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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-2386 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          GEORGE SACKO, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>           [Hon. Ernest C. Torres, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Coffin, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Mark J. Gardner, by appointment of the Court, for appellant. <br>    James H. Leavey, Assistant United States Attorney, with whom <br>Margaret E. Curran, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                         March 15, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  The defendant, George Sacko <br>("Sacko"), was arrested in December 1996, and charged with: (1) <br>possession of firearms by a convicted felon, and (2) possession of <br>a silencer by a convicted felon.  On July 8, 1997, Sacko pled <br>guilty to both counts.  The district court determined that Sacko <br>was an armed career criminal under 18 U.S.C.  924(e)(1) because of <br>three previous Rhode Island convictions for: (1) assault with a <br>dangerous weapon; (2) assault with intent to murder; and (3) <br>statutory rape or, as it is described under Rhode Island General <br>Laws, sexual assault in the third degree.  Sacko was sentenced, as <br>a level 31 Category VI offender, to 212 months imprisonment and <br>five years of supervised release to be served concurrently on each <br>count. <br>                            DISCUSSION <br>          The only issue before us is the propriety of the district <br>court's sentencing of Sacko as an armed career criminal by virtue <br>of his previous conviction for statutory rape under Rhode Island <br>law.  The Rhode Island statutory rape statute punishes a person <br>over the age of eighteen who engages in sexual penetration with <br>another person over the age of fourteen and under the age of <br>consent, which is sixteen years of age.  See  R.I. Gen. Laws  11- <br>37-6 (1989).  Under the Armed Career Criminal Act ("ACCA"), this <br>enhancement was only proper if Sacko's conviction was for a <br>"violent felony."  18 U.S.C.  924(e)(1).  The district court <br>determined that it was such a crime.  This issue is one of law, and <br>our review is de novo.  See United States v. Meader, 118 F.3d 876, <br>881 (1st Cir. 1997), cert. denied, 118 S. Ct. 729 (1998). <br>     Section 924(e)(2)(B) defines a "violent felony" as <br>follows: <br>     [T]he term "violent felony" means any crime <br>     punishable by imprisonment for a term <br>     exceeding one year . . . that <br> <br>     (i)  has as an element the use, attempted use, <br>     or threatened use of physical force against <br>     the person of another; or <br>     (ii) is burglary, arson, or extortion, <br>     involves use of explosives, or otherwise <br>     involves conduct that presents a serious <br>     potential risk of physical injury to another. <br> <br>     Under Taylor v. United States, 495 U.S. 575 (1990), <br>whether a predicate offense qualifies as a crime of violence <br>requires a "categorical" examination of the statutory crime.  <br>Taylor considered whether the defendant's predicate offenses <br>constituted "burglary" as defined in 18 U.S.C.  924(e), a <br>sentencing enhancement statute.  Taylor had been convicted of <br>"burglary" in Missouri at a time when Missouri had seven different <br>statutes under which a person could be charged for that crime.  The <br>Supreme Court held that, rather than examining the particular <br>circumstances of the crimes for which the defendant was convicted, <br>a sentencing court should look only to whether the statute of <br>conviction contained the elements of a "generic" burglary and <br>should not inquire whether the specific crime committed was <br>especially dangerous to others.  See Taylor, 495 U.S. at 598.  The <br>Court defined generic burglary as a crime that consists of: <br>"unlawful and unprivileged entry into, or remaining in, a building <br>or structure, with intent to commit a crime."  Id.  Taylor noted <br>that in some situations the statute of conviction may include <br>elements beyond those of a generic burglary (e.g., entry into <br>places other than buildings).  See id. at 599-600. <br>     To address that issue, and other problems of <br>interpretation of  924(e), sentencing courts should employ a <br>"formal categorical approach," and generally "look only to the fact <br>of conviction and the statutory definition of the prior offense."  <br>Id. at 602.  A sentencing court may go beyond the fact of <br>conviction in those cases where the statute encompasses both <br>violent felonies (e.g., generic burglary) and non-violent felonies <br>(e.g., burglary of a vehicle rather than of a building).  See id.  <br>In such a situation, the sentencing court may examine the <br>indictment or information and jury instructions in order to discern <br>which type of crime the offender was convicted of perpetrating.  <br>See id.  The Taylor Court remanded the case so that this <br>determination could be made with respect to Taylor's prior <br>convictions. <br>     After Taylor, our analysis of predicate offenses has <br>followed this categorical approach.  See United States v. Damon, <br>127 F.3d 139, 141-46 (1st Cir. 1997); Meader, 118 F.3d at 881-83 <br>("[T]he standard approach for determining whether a particular <br>crime fits within the 'crime of violence' rubric is a generic one, <br>in which inquiry is restricted to the statutory definitions of <br>prior offenses, without regard to the particular facts underlying <br>them.") (citations omitted); United States v. Winter, 22 F.3d 15, <br>18 (1st Cir. 1994);  United States v. De Jess, 984 F.2d 21, 23 <br>(1st Cir. 1993) ("[R]ather than examining the actual circumstances <br>underlying the earlier conviction, we examine only the statutory <br>formulation of the crime charged . . . to see if that crime is a <br>crime of  violence . . . ."). <br>     The Rhode Island statute, defining third degree sexual <br>assault as it applied in 1989 at the time of Sacko's conviction, is <br>as follows:  <br>     A "person" is guilty of third degree sexual <br>     assault if he or she is over the age of <br>     eighteen (18) years and engaged in sexual <br>     penetration with another person over the age <br>     of fourteen (14) years and under the age of <br>     consent, sixteen (16) years of age. <br> <br>     Because the Rhode Island statute does not include as an <br>element the use or threat of physical force, it is undisputed that <br>in order to qualify as a "violent felony," it must fall under the <br>"otherwise" clause of  924(e)(2)(B), and therefore be an offense <br>that presents "a serious potential risk of physical injury." The <br>district court, in determining the potential risk of physical <br>injury posed by statutory rape, made the following observations: <br>          So what the Court has to determine here is <br>     whether statutory rape presents a serious <br>     risk, serious potential risk of physical <br>     injury to another, and whether that risk is <br>     inherent in the usual type of conduct that <br>     constitutes the offense . . . . <br> <br>          What the Court has to look at here is what's <br>     the typical, usual type of conduct that makes <br>     up the offense of statutory rape.  And it <br>     seems to me, there were two paradigms here.  <br>     One category of usual conduct in statutory <br>     rape would be where the young woman or female <br>     consents in every sense of the word except the <br>     legal sense, since the law does not recognize <br>     the ability of a minor to consent to such <br>     activity.  But, but for that, it would be <br>     considered a consensual, mutually-consensual <br>     act on the part of the two participants, where <br>     the only reason that an offense is committed <br>     is the age of the woman, of the female. <br> <br>          The other model for statutory rape is one <br>     that is very similar to any other kind of <br>     rape, except that there has been no actual <br>     force used or threatened, but the activity <br>     cannot be characterized as consensual on the <br>     part of the victim and, therefore, because it <br>     is not consensual, it clearly presents a <br>     serious potential risk of physical injury <br>     because of the likelihood that if the victim <br>     resists, that force will be used and serious <br>     harm will result. <br> <br>          As best I can make out from the pre-sentence <br>     report here, the pre-sentence report indicates <br>     that the Defendant--the Defendant met the <br>     victim on the street, somehow induced her to <br>     go back to his apartment or his mother's <br>     house, I guess it was, and directed her to <br>     take off her clothes and then had sexual <br>     intercourse with her. Shortly thereafter, <br>     three males--three other males entered the <br>     room, the victim ran away and, obviously, <br>     reported the incident to the police. <br> <br>          So it seems clear that what happened in this <br>     case falls into the second category of <br>     offenses, and not the first.  And, therefore, <br>     I find that this is a violent felony within <br>     the meaning of the statute. <br> <br>Tr. 11/14/97 at 27-29. <br>     Sacko argues: (1) that the district court's approach was <br>a violation of the "categorical" approach, and (2) that the <br>determination that Sacko's conviction was for a "violent felony" <br>was in error. <br>     While the categorical approach frames our inquiry, as <br>with most any rule, there is an exception.  A basis for expanding <br>the inquiry beyond the cold words of the statute is found in <br>Taylor, where the Supreme Court carved out a narrow exception to <br>the categorical approach for cases in which the statute of <br>conviction covers conduct both inside and outside the "violent <br>felony" sphere.  In such instances, the sentencing court may look <br>to the information or indictment and jury instructions to ascertain <br>whether the conduct that was the basis for the conviction <br>constituted a violent felony.  See Meader, 118 F.3d at 882 n.9. <br>     Because statutory rape can encompass both violent and <br>non-violent conduct, it was permissible for the district court to <br>examine the indictment to learn that "George Sacko [age 21] . . . <br>did engage in sexual penetration, vaginal intercourse, with [Jane <br>Doe], age 14 . . . ."  The district court's investigation of the <br>circumstances of the crime should have ended there.  It was error <br>for the district court to delve into the facts of Sacko's crime as <br>described in the presentence report in order to determine whether <br>his conviction was for a violent or a non-violent crime.  SeeDamon, 127 F.3d at 144-45 (holding that it is error for a district <br>court to rely on an offender's uncontested presentencing report). <br>     In deciding whether Sacko's conviction constitutes a <br>"violent felony," we look to Meader, United States v. Shannon, 110 <br>F.3d 382 (7th Cir. 1996) (en banc), and United States v. Thomas, <br>159 F.3d 296 (7th Cir. 1998).   <br>     In Meader, we held that the conviction of a 39 year old <br>man under a Maine statute for statutory rape with a girl under the <br>age of fourteen was a "crime of violence."  See Meader, 118 F.3d at <br>884-85.  Two crucial factors supporting our conclusion were: (1) <br>the age of the girl; (2) the large chronological gap between the <br>victim and the defendant; and (3) the medical literature regarding <br>the possible physical injuries to the girl as a result of sexual <br>intercourse with the defendant.  See id. at 884. <br>     In Shannon, the Seventh Circuit, sitting en banc, decided <br>an issue remarkably similar to the one at hand: whether sexual <br>intercourse between a 17 year old boy and a 13 year old girl is a <br>crime of violence.  See Shannon, 110 F.3d at 385.  Writing for the <br>Court, Chief Judge Posner discussed the issue of whether any <br>felonious act with a minor creates a serious potential risk of <br>physical injury.  See id. at 386.  Citing the wide variation in age <br>above which sex with a minor is not regarded as felonious in the <br>absence of any aggravating factors, he concluded that "a serious <br>risk of physical injury cannot be automatically inferred from the <br>existence of a statutory-rape law."  Id.  (noting, for example, <br>that in Iowa, "the minor need only have reached the age of 14, and <br>in Pennsylvania, she need only have turned 13"). <br>     His conclusion that sexual intercourse between a 17 year <br>old boy and a 13 year old girl involved conduct that presents a <br>serious potential risk of physical injury to another was based on  <br>"medical literature which indicated that a 13 year old is unlikely <br>to appreciate fully or be able to cope effectively with the disease <br>risks and fertility risks of intercourse and that if she does <br>become pregnant it is likely to be a high risk pregnancy both for <br>her and the fetus." Id. at 387-88. <br>     In Thomas, Chief Judge Posner, writing for the panel, <br>stated that "it is difficult to maintain on a priori grounds that <br>sex is physically dangerous to 16 year old girls,"  Thomas, 159 <br>F.3d at 299, because "[m]ore than 40 percent of the 16 year old <br>girls in our society have had sexual intercourse . . . and 45 of <br>the 50 states permit marriage at 16."  Id.  Relying on these facts <br>and the government's failure to cite any secondary literature <br>delineating the potential risk of injury posed by a 16 year old <br>girl engaging in sexual intercourse, the Court vacated Thomas's <br>sentence as an armed career criminal. <br>     This Court stands in the midst of an issue fraught with <br>peril.  As we stated in Meader, this is an issue that "appeals <br>courts, have neither the expertise nor the authority to resolve in <br>the first instance," 118 F.3d at 885, and which should be resolved <br>by the Sentencing Commission and Congress.  In Meader, it was <br>"commonsensical" that there was a serious potential risk of injury <br>because of the large age difference between the defendant and the <br>victim.  In Shannon, the Seventh Circuit relied on copious medical <br>evidence discussing the potential risks that result from a 13 year <br>old girl engaging in sexual intercourse.  Here, we are unprepared <br>to say a priori that sex is not physically dangerous for a 14 year <br>old girl.  However, we have no legal basis for the opposite <br>conclusion, no studies or medical journals to ground such a <br>holding. <br>     As a result, we remand this case to the district court to <br>take evidence on the issue whether the crime of sexual penetration <br>of a fourteen year-old by someone over the age of eighteen involves <br>conduct presenting a serious potential risk of physical injury to <br>the former.  As a circuit, we have not yet needed to address the <br>issue with these age characteristics.  Our opinion in Meaderinvolved a thirteen year-old and relied on physical injuries <br>"includ[ing] abrasions, hymenal transections, first-degree vaginal <br>tears, and perianal tears."  Meader, 118 F.3d at 882 n.7 (quoting <br>State v. Rundlett, 391 A.2d 815, 819 (Me. 1978)).  For the purposes <br>of Meader, we found these injuries sufficient to find that the <br>defendant's conduct "involve[d] conduct that present[ed] a serious  <br>potential risk of physical injury to another."  U.S.S.G.  4B1.2. <br>     In so doing, we explicitly recognized the fact that we <br>"bypassed a number of troubling and complex issues" including "what <br>is meant by 'physical injury'[.]"  Meader, 118 F.3d at 884.  We <br>then highlighted the disagreement on this particular point among <br>the judges of the Seventh Circuit.  See Meader, 118 F.3d at 884-85.  <br>We have already outlined the more expansive views of the majority.  <br>See supra at 9.  However, a concurrence suggested that "the risk of <br>physical injury referred to in the Guideline must be confined to <br>the act of intercourse, not the possible consequences that could <br>develop, such as pregnancy or disease."  Shannon, 110 F.3d at 390 <br>(Manion, J., concurring). <br>     The district court may find the risks of physical injury <br>during penetration to be sufficient to meet the requisite "serious <br>potential risk of physical injury."  If not, it will have to <br>address the alternative noted above.  In the continuing absence of <br>guidance from Congress and the Sentencing Commission, additional <br>briefing by the parties, and an initial determination by the <br>district court, we deem it inappropriate to proceed. <br>                            CONCLUSION <br>     For the reasons stated in this opinion, we REMAND this <br>case to the district court for further proceedings consistent with <br>this opinion.</pre>

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