
USCA1 Opinion

	




                                                                           ____________________          No. 96-2123                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                KENNETH LEON MEADER,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                            Coffin, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                ____________________               David                     M.                        Sanders, by Appointment of the Court, for appellant.               Margaret                        D.                           McGaughey, Assistant United States Attorney, with          whom               Jay                   P.                      McCloskey, United States Attorney, and Gail F. Malone,          Assistant United States Attorney, were on brief for appellee.                                ____________________                                    July 11, 1997                                 ___________________               COFFIN, Senior Circuit Judge.  Appellant Kenneth Leon Meader          was convicted on all  three counts of an indictment charging  him          with distributing cocaine,  using a firearm in connection with  a          drug trafficking  crime,  and being  a felon-in-possession  of  a          firearm.                                       He                      essentially                                  raises two claims on appeal, one involving          possible juror bias and the other concerning his sentencing as  a          career criminal  based on prior  convictions for unlawful  sexual          contact and intercourse with  a minor.  After careful review,  we          affirm.                                I. Factual Background               The                   facts                         of                           the                               crime                                     are largely irrelevant to the issues we          face               on                  appeal, and we therefore do not recite them in any detail.          It suffices to say that,  viewing the evidence in the light  most          favorable  to the  prosecution, the  jury could  have found  that          appellant                    abducted                            the                                mother of his young son at gunpoint from her          parents'                   home,                         took                             her                                 to the house they had shared, forced her to          ingest                 cocaine and sleeping pills, and assaulted her sexually.  He          eventually released her, and surrendered to authorities.                 The jury returned its guilty verdicts on March 27, 1996.  On          April 19, defense counsel advised the court that he had  received          information about a  juror that suggested  that she possibly  was          biased.  A defense  witness, Decato, had spoken with the  juror's          son,  who reported  that  his mother  had  a history  of  abusive          relationships and consequently  was "dead  set against"  domestic          abusers.                                       The                       son                           also                                told Decato that once his mother made up her          mind she would not change it.                                         -2-               Before trial,  Meader had submitted  six proposed voir  dire          questions, four of which pertained to domestic abuse.1  The court          reframed them into a single question:               There                     may                         be                            evidence in this case concerning a domestic               relationship  in which  physical  force  or  abuse  was               involved or threatened.   Does any member of the  panel               have personal views or personal experiences that  would               prevent you from deciding this type of case fairly  and               impartially?          No juror responded.               In                  a                    conference with counsel following revelation of Decato's          conversation, the district court  identified two issues: did  the          juror                prejudge the case, and did she answer the voir dire question          falsely?                                       Attempting to adhere to First Circuit authority strongly          disfavoring direct  contact  with jurors,  see United  States  v.          Kepreos                ,                   759                      F.2d                           961,                                967 (1st Cir. 1985), the court determined to          hear testimony first from Decato, then from the juror's son, and,          only               if                  questions remained, from the juror.  Further reflection by          both               court                     and                        counsel                                following Decato's testimony and a review of          the voir  dire transcript  led, however,  to a  decision to  hear          directly from the juror rather than her son.                1  The four questions  proposed by Meader  on the issue  of          domestic violence were as follows:               1. Have you been involved in a domestic relationship in               which physical force or abuse was involved?               2. Has  a relative  of yours,  or a  close friend  been               involved in a  domestic relationship in which  physical               force was used, or was claimed to have been used?               3. Have you been involved in a domestic relationship in               which                     the                         threat                               of                                  physical force or abuse was involved?               4. Has  a relative  of yours,  or a  close friend  been               involved in a domestic relationship in which the threat               of physical force or abuse was used, or claimed to have               been used?                                         -3-               The                   juror,                          Sandra Petersen, was questioned by the court in an          informal session.   Both counsel were  present and had  submitted          proposed                   questions, but they were asked to remain at the periphery          of the proceeding  "to maintain a certain level of  informality."          Juror Petersen  acknowledged that  she had  been emotionally  and          verbally abused  by an  ex-husband,  and that  her son  had  been          physically abused by the same man.  She further acknowledged that          she does not  like abusers, but  emphatically rejected her  son's          suggestion to Decato that she had her mind made up about the case          before its conclusion.  She responded to the court's question  on          that point as follows:               What? No way.  No way.   He -- he must have  fabricated               that because no way.  No, I -- in fact, I told him that               it                  would                        take                            awhile                                   for                                       me to -- to come to the decision               because                       it's                            a                             man's                                   life is what I said.  And that's the               way I feel about any case.  You know, I'm -- I've got a               man's life here in my hands.  There's no way I -- no.          In             response                      to                        her                            son's                                  comment that "my mother doesn't change her          mind once  it's set,"  she explained that  that was  the way  she          handled him -- "if I tell him this is it, that's all" -- and that          she viewed his statement as an attempt "to pump himself up,  make          himself look big" because his  mother was a juror for the  trial.          Asked                if                   her                       views had any impact on the trial, the juror replied:               I retarded everyone else in the deliberation because  I               had                   a                     life                          in my hand and I did not know, you know, if I               should go along with everybody else.  Everyone else was               going  towards guilty.   I was not.   Because I  waited               until,                      you                          know, I heard more about it and more evidence               and,                    you                        know, we deliberated before I finally said yes.          When the court asked if her experiences with her ex-husband          affected her attitude toward the trial, she answered:                                         -4-               It did in a way because  I had to really think out  the               case and say, you know,  is this -- you know, is  there               abuse here or  is it that  this man has  a -- a  mental               problem                       .                         .                           . I know a little bit about the psychic mind               and how it works.   And sometimes when you're under  an               awful                     lot                         of                           stress                                  you                                      will do things on the spur of the               moment.  But the other jurors made me see that this was               premeditated,                            he thought it out before he -- he actually               did the crime.          Additionally, when  asked  specifically whether  her  experiences          affected                   her                       fairness or impartiality, the juror replied: "I think          I was very  fair because I thought it all out . . . . I  wouldn't          make a judgment on someone unless I really thought something out.          And              I                wouldn't let my own personal feelings interfere in any way."          She repeated that sentiment when asked whether her personal views          made her more or less sympathetic to either the government or the          defense: "I went by  what was on the table .  . . . I put my  own          feelings aside."               Based on this inquiry, the court tentatively concluded  that          neither predisposition nor outside factors influenced the  jury's          verdict, but  also asked  for  briefs from  counsel.   The  court          rejected                   defense                          counsel's request that the court also question the          juror's son, noting the First Circuit's reluctance to probe  into          the jury process unless absolutely necessary.               On                  June                       14,                           1996, three weeks after the court's exchange with          the juror, Meader moved for a mistrial.  He claimed both that the          court                should                       have                           used                                his proposed voir dire questions, instead of          the court's modification, and that additional investigation  into          juror bias was necessary.                                         -5-               The                   district                            court denied the motion in a thoughtful ten-page          order,                 and                     we here provide only a summary of its contents.  First,          the court found  no suggestion of  prejudice, observing that  the          juror's answers -- which the court found "logical and believable"          -- "reveal that, if anything, she gave this defendant the benefit          of the doubt."   On Meader's claim  that his voir dire  questions          should  have been asked,  the court noted  that no objection  was          raised  to the  questions  actually  posed and  no  requests  for          additional questions were made at the time of the voir dire.  The          claim therefore was waived.  Responding to Meader's attack on the          adequacy of the investigation into bias, the court noted the need          to  avoid undue  intrusion into  jurors' lives,  and stated  that          testimony from the juror's son was unnecessary because the  court          had credited Decato's testimony about what the son told him, even          though Decato had reason to testify so as to make a mistrial more          likely.                 The court sentenced Meader to 120 months in prison on  Count          One (felon-in-possession), to be served concurrently with a  360-          month term  on Count Two (distribution  of cocaine).  A  60-month          consecutive term, as  required by statute, would follow on  Count          Three (use of firearm in drug trafficking crime).  The  penalties          reflected increases for  various specific characteristics of  the          offenses, including  the abduction of  the victim, commission  of          criminal                   sexual abuse, and use of force and threats of death.  The          penalty                  also                       reflected Meader's status as a career offender, based          on his having two prior convictions for drug or violent crimes.                                         -6-               On                  appeal,                          Meader challenges the district court's handling of          the voir dire and the allegations of juror bias, both relating to          the  domestic  abuse  issue.   He  also  claims  that  his  prior          convictions                      for                         statutory rape and unlawful sexual contact were not          crimes of violence and thus should not have been used to classify          him as a career offender.                    II. Domestic Abuse: Voir Dire and Juror Bias               A. Voir  Dire.  We  need not dwell  on the district  court's          failure                  to                     ask                        verbatim                                 Meader's proposed voir dire questions.  The          court had  no obligation  to ask  the questions  in the  specific          language                   proposed, see United States v. Victoria-Peguero, 920 F.2d          77, 84 (1st Cir. 1990), and counsel's acquiescence in the court's          reframed                   question means that any objection to that formulation was          not preserved for appeal.  See United States v. Walsh, 75 F.3d 1,          6 (1st Cir. 1996) ("[T]he usual rule is that an objection must be          made               known                     at                       the                           time                                that the court is making its decision to act          .            .              .                .").                                           Because the district court's inquiry -- asking whether          jurors could impartially judge a case involving domestic violence          -- directly  focused on  the  critical concern  of bias,  we  are          persuaded beyond any doubt that no plain error occurred.               In so  concluding, we  offer  no view  of the  substance  of          Meader's complaint.    He contends  that  the court's  voir  dire          question,                    allowing jurors who were exposed to domestic violence to          reveal their experiences  only if they  felt such exposure  would          impact their jury service, deprived him of the ability to use his          challenges                     effectively.  Although this position has some force, we                                         -7-          decline                  to                    consider                             whether, in other circumstances, the failure to          pose more discerning questions would be reversible error.               B. Juror Bias.  Meader also challenges the district  court's          approach and conclusion with respect to the possible bias of  one          juror.                                   He                    particularly                                 complains about the court's failure to hear          testimony from the juror's son and its prohibiting the  defendant          from               either                      directly contacting the son or sending an investigator          to             interview                       him.  Meader asserts that this limitation on the bias          inquiry prevented him  from effectively  challenging the  juror's          "self-serving statements  . . .  that she could  and did put  her          feelings about domestic abuse aside in deciding this case."               Our  caselaw holds  that  a  district court  is  obliged  to          investigate plausible allegations of improper influence on a jury          verdict, see,  e.g., Walsh,  75  F.3d at  6-7; United  States  v.          Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989), but that the  court          has              "broad                     discretion to determine the type of investigation which          must be mounted," United States v. Boylan, 898 F.2d 230, 258 (1st          Cir.  1990); see also  Walsh, 75 F.3d  at 7.   In this case,  the          court's process was a textbook model of conscientiousness, and so          far from  an abuse  of discretion that  it is  difficult to  take          Meader's complaint seriously.               The                   court                        promptly                                 conferred with counsel about how to proceed          when alerted to the possible juror taint, it ordered a transcript          of the jury selection process so that it could accurately  review          the new information in light of what previously had occurred,  it          heard  testimony from  the witness  who had  brought the  juror's                                         -8-          possible bias to the defendant's attention, and it discussed with          the parties how  best to proceed in  keeping with both the  First          Circuit's                    admonition                              against unnecessary juror contact and the need          to ferret  out the  juror's true  attitudes.   Indeed, the  court          overcame                   its                      reluctance                                 to question the juror directly in deference          to defendant's preference.               The  process of  questioning the  juror also  was marked  by          commendable attention to the various interests at stake.  So that          the  juror would  not  be unduly  alarmed  or prepare  ahead  for          questioning                      on the bias issue, she was asked to appear in court by          means of a  regular jury summons.   The attorneys were given  the          opportunity                      to submit questions to the court, but were kept on the          sidelines                    during                          the                              actual questioning to contain the formality of          the proceeding.  After completing the preliminary questions,  the          court excused the juror and consulted with counsel about possible          additional                     areas of inquiry.  Its rejection of defendant's request          to question the son as well, or to allow him to be  questioned by          investigators, was carefully  considered and  supportable.2   Its               2 On this point, the court wrote, in substantial part:                    First, I am crediting the account of Mr. Decato --               the defendant's employee, witness and boyfriend of  his               daughter                        --                           as to what the young man said to Mr. Decato.               . . . Second, now that I have interviewed the juror and               she is  fully aware that  her son is  the cause of  the               inquiry,  I am concerned  that to bring  her son in  by               subpoena                        or                           to                             send                                  an                                     FBI agent and private investigator               to interview him (as was proposed by the lawyers) would               unnecessarily  increase the  juror's  apprehension  and               concern that her son is now in trouble  notwithstanding               her explanation of  what took place.  Third, to  pursue               from her son things that the juror may or may not  have               said to him would be embarking on a fishing  expedition                                         -9-          substantial written  opinion  fully explained  the basis  of  its          conclusions.                 Nor  is  the   court's  finding  that  the  juror  was   not          prejudicially biased assailable.  The dialogue between the  court          and              the                  juror                       recounted                                 above reveals that the juror understood her          obligation to keep her  own subjective, though related,  feelings          outside of  the  deliberation process,  and  that, as  the  court          observed,  she gave  the defendant  "the benefit  of the  doubt."          Assessment of  the juror's credibility  as she  responded to  the          questioning is uniquely the domain of the district court, and, to          borrow  the government's  language, her  "clear, responsive,  and          forthright  responses  provided   ample  reason  to  credit   her          assertions."               Thus, we find no basis connected to the court's handling  of          the  domestic  abuse  issue upon  which  to  disturb  the  jury's          verdicts.3               contrary to the admonitions of the appellate courts  to               keep the jury process and the jurors themselves free of               unnecessary intrusions.  Finally, any interview I might               conduct of the son  now would clearly be preceded by  a               frank  and candid  discussion  between juror  and  son,               thereby making any such interview of limited value.          Order at 4-5.                                                                 3                                We                    find no merit in Meader's additional suggestion that the          jury as a whole engaged in misconduct by deliberating before  the          conclusion of all the evidence.  The district court's response to          this contention in  its Order was both adequate and  appropriate.          See Order at 9-10.                                        -10-                             III. Career Offender Status               Meader                      claims that the district court erred in sentencing him          as a career offender  under U.S.S.G. S 4B1.1, which provides  for          enhanced sentences if  a defendant's  criminal history  satisfies          three  criteria: (1) he was at least 18 years old at the time  he          committed the offense for  which he is being sentenced; (2)  that          offense                  is                     a                       felony that either constituted a crime of violence or          a            controlled                       substance offense; and (3) the defendant has at least          two prior  felony convictions for  either crimes  of violence  or          crimes involving controlled substances.  Meader concedes most  of          these requirements, including one of the two necessary "predicate          offenses."4   The only issue in  dispute is whether his  criminal          history includes a second such offense.               The                   district                            court                                 based                                       its finding of career offender status          on two  1988 Maine convictions  for statutory  rape and  unlawful          sexual                 contact                         with                             a                               child under the age of fourteen, finding that          they qualified as "crimes of violence" within the meaning of  the          guidelines.5  Meader contends that neither was properly  counted.          The issue is  one of law,  and our review  is therefore de  novo.          United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994).               4  Meader does not dispute that his 1982 conviction for  the          sale of narcotics constitutes such an offense.               5 At some points during the sentencing hearing, the district          court seemed to deal with the two offenses as one, and its "crime          of violence" determination seemed to apply only to the  statutory          rape conviction.   Whether or not the  court meant its ruling  to          include                  both                      convictions                                  does not matter for purposes of this case,          however, since only  one additional offense is needed to  trigger          career offender status.                                         -11-               A "crime of violence"  under the guidelines is any state  or          federal offense punishable by a year or more in prison 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 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.          U.S.S.G.  S  4B1.2(1).   Application  note  2  to  the  provision          elaborates on  the  meaning of  "crime  of violence"  by  listing          additional crimes that fall  within its scope, including  murder,          manslaughter, kidnapping, and forcible sex offenses.               Because neither of the two Maine sexual offenses includes as          an element the use or threat of physical force,6 it is undisputed          that in order to qualify  as "crimes of violence" they must  fall          under                the                    "otherwise" clause of S 4B1.2, and therefore be offenses          that present "a serious potential risk of physical injury."   The          district court, noting that the requisite risk is of any physical          injury, found that "there is a strong likelihood of some physical          injury,                  however minor the injury might be in the range of possible          physical injuries  that can  happen  to a  human body  in  sexual          intercourse                      with                          a                            13-year-old female."  The court drew support for          its              conclusion from a Maine Supreme Court case, State v. Rundlett,               6 The two offenses were denominated as  rape, Me. Rev. Stat.          Ann. tit. 17-A, S 252, and unlawful sexual contact, id. at S 255.          The conviction for rape required  the jury to find only that  the          defendant had engaged in sexual intercourse with another  person,          not his  spouse, who was  not yet fourteen.   The conviction  for          unlawful sexual  contact similarly  required a  finding that  the          defendant had subjected another person, not his spouse, to sexual          contact when that other person was not yet fourteen and he was at          least three years older.                                        -12-          391 A.2d 815 (1978), that linked passage of the state's statutory          rape provision to a concern about physical injury to young girls,          id.                    d medical literature on injuries caused to          young adolescent females by sexual intercourse with adult males.7          Thus, combining  its  own  perceptions with  this  precedent  and          supporting material,  the  district  court held  that  the  Maine          convictions triggered career offender status.               M                          at                 819,                     and                         that                              cite                eader                      takes                            issue                                 with                                      this finding on multiple fronts.   His          primary argument is that the district court failed to follow  the          well               established "categorical" approach for deciding the "crime of          violence"                    issue, see, e.g., Winter, 22 F.3d at 18, and that, if it          had,               its                   conclusion would have been different.  He emphasizes that          the  rape statute  embraces a  wide variety  of consensual  acts,          including                    those between two individuals who are both under the age          of  fourteen,   and   imposes  liability   without   culpability.          Consequently, he  asserts, many,  if not  most, circumstances  of          statutory rape  would not  involve a  likelihood of  the sort  of          accompanying violence  that was targeted  by the career  offender          guideline.  Therefore, viewed from a categorical perspective,  he          maintains                    that statutory rape under Maine law cannot be classified          as a crime of violence.                The sentencing court's inquiry is not as confined as  Meader          posits                 it                    to                       be.  Meader is correct that the standard approach for               7  Quoting from a 1977 article in a clinical obstetrics  and          gynecological journal, the Maine court reported: "'These injuries          are  most  frequently   minor  and  include  abrasions,   hymenal          transections, first-degree vaginal  tears, and perianal  tears.'"          State v. Rundlett, 391 A.2d 815, 819 (1978).                                        -13-          determining whether a particular crime fits within the "crime  of          violence" rubric is a generic one, in which inquiry is restricted          t           ory definitions of the prior offenses, without regard             the  particular facts underlying  them, see  Taylor v.  United          States, 495 U.S. 575, 600 (1990);8 Winter, 22 F.3d at 18;  United          States v.  DeJesus, 984  F.2d  21, 23  (1st Cir.  1993)  ("formal          categorical                      approach                               .                                .                                  . is the method of choice" for determining          "crime                 of                    violence").  Thus, in United States v. Doe, 960 F.2d 221          (1st Cir. 1992), we concluded that the crime of being a felon  in          possession of a firearm was  not a crime of violence despite  the           o             the                 statut          to          fact               that                    the defendant in that case possessed the gun while lying          in             wait                  for                      an enemy to come out of a restaurant.  This conclusion          was warranted  under the  formal categorical  approach, we  held,          because the conduct that typically constitutes firearm possession          (keeping  a gun in a  closet, a car, a  pocket) is not likely  to          include accompanying violence.  Id. at 224-25.               Application  Note 2  to  guideline section  4B1.2,  however,          explicitly                     identifies the defendant's charged conduct, rather than               8  Taylor involved the definition of a "violent felony"  for          purposes  of the Armed  Career Criminal Act  (ACCA), 18 U.S.C.  S          924(e), which we have noted is "the same in all material respects          as the definition  of a 'crime of  violence' for purposes of  the          sentencing guidelines' career offender provision."  United States          v.             Bell                ,                   966                       F.2d 703, 704 (1st Cir. 1992).  Given the similarity,          "authority interpreting  one  phrase frequently  is found  to  be          persuasive in  interpreting the other  phrase," United States  v.          Winter               ,                  22                    F.3d                         15,                             18                                n.3 (1st Cir. 1994).  See also United States          v.             Fiore                 ,                    983                       F.2d                            1,                               4                                 (1st Cir. 1992) (relying in career offender          context                  on                    interpretation of ACCA's "identically worded 'otherwise'          clause" because the two contexts represent "a distinction without          a            difference").                                                    Accord                                                                U                                 nited States v. Wood, 52 F.3d 272, 275 n.2          (9th Cir. 1995).                                        -14-          the general  offense category, as  the focus  of the  "otherwise"          c       See           o             "the                  conduct                         set                             forth  i.e., expressly charged) in the count of          which                the                    defendant was convicted").  The district court therefore          was explicitly authorized to review the charging papers.9               Meader's focus on a categorical analysis is not entirely off          the mark, however, because even when inquiry beyond the statutory          language is appropriate,  we have held  that the scrutiny  should          remain                 categorical                            rather than become fact-specific, see Winter, 22          F.3d at 19:               [T]he court  should not plunge  into the  details of  a               particular                          defendant's conduct, but, rather . . . should               merely assess the nature . . . of the . . . activity as               described in the indictment and fleshed out in the jury               instructions.            cord United States v.            lause.                                                               U.S.S.G. S 4B1.2, comment. (n.2) (directing attention          t                       (          Ac                      Wood,  52 F.3d 272, 275 (9th Cir.  1995).          This  is what  the district  court  did.   Using only  the  facts                                                                 9                                A                   second basis for looking beyond the statutory language is                   Taylor v. United States, 495 U.S. 575, 602 (1990), where          the              Supreme                      Court carved out a narrow exception to the categorical          found in           approach  for cases  in which  the statute  of conviction  covers          conduct                  both                       inside                             and                                 outside the "crime of violence" sphere.  In          such               instances,                         the                             sentencing court may look to the information or          indictment and jury instructions to ascertain whether the conduct          that was  the basis  for the  conviction constituted  a crime  of          violence.  See Winter, 22 F.3d  at 18; United States v. Doe,  960          F.2d 221,  224 (1st  Cir. 1992).   Here, for  example, where  the          statute                  of                     conviction covers a wide range of sexual crimes -- from          an adult's  violent rape  of  a child  to the  consensual  sexual          intercourse                      of                        two                            teenagers -- it was permissible under Taylor for          the  district  court  to review  the  charging  papers  and  jury          instructions to determine whether the jury in deciding to convict          "necessarily                       had                          to                             find" force, see Taylor, 495 U.S. at 602, which          would bring the conviction directly within the list of qualifying          crimes contained in the Application Note.  See U.S.S.G. S  4B1.2,          comment.                   (n.2)                        (identifying "forcible sexual offenses" as crimes of          violence).  There was, however, no allegation in the  indictment,          and thus no jury finding, of force.                                        -15-          contained                    in                       the indictment, the court identified the issue before          it as "whether  sexual intercourse with  a 13-year-old female  or          sexual touching of a 13-year-old female by a 36-year-old male . .          . 'by its nature  presented a serious potential risk of  physical          injury' to the 13-year-old female."               This                    careful                            articulation of the question provides the target          for Meader's second-tier assault on the court's methodology.   He          argues                 that,                       assuming the court acted properly in referring at all          to the indictment, it was improper to rely on factors as specific          as the  victim's gender  and the  age disparity  between the  two          individuals.                                               He                          points                                 out that the statute is gender neutral, and          that the specific age difference was irrelevant to the conviction          (beyond                  the                     three-year                                gap required by the sexual contact offense).          Focusing                   too                       narrowly, Meader contends, will inject disparity back          into  the sentencing  procedure,  undermining  the  rationale  of          consistency that supports the categorical approach.               In Meader's view, therefore,  once scrutiny of the  charging          papers revealed  no allegation of  force, a categorical  analysis          required the conclusion  that this conviction  was not a  violent          crime within the meaning  of the Guidelines.  He emphasizes  that          this result  is  consistent with  the  intent of  the  Sentencing          Commission,                      which                           listed                                  sexual offenses as crimes of violence only          when               they                    were "forcible."  See supra at 12.  Indeed, he maintains          that               using                     a                       conviction for underage sexual relations without that          requirement "runs contrary to  the stated purpose of the act,  to          focus law enforcement efforts on 'those who commit a large number                                        -16-          of  fairly  serious  crimes  as  their  means  of   livelihood.'          Appellant's Brief at 45 (citing       , 495 U.S. at 587).                e                  do                     not                        accept                               the                                   prop                                                                          "                                          Taylor               W                      osition that the guidelines permit no          more refined scrutiny than an examination of whether the charging          documents                    (or jury instructions) include an explicit allegation of          force.                                   The                      question for the sentencing court here was whether the          defendant's conduct,  by  its nature,  posed  a serious  risk  of          physical injury.   Although the use  of force in virtually  every          instance could be expected to create a serious risk of injury, it          is not the only way in which the guideline standard could be met.          The age of the girl and the chronological gap between her and the          defendant were crucial facts that framed the nature of the crime,          and were relevant to the question of injury.10               Other circuits  have treated the  issue in similar  fashion,          linking                  their determinations that sexual contact with a minor is a          crime of violence to the specific age of the victim.  See,  e.g.,          United                 States v. Shannon, 110 F.3d 382, 388-89 (7th Cir. 1997) (en          banc) (limiting holding to thirteen-year-olds and younger, though          statute                  applied                         to                            persons under the age of sixteen); Wood, 52 F.3d          at 275  (accepting  government argument  that "anytime  an  adult          engages in sexual  contact with a four  year old child, there  is               10 We recognize that the specific age disparity is stated in          the unlawful sexual contact count, not in the rape count.  Since,          however, the court clearly  had justification in considering  the          disparity in the sexual contact count and the jury found guilt on          both               counts,                       our                          inquiry                                  need reach no farther.  Moreover, it would          be  excessively artificial  to require  a court  to overlook  the          indictment information  relating to  one count  which so  clearly          increases its understanding  of the nature of the statutory  rape          charged in the other count.                                        -17-          always                 a                  serious                          potential risk of physical injury"); United States              Rodriguez                                                                    11          license to focus at that level of particularity seems inherent in          the              sentencing                        court's                                authority to evaluate the conduct "expressly          charged."                  Having                      approved the district court's procedure, we can easily          endorse                  its                      conclusion.  If commonsense is inadequate to establish          that there is a strong likelihood of some physical injury when  a          thirteen-year-old girl has sexual  intercourse with a man  nearly          three times  her age, the medical  literature cited by the  Maine          Supreme Court substantiating that view completes the support.12               11 Rodriguez involved enhanced punishment for illegal  entr          v.           , 979  F.2d  138,  140 (8th  Cir.  1992)  (involving          lascivious acts with children "of the tender age of ten").    The                         into the United States by a deported alien who had been convicted          o                      ence that are defined somewhat differently                                                                          y           f             certain                     crimes                           of                              viol          from  the  career  offender  context;  rather  than  involving  a          substantial risk of physical injury, a crime of violence in  this          immigration setting must involve  a substantial risk of  physical          force.  See U.S.S.G. S 2L1.2(b)(2) & 18 U.S.C. S 16.                                                                 12                                  We                     find unpersuasive Meader's argument that the Sentencing          Commission could not have intended convictions for statutory rape          to  trigger career offender  status, if they  did not involve  an          element                  of                     force, because they do not reflect the sort of longterm          commitment                     to                        crime                             that                                  the career offender guideline was designed          to punish.   See generally Taylor,  495 U.S. at 587  (enhancement          provision in ACCA focused on "those who commit a large number  of          fairly serious crimes as their means of livelihood").  First, the          language of the "otherwise" clause is broadly written, presumably          to ensure capture of any crime posing a serious risk of  physical          injury.   Second, a criminal  history that  satisfies the  career          offender requirements  by means of  any crime  serious enough  to          possibly                   cause                         injury                               to                                  a person is not, in our view, inconsistent          with the objective of the guideline to punish more heavily  those          who commit serious  crimes and also  have a significant  criminal          history.                                         -18-               We                  recognize                            in so deciding that we have bypassed a number of          troubling                    and                       complex                               iss          the conduct charged -- could be classified as a crime of violence          the                                                             e          considered to pose a "serious potential risk of physical  injury"          for              a                minor.13                                                                       Indeed,                                 even determining what is meant by "physical          injury" is  a task fraught with  complexity, as evidenced by  the          contrasting views of  the Seventh Circuit judges in Shannon,  110          F.3d at 388-90.14               These are  issues that we  believe courts, and  particularly                                                                          s          appeals courts, have  neither the expertise nor the authority  to                                                ues that would need to be addressed before           tatutory                    rape                         at                           its                               mos                       i.e., regardless of          for federal sentencing purposes.  Perhaps foremost among them  i              standard age below which sexual intercourse typically may  b               13          s                      t categorical level --                     If statutory rape is to be classified generically as  a          crime  of  violence  for  purposes  of  the  federal   sentencing          guidelines,                      the                         actionable age should be the same regardless of the          state in which the crime occurred.  Yet, in a recent decision  on          whether to  classify statutory rape as  a crime of violence,  the          Seventh                  Circuit, sitting en banc, reported that states vary widely          in setting  the age  above which  sex with  a minor  is not  made          felonious,                     in                       the                           absence of aggravating circumstances.  See United          States                                v.                    Shannon                         ,                            110                                F.3d 382, 386 (7th Cir. 1997) (en banc).  In          Illinois, for example, the age is seventeen; in Wisconsin, it  is          sixteen; in Pennsylvania, it is thirteen.  Moreover, not all such          statutes                   are                       justified by the risk of physical injury.  Id.  As we          indicate  below,  these inconsistencies  call  for  action  at  a          policymaking level.                               14 In holding that the sexual assault by an almost eighteen-          year-old against  an  almost  fourteen-year-old was  a  crime  of          violence, the majority of the en banc court focused primarily  on          the  risk of  pregnancy or  disease.   110  F.3d at  388.   In  a          concurrence, Judge Manion, joined by Judge Kanne, stated his view          that               "the                    risk                        of                           physical injury referred to in the Guideline must          be  confined  to  the  act  of  intercourse,  not  the   possible          consequences                       that                           could                                 develop, such as pregnancy or disease." Id.          at 390.                                         -19-          resolve                  in                     the first instance,15                 of cases in this area, should be handled expeditiously  b                     Meader argues that, in the meantime, we should  invoke                      courts deciding that sexual offenses involving minors                                          and that, in light of the growing          number                                                          y          the Sentencing Commission and Congress.  Accord Shannon, 110 F.3d          at 389.16                                                                                     Some                                         be classified  as crimes  of violence  have framed  their          holdings broadly, however, notwithstanding the lack of supporting          data.     , e.g., United States v. Velazquez-Overa, 100 F.3d 418,          422 (5th Cir. 1996) (Texas offense of sexual contact with a child          under 17 is a crime of violence within the meaning of 18 U.S.C. S          16); United States v.  Reyes-Castro, 13 F.3d 377, 379 (10th  Cir.          should              15                 See          1993) (holding that sexual abuse of a child is crime of  violence          within meaning of  18 U.S.C. S 16  because "when an older  person          attempts                   to                     sexually                              touch a child under the age of fourteen, there          is always a substantial risk that physical force will be used  to          ensure the child's compliance"); United States v. Bauer, 990 F.2d          373, 375  (8th Cir. 1993)  (per curiam)  (holding generally  that          sexual intercourse  with a female  child under 16  is a crime  of          violence).  It should be noted that the first two cases  involved          the              definition of "crime of violence" contained in 18 U.S.C. S 16,          focusing                   on                      the                         risk                              of                                 physical force rather than physical injury.          The third case, Bauer, is  a brief per curiam that relied  almost          entirely                   on                      the                         Eighth                                Circuit's earlier decision in Rodriguez, 979          F.2d  at 140,  which was  more circumscribed  (question of  first          impression whether commission of lascivious acts with a child, in          the manner Rodriguez admits he committed the crime, qualifies  as          crime of violence).               Other  courts,  as  noted  earlier,  have  referred  to  the          defendant's specific conduct and/or focused on the minor's age in          reaching their conclusions.  See, e.g., United States v. Shannon,          110 F.3d 382, 389  (7th Cir. 1997) (en banc) (sexual  intercourse          with a 13-year-old  is a crime of violence; statute  criminalized          sexual contact or intercourse with child under 16); United States          v. Taylor,  98 F.3d  768,  773-74 (3d  Cir. 1996)  (holding  that          indecent exposure was crime of violence based on facts alleged in          indictment  showing  that  victim was  "forced  onto  a  bed  and          restrained while [defendant] commit[ted] a sexual act upon her");          Wood, 52 F.3d at 275 (sexual contact with a four-year-old  always          poses serious risk of violence).               16 In Shannon, the en banc Seventh Circuit, in reversing the          panel's 2-1 ruling that the district court had erred in enhancing          the              defendant's sentence based on a previous conviction for sexual          assault,                   recognized the difficulty of the issue and observed "[w]e          cannot                 be                    certain that we have gotten it right."  110 F.3d at 389.          The panel majority had  emphasized the fact that the prior  crime          involved  intercourse  between  two  teenagers,  the  17-year-old                                        -20-          the              rule                   of                     lenity                            to                               exclude his conviction from predicate offense                   It is unnecessary to do so.  Whatever the dividing  line          betw          status.              een sexual  offenses that constitute  crimes of violence  and          those that do not,  we are confident that the circumstances  here          fall well within the "crime of violence" category.                 We therefore hold that, because defendant's conviction under          Maine's                  statutory                           rape                                law involved conduct that created a "serious          potential risk  of  physical  injury to  another,"  that  offense          qualifies as  a crime of  violence under  the federal  sentencing          guidelines.  Meader thus having two such convictions, he properly          was sentenced as a career offender.               Affirmed.           defendant and a  13-year-old girl, and  stated that such  conduct          between                  two                      minors cannot automatically be deemed violent.  See 94          F.3d 1065, 1072 (7th Cir. 1996).                                        -21-
