                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0255p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 02-5835
           v.
                                                       ,
                                                        >
 TYRICE L. SAWYERS,                                    -
                              Defendant-Appellant. -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                    No. 99-00193—Thomas A. Higgins, District Judge.
                                        Argued: November 3, 2004
                                    Decided and Filed: June 13, 2005
            Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Robert D. Little, LAW OFFICE OF ROBERT LITTLE, Maplewood, New Jersey, for
Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellee. ON BRIEF: Robert D. Little, LAW OFFICE OF ROBERT LITTLE, Maplewood,
New Jersey, for Appellant. J. Gabriel Banks, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee. Tyrice L. Sawyers, Atlanta, Georgia, pro se.
                                            _________________
                                                OPINION
                                            _________________
        EDMUNDS, District Judge. Defendant-Appellant Tyrice Sawyers appeals his conviction,
pursuant to 18 U.S.C. §§ 922(g) and 924(a), for possession of a firearm by a convicted felon and his
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and the sentencing
guidelines. For the reasons that follow, the conviction is AFFIRMED. The district court erred,
however, by employing the categorical approach when determining whether statutory rape
constitutes a predicate “violent felony” under the ACCA. Therefore, the sentence is VACATED
and the case is REMANDED for further findings consistent with this opinion.



        *
         The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 02-5835           United States v. Sawyers                                                 Page 2


I.     Background
        The underlying facts in this case are not in dispute. On November 10, 1999, Tyrice Sawyers
(“Sawyers”) was indicted for violating 18 U.S.C. §§ 922(g) and 924(a)–i.e., unlawfully possessing
a firearm as a previously convicted felon. During trial, the government presented testimony of three
police officers who recovered a gun they witnessed Sawyers discard over a fence. Prior to jury
deliberations, Sawyers stipulated that (1) he had previously been convicted of a felony punishable
by more than one year in prison and (2) the firearm recovered had moved in interstate commerce
because it was not manufactured in Tennessee. On February 20, 2000, the jury returned a guilty
verdict.
         On June 6, 2002, the district court, following the ACCA, sentenced Sawyers to 300 months
in prison. The ACCA was applied because the court found that three of Sawyers’s previous
convictions–facilitation of aggravated burglary, statutory rape, and retaliation for past action–were
“violent felonies” as described under the Act. In reaching this conclusion, the district court followed
the strict categorical approach set out in Taylor v. United States, 495 U.S. 575 (1990).
       Sawyers filed a timely appeal arguing that his conviction was not supported by sufficient
evidence, that § 922(g)(1) is unconstitutional as applied to him, that he should not have been
sentenced under the ACCA, and that, pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004), the
sentence violated his constitutional rights. Each argument is addressed in turn.
II.    The Conviction
       A.      Sufficiency
       A conviction is supported by sufficient evidence if, viewing the evidence in a light most
favorable to the prosecution and giving the government the benefit of all inferences reasonably
drawn from the testimony, a rational jury could find the elements of a crime beyond a reasonable
doubt. United States v. M/G Transport Services, Inc., 173 F.3d 584, 589 (6th Cir. 1999)(citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). For Sawyers's conviction, the government was
required to prove three elements: (1) he was convicted of a crime punishable by imprisonment for
a term exceeding one year; (2) he knowingly possessed a firearm or ammunition; and (3) such
possession was in or affecting interstate or foreign commerce. United States v. Moreno, 933 F.2d
362, 372 n.1 (6th Cir. 1991).
       Here, Sawyers argues that the government did not prove the third element beyond a
reasonable doubt. In United States v. Chesney, 86 F.3d 564, 572 (6th Cir. 1996), however, this
Court held that “[the defendant’s] stipulation that the gun had been transported in interstate
commerce was sufficient to meet § 922(g)(1)’s ‘in or affecting commerce’ requirement.” Therefore,
because Sawyers similarly stipulated that the firearm moved in interstate commerce, the third
element was proven and Sawyers’s conviction was supported by sufficient evidence.
       B.      Constitutionality
        Sawyers’s second argument is a reformulated version of his first. Specifically, he contends
that § 922(g) is unconstitutional as applied to him because the Government failed to prove any
substantial connection to interstate commerce. Questions concerning the constitutionality of a
statute are reviewed de novo. United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000)(citations
omitted).
       As noted, the court in Chesney held that the interstate commerce requirement was satisfied
when a defendant stipulates that the gun was transported into that state. Chesney, 86 F.3d at 570-72.
No. 02-5835                United States v. Sawyers                                                                 Page 3


Sawyers argues, however, that the reasoning and standard set forth in Chesney has been implicitly
overruled by the Supreme Court.
       Sawyers relies on Lopez v. United States, 514 U.S. 549 (1995), United States v. Morrison,
529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000). Faced with the same
argument, however, the Chesney court held that § 922(g) survives constitutional scrutiny under
Lopez because, unlike the statute examined there, § 922(g) contains a jurisdictional element.
Chesney, 86 F.3d at 569-70.   Moreover, as noted in Chesney, the Supreme Court expressed approval
of 18 U.S.C. § 1202(a),1 the predecessor statute to § 922(g)(1), because it explicitly barred only
those activities that were “in commerce or affecting commerce.” Id.
       The decision in Chesney preceded Morrison and Jones. In United States v. Napier, however,
this Court found that the reasoning of Chesney has not been overruled. Napier, 233 F.3d at 400-01.
Faced with a challenge to § 922(g)(8), a statute that shares § 922(g)(1)'s jurisdictional provision, this
Court held that
        Jones does not invalidate the Chesney analysis. In contrast to [the statute in Jones],
        § 922(g) does not contain the “use” requirement that was at the heart of the Jones
        opinion. Nothing in Jones suggests that the Supreme Court is backing off of its
        opinion that § 1202(a) . . . required only “the minimal nexus that the firearm have
        been, at some time, in interstate commerce.” Scarborough v. United States, 431 U.S.
        563, 575, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).
                We accordingly reject [the defendant’s] contention that he could not be
        convicted under § 922(g)(8) unless the government could show that his continued
        possession of the gun had a substantial connection to interstate commerce. There is
        no question that the firearm and ammunition possessed by [the defendant] had
        previously traveled in interstate commerce. That is sufficient to establish the
        interstate commerce connection.
Id. at 401. In addition, the Napier court rejected the claim that Morrison nullified the Chesney
ruling because § 922(g), unlike the statute in Morrison, does contain a jurisdictional element. Id.
at 402. Therefore, this Court rejects Sawyers's argument that § 922(g)(1) is not constitutional as
applied to him.
III.    The Armed Career Criminal Act
       This Court renders de novo review of a district court’s determination that a defendant should
be sentenced as an armed career criminal. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir.
1994).
        The ACCA provides that
        a person who violates section 922(g) of this title and has three previous convictions
        by any court . . . for a violent felony or a serious drug offense, or both, committed on

        1
            Section 1202(a) read:
        Any person who . . . has been convicted by a court of the United States or of a State or any political
        subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting
        commerce, any firearm shall be fined not more than $10,000 or imprisoned for not more than two
        years, or both.
18 U.S.C. § 1202(a) (1977).
No. 02-5835           United States v. Sawyers                                                   Page 4


        occasions different from one another, such person shall be fined under this title and
        imprisoned not less than fifteen years . . . .
18 U.S.C. § 924(e)(1). The statute goes on to define “violent felony” as
        any crime punishable by imprisonment for a term exceeding one year . . . 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)(1)(B). In other words, to constitute a “violent felony,” it must be shown that the
crime is punishable by imprisonment for more than one year; in addition, it must either (a) be
specifically enumerated–i.e., burglary, arson, or extortion, (b) involve the use of explosives, (c)
contain an element that involves physical force or (d) present a “serious potential risk of physical
injury.” Crimes in this last category are often said to fall within the “otherwise clause.”
        In this analysis, courts must generally follow “a formal categorical approach, looking only
to the statutory definitions of the prior offenses, and not to the particular facts underlying those
convictions.” Taylor, 495 U.S. at 600 (citations omitted); see also United States v. Kaplansky, 42
F.3d 320, 322 (6th Cir. 1994)(en banc). A narrow exception exists for “cases where a jury . . . was
actually required to find all the elements of the generic offense.” Shepard v. United States, 125 S.Ct.
1254, 1258 (2005)(quoting Taylor, 495 U.S. at 602). In this circuit, the exception has been held to
apply “where a statute broadly defines a felony.” United States v. Seaton, 45 F.3d 108, 111 (6th Cir.
1995)(citing Taylor, 495 U.S. at 602); see also United States v. Sacko, 247 F.3d 21, 23 (1st Cir.
2001)(holding that “when the relevant criminal statute encompasses both violent and non-violent
felonies, a sentencing court may go beyond the statutory language”).
        A.      Facilitation of Aggravated Burglary
         In 1992, in a Tennessee state court, Sawyers pled guilty to facilitation of a felony or, more
specifically, facilitation of aggravated burglary. He argues that the district court erred in classifying
this as a “violent felony” under the ACCA. We find, however, that the district court was correct and
affirm its holding.
        A person is a party to a crime in Tennessee “if the offense is committed by the person’s own
conduct, by the conduct of another for which the person is criminally responsible, or by both.”
TENN. CODE ANN. § 39-11-401(a). The comments to this section make clear that Tennessee law
provides “equal liability for principals, accessories before the fact, and aiders and abettors.” Id.
§ 39-11-401(a) cmt. More specifically, a person is criminally responsible for an offense committed
by another so long as he has the appropriate mental state–i.e., an “intent to promote or assist the
commission of the offense, or to benefit in the proceeds”–and solicits, directs, aids, or attempts to
aid the person who commits the crime. Id. § 39-11-402(2).
        “[F]acilitation of a felony is a lesser-included offense when a defendant is charged with
criminal responsibility for the conduct of another.” State v. Fowler, 23 S.W.3d 285, 288 (Tenn.
2000). “A person is criminally responsible for the facilitation of a felony if, knowing that another
intends to commit a specific felony, but without the intent required for criminal responsibility [for
the offense,] . . . the person knowingly furnishes substantial assistance in the commission of the
felony.” TENN. CODE ANN. § 39-11-403(a).
       Here, Sawyers pled guilty to facilitation of aggravated burglary. “Aggravated burglary
occurs when an individual enters a habitation ‘without the effective consent of the property owner’
No. 02-5835               United States v. Sawyers                                                                Page 5


and, . . . intends to commit a felony . . . .” State v. Langford, 994 S.W.2d 126, 127 (Tenn.
1999)(citing TENN. CODE ANN. §§ 39-14-402 and 39-14-403).
         Facilitation of aggravated burglary satisfies the “felony” requirement because it is punishable
by more than one year. Specifically, as a class2D felony, the crime carries a minimum two year
sentence. TENN. CODE ANN. § 40-35-111(b)(4). It is therefore necessary to determine if the crime
meets the second requirement under the ACCA. Facilitation of aggravated burglary clearly does not
involve the use of explosives or contain an element of force. Thus, it is a “violent felony” only if
it is specifically enumerated or falls within the otherwise clause.
         Burglary is a listed in the ACCA as a “violent felony.” In Taylor, the Supreme Court held
that a crime is a burglary for purposes of the ACCA if there was “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S.
at 598 (citations omitted). While aggravated burglary in Tennessee meets this standard, its
facilitation does not. A person responsible for facilitation need not possess the mental state to
commit the underlying crime; instead, he must only be aware that another person intends to     commit
it and knowingly furnish substantial assistance. See TENN. CODE ANN. § 39-11-403(a).3 Thus, it
is not a “burglary” under the statute. It does, however, fall within the otherwise clause.
        In United States v. Bureau, 52 F.3d 584 (6th Cir. 1995), this Court concluded that attempted
burglary in Tennessee is a “violent felony” because “the propensity for a violent confrontation and
the serious potential risk of injury inherent in burglary is not diminished where the burglar is not
successful in completing the crime.” Id. at 593. In contrast, facilitation requires that the burglary
actually occur. State v. Parker, 932 S.W.2d 945, 951 (Tenn. Crim. App. 1996). It is obvious that
more opportunities exist for a third-party to be physically injured over the course of a completed
crime than when that crime is merely attempted (i.e., abandoned sometime before completion).
Thus, facilitation of aggravated burglary presents a risk of physical injury sufficient to be classified
as a “violent felony.”
        Sawyers, relying on United States v. Pazzanese, 982 F.2d 251 (8th Cir. 1992), argues that
criminal facilitation is never a “violent felony” under the ACCA. Although Sawyers commingles
the arguments, there are essentially two components to this claim: first, because of the categorical
approach, facilitation crimes cannot be classified as a “violent felony” based on the underlying
crime; and second, facilitation does not meet the inherent mens rea requirement in the ACCA.
       The first argument is quickly disposed of. First, criminal facilitation in Tennessee requires
the government to show that the underlying crime actually occurred. See Parker, 932 S.W.2d at 951
(holding that, for facilitation of a felony, “the state must prove the commission of a specified felony
and the assistance the accused gave to the person committing the specified felony”)(footnote
omitted); see also State v. Virges, No. 02C01-9206-CR-00124, 1994 WL 51420, at *2 (Tenn. Cr.
App. 1994)(holding that "there is no offense of facilitation apart from the specific felony committed


         2
         This classification exists because, in Tennessee, facilitation is an offense one class below the underlying felony
and aggravated burglary is a class C felony. TENN. CODE ANN. § 39-11-403(b).
         3
           Some courts have found that “one who aids and abets the commission of a generic burglary by serving as a
lookout” may, nonetheless, meet the requirements set forth in Taylor even though that person did not enter into the
building. See, e.g., United States v. Gentry, 782 F.Supp. 1276, 1279 (N.D.Ill. 1992) aff'd 978 F.2d 1262 (7th Cir. 1992).
Tennessee law holds a person criminally responsible for situations where that person, although not present, is deemed
a party through aiding and abetting. See TENN. CODE ANN. § 39-11-402. However, Sawyers was convicted of
facilitation, not aiding and abetting–i.e., it was not proven that he had sufficient culpability to be considered a party.
Thus, this Court need not decide whether a person who was not present during the commission of the crime can,
nonetheless, commit a “burglary” under the ACCA.
No. 02-5835                 United States v. Sawyers                                                                 Page 6


by the acts of facilitation"). The specific felony therefore constitutes “an element” that can be
examined by the court.
        This holding does not, as Sawyers contends, contradict the reasoning behind the categorical
approach. In Taylor, the Supreme Court held that, unless an exception applies, courts cannot look
to “the particular facts underlying th[e] convictions” in part because “the practical difficulties and
potential unfairness of a factual approach are daunting.” Taylor, 495 U.S. 600-01. This type of
examination is not being sanctioned here. Rather, a court is only permitted to examine the type of
felony that was facilitated. In a like manner, for an attempt, a court must look at what type of crime
was attempted to see whether it is a “violent felony.” See, e.g., Bureau, 52 F.3d at 589-90. Thus,
considering the crime facilitation of aggravated burglary and not simply facilitation of a felony is
permissible.
         The second argument is more difficult, especially in light of the Supreme Court’s recent
decision in Leocal v. Ashcroft, 125 S.Ct. 377 (2004). As Leocal succeeded the arguments in this
case, Sawyers relied primarily on Pazzanese, an Eighth Circuit case which held that          criminal
facilitation in New York was not a “felony drug offense.” Pazzanese, 982 F.2d at 254.4 The court
found that the facilitation offense “involve[d]   no mental culpability with respect to a substantive
narcotics offense . . . .” Id. at 254.5 Because the court determined that it was “unclear” whether
Congress incorporated a mens rea requirement into a “felony drug offense,” it applied the rule of
lenity and held that facilitation did not fall within this category. Id.
       Our inquiry begins, as it must, by examining the plain language of the ACCA. See, e.g., Bd.
of Educ. of Westside Cmty. Schools v. Mergens, 496 U.S. 226, 237 (1990). The definition of “felony
drug offense” does not contain any relevant similarities to the ACCA and, thus, the reasoning in
Pazzanese is not persuasive. On the other hand, in Leocal, the Supreme Court    determined that a
“crime of violence,” a similar term with a slightly different definition,6 must involve “active
employment;” it does not, in other words, “encompass all negligent misconduct.” 125 S.Ct at 382-
83.
        The definitions of “violent felony” and “crime of violence” both include two subsections.
The first subsections are almost identical and, importantly, contain the word “use.” See 18 U.S.C.
§ 16(a)(“an offense that has as an element the use . . . of physical force”); id.


         4
          A “felony drug offense” was defined in the statute at issue as “a felony under any law of a state or foreign
country that prohibits or restricts conduct relating to narcotic drugs, marijuana, or depressant or stimulant substances.”
Pazzanese, 982 F.2d at 253 (citing 21 U.S.C. § 841(b)(1)(A) (repealed 1994)).
         5
          Instead, the mens rea element for the criminal facilitation statute in Pazzanese required a guilty party to
“believ[e] it probable that he is rendering aid to a person who intends to commit [a felony.]” Pazzanese, 982 F.2d at 254
(citing N.Y. PENAL LAW § 115.05).
         6
             Specifically, a “crime of violence” is defined by 18 U.S.C. § 16 as
         (a) an offense that has as an element the use, attempted use, or threatened use of physical force against
         the person or property of another, or
         (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical
         force against the person or property of another may be used in the course of committing the offense.
The term “crime of violence”" is used in numerous sections of the United States Code and the Sentencing Guidelines.
In some places, the definition from § 16 is used. See, e.g., 18 U.S.C. § 924(c)(3). In others, the language is almost
identical to the definition of “violent felony” from the ACCA. See, e.g., SENTENCING GUIDELINES MANUAL § 4B1.2(a)
(2004). Other sections have yet another definition. See, e.g., SENTENCING GUIDELINES MANUAL § 2L1.2 cmt.,
Application Note 1(B)(iii) (2004).
No. 02-5835                United States v. Sawyers                                                                Page 7


§ 924(e)(1)(B)(i)(same).7 The Court in Leocal, relying on the common meaning of the verb, found
that “‘use’ requires active employment.” 125 S.Ct. at 382 (citation omitted). Pursuant to this
reasoning, a crime within the first subsection of the ACCA must contain “a higher degree of intent
than negligent or merely accidental conduct.” Id. (citations omitted). As noted above, however,
Sawyers’s conviction for facilitation of aggravated burglary does not contain an element of force.
        In the second subsections, the definitions of “crime of violence” and “violent felony”
diverge. For a “crime of violence,” this subsection, building on the first, encompasses all crimes
where there is a substantial risk that physical force will be used. 18 U.S.C. § 16(b). The second
subsection of “violent felony” does not employ the “use of force” terminology, but does include
situations involving a risk–specifically, crimes that “otherwise involve conduct that presents a
serious potential risk of physical injury to another.” Id. § 924(e)(1)(B)(ii). The difference between
the risks involved in each definition is significant: the risk that force will be used requires an
examination of the defendant's actions; in contrast, the risk that injury will result focuses on the
effect. Cf. Leocal, 125 S.Ct. at 383 n.7. While a defendant cannot generally perform actions without
some awareness of what he is doing, he can always act disregarding the effect. Therefore, based on
the plain language of the statute, the second subsection of “violent felony” does not require a
minimum    mental culpability requirement; this standard is left to the legislatures that criminalize the
offense.8 Sawyers's argument must therefore be rejected. Because the district court properly
concluded that facilitation of aggravated burglary was, categorically, a violent felony under the
ACCA, its holding on this issue is affirmed.
         B.        Statutory Rape
        Two years later, Sawyers pled guilty to statutory rape. He argues that, contrary to the district
court's finding, this crime is not a “violent felony.” Because the district court improperly used the
categorical approach, we vacate the holding on this issue and remand for further consideration.
        In Tennessee, “[s]tatutory rape is sexual penetration of a victim by the defendant . . . 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.” TENN. CODE ANN. § 39-13-506(a). Statutory rape is a Class
E felony which carries a punishment of no less than one year in prison. Id. §§ 39-13-506(c) and 40-
35-111(b)(5). The government contends that this crime satisfies the second requirement under the
ACCA because it presents a serious risk of physical injury. Although this court has not yet
determined when or if statutory rape constitutes a “violent felony,” other sex crimes have been     found
to be “crimes of violence” under § 4B1.2(a) of the United States Sentencing Guidelines.9


         7
          The difference is that, in the definition of “crime of violence,” the use of force can be against another’s
property; on the other hand, in the ACCA, property is not mentioned. Compare 18 U.S.C. § 16(a) with id.
§ 924(e)(1)(B)(i).
         8
            In United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), the Seventh Circuit provided an additional reason
for this conclusion. Examining the term “crime of violence” in § 4B1.2 of the United States Sentencing Guidelines
(which is almost identical to the ACCA), the court found that the first prong requires a specific intent. Id. at 372-374.
It further reasoned that “includ[ing] the reckless or negligent exertion of force [in this prong would make] the ‘otherwise’
clause . . . redundant.” Id. at 373-374 (footnote omitted). In other words, according to the court, the structure of the
statute supports the conclusion: “The first prong discusses intentional acts, while the second prong discusses acts with
a mental state of less than intent.” Id. at 373.
         9
           As noted above, the phrase “crime of violence” is used frequently with varying definitions. See note 6 supra.
The § 4B1.2(a) definition is, however, worded the same as the ACCA definition of “violent felony” and therefore
provides a useful comparison. Compare 18 U.S.C. § 924(e)(1)(B) with SENTENCING GUIDELINES MANUAL
§ 4B1.2(a)(2002); see also United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995)(holding that “[t]he definition of
a violent felony . . . is nearly identical to the definitions of a crime of violence used in the Guidelines”); United States
No. 02-5835               United States v. Sawyers                                                               Page 8


         The court in United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001), found that
defendant's violation of 18 U.S.C. § 2251(a) constituted a “crime of violence.” Section 2251(a)
punishes “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such
conduct. . . .” 18 U.S.C. § 2251(a). The defendant was convicted after transporting a 13 year old
girl into the state and taking photographs of her engaging in sexual intercourse. Champion, 248 F.3d
at 503. The court, looking at the legislative history, concluded that Congress “itself has undertaken
the factfinding necessary to conclude that a violation of § 2251(a), by its very nature, presents     a
serious potential risk of physical injury" and is therefore a "crime of violence.” Id. at 506.10
         The government asks this Court to read Champion as holding that every crime involving
sexual intercourse with a minor is a per se “violent felony” under the ACCA. This reading casts a
broader net than the court fashioned. The holding in Champion was based on Congressional
findings that “the use of children in the production of sexually explicit materials . . . can result in
physical or psychological harm . . . .” Champion, 248 F.3d at 506 (citing Pub.L. 104-208, Div. A,
Title I, § 101(a))(emphasis added). Statutory rape–that, in Tennessee, can involve consensual sex
between a 17 year old and a 21 year old–is not equivalent to exploitation in sexually explicit
materials. Moreover, the court relied on a Congressional determination which is not present here.11
        This court has also found that Michigan’s “second-degree criminal sexual conduct [crime]
involving ‘sexual contact’ with a person, age 13 to 16, of the same blood affinity presents a ‘serious
potential risk of physical injury to another.’” United States v. Campbell, 256 F.3d 381, 396 (6th Cir.
2001)(citing SENTENCING GUIDELINES MANUAL § 4B1.2(a)). While this holding does offer some
support for the government’s position, the statute is distinguishable from Tennessee's statute
considered here. There, the victim can be two years younger and the perpetrator must be a family
member. See id. (holding that “there is a real possibility that physical force may be used in making
sexual contact when the victim is a minor between 13 and 16 and within the structures of familiarity
and proximity bred by kinship”).
        In United States v. Thomas, 159 F.3d 296, 298-300 (7th Cir. 1998), the Seventh Circuit
examined whether Illinois’s statutory rape law was a “violent felony” under the ACCA. The case
provides a useful comparison because the statute did not contain the aggravating factors in
Champion and Cambell–i.e., exploitation in explicit materials or a familial connection–and set the
age of victims (under 17 years old) closer to the statute examined here (under 18 years old). Id. at
298 (citing 720 ILL. COMP. STAT. 5/12-16(d)). Looking only at the information in the charging


v. Johnson, 246 F.3d 330, 334 n.5 (4th Cir. 2001)(holding that “our reasoning regarding the meaning of ‘violent felony’
is relevant to determining the meaning of ‘crime of violence’” because the definitions are almost identical). But see
SENTENCING GUIDELINES MANUAL § 4B1.4 cmt., Application Note (1) (2002)(stating that the term “violent felony” in
the ACCA is “not identical” to the definition of “crime of violence” as used in § 4B1.1).
         10
            The government also relies on United States v. Perez-Velasquez, 67 Fed.Appx. 890, (6th Cir. 2003), to
support its position. In that case, however, the “crime of violence” definition at issue was substantially different from
the standard for “violent felony” under the ACCA. Compare SENTENCING GUIDELINES MANUAL § 2L1.2 cmt.,
Application Note (1)(B)(ii) (2001) with 18 U.S.C. § 924(e)(1)(B). Thus, the analysis from Perez-Velasquez is not helpful
to the determination here.
         11
            The Champion court did note “that even without the consideration of Congress’ findings, a violation of
§ 2251(a) would cross the threshold for serious potential risk of physical injury.” Champion, 248 F.3d at 506. It is not
clear, though, that the court was considering every possible victim. The court had stated that it could “take into account
conduct expressly charged in [the] indictment” and that the crime occurred when the defendant took pictures of the 13
year old victim engaging in various acts of sexual intercourse. Id. at 503, 505-06 (citations omitted). However, there
was no mention of the statutory definition of minor found in 18 U.S.C. § 2256(1). It is therefore unclear whether the
court was referring to § 2251(a) violations with 13 year old victims or any minor under the statute. Because we do not
think the court went as far as the government urges, we decline to adopt this expansive interpretation of Champion.
No. 02-5835               United States v. Sawyers                                                            Page 9


document (which, in that case, did not contain the age of the victim), the court found it “difficult to
maintain on a priori  grounds that sex is physically dangerous” to every potential victim under the
statute. Id. at 299.12
         The First Circuit examined a similar statute–punishing a person over the age of 18 who
engages in sexual intercourse with a person between 14 and 16–in United States v. Sacko, 178 F.3d
1 (1st Cir. 1999). The court determined that statutory rape crimes fall within the exception to the
categorical approach because they “cover[ ] conduct both inside and outside the ‘violent felony’
sphere.” Id. at 4-5. We agree with the First and the Seventh Circuits that statutory rape statutes that
include more mature victims and do not contain aggravating factors are not subject to the strict
categorcial approach articulated in Taylor. See Seaton, 45 F.3d at 111 (holding that if a crime is
broadly defined, the court can look beyond the elements of the crime). Thus, this case should be
remanded for the district court to consider, along with the statutory definition, the “charging
document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Shepard, 125 S.Ct. at 1257.
         C.       Retaliation for Past Action
        Sawyers was also convicted of a Tennessee crime titled “retaliation for past action.” “A
person commits the offense of retaliation for past action who harms or threatens to harm” an
individual involved in the judicial process “by any unlawful act in retaliation for anything” the
specified person did in an official capacity. TENN. CODE ANN. § 39-16-510(a)(1). Sawyers argues
that this is not a “violent felony.” We disagree and affirm the holding of the district court.
       Retaliation for past action is a Class E felony which is punishable by a sentence not less than
one year in prison. TENN. CODE ANN. §§ 39-16-510(b) and 40-35-111(b)(5). The second
requirement is also met because, by harming or threatening to harm someone, the perpetrator
presents a serious potential risk of physical injury.
        Sawyers relies on United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988), to support his
argument that retaliation for past action is not a “violent felony.” There, the Ninth Circuit looked
at a California statute that made it a crime to prevent or dissuade a witness from testifying by force
or threats against a person or property. Id. at 1010. The court held that “the use of force against
persons ‘presents a serious potential risk of physical injury to another,’ and . . . the threat of force
does also . . . .” Id. However, the court found the other prohibited conduct akin to lesser property
offenses and, moreover, that the statute gave equal treatment to both types of offenses. Id. at 1011.
Thus, the court held that, overall, the statute did not present a serious risk of physical injury. Id.13
      Under the Tennessee statute, however, the prohibited conduct only involves threats or force
made against a person.14 Thus, under the appropriate reasoning set forth in Sherbondy, retaliation

         12
           The court distinguished United States v. Shannon, 110 F.3d 382 (7th Cir.1997)(en banc), its previous en banc
decision that found statutory rape of a 13 year old a “crime of violence” under § 4B1.2(a), “because the risk of sex to
13 year old girls is much greater than the risk to 16 year olds.” Thomas, 159 F.3d at 300 (citations omitted).
         13
            Sawyers argues that Sherbondy requires that the crime have an element of force in order to be classified as
a “violent felony.” However, this is an incomplete reading. The Sherbondy court did determine that the crime did not
have an element of force. However, it then went on to determine if the crime fell within the otherwise clause.
         14
             In addition, the Tennessee courts have applied the statute only to situations where physical harm was
threatened. See State v. Brown, 2003 WL 21673667 (Tenn. Crim. App. 2003)(unpublished disposition)(threatening the
life of victim); State v. England, 2003 WL 1877234 (Tenn. Crim. App. 2003)(unpublished disposition)(same); State v.
Lanier, 81 S.W.3d 776 (Tenn. Crim. App. 2000)(threatening to shoot a judge); State v. Wilson, 1999 WL 233553 (Tenn.
Crim. App. 1999)(unpublished disposition)(threatening people with gun); State v. Littleton, 1996 WL 377086 (Tenn.
No. 02-5835               United States v. Sawyers                                                             Page 10


for past action presents a “serious potential risk of physical injury” and is, categorically, a “violent
felony.”
IV.      Sentencing Guidelines
         Sawyers first argues that, pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004) the
United States Sentencing Guidelines are invalid. After the parties’ briefs were filed, the Supreme
Court decided United States v. Booker, 125 S.Ct. 738 (2005). Pursuant to the holding of Booker,
district courts’ analyses under the guidelines have changed in that they are no longer mandatory.
Id. at 756-57. However, they have not, as Sawyers contends, been rendered completely invalid.15
This Court has nonetheless found that a district court commits plain error by treating the guidelines
as mandatory. See, e.g., United States v. Barnett, 398 F.3d 516, 525-30 (6th Cir. 2005).16 Here,
Sawyers's sentence has been vacated for the district court to reexamine the applicability of the
ACCA. On remand, the district court can also address the sentencing guidelines in light of Booker
and the subsequent rulings of this Court.
V.       Conclusion
    For the reasons stated above, Sawyers’s conviction is AFFIRMED, his sentence is
VACATED, and the case is REMANDED for further consideration.




Crim. App. 1996)(unpublished disposition)(threatening the life of victim); State v. Phipps, 1996 WL 111341 (Tenn.
Crim. App. 1996)(unpublished disposition)(threatening to physically harm victim); State v. Lindsey, 1995 WL 544016
(Tenn. Crim. App. 1995)(unpublished disposition)(threatening to shoot victim); State v. Manning, 909 S.W.2d 11 (Tenn.
Crim. App. 1995)(same).
         15
            In addition, the Court notes that sentencing under the ACCA was not rendered invalid by Booker. United
States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005).
         16
           “Plain error” is the proper standard when a defendant raises the objection for the first time on appeal, as is
the case here. United States v. Oliver, 397 F.3d 369, 375 (6th Cir. 2005).
