                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2214
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
James A. Mincks,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 17, 2005
                                Filed: June 1, 2005
                                 ___________

Before RILEY, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       James A. Mincks (Mincks) pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After finding Mincks’s
prior Missouri convictions for two second-degree burglaries and for second-degree
statutory rape and second-degree statutory sodomy constituted violent felonies, the
district court1 sentenced Mincks to 180 months’ imprisonment, the mandatory
minimum under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
Mincks appeals his sentence, contending the district court (1) erred in classifying

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
Mincks’s prior Missouri convictions for second-degree statutory rape and second-
degree statutory sodomy as violent felonies, and (2) violated Mincks’s Sixth
Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004), by failing
to require a jury to decide beyond a reasonable doubt whether his prior convictions
were violent felonies. We affirm.

I.     BACKGROUND
       After Mincks pled guilty to being a felon in possession of a firearm, the United
States Probation Office prepared a presentence investigation report (PSR). The PSR
reported Mincks had two prior Missouri convictions for second-degree burglary,2 as
well as Missouri convictions for second-degree statutory rape and second-degree
statutory sodomy (statutory sexual offenses).3 The PSR concluded each of these
offenses constituted violent felonies. Because Mincks had three prior convictions for
violent felonies, the PSR recommended classifying Mincks as an armed career
criminal under the ACCA.

       Mincks objected to the PSR’s recommendation to the extent his statutory
sexual offenses were considered violent felonies. Over Mincks’s objection, the
district court decided Mincks’s statutory sexual offenses were violent felonies for
purposes of the ACCA, and applied the armed career criminal sentencing
enhancement under United States Sentencing Guideline (U.S.S.G.) § 4B1.4.



      2
       The PSR also reported Mincks had other adult convictions from 1987 to 1994,
including resisting arrest, driving while intoxicated, driving with excessive blood
alcohol content, driving while his license was revoked, possession of an open alcohol
container in a vehicle, failure to appear in court, and leaving the scene of a motor
vehicle accident. Since 1994, Mincks has spent a substantial part of his time in
custody.
      3
       The PSR indicated Missouri court records reflect Mincks, at age 32, and
another man had sexual and oral intercourse with a sixteen-year old.

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       On appeal, Mincks concedes his burglary convictions qualify as violent
felonies under the ACCA. However, he contends his statutory sexual offenses are not
violent felonies, because the elements of the crimes do not include physical force or
threats of force, and because “[s]tatutory sexual offenses are not, inherently, the type
of offenses that present a serious risk of harm to others.” Mincks also argues the
district court violated his constitutional rights by failing to submit to a jury the
question of whether his prior statutory sexual offenses qualify as violent felonies.

II.    DISCUSSION
       A.     ACCA Violent Felonies
       We first consider whether the district court erred in enhancing Mincks’s
sentence under the ACCA based on his prior statutory sexual offenses. Mincks
maintains these prior convictions are not violent felonies, because (1) neither of the
Missouri statutes under which Mincks was convicted requires physical force or
threats of force, and (2) the statutory sexual offenses do not present serious risks of
harm to others.

        We review de novo whether a prior offense constitutes a violent felony under
the ACCA. United States v. Childs, 403 F.3d 970, 971 (8th Cir. 2005). The ACCA
imposes a mandatory minimum fifteen-year sentence for a defendant who (1) is
convicted of being a felon in possession of a firearm, and (2) has three prior violent
felony convictions. 18 U.S.C. § 924(e)(1). A violent felony under the ACCA
includes “any crime punishable by imprisonment for a term exceeding one year, . . .
that . . . involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B)(ii).

      In determining whether a prior offense is a violent felony for purposes of
sentence enhancement under the ACCA, the Supreme Court has adopted “a formal
categorical approach, looking only to the statutory definitions of the prior offenses,
and not to the particular facts underlying those convictions.” Taylor v. United States,

                                          -3-
495 U.S. 575, 600 (1990). Accordingly, we look to the Missouri statutes which
Mincks violated. In Missouri, a person commits second-degree statutory rape “if
being twenty-one years of age or older, he has sexual intercourse with another person
who is less than seventeen years of age.” Mo. Rev. Stat. § 566.034(1). A person
commits second-degree statutory sodomy “if being twenty-one years of age or older,
he has deviate sexual intercourse with another person who is less than seventeen
years of age.” Mo. Rev. Stat. § 566.064(1).

        Even though physical force, or the threatened use of such force, is not an
element of second-degree statutory rape or sodomy under Missouri law, we conclude
categorically that the statutory sexual offenses present a serious potential risk of
physical injury to another, because “this type of contact between parties of differing
physical and emotional maturity carries ‘a substantial risk that physical force . . . may
be used in the course of committing the offense.’” United States v. Alas-Castro, 184
F.3d 812, 813 (8th Cir. 1999) (per curiam) (quoting 18 U.S.C. § 16(b)) (holding
sexual assault of a child is a crime of violence under 18 U.S.C. § 16(b)); United States
v. Bauer, 990 F.2d 373, 374-75 (8th Cir. 1993) (per curiam) (holding statutory rape
is a crime of violence under U.S.S.G. § 4B1.2, which uses the same language as the
ACCA, notwithstanding the fact that sexual intercourse may have been consensual);
United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992) (holding offense of
lascivious acts with a child, by its nature, poses a substantial risk of physical force,
and, therefore, is a crime of violence under 18 U.S.C. § 16(b)). Whether physical
injury is intended when an adult engages in sexual intercourse or sodomy with a
minor, physical injury is a serious potential risk arising from either of the assaults,
and is logically foreseeable. We conclude the district court correctly determined
Mincks’s second-degree statutory rape and second-degree statutory sodomy
convictions constitute violent felonies for purposes of sentence enhancement under
the ACCA. Thus, the district court correctly sentenced Mincks to the mandatory
minimum under the ACCA.



                                          -4-
       B.    Sixth Amendment Rights
       Citing Blakely, Mincks next argues the district court violated his Sixth
Amendment rights by enhancing his sentence under the ACCA without a jury
determination that his statutory sexual offenses were violent felonies. In Blakely, the
Supreme Court held the State of Washington’s sentencing system was
unconstitutional. See Blakely, 124 S. Ct. at 2537-38. In United States v. Booker, 125
S. Ct. 738, 756 (2005), the Court extended Blakely to the mandatory Federal
Sentencing Guidelines, holding the Sixth Amendment requires “[a]ny fact (other than
a prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” The
Supreme Court severed two provisions of the Sentencing Reform Act of 1984, 18
U.S.C. § 3553(b)(1) and § 3742(e), effectively creating an advisory Guidelines
system. Id. at 765. Sentencing judges still take account of the Guidelines together
with 18 U.S.C. § 3553(a) goals. Id. at 764-66. See United States v. Pirani, 406 F.3d
543, 548 (8th Cir. 2005) (en banc).

       In United States v. Nolan, 397 F.3d 665, 667 n.2 (8th Cir. 2005), we stated,
“the fact of a prior conviction is for the court to determine, not a jury.” Similarly,
whether the prior conviction is a violent felony under the ACCA is distinctly a
question of law for the court, not a jury. Therefore, we conclude Mincks’s sentence
does not invoke a Blakely or Booker error.

III.   CONCLUSION
       We therefore affirm Mincks’s sentence.
                       ______________________________




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