247 F.3d 21 (1st Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff, Appellee,v.GEORGE SACKO, Defendant, Appellant.
No. 00-1889
United States Court of Appeals For the First Circuit
Heard February 13, 2001Decided April 26, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Mark L. Stevens, was on brief, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret  E. Curran, United States Attorney, and James H. Leavey, Assistant U.S.  Attorney, were on brief, for appellee.
Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.
TORRUELLA, Chief Judge.


1
Appellant George Sacko pled guilty  in 1997 to possession of firearms and silencer by a convicted felon, in  violation of 18 U.S.C. §922(g) and 26 U.S.C. §5861(d).  His sentence  was enhanced pursuant to the Armed Career Criminal Act ("ACCA"), 18  U.S.C. §924(e), based in part on a prior conviction for statutory  rape.1  Sacko appealed, and this Court remanded so that the district  court "could take evidence on the issue whether the crime of sexual  penetration of a fourteen-year-old by someone over the age of eighteen  involves conduct presenting a serious potential risk of physical injury  to the former."  United States v. Sacko, 178 F.3d 1, 6 (1st Cir. 1999)  [hereinafter Sacko I].  The district court, after taking such evidence,  concluded that "Sacko's sexual penetration of a 14-year-old girl in  violation of R.I. Gen. Laws §11-37-6 was a 'violent felony' under ACCA  and that Sacko properly was sentenced as an 'armed career criminal.'" Sacko II, 103 F. Supp. 2d at 91.  This renewed appeal followed.

BACKGROUND AND PROCEDURAL HISTORY

2
In Sacko I, we began by summarizing the "formal categorical  approach"2 used to determine whether predicate offenses qualify as  "violent felonies" under 18 U.S.C. §924(e)(2)(B).3  178 F.3d at 2-4. We noted that when the relevant criminal statute encompasses both  violent felonies and non-violent felonies, a sentencing court may go  beyond the statutory language and evaluate charging documents or jury  instructions.  Id. at 3.  Because statutory rape is one such offense,  we explained that it was permissible for the district court to examine  the indictment to determine the ages of the defendant and the victim. Id. at 4-5.  We held that the district court had erred, however, in  addressing the facts and circumstances of the predicate offense, as  gleaned from the pre-sentence report.  Id. at 4.


3
We then evaluated whether, based on the statutory language  of the predicate offense and the limited information of the indictment,  we could conclude that Sacko's conviction was for a "violent felony." This Court has held that the conviction of a thirty-six-year-old man  for statutory rape of a girl under the age of fourteen did so qualify,  based on the age of the girl, the large chronological gap between the  victim and the defendant, and medical literature evaluating the  physical injuries that may result from sexual intercourse under such  circumstances.  United States v. Meader, 118 F.3d 876, 884 (1st Cir.  1997).  The Seventh Circuit has held that sexual intercourse between a  seventeen-year-old boy and thirteen-year-old girl is a crime of  violence.  See United States v. Shannon, 110 F.3d 382, 387-88 (7th Cir.  1998) (en banc).  However, the Seventh Circuit has indicated that some  statutory rapes are not crimes of violence. United States v. Thomas,  159 F.3d 296, 299 (7th Cir. 1998) (not extending Shannon to a statute  prohibiting sex with a girl under the age of seventeen where the age of  the victim was not specified in the charging document).


4
Relying on Meader, Shannon, and Thomas, we were "unprepared  to say a priori that sex is not physically dangerous for a 14-year-old  girl."  Sacko I, 178 F.3d at 6.  But we also lacked any legal basis for  the opposite conclusion, as no studies or medical journals had been  entered into the record.  Id.  Thus we remanded, noting that, upon  remand, the district court could "find the risks of physical injury  during penetration to be sufficient to meet the requisite 'serious  potential risk of physical injury.'" Id. (quoting §924(e)(2)(B)(ii)). If such risks proved insufficient, we suggested that the district court  should determine, in the first instance, whether the risk of physical  injury referred to in the statute must be confined to the act of  intercourse or could include possible consequences of that act, such as  pregnancy or disease.  Id.; compare Shannon, 110 F.3d at 387-88  (including such secondary consequences in the injury calculus), with id. at 390 (Manion, J., concurring) (confining risk of physical injury  to that directly accruing from the act of intercourse).


5
On remand, the district court conducted an evidentiary  hearing.  It found that until an adolescent girl has reached Tanner  Stage 4,4 she "may or may not experience physical injury from the act  of intercourse."  Sacko II, 103 F. Supp. 2d at 88.  It also found that  12-33% of fourteen-year-old girls had not reached Tanner Stage 4.  Id. Based on these two facts, the district court concluded that, "given the  magnitude of immediate tissue injury and the likelihood that it will  occur ... the unadorned crime of third degree sexual assault  involving penetration of a 14 year-old-girl by a man over the age of 18  'presents a serious risk of physical injury' to the girl."  Id. at 91.


6
The district court also held that a statutory rapist is  accountable under §924(e)(2)(B) for "the consequences of future  diseases attributable to penetration."  Id. (citing United States v. Marler, 756 F.2d 206, 216 (1st Cir. 1985), for the "fundamental  principle of criminal law" that "a person is held responsible for all  consequences proximately caused by his criminal conduct").  Given that  the court had found that sexually active adolescent girls face an  increased risk (compared to mature women) of contracting chlamydia,  genital tract infections, AIDS, and cervical cancer, id. at 88-89, the  court concluded that "the consequences [of future disease attributable  to statutory rape] are so severe that the risk of their occurrence  presents an additional 'serious potential risk of physical injury,'" id. at 91.5

DISCUSSION

7
For the most part, Sacko makes no challenge to the factual  findings of the district court, which we review for clear error, or to  the district court's legal conclusions, which we review de novo.  New  England Cleaning Servs., Inc. v. Services Employees Int'l Union, Local  254, AFL-CIO, 199 F.3d 537, 539 (1st Cir. 1999).  It is well-settled  that arguments not raised in an appellant's initial brief are waived. Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of P.R., 189 F.3d 1,  17 n.14 (1st Cir. 1999).


8
Appellant does suggest two ways in which the district court  erred.  First, he notes that Rhode Island does not include third degree  sexual assault in its list of violent crimes.  R.I. Gen. Laws §11-47-2(2).  Although he had every incentive to do so, Sacko failed to  present this argument in his first appeal.  He cannot raise it here for  the first time.


9
A defendant should not be held to have waived an  issue if he did not have a reason to raise it at  his original sentencing; but neither should a  defendant be able to raise an issue for the first  time upon resentencing if he did have reason but  failed nonetheless to raise it in the earlier  proceeding. Under our approach a defendant may  argue at resentencing that the court of appeals'  decision has breathed life into a previously  dormant issue, but he may not revive in the  second round an issue he allowed to die in the  first.


10
United States v. Tichiarelli, 171 F.3d 24, 32 (1st Cir. 1999).  Sacko  has not suggested that our remand "breathed life" into the relevance of  Rhode Island's categorization of third degree sexual assault; it has  therefore been waived in this second appeal.


11
At any rate, this Court has never held that the analysis of  what constitutes a "violent felony" for purposes of the ACCA turns on  state law.  Cf. United States v. DiPina, 230 F.3d 477, 484 (1st Cir.  2000) (delinquency may be considered conviction under federal law, even  though it is not a conviction under state law); United States v. Cuevas, 75 F.3d 778, 780 (nolo contendere plea considered conviction  under federal law, even though it is not one under state law).6  Because  a state's classification of a crime generally reflects different policy  considerations than the federal classification, it is simply not  relevant to the determination of whether a crime is a "violent felony,"  which, under federal law, is based on an assessment of the risk of  physical injury associated with the typical conduct underlying that  crime.


12
Second, appellant argues that the district court failed to  determine what percentage of fourteen- and fifteen-year-old girls would  not face an enhanced risk of serious physical injury from intercourse  with a person over the age of eighteen.  We first note that for  purposes of this case, only the percentage of fourteen-year-old girls  who would face such a risk is relevant.  See Sacko I, 178 F.3d at 4-6  (determining age of victim from the indictment, and explaining the  relevance of that modified age for the categorical test).  The district  court determined that 12-33% of fourteen-year-old girls had not reached  Tanner Stage 4, and that girls who had not reached Stage 4 faced either  a virtual certainty of physical damage or injury from intercourse (if  at Stage 1 or 2), or at least a real possibility of injury (if at Stage  3).  Sacko II, 103 F. Supp. 2d at 88.  In our view, these findings,  which are supported by the evidence, meet the required legal standard.


13
In a personal letter to this Court, which we have chosen  to  treat as a supplemental brief, appellant makes two additional claims. First, he argues that the district court's refusal to allow his expert  to testify was prejudicial.  This claim is without merit.  Sacko's  counsel presented a written statement from the expert, which the  Government accepted without objection or a request for cross-examination.  Under such circumstances, the decision not to solicit in-court testimony from the expert was well within the discretion of the  district court.  United States v. Rodrguez, 162 F.3d 135, 149-50 (1st  Cir. 1998).  Second, appellant argues that the court's refusal to allow  him to appear pro se was prejudicial.  It is not clear that Sacko's  request to appear pro se was actually denied; the district court  offered him "a chance to speak" on the specific issue before the court  (whether statutory rape is a crime of violence), but indicated that his  attorney would also be asked to respond because Sacko appeared  incapable of addressing the issue.  Moreover, Sacko's statements at the  hearing devolved into groundless attacks on his attorney.  The district  court exercised appropriate discretion on the matter.  United States v. Proctor, 166 F.3d 396, 401-02 (1st Cir. 1999).


14
For the reasons herein, we affirm.



Notes:


1
   Sacko had been previously convicted in Rhode Island of "carnal  knowledge of a girl under the age of consent."  Both parties agreed  that the offense in question was now covered by R.I. Gen. Laws §11-37-6, which criminalizes "third degree sexual assault."  United States v. Sacko, 103 F. Supp. 2d 85, 87 n.1 (D.R.I. 2000) [hereinafter Sacko II]. The statute in question provides that "[a] 'person' is guilty of third  degree sexual assault if he or she is over the age of eighteen years  and is engaged in sexual penetration with another person over the age  of fourteen years and under the age of consent, sixteen years."  Id. at  87 (citing §11-37-6).


2
   The "formal categorical approach" allows a sentencing court to  examine only the statute of conviction, rather than the underlying  facts and circumstances of the predicate offense.  Sacko I, 178 F.3d at  3 (citing Taylor v. United States, 495 U.S. 575, 597-602 (1990)).


3
   Section 924(e)(2)(B) defines a "violent felony" as "any crime  punishable by imprisonment for a term exceeding one year...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, arson, or  extortion, involves use of explosives, or otherwise involves conduct  that presents a serious potential risk of physical injury to another." We are only concerned here with the scope of the "otherwise" clause in  § 924(e)(2)(B)(ii).  Sacko I, 178 F.3d at 4.


4
   "[Under the] Tanner system for measuring physical development, a  female passes through five steps in progressing from a pre-pubertal  child to a fully developed adult woman.  The stages are marked by  changes in breast and genital development."  Sacko II, 103 F. Supp. 2d  at 88.


5
   Our decision does not require us to determine whether it the district  court was correct in considering these secondary consequences of  statutory rape in its calculus of the potential risk of physical  injury.


6
   In United States v. Sherwood, 156 F.3d 219, 222 n.3 (1st Cir. 1998),  our discussion of whether a particular felony was a "crime of violence"  noted that the state had designated it as such.  However, our analysis  in Sherwood was wholly predicated on federal law, rather than the state  classification.  Id. at 221-22.


