidence submitted at the sentencing hearing indicates that Mr. Washington

“crashed his vehicle into a brick wall and then backed into a police vehicle that

was blocking his escape” in an attempt to flee from police. R. Vol. XIII, PSR 5.

Because Mr. Washington did not object to this factual finding in the pre-sentence

report, and because the evidence is uncontradicted, Mr. Washington has not

shown a reasonable probability that the factual predicate for sentencing would be

different had the facts been submitted to a jury.

      Regarding the other possible showing for the third plain error prong, we

note that the district court did not express an inclination to sentence Mr.

Washington below the Guidelines range. To the contrary, the trial judge indicated

his inclination to sentence Mr. Washington more severely. Specifically, he stated:

      I’m telling you Mr. Washington, I am on the edge of a life sentence. I look
      at your history and all you have done before me is slander the Court,
      complain about everyone you have come into contact with and deny
      responsibility. . . . Your record is terrible. You qualify as a career criminal.
      A good case could be made for me to put you away for life. Society would
      probably be better. . . . You have proven to be a dangerous man. You’re
      here today still complaining about everyone else’s behavior and it has me
      this close to giving you life in prison.

R. Vol. XII, at 15-16. If anything, the district court indicated that it was lenient

in sentencing, not excessive. We cannot say, then, that there is a reasonable

probability that Mr. Washington would receive a different sentence, at least not a

more lenient one, if we were to remand. Compare United States v. Williams, 403

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F.3d 1188, 1199-1200 (10th Cir. 2005) (finding a reasonable probability that the

ensuing sentence would be different where the district court judge indicated that

he felt obligated by the guidelines to impose what he considered to be an

excessive and “immoral” sentence).

      As to Mr. Washington’s non-constitutional Booker claim, we need not

address whether it affected Mr. Washington’s substantial rights because we

conclude that he has failed to show that it seriously affected the fairness,

integrity, or public reputation of his judicial proceedings. See Gonzalez-Huerta,

403 F.3d at 736 (declining to address the third prong of plain error because the

defendant did not satisfy the fourth prong).

      Under the fourth prong of plain error analysis, we will not notice non-

constitutional Booker errors unless they are particularly egregious and our failure

to do so would result in a miscarriage of justice. Id. In light of our review of the

record, we conclude that Mr. Washington has failed to demonstrate that his

sentence was unfair. The mere fact that a sentence was mandatorily imposed does

not threaten the fairness, integrity, or public reputation of judicial proceedings.

Gonzalez-Huerta, 403 F.3d at 739 (quoting United States v. Antonakopoulos, 399

F.3d 68, 80 (1st Cir. 2005)). We recognize that the Sentencing Guidelines

represent the accepted national norms for sentencing, and that district courts must

continue to recognize these national norms when making sentencing decisions.


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Id. at 738. Mr. Washington’s sentence is within this national norm and we find

no mitigating evidence in the record before us that indicates his sentence should

be reduced.




                                 III. Conclusion

      Because we reject both of the arguments raised by Mr. Washington on

appeal, the judgment of the United States District Court for the District of Utah is

AFFIRMED.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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