              Case: 12-12033     Date Filed: 09/04/2013    Page: 1 of 8


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-12033
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:11-cr-00417-JHH-PWG-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

RICARDO TYWANE COOPER,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                (September 4, 2013)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Ricardo Tywane Cooper (“Cooper”) appeals his 60-month

sentence after pleading guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). First, Cooper argues that the district
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court plainly erred by not affording him an opportunity for allocution at

sentencing. The government concedes this error. Second, Cooper contends that

the district court improperly characterized his 2006 Washington state third-degree

rape conviction as a “crime of violence” under U.S.S.G. § 4B1.2, leading to an

incorrect base offense level of 20 under § 2K2.1(a)(4)(A). 1 We agree with the

district court that Washington’s third-degree rape statute is a “crime of violence”

under the sentencing guidelines, but we nonetheless vacate the sentence and

remand to provide Cooper an opportunity for allocution.

                                                 I.

       When a party fails to object to a district court’s ruling, we review for plain

error. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011).

       We review de novo whether Cooper’s prior conviction is a “crime of

violence” under the sentencing guidelines. United States v. Cortes-Salazar, 682

F.3d 953, 954 (11th Cir. 2012).

                                                II.

                                                A.

       The Federal Rules of Criminal Procedure require that the district court

“address the defendant personally in order to permit the defendant to speak or

       1
         Cooper also argues that the sentence-appeal waiver contained in his plea agreement is
not valid because the district court did not specifically discuss the sentence-appeal waiver at the
plea hearing. However, we need not reach this issue because, on appeal, the government does
not attempt to enforce its agreement with Cooper.
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present any information to mitigate [his] sentence.” FED. R. CRIM. P.

32(i)(4)(A)(ii). During the sentencing hearing, the district court failed to provide

Cooper an opportunity for allocution, but Cooper failed to object at the time the

sentence was imposed. On appeal, the government concedes the district court

plainly erred. [Appellee Br. at 6–7.] Accordingly, based on the government’s

confession of error, Cooper’s sentence must be vacated and this case remanded to

the district court to provide Cooper an opportunity for allocution.

                                          B.

      Under § 2K2.1(a)(4)(A), the base offense level for a violation of §

922(g)(1) is 20 if the defendant has a prior felony conviction for a “crime of

violence” as defined in § 4B1.2(a). Section 4B1.2(a) in turn defines “crime of

violence” as:

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

Id. Application Note 1 of the Commentary to § 4B1.2 further defines crimes of

violence as including “forcible sex offenses.” Id. § 4B1.2, cmt. n.1.




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       Third-degree rape under the statutory provision for which Cooper was

convicted occurs:

       when, under circumstances not constituting rape in the first or second
       degrees, such person engages in sexual intercourse with another
       person, not married to the perpetrator . . . [w]here the victim did not
       consent as defined in [WASH. REV. CODE §] 9A.44.010(7) [(1999)] to
       sexual intercourse with the perpetrator and such lack of consent was
       clearly expressed by the victim’s words or conduct[.]

WASH. REV. CODE § 9A.44.060(1)(a) (1999) (emphasis added).2 The district court

relied upon the residual clause of § 4B1.2(a)(2) and found that this provision of

Washington’s third-degree rape statute3 constitutes a crime of violence because the

crime was “conduct that presents a serious potential risk of physical injury to

another.” We agree.

           To fall within the residual clause, the commission of § 9A.44.060(1)(a)

must both ordinarily pose a serious potential risk of physical injury, and that injury

must be similar in kind and degree to the risk posed by the generic forms of

burglary of a dwelling, arson, extortion, or the use of explosives. See Begay v.

United States, 553 U.S. 137, 141–42, 128 S. Ct. 1581, 1584 (2008) (Armed Career

Criminal Act (“ACCA”) context); United States v. Owens, 672 F.3d 966, 968 (11th



       2
          “Consent,” in turn, “means that at the time of the act of sexual intercourse or sexual
contact[,] there are actual words or conduct indicating freely given agreement to have sexual
intercourse or sexual contact.” § 9A.44.010(7).
        3
          Under § 9A.44.060(1)(b), a person also commits third-degree rape “[w]here there is a
threat of substantial unlawful harm to property rights of the victim.” Subsection (b) is not at
issue in this case.
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Cir. 2012) (same). 4 “[W]e consider the offense as defined by the law, rather than

considering the facts of the specific violation.” United States v. Archer, 531 F.3d

1347, 1350 (11th Cir. 2008).

       On appeal, the government contends that it is clear from the face of §

9A.44.060(1)(a), 5 that Cooper’s third-degree rape conviction constitutes a crime

of violence because commission of the offense requires that the victim

unambiguously refuse consent to sexual intercourse. This, the government

contends, could “end in confrontation leading to violence,” Sykes v. United States,

-- U.S. --, 131 S. Ct. 2267, 2273 (2011) (describing the risk of danger in the

burglary context), because the perpetrator must overcome the victim’s resistance to

commit the crime. Such a risk is similar in kind and degree as burglary, the

government argues, and therefore, § 9A.44.060(1)(a) is a crime of violence within

the meaning of the residual clause.

       As a preliminary matter, we note that commission of this offense poses a

serious risk of physical injury. In the context of statutory rape, that is, crimes

where the victim may factually—though not legally—consent to sexual

intercourse, we have found that such crimes pose a serious risk of physical injury.


       4
          We have repeatedly recognized that the definition of “violent felony” under the ACCA
is virtually identical to the definition of “crime of violence” under § 4B1.2; thus, our holdings in
ACCA cases apply equally to § 4B1.2 cases. See, e.g., Archer, 531 F.3d at 1352.
        5
          In light of Descamps v. United States, -- U.S. --, 133 S. Ct. 2276 (2013), the
government has abandoned its argument that the specific facts of Cooper’s offense demonstrate
he committed a crime of violence.
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See United States v. Harris, 608 F.3d 1222, 1230 (11th Cir. 2010) (holding that

commission of rape under Florida’s statutory rape law poses risk of serious

physical injury); United States v. Ivory, 475 F.3d 1232, 1236–37 (11th Cir. 2007),

abrogated on other grounds by United States v. Owens, 672 F.3d 966, 971 (11th

Cir. 2012) (finding that commission of rape under Alabama’s statutory rape law

poses risk of serious physical injury). It follows, then, that engaging in sexual

intercourse with another person who has clearly expressed that he or she does not

consent to the act poses a serious risk of physical injury as well. Cf. United States

v. Riley, 183 F.3d 1155, 1158–59 (9th Cir. 1999) (holding that even where no

coercion or force is used to commit the crime of attempted simple rape, the offense

presented serious potential risk of injury because “the nature of this offense creates

an atmosphere that fosters the potential for physical confrontation”).

      We next turn to the question of whether this risk is similar in kind and

degree to the risk posed by the commission of burglary of a dwelling. Where, as

here, the state need not prove intent or knowledge, see State v. Elmore, 771 P.2d

1192, 1193 (Wash. Ct. App. 1989), Begay instructs that we ask whether the

conduct at issue in the statutory offense is “purposeful, violent[,] and aggressive,”

like the enumerated crimes of § 4B1.2(a)(2). 553 U.S. at 144–45, 128 S. Ct. at

1586. The Begay Court distinguished between the enumerated crimes in §

4B1.2(a)(2)—burglary, arson, extortion, and crimes involving the use of


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explosives—and crimes that impose strict liability and criminalize conduct “to

which the offender need not have had any criminal intent at all.” Id. at 145, 128 S.

Ct. at 1586–87. Based on this holding, we have held that while statutory rape

poses a risk of serious injury, the crime is not a crime of violence under § 4B1.2 or

a violent felony under the ACCA because the crime is a strict liability offense.

Owens, 672 F.3d at 972; Harris, 608 F.3d at 1232–33. Therefore, commission of

the offense does not typically involve purposeful, violent, or aggressive conduct.

Indeed, an unknowing perpetrator may be liable though the victim has factually

consented to the act.

      But the Washington statute is different; it criminalizes sexual intercourse

with a victim who has clearly refused consent to the act—a significantly more

purposeful and potentially aggressive crime than statutory rape. And while

Washington’s third-degree rape statute, unlike its first and second degree statutes,

see §§ 9A.44.040(1), 9A.44.050(1)(a), does not require proof of force used to

overcome the victim’s resistance, there remains the serious potential risk that the

victim’s lack of consent escalates the encounter into a violent or aggressive one.




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       Therefore, we hold that § 9A.44.060(1)(a) is a crime of violence under §

4B1.2(a)(2), and thus, the district court correctly determined Cooper’s base offense

level was 20 under § 2K2.1(a)(4)(A).6

                                             III.

       Accordingly, based on the government’s confession of error, we vacate

Cooper’s sentence and remand with direction to resentence after providing Cooper

an opportunity for allocution. However, we affirm the district court’s finding that

Cooper’s base offense level is 20 under § 2K2.1(a)(4)(A) because he previously

committed a crime of violence under § 4B1.2(a)(2).

AFFIRMED in part, VACATED in part and REMANDED.




       6
         Because we conclude that a conviction under § 9A.44.060(1)(a) constitutes a crime of
violence within the meaning of § 4B1.2(a)(2)’s residual clause, we need not reach the
government’s alternative argument that the crime is a “forcible sexual offense” within the
meaning of Application Note 1 of Commentary to § 4B1.2.


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