                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0261n.06

                                           No. 08-5279
                                                                                          FILED
                                                                                      Apr 28, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE WESTERN
                                                         )         DISTRICT OF TENNESSEE
EDWARD EVANS,                                            )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: MOORE and WHITE, Circuit Judges, and OLIVER, District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant Edward Evans challenges the 57-month

sentence imposed by the district court following his guilty-plea conviction of being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1). Defendant maintains his base offense level should

have been calculated as 20, based on a single prior felony conviction of a crime of violence, rather

than 24, based on two prior felony convictions of crimes of violence. Because the district court’s

analysis does not comport with the modified categorical approach set forth in Begay v. United States,

553 U.S. 137 (2008), which was issued during the pendency of this appeal, we vacate the sentence

and remand to the district court for reconsideration whether the challenged prior conviction is of a

‘crime of violence’ in light of Begay and this court’s recent cases.


       *
        The Honorable Solomon Oliver, Jr., District Judge for the Northern District of Ohio, sitting
by designation.
No. 08-5279
United States v. Evans

                                                 I

       Evans pleaded guilty of being a felon in possession of a firearm. His presentence report

(PSR) calculated his total offense level at 21, based on a base level of 24 for two prior felony

convictions of crimes of violence, U.S.S.G. § 2K2.1(a)(2), and a three-level reduction for acceptance

of responsibility. With a criminal history category of IV, Evans’s Guidelines range was 57 to 71

months.

       Evans objected to the PSR’s Guidelines calculation, arguing that his prior conviction of

statutory rape (in Tennessee) does not qualify as a crime of violence under U.S.S.G. § 2K2.1.1 The

district court overruled Evans’s objection, and sentenced him to 57 months of imprisonment and

three years of supervised release.

                                                 A

       We review de novo a district court’s determination that an offense constitutes a “crime of

violence” under the Guidelines. United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008) (citing

United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005)). The term “crime of violence” in

U.S.S.G. § 2K2.1 is defined by reference to U.S.S.G. § 4B1.2,2 the career-offender provision, which

provides in pertinent part:




       1
        Evans’s Guidelines range would be 37 to 46 months if calculated using a base offense level
of 20, based on a single prior conviction of a violent felony. U.S.S.G. § 2K2.1(a)(4)(a).
       2
         See U.S.S.G. § 2K2.1, cmt. n.1, which states: “‘Crime of violence’ has the meaning given
that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”; see also Bartee, 529
F.3d at 359.

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No. 08-5279
United States v. Evans

       (a) The term “crime of violence” means any 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 the use of
               explosives, or otherwise involves conduct that presents a serious potential
               risk of physical injury to another.

The Comment to U.S.S.G. § 4B1.2, n.1, states in pertinent part:

       1. For purposes of this guideline--

       “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 . . . or, by its nature, presented a serious potential risk of physical injury
       to another.

       In determining whether a prior conviction is of a violent felony under § 4B1.2, we apply the

rules developed for engaging in the parallel inquiry under the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(1). See United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995).

                                                  B

       In Begay, 553 U.S. at 141-42, the Supreme Court held that New Mexico’s crime of driving

under the influence falls outside the scope of the ACCA’s “violent felony” definition. Consistent

with its prior decisions, the Court noted that whether a crime is a violent felony is determined by

considering the offense generically, that is, “in terms of how the law defines the offense and not in

terms of how an individual offender might have committed it on a particular occasion.” Id. (citing


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No. 08-5279
United States v. Evans

Taylor v. United States, 495 U.S. 575, 602 (1990)); see also United States v. Mosley, 575 F.3d 603,

606-07 (6th Cir. 2009). The court examined the statutory language and was convinced “that ‘to give

effect . . . to every clause and word’ of this statute, we should read the examples as limiting the

crimes that clause (ii) [of § 924(e)(2)(B)] covers to crimes that are roughly similar, in kind as well

as in degree of risk posed, to the examples themselves.” Begay, 553 U.S. at 143 (some quotation

marks omitted).

       In United States v. Wynn, 579 F.3d 567, 571-72 (2009), decided after Begay, this court

discussed the “categorical” and “modified categorical” approaches to determining whether a

conviction qualifies as a ‘crime of violence’:

       To determine whether a prior conviction constitutes a ‘crime of violence,’ we must
       apply the categorical approach expressed in Taylor v. United States, 495 U.S. 575 []
       (1990), and expanded to convictions based on guilty pleas in Shepard v. United
       States, 544 U.S. 13 [] (2005). ‘Under this categorical approach, the court must look
       only to the fact of conviction and the statutory definition – not the facts underlying
       the offense – to determine whether that definition supports a conclusion that the
       conviction was for a crime of violence.’ Bartee, 529 F.3d at 359 (emphasis added)
       (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)); Begay, 128 S.
       Ct. at 1584 (‘[W]e consider the offense generically, that is to say, we examine it in
       terms of how the law defines the offense and not in terms of how an individual
       offender might have committed it on a particular occasion.’) There is, however, an
       exception to the categorical approach [called the “modified categorical approach”]:
        “‘[W]hen the statutory definition [of the prior crime to which the defendant pleaded
       guilty] is ambiguous . . . the court may examine . . . ‘the terms of the charging
       document, the terms of a plea agreement or transcript of colloquy between judge and
       defendant in which the factual basis for the plea was confirmed by the defendant, or
       to some comparable judicial record of this information.’” Bartee, 529 F.3d at 359
       (quoting Shepard, 544 U.S. at 26). [Certain internal citations omitted].

                                                  C




                                                 -4-
No. 08-5279
United States v. Evans

       In the instant case, the district court correctly began its analysis by focusing on the generic

definition of the offense. Id. In Tennessee, statutory rape was defined at the time of Evans’s

conviction as:

       (a) Statutory rape is sexual penetration of a victim by the defendant or of the
       defendant by the victim when the victim is at least thirteen (13) but less than eighteen
       (18) years of age and the defendant is at least four (4) years older than the victim.

       (b) Statutory rape is a Class E Felony.

Tenn. Code Ann. § 39-13-506.

       Tennessee’s offense of statutory rape does not have as an element “the use, attempted use,

or threatened use of physical force against the person of another,” which would render it a crime of

violence under U.S.S.G. § 4B1.2(a). See Begay, 553 U.S. at 141. Nor is it one of the specifically

enumerated offenses of § 4B1.2(a) – burglary of a dwelling, arson, or extortion, or an offense that

involves explosives. Thus, as in Begay, our focus is on the “otherwise” or “residual” clause. See

Bartee, 529 F.3d at 362.

                                                  D

       Where the statutory definition of a prior-conviction offense includes both offenses that would

constitute a crime of violence under § 4B1.2 and offenses that would not, we must utilize the

modified categorical approach. Shepard v. United States, 544 U.S. 13, 26 (2005); Wynn, 579 F.3d

at 572-75.3 Under a modified categorical analysis, the sentencing court was obliged to look to, along


       3
         This circumstance is to be distinguished from circumstances in which the statutory definition
of the offense clearly falls beyond the scope of § 4B1.2. Where the statutory definition does not
include both offenses that are within the reach of § 4B1.2 and those that are beyond it, courts may
not look to the documents noted in Shepard and conclude from those documents that the defendant’s

                                                 -5-
No. 08-5279
United States v. Evans

with the statutory definition of the offense,“‘the terms of the charging document, the terms of a plea

agreement or transcript of colloquy between judge and defendant in which the factual basis for the

plea was confirmed by the defendant, or to some comparable judicial record of this information.’”

Bartee, 529 F.3d at 359 (quoting Shepard, 544 U.S. at 26) to determine whether Evans’s prior

statutory rape conviction is of a crime of violence.

       The district court had before it the transcript of guilty-plea proceedings pertaining to Evans’s

statutory-rape guilty plea, and the Affidavit of Complaint.4 The plea transcript states:

       MS. TAYLOR [Assistant District Attorney General, Memphis Office]: Your Honor,
       in the matter of Brian Hawkins and Edward Evans.
                                                ***
       The facts which give rise to this indictment are on January–somewhere between the
       dates of January 15th and January 17th of 2005, at 1545 Hubert (phonetically) the
       victim, . . . , was spending the weekend with her grandmother. The victim and her
       cousin . . . called the suspect Mr. Evans and his friends to come over and see them.


prior conviction was actually of a crime of violence, although the statutory definition of the offense
does not satisfy § 4B1.2. See Shepard, supra.
       4
           The Affidavit of Complaint states:

       The Co Affiant Sgt Luellen was assigned this Statutory Rape filed under Memphis
       Police Department report . . . The Affiant’s daughter . . . was spending the weekend
       of [January 15-17, 2005,] with her grandmother at 1545 Humber. The victim and her
       cousin . . . called the suspect (Edward Evans) and his friend Kyle a [sic] by phone to
       come over and see them at 1545 Humber. The victim . . . her cousin . . . and the
       suspect started to play the game truth or dare. The suspect Edward dared the victim
       to go to the rear of his SUV and she did. The suspect then dared the victim to take
       off her clothes and she did. The suspect took off his pants and put on a condom and
       had anal sex with the victim. The victim’s cousin . . . witnessed the incident. The
       victim admitted that she allowed the suspect to have anal sex with her. The victim
       thought the suspect was cute and she was willing to do anything that he asked of her.
       The victim is thirteen years of age and the suspect is twenty three years of age.[]


                                                -6-
No. 08-5279
United States v. Evans

       The victim . . . , her cousin . . . and the suspect began to play the game truth or dare.
       The suspect Edward dared the victim to go to the rear of his SUV, which she did.
       The suspect then dared the victim to take off her clothes, which she did. The suspect
       then took off his pants and put on a condom and had sex with the victim. The victim
       at the time was 13 years old. The suspect is 23. That occurred in Shelby County,
       Tennessee.

       We ask counsel to stipulate those would have been the facts had this matter gone to
       trial. Ask Your Honor to accept the negotiated settlement.

       MR. HALE [Assistant Public Defender]: We stipulate, Your Honor, and ask the
       Court to accept.

       THE COURT: The Court will accept.

       Focusing on the “otherwise” clause, the district court sought to determine whether the prior-

conviction offense “by its nature, presented a serious potential risk of physical injury to another.”

See U.S.S.G. § 4B1.2., cmt. n.1. Defense counsel set forth various cases in which this and other

courts have struggled to articulate the line between statutory rape that presents a serious potential

risk of physical injury to another, and statutory rape that does not. Certain factors present in these

cases repeatedly tipped the scales one way or the other – most often, the age of the victim, the age

of the perpetrator, and whether the situation was inherently coercive.5 The district court considered


       5
         See, e.g., United States v. Sawyers (Sawyers II), 223 F. App’x 475, 476-78 (6th Cir. 2007)
(finding serious potential risk of physical injury where 21-year-old defendant engaged in activities
that coerced 15-year-old girl to engage in multiple sexual acts); United States v. Campbell, 256 F.3d
381, 395-97 (6th Cir. 2001) (holding that a conviction of second-degree criminal sexual conduct
under Michigan law constituted a “crime of violence” based on sexual contact with a person between
13 and 16 years old and related by blood to the defendant); United States v. Grundy, 178 F. App’x
509, 513 (6th Cir. 2006) (unpublished disposition) (holding that first-degree sexual abuse based on
sexual contact with a person less than 12 years old was a crime of violence under U.S.S.G.
§ 4B1.2(a)); and United States v. Hargrove, 416 F.3d 486, 495 (6th Cir. 2005) (holding that
defendant’s sexual battery conviction based on sexual conduct with his stepdaughters was not a
crime of violence because the offense did not require either lack of consent or that the stepdaughters

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No. 08-5279
United States v. Evans

these factors from the pre-Begay cases, determined that in the instant case “the critical point is the

immaturity, the youth of the victim and the considerable age gap, ten years difference[,] of the

perpetrator,” (J.A. 78) and concluded that the offense presented a serious risk of physical injury.

                                                  II

        Because the district court’s analysis did not comply with the requirements of a modified

categorical approach under Begay, and relied on pre-Begay cases that are no longer controlling, we

must remand. Begay requires that the sentencing court determine whether the prior conviction is of

a crime that is “roughly similar, in kind as well as in degree of risk posed, to the examples

themselves [the offenses enumerated in U.S.S.G. § 4B1.2].” 553 U.S. at 143.

        After Begay, the Court held in Chambers v. United States, 129 S. Ct. 687, 691-93 (2009), that

Illinois’ crime of failure to report for penal confinement does not satisfy the ACCA’s “violent

felony” definition because it does not have as an element the use, attempted use or threatened use

of physical force against the person of another, does not consist of burglary, arson, or extortion, or

involve the use of explosives and, “more critically for present purposes, it does not ‘involve conduct

that presents a serious potential risk of physical injury to another.’” Id. (citation and some quotation

marks omitted).6 The Begay Court explained that in gauging whether a conviction is similar in kind


be minors, and the indictment also made no reference to the stepdaughters’ ages or whether the
conduct was coerced or consensual). These pre-Begay cases may provide a frame of reference for
the degree of risk assessment in statutory rape crimes, but they did not apply the two-step Begay
analysis, with its requisite similar-in-kind and similar-in-degree inquiry, and are no longer
controlling.
        6
            The Chambers Court noted:


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No. 08-5279
United States v. Evans

to the enumerated offenses, a court should examine whether the crime of conviction involved

“purposeful, violent and aggressive conduct.” Begay, 553 U.S. at 145 (citations and quotation marks

omitted). This court in Bartee7 applied Begay and concluded that “this court’s determination that


                Conceptually speaking, the crime amounts to a form of inaction, a far cry
       from the “purposeful, ‘violent,’ and ‘aggressive’ conduct” potentially at issue when
       an offender uses explosives against property, commits arson, burgles a dwelling or
       residence, or engages in certain forms of extortion. Cf. id. [Begay], 553 U.S., at —,
       128 S. Ct. at 1586. While an offender who fails to report must of course be doing
       something at the relevant time, there is no reason to believe that the something poses
       a serious potential risk of physical injury. Cf. James, 550 U.S., at 203-204, 127 S.
       Ct. 1586. To the contrary, an individual who fails to report would seem unlikely, not
       likely, to call attention to his whereabouts by simultaneously engaging in additional
       violent and unlawful conduct.

Chambers, 129 S. Ct. at 692.
       7
         Bartee had been charged with attempted Criminal Sexual Conduct in the second degree,
under the subsection of the Michigan statute prohibiting sexual contact under circumstances
involving the commission of another felony. The government acknowledged that neither the
statutory definition nor the amended information specified that the sexual contact was with a minor.
The district court apparently relied on the PSR, which is not a Shepard-eligible record, see Bartee,
529 F.3d at 361; Wynn, 579 F.3d at 575-76, in concluding that the victim was a minor. The PSR
stated that the prior conviction arose out of a consensual sexual relationship between Bartee (who
was 19 and 20 at pertinent times) and a 15-year-old girl. This court vacated and remanded, noting
(after discussing Begay):

       * * * we conclude that [U.S.S.G.] § 4B1.2(a)(2) also should be limited to crimes that
       are similar in both kind and degree of risk to the enumerated examples – burglary of
       a dwelling, arson, extortion, or crimes involving the use of explosives. While this
       interpretation narrows the scope of convictions that qualify as a “crime of violence”
       under § 4B1.2(a)(2), making it more difficult for the government to invoke the
       enhancement, it would be inappropriate for this court to speculate on the arguments
       that might be made in light of Begay if the government is able to establish, consistent
       with Shepard, that the conviction necessarily required proof of sexual contact with
       a minor that presents a “serious potential risk of physical injury to another.”

Bartee, 529 F.3d at 363.

                                                -9-
No. 08-5279
United States v. Evans

at least some convictions involving sexual contact with minors present ‘a serious potential risk of

physical injury’ is not sufficient to establish that the conviction comes within the scope of the

‘otherwise’ clause,” and remanded for further proceedings. 529 F.3d at 362.

       In sum, application of the “otherwise clause” requires that the prior crime be both similar to

the enumerated offenses of § 4B1.2(a) in its risk of physical injury to others, and alike in the

“purposeful, violent, and aggressive” nature of the conduct. Mosley, 575 F.3d at 606 (citing Begay

553 U.S. at 144-46, 128 S. Ct. at 1586; Chambers, 129 S. Ct. at 691-92; and United States v. Ford,

560 F.3d 420, 421-22 (6th Cir. 2009)). The offense of statutory rape under the Tennessee statute

satisfies neither prong under a strict categorical approach based solely on the statutory definition of

the offense. Thus, the determination whether Evans’s prior conviction is of a crime of violence

requires application of the modified categorical approach. However, the district court’s analysis did

not comply with the requirements of the modified categorical approach under Begay, and we must

therefore vacate Evans’s sentence and remand for reconsideration.

                                                 III

       We observe that in considering whether Evans’s prior offense was a crime of violence, the

sentencing court appears to have considered facts gleaned from the Affidavit of Complaint as well

as the sentencing transcript. Although Evans did not object, only the transcript is a proper Shepard

document. Wynn and Bartee make clear that an affidavit in support of a criminal complaint is not

a Shepard-acceptable document:

       The Bartee panel noted that “the Court [in Shepard] specifically rejected the
       government's call to permit consideration of police reports and criminal complaint
       applications to support a finding that the guilty plea could only have been based on

                                                - 10 -
No. 08-5279
United States v. Evans

       facts that would qualify the conviction as a ‘violent felony.’ ” Id. at 359-60 (citing
       Shepard, 544 U.S. at 21, 125 S.Ct. 1254).
       ....
       [T]he Bartee panel compared the factual recitations in a PSR generally to the
       information contained in a police report or like materials, concluding that the PSR
       contained “the sort of information that one might expect to find in a police report or
       application for criminal complaint.”

Wynn, 579 F.3d at 576 (quoting Bartee, 529 F.3d at 361.)]

A proper determination whether Evans’s prior conviction is of a crime of violence requires

application of Begay’s two-pronged inquiry – whether the crime is both similar in kind and in degree

of risk to the enumerated crimes – to facts established by Shepard-acceptable documents. The

Affidavit of Complaint is not such a document.

       We VACATE Evans’s sentence and REMAND for resentencing after reconsideration

whether Evans’s prior conviction qualifies as a crime of violence under Begay and our recent cases.

On remand, the district court shall be mindful of Shepard’s strictures, and, as in Wynn, the

government should be permitted to submit additional Shepard-acceptable evidence, if available. See

Wynn 579 F.3d at 577; United States v. Baker, 559 F.3d 443, 455 & n.10 (6th Cir. 2009).




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