                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               APR 1 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                            No. 98-2065
 v.
                                                      (D.C. No. CR-97-420)
                                                     (District of New Mexico)
 DANIEL NATHAN STARR,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Daniel Nathan Starr appeals his jury conviction for aggravated sexual abuse

in violation of 18 U.S.C. §§ 2241(a) and 2246(2). This court has jurisdiction

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

      On June 24, 1997, appellant and the victim, residents of the Mescalero

Apache Reservation in New Mexico, attended an outdoor party at the

reservation’s feast grounds. Appellant took the victim to a wooded area near the



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
party where he hit her, slashed her face and finger with broken glass, forced her

to perform oral sex, and forcibly penetrated her genitalia with his fingers. The

victim escaped to a nearby road after appellant passed out, and she was picked up

and taken to the reservation medical clinic by a passing motorist. As a result of

the assault, the victim sustained injuries including a lacerated face, a deep cut to

her ring finger, bruises, and a broken ankle. Appellant was convicted of four

counts of assault and aggravated sexual abuse by a jury and sentenced to twenty

years in prison.

       Appellant raises three claims on appeal. He argues that his conviction

should be reversed because 18 U.S.C. § 2241(a) is unconstitutionally overbroad

and underbroad resulting in a denial of his due process rights. 1 He also claims

that 18 U.S.C. § 2241(a) is unconstitutionally vague, resulting in a denial of due

process. Finally, he asserts that his trial counsel rendered constitutionally

ineffective assistance by failing to object to the constitutionality of § 2241(a) and

by failing to request a jury instruction regarding lack of consent. We examine

these arguments in turn.


       1
          Appellant’s argument that the statute is unconstitutionally underbroad is wholly
without merit. Appellant himself devotes only one sentence to this argument, claiming
that the statute fails because “a person who did not consent to a sexual act, but who was
not forced or threatened . . . has no recourse against their assailant.” Appellant’s Br. at
20. Even if appellant’s claim were true, exclusion of such a crime would not render the
statute unconstitutional. See United States v. Ransom, 942 F.2d 775, 777-78 (10th Cir.
1991).

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                                          I

      Given appellant’s conceded failure to raise his constitutional challenges to

18 U.S.C. § 2241(a) before the district court, the court reviews this matter for

plain error. See Fed. R. Crim. P. 52(b); United States v. Orr, 864 F.2d 1505,

1508-09 (10th Cir. 1988). Plain error is error that “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 732 (1993) (citation omitted).

      To determine whether a statute is unconstitutionally overbroad, we consider

“whether the enactment reaches a substantial amount of constitutionally protected

conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982). “If it does not, then the overbreadth challenge must fail.”

Id.

      To determine whether a statute is void for vagueness, we consider whether

the statute provides a defendant with fair warning of the particular conduct that it

prohibits. See United States v. Walker, 137 F.3d 1217, 1219 (10th Cir. 1998).

The statute must define the prohibited conduct with sufficient specificity so that

ordinary people can understand the law’s requirements and so the law does not

encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson,

461 U.S. 352, 357 (1983). Where a vagueness challenge does not implicate the

First Amendment, we review the statutory challenge only with respect to the


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particular conduct charged. See Flipside, 455 U.S. at 495 n.7 (citations omitted);

Walker, 137 F.3d at 1219. “A plaintiff who engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others.” Flipside, 455 U.S. at 495.

      The statutory language at issue in this case provides as follows:

      § 2241. Aggravated sexual abuse

      (a) By force or threat.—Whoseoever, in the special maritime
      and territorial jurisdiction of the United States or in a Federal
      prison, knowingly causes another person to engage in a sexual
      act—

      (1) by using force against that other person;

      or attempts to do so, shall be fined under this title, imprisoned for
      any term of years or life, or both.

18 U.S.C. § 2241. Forcible fellatio and forcible penetration of the genitalia by

the hand or finger of another constitute “sexual acts” under the statute. See 18

U.S.C. § 2246(2).

                                          II

      We reject appellant’s contention that 18 U.S.C. § 2241(a) is overly broad.

Appellant argues that § 2241(a) is unconstitutional because absent a lack-of-

consent element, it prohibits all violent sex, even consensual violent sex. We

must consider, as an initial matter, whether the statute reaches a substantial

amount of constitutionally protected conduct. See Flipside, 455 U.S. at 494-95.


                                         -4-
We conclude that it does not; the statute prohibits sexual abuse and rape. There is

no support for the theory that such conduct is protected by the Constitution. Even

assuming the right to engage in sexual relations is constitutionally protected,

appellant has no right to engage in sexual assault. That is what the statute

prohibits, and that is what the record indicates occurred in this case.

      Moreover, the statute is not constitutionally infirm because it contains no

explicit lack-of-consent element. “[T]he legislature has wide latitude to declare

what constitutes an offense against society and to define the elements that

constitute such an offense.” Ransom, 942 F.2d at 776. The statute’s requirement

of force or threat of force is sufficient to exclude from its ambit constitutionally

protected conduct.

                                          III

      We also reject appellant’s assertion that this statute is unconstitutionally

vague. Here, again, appellant points to the absence of a “lack of consent”

element in the statute in support of his claim. Appellant argues that the absence

of this element deprives citizens of sufficient guidance regarding the prohibited

conduct and will lead to arbitrary and discriminatory enforcement of the statute.

This argument, too, lacks merit. Assessing the statute in light of its application to

this case, see Flipside, 455 U.S. at 495 n.7 (citations omitted), it is clear that the

statute adequately informed appellant that the conduct at issue here was illegal,


                                          -5-
and provided sufficient guidance for law enforcement officers. See Walker, 137

F.3d at 1219.

                                          IV

      Finally, we reject appellant’s claim that he was denied constitutionally

effective assistance of counsel based on counsel’s failure to challenge the

constitutionality of 18 U.S.C. § 2241(a) and failure to request a jury instruction

on the element of “lack of consent.” “Ineffective assistance of counsel claims

should be brought in collateral proceedings, not on direct appeal. Such claims

brought on direct appeal are presumptively dismissible, and virtually all will be

dismissed.” See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)

(en banc). This principle is intended to permit development of the factual record

by the district court and to give this court the benefit of the district court’s views.

See id. Accordingly, we DISMISS appellant’s ineffective assistance of counsel

claims without prejudice.

      AFFIRMED.


                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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