                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2007

USA v. Siegel
Precedential or Non-Precedential: Precedential

Docket No. 05-4537




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ___________

                   No. 05-4537
                   ___________

        UNITED STATES OF AMERICA,

                        vs.

           MICHAEL BRUCE SIEGEL,

                              Appellant.
                   ___________

  On Appeal from the United States District Court
          for the District of Delaware

               (D.C. No. 04-cr-00138-1)
Chief District Judge: The Honorable Sue L. Robinson
                     ___________

         ARGUED NOVEMBER 6, 2006

       BEFORE: SLOVITER, CHAGARES,
         and NYGAARD, Circuit Judges.

             (Filed February 16, 2007 )
                    ___________
Mark S. Greenberg, Esq. (Argued)
LaCheen, Dixon, Wittles & Greenberg
1429 Walnut Street, 13th Floor
Philadelphia, PA 19102
      Counsel for Appellant


Edmond Falgowski, Esq. (Argued)
Office of United States Attorney
1007 North Orange Street, Suite 700
Wilmington, DE 19801
       Counsel for Appellee

                        ___________

                 OPINION OF THE COURT
                      ___________

NYGAARD, Circuit Judge.

       A grand jury returned a four-count indictment charging

Michael Siegel, with transmission of child pornography, in

violation of 18 U.S.C. § 2252A (a)(1), and (b)(1) (Count 1);

attempted transmission of child pornography by computer, in

violation of 18 U.S.C. § 2252A (a)(1) and (b)(1) (Count 2);

transmission of obscenity by computer, in violation of 18 U.S.C.


                               2
§ 1462 (Count 3) and possession of child pornography, in

violation of 18 U.S.C. § 2252A (a)(5)(B) and (b)(2) (Count 4).

       Siegel pleaded guilty to Count 1 of the indictment. The

government, in turn, agreed to dismiss the remaining counts of

the indictment. The Revised Presentence Report placed Siegel

in a criminal history III category based on four previous

criminal history points, a result of several incidents of “indecent

assault.” Siegel objected to the calculation of the criminal

history category, arguing that his criminal history category

should have been a II, based upon three criminal history points,

rather than a III, which is based on four criminal history points.

The parties’ disagreement stemmed from whether the two

counts of indecent assault referenced in the report were “crimes

of violence,” adding one criminal history category point to

Siegel’s sentencing calculation.




                                3
       The District Court, during a sentencing hearing,

overruled Siegel’s objection, noting that the victims’ ages

rendered them unable to consent to the conduct for which Siegel

was convicted. Given the inability of the victims to consent, the

District Court reasoned that Siegel’s conduct necessarily

qualified as a “crime of violence” within the meaning of the

Sentencing Guidelines:

       I have reviewed the case law and I have reviewed
       the arguments by both, and I believe that the
       criminal history calculations that were made are
       appropriate under the law, that unlawful force as
       recited by the Government is force that is directed
       against a person without a person’s consent, and
       force itself means the unlawful or wrongful action
       is meant.

       It seems that when we’re dealing with minors
       who, by law, cannot consent, you are forcing
       them to engage in conduct. Therefore, I believe
       that the criminal history points were appropriately
       assigned . . . even though they were related,
       because they involve a crime of violence.




                               4
Accordingly, the District Court assigned Siegel four criminal

history points, calculated the corresponding Sentencing

Guideline range, and sentenced Siegel within that range to 65

months of incarceration.

                               I.

       The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231. Our jurisdiction is premised on 28 U.S.C. § 1291 as this

is an appeal from a judgment of conviction and sentence entered

by the District Court.

       We review a district court’s factual determinations

underlying the application of the Sentencing Guidelines for clear

error. United States v. McMillen, 917 F.2d 773, 774 (3d Cir.

1990). We exercise plenary review, however, over a District

Court’s interpretations of the Sentencing Guidelines. See United

States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004); United

States v. Taylor, 98 F 3d. 768, 770 (3d Cir. 1996).


                               5
                              II.

       The question presented here is whether Siegel’s

conviction for indecent assault under Pennsylvania law

constitutes a “crime of violence” within the meaning of the

Sentencing Guidelines. 1 We conclude that it does and will

affirm the District Court’s sentence.

                              A.

       Siegel’s sentence was calculated pursuant to the 2001

Sentencing Guidelines. According to § 4B1.2 of the Sentencing

Guidelines, the section under which the District Court imposed

the disputed criminal history point:

       The term “crime of violence” means any offense
       under federal or state law, punishable by
       imprisonment for a term exceeding one year,
       that--


1.     A determination whether a prior offense is a “crime of
violence” is a legal question. See United States v. McQuilkin,
97 F.3d 723, 727 (3d Cir.1996) (“The proper construction of
the term “crime of violence” is a legal question····”).

                               6
      (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). The Commentary accompanying section

4B1.2 of the Guidelines provides further insight into the

meaning of “crime of violence.” The Commentary defines

“crime of violence” as follows:

      “Crime of violence” includes murder,
      manslaughter, kidnapping, aggravated assault,
      forcible sex offenses, robbery, arson, extortion,
      extortionate extension of credit, and burglary of a
      dwelling. Other offenses are included as “crimes
      of violence” if (A) that offense has as an element
      the use, attempted use, or threatened use of
      physical force against the person of another, or
      (B) the conduct set forth (i.e., expressly charged)
      in the count of which the defendant was convicted
      involved use of explosives (including any
      explosive material or destructive device) or, by its



                               7
       nature, presented a serious potential risk of
       physical injury to another (emphasis added).

U.S.S.G. § 4B1.2 n.1.

                                B.

       We have stated that when a sentencing court is

determining whether a prior crime meets the test of § 4B1.2, it

should begin with the language of the statute and if that is clear,

it should not look beyond the statute's text to the actual conduct.

United States v. Shabazz, 233 F.3d 730, 732 (3d Cir. 2000). We

generally employ the "formal categorical approach," announced

in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109

L.Ed.2d 607 (1990), to determine whether an offense falls

within the category of "crime of violence." See Singh v.

Ashcroft, 383 F.3d 144 (3d Cir. 2004). Using that analysis, a

court "must look only to the statutory definitions" of the

specified offense, and may not "consider other evidence



                                8
concerning ... the particular facts underlying [a] conviction[ ]."

Taylor, 495 U.S. at 600.

       We apply that approach unless (1) "the language of the

particular state statute at issue invite[s] inquiry into the

underlying facts of the case," or (2) "the disjunctive phrasing of

the statute similarly invites inquiry into the specifics of the

conviction." Singh, 383 F.3d at 148; see also Garcia v. Atty.

Gen., 462 F.3d 287, 293 (3d Cir. 2006) (citing Singh, 383 F.3d

at 161).    Statutory phrases that have “relatively unitary

categorical concepts” like “forgery,” “burglary,” “crime of

violence,” and “illicit trafficking in a controlled substance” do

not invite an inquiry into the facts underlying the conviction.

Joseph v. Atty. Gen., 465 F.3d 123, 127 (3d Cir. 2006) (citing

Garcia, 462 F.3d at 290).




                                9
                               C.

       Under the categorical approach, we begin our analysis

with the Pennsylvania statute, which defines indecent assault as

follows:

       A person is guilty of indecent assault if the person
       has indecent contact with the complainant, causes
       the complainant to have indecent contact with the
       person or intentionally causes the complainant to
       come into contact with seminal fluid, urine or
       feces for the purpose of arousing sexual desire in
       the person or the complainant and:

       (1) the person does so without the complainant’s
       consent;

       (2) the person does so by forcible compulsion;

       (3) the person does so by threat of forcible
       compulsion that would prevent resistance by a
       person of reasonable resolution;

       (4) the complainant is unconscious or the person
       knows that the complainant is unaware that the
       indecent contact is occurring;

       (5) the person has substantially impaired the
       complainant’s power to appraise or control his or


                               10
       her conduct by administering or employing,
       without the knowledge of the complainant, drugs,
       intoxicants or other means for the purpose of
       preventing resistance;

       (6) the complainant suffers from a mental
       disability which renders the complainant
       incapable of consent;

       (7) the complainant is less than 13 years of age; or

       (8) the complainant is less than 16 years of age
       and the person is four or more years older than the
       complainant and the complainant and the person
       are not married to each other.

18 P A. C ONS. S TAT. § 3126 (2000). “Indecent assault” under

Pennsylvania law, 18 P A.. C ONS. S TAT. § 3126(a)(1-2), is

defined as consisting of “indecent contact.” “Indecent contact,”

in turn, is defined as touching “for the purpose of arousing or

gratifying sexual desire in either person.” 18 P A. C ONS. S TAT.

§ 3101; see also Johnson v. Elk Lake School Dist., 283 F.3d 138,

157 n. 14 (3d Cir. 2002).




                               11
       Here, the Pennsylvania statute describes three distinct

offenses, any or all of which constitute “indecent assault”:

indecent contact, causing the victim to have indecent contact

with the offender, or intentionally causing the victim to come

into contact with various bodily fluids. Further, the offense of

indecent assault requires lack of consent, in various forms, by

the victim. The key to determining the disjunctive nature of a

statutory definition is whether the provision is disjunctive in a

relevant sense; not necessarily whether the statute is formally

divided into separate subsections. See Singh, 383 F.3d 163.

This statute is disjunctive. It contemplates no less than eight

different— although          not    necessarily      mutually

exclusive—scenarios which could constitute indecent assault.

These scenarios fall into two categories. The first category,

found in §§ 3126(1)-(3), forbids indecent contact between the

perpetrator and victim because the victim, although capable of


                               12
consenting to the conduct at issue, did not. By contrast, §§

3126(4)-(8) criminalizes conduct to which the victim was

incapable of consenting for one reason or another. Clearly, the

statute invites inquiry into the underlying facts of the case

because we are unable to determine from the face of the statute

which crime or crimes Siegel pleaded guilty to. Therefore, the

statute is disjunctive in a relevant sense and departure from the

categorical approach is appropriate under Singh, 383 F.3d at

162.

       Commonly, the best way to resolve the question raised by

a conviction under a statute phrased in the disjunctive, or

structured in outline form, will be to look to the charging

instrument or to the plea colloquy. Id. at 163 (citing Valansi v.

Ashcroft, 278 F.3d 203 (3d Cir. 2002)). Here, the charging

documents — the criminal informations pertaining to the

assaults — do not specify which statutory provision Siegel


                               13
allegedly violated. Rather, the information recites verbatim all

eight statutory categories criminalized by § 3126.        Siegel

suggests, therefore, that the Pennsylvania statute is ambiguous.

Specifically, while he concedes that by their terms, only two of

the eight provisions of § 3126—subsections 2 and 3—qualify

as “forcible sexual offenses,” he maintains that it was

impossible for the District Court to have determined that his

indecent assaults fell within these two subsections, because it

was equally likely that he had pleaded guilty to violating one of

the remaining six statutory sections.

       Siegel’s argument is premised on the assumption that

only certain provisions of § 3126 involve the use of force. The

Government counters, arguing that where, as here, the victim of

the indecent assault was a minor, any violation of § 3126

necessarily constitutes a “forcible sexual offense” because the




                               14
minor was legally incapable of consent. The District Court

agreed, noting,

       It seems that when we’re dealing with minors
       who, by law, cannot consent, you are forcing
       them to engage in conduct. Therefore, I believe
       that the criminal history points were appropriately
       assigned.

       Although we ultimately agree that a violation of 18 P A.

C ONS. S TAT. § 3126 which involves a minor is a “forcible sexual

offense,”and therefore, a “rime of violence,”we disagree with

the District Court’s reasoning. Equating lack of consent with

force proves too much. If lack of consent were synonymous

with force, many crimes of stealth or surprise — or indeed

crimes which involve insignificant or minor touching — could

be shoehorned into “crimes of violence.” The Court of Appeals

for the Seventh Circuit has persuasively articulated the fallacy

of equating force with the absence of consent:




                               15
      An inference of violence from mere
      u n c o n s e n te d - t o p h ys i c a l c o n ta c t, t h e
      government’s first reason for arguing that every
      felonious sexual act with a minor is per se a crime
      of violence, would not wash in this circuit. It
      would transform any unconsented-to touching that
      the law has made a felony into a crime of
      violence, including picking a person’s pocket, a
      crime that we have held is not a crime of
      violence.”

United States v. Shannon, 110 F.3d 382, 385 (7th Cir. 1997).

      The plea colloquy is of no help because it is not

available. A transcript of a telephone conference between the

District Judge and counsel about the transcript of the plea

colloquy contains the Government’s admission that

      We have not made any progress. We have, I
      think, given Delaware County an opportunity to
      get the records. We had pretty much constant
      contact with them for the last two months. They
      told us they needed two months in order to be
      able to find the papers. We impressed upon them
      the significance of it. We’ve spoken to the
      supervisor in question and he has indicated that
      they needed about two months and they can’t find
      it. They say because it’s eight years old and it’s


                                  16
       in a warehouse, that they have looked for it. It’s
       just that they’ve been unable to locate it.

Since its decision in Taylor, however, the Supreme Court has

looked at the categorical approach and modifications thereto in

the context of situations where, like here, a defendant has

pleaded guilty to a prior offense. In Shepard v. United States,

the Supreme Court held that “a later court determining the

character of an admitted [prior conviction] is generally limited

to examining the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

explicit factfinding by the trial judge to which the defendant

assented,” or other “comparable judicial record[s]” of the prior

conviction. 544 U.S. 13, 16-17 (2005). Thus, given Shepard’s

strictures on review, the vagueness of the Pennsylvania charging

documents, and the absence of the plea colloquy from Siegel’s

sentencing hearing in Pennsylvania court, Siegel argues that it



                              17
was impossible for the District Court to determine that Siegel’s

indecent assaults involved the use of force.         We are not

persuaded.

       We note that there is a description of the offense conduct

in the Presentence Report, which states that Siegel actually

physically restrained and forced the victim in both instances to

accede to his assaults. Indeed, the Presentence Report describes

the June 17, 2002 assault this way:

       [The victim] stated the [Siegel] sat down beside
       her and started touching and grabbing her breasts.
       [The victim] stated she pushed [Siegel’s] hand
       away and told him to stop. [The victim] then got
       off the couch and went out to a porch area, but
       [Siegel] followed her, forced her against a railing,
       and placed his hand under her shirt and fondled
       her breasts.


PSR § 46.2


2.     Judge Sloviter believes that a Presentence Report
ordinarily does not satisfy the demand for evidentiary
                                                  (continued...)

                               18
       Moreover, the record makes clear that Siegel received the

Presentence Report — including the description of the indecent

assaults in issue — before his sentencing hearing and was given

the opportunity to file objections. There is nothing in this

record showing that Siegel objected to the factual description of

the assaults, nor has he challenged these descriptions on appeal.

Thus the Presentence Report – a factual record adopted by

Siegel by his failure to object – contains a statement of the facts

underlying the indecent assaults.




2.      (...continued)
certainty required by Shepard v. United States, 544 U.S. 13
(2005), before a prior conviction can be used as a predicate
offense for purposes of a sentencing enhancement. She joins
the majority in this case because it is possible to regard
Siegel’s failure to object to the facts in the Presentence Report
as an admission, which the Supreme Court in Shepard stated
satisfies its standard of competent evidence. Id. at 26. She
awaits further amplification as to the application of Shepard
to Presentence Reports by the Supreme Court or this court.

                                19
       In United States v. Cullen, the Court of Appeals for the

Eight Circuit held that “[b]y not objecting to the PSR’s factual

allegations, [the defendant] has admitted them.” 432 F.3d 903,

905 (8th Cir. 2006) (citation omitted). We agree, and hold that

the facts averred in the PSR acceded to by Siegel avoid the

“collateral trial,” and “judicial factfinding” preempted by the

Court’s holding in Shepard.

                              IV.

       For these reasons we will affirm Siegel’s sentence.




                              20
