                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0816n.06
                            Filed: October 5, 2005

                                            No. 04-6221

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF TENNESSEE
BOBBY DEWAYNE WILCOX,                  )
                                       )                          OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: DAUGHTREY, MOORE, and MCKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Bobby Dewayne Wilcox

(“Wilcox”) appeals his sentence for being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g). The district court determined that Wilcox had three prior convictions for a “violent

felony” within the meaning of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B),

and accordingly sentenced Wilcox to the ACCA statutory minimum of 180 months of imprisonment.

We VACATE the sentence imposed by the district court and remand the case for resentencing in

accordance with United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005), Shepard v. United States,

125 S. Ct. 1254 (2005), and United States v. Booker, 125 S. Ct. 738 (2005).

                                       I. BACKGROUND

       On August 24, 2003, an officer of the Tennessee Wildlife Resources Agency found Wilcox

carrying a shotgun and ammunition while walking toward his truck. As Wilcox did not have a
hunting license or a valid driver license, he was placed under arrest. After a check of Wilcox

revealed that he was a convicted felon, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”)

examined the shotgun and determined that it had not been manufactured in Tennessee and had

accordingly traveled in interstate or foreign commerce. A federal grand jury indicted Wilcox for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and Wilcox entered a

guilty plea.

       Wilcox was sentenced after Blakely v. Washington, 542 U.S. 296 (2004), but before Booker,

Shepard, and Sawyers.1 In addition to his Blakely arguments,2 Wilcox argued that it would be

erroneous even under the pre-Blakely law to count his statutory rape conviction as a violent felony

under the ACCA. The district court disagreed. As this reading of the ACCA required that Wilcox

be sentenced to a statutory minimum of “not less than 15 years” of imprisonment, 18 U.S.C.

§ 924(e)(1), the district court determined that it was unnecessary to resolve Wilcox’s other

sentencing objections. J.A. at 35 (Sentencing Hr’g at 22). Wilcox now appeals his 180-month

sentence, relying on Booker, Shepard, and Sawyers.




       1
        Absent consideration of the ACCA, Wilcox would have been sentenced at Offense Level
17, and either Criminal History Category III or IV. J.A. at 24, 29 (Sentencing Hr’g at 4, 9). At
Criminal History Category III, this would have resulted in a guidelines sentencing range of 30-37
months. At Criminal History Category IV, this would have resulted in a guidelines sentencing range
of 37-46 months.
       2
         Relying on Blakely, Wilcox asserted that he could not be sentenced as an armed career
criminal as it had neither been admitted by him nor proved to a jury beyond a reasonable doubt that
his prior conviction for statutory rape qualified as a violent felony under the ACCA. Although
Wilcox also raised this argument on appeal, it is foreclosed by circuit precedent. See United States
v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005).

                                                 2
                                           II. ANALYSIS

       The primary issue in this appeal is whether Wilcox’s conviction for statutory rape should

qualify as a “violent felony” for purposes of the ACCA.3 According to the Pre-Sentence Report

(“PSR”), Wilcox pleaded guilty to the Tennessee crimes of aggravated rape, statutory rape, and

sexual battery on February 19, 1992. J.A. at 45 (PSR at 7).4 At sentencing, Wilcox conceded that

the aggravated rape conviction and the sexual battery conviction did constitute violent felonies for

purposes of the ACCA, but argued that his statutory rape conviction did not. J.A. at 28 (Sentencing

Hr’g at 8).5 The district court relied on our unpublished opinion in United States v. Perez-Velasquez,

67 F. App’x 890 (6th Cir. June 17, 2003), to hold that Wilcox’s statutory rape conviction qualified

as a crime of violence for purposes of the ACCA. The Perez-Velasquez court had concluded that

“sexual penetration of a minor without legally cognizable consent is necessarily ‘forcible,’” and


       3
        The ACCA defines “violent felony” as:
       any crime punishable by imprisonment for a term exceeding one year, or any act of
       juvenile delinquency involving the use or carrying of a firearm, knife, or destructive
       device that would be punishable by imprisonment for such term if committed by an
       adult, 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 . . . .
18 U.S.C. § 924(e)(2)(B).
       4
         The statutory rape offense took place in August 1991 — shortly after Wilcox’s nineteenth
birthday on July 1, 1991, see J.A. at 40 (PSR at 2) — when Wilcox “sexually penetrat[ed]” a
fourteen-year-old female. J.A. at 45 (PSR at 7). The PSR indicates that Wilcox pleaded guilty to
an indictment that specifically charged the age of the female, but the indictment itself and the factual
basis for the plea are not included in the Joint Appendix.
       5
        Wilcox now contends that the district court plainly erred in counting his sexual battery
conviction as a violent felony. Wilcox Br. at 27-29. As we are remanding this case for
resentencing, Wilcox may now make this argument in the first instance in the district court.

                                                   3
statutory rape accordingly qualified as a “crime of violence” for purposes of U.S.S.G. § 2L1.2. Id.

at 892. Following Perez-Velasquez, the district court noted:

       The next issue has to do with whether or not the statutory rape conviction can be
       used as a crime of violence which triggers armed career criminal status in this case.
       The defendant’s position, at first blush, appears to have some merit. The district
       court in Perez-Velasquez noted that at first blush there is some potential merit to
       defendant’s position. And that is, since statutory rape does not include as an element
       the use of force, then it cannot be a crime of violence.

       But the district court in Perez and the Sixth Circuit in the appeal of that same case
       rejected that argument, and the Court of Appeals stated that while acknowledging the
       superficial appeal at this point that — the court went on to find that since a minor
       can’t give legal consent to sexual intercourse, then even, quote, consensual sex with
       a minor involves force.

       And even though that is an unreported opinion, it is an opinion of the Sixth Circuit
       directly on point to the issue that is before the court. It seems to me that that ruling
       not only is correct, it is the law of the circuit, even though it’s a nonpublished
       opinion. And I am compelled to agree that even if the minor purported to give
       consent, since a minor cannot give consent, then any purported consent is invalid.
       And if you take consent out of the statutory rape, or take consent out of sexual
       intercourse, then what you end up with is a crime of violence.

       So the court concludes that the rule of Perez-Velasquez is, in fact, the law of the
       circuit and that I’m obligated to follow that; and, therefore, the probation officer has
       correctly recommended that armed career criminal status does apply in this case.

J.A. at 34-35 (Sentencing Hr’g at 21-22).




                                                  4
       After Wilcox’s proof brief was filed in this appeal, the Supreme Court issued its decisions

in Booker and Shepard6 and we issued our decision in Sawyers.7 In Sawyers, we analyzed the

Tennessee statutory rape statute — the same statute at issue in the present appeal8 — and concluded

that violation of this statute did not necessarily qualify as a crime of violence under the ACCA.

Sawyers, 409 F.3d at 742. Specifically, we noted that the Tennessee crime of statutory rape, which

can consist of “consensual sex between a 17 year old and a 21 year old,” id. at 741, did not involve

the same risk of physical injury as other crimes which we had held to qualify as crimes of violence.

Id. at 741-42. In other words, we explained that “statutory rape statutes that include more mature

victims and do not contain aggravating factors are not subject to the strict categorical analysis

articulated in Taylor [v. United States, 495 U.S. 575 (1990)].” Id. at 742. Accordingly, the district

court erred in applying Taylor’s categorical approach to conclude that Wilcox’s statutory rape

conviction necessarily qualified as a violent felony for purposes of the ACCA.



       6
        In Shepard, the Supreme Court determined that when a defendant had pleaded guilty to a
form of burglary, the range of documents that could be considered in determining whether the
burglary conviction qualified as a predicate offense under the ACCA “is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” United States v. Shepard, 125 S. Ct. 1254, 1263
(2005).
       7
          On April 18, 2005, we received a letter from Wilcox pursuant to Rule 28(j) of the Federal
Rules of Appellate Procedure, calling our attention to Booker, 125 S. Ct. 738 (2005), Shepard, and
United States v. Milan, 398 F.3d 445 (6th Cir. 2005). On July 11, 2005, we received a Rule 28(j)
letter from Wilcox’s counsel calling our attention to United States v. Sawyers, 409 F.3d 732 (6th Cir.
2005).
       8
       The Tennessee statutory rape statute reads, in pertinent part:
      Statutory rape is sexual penetration of a victim by the defendant or of the defendant
      by the victim when the victim is at least thirteen (13) but less than eighteen (18)
      years of age and the defendant is at least four (4) years older than the victim.
TENN. CODE ANN. § 39-13-506(a).

                                                  5
       In Sawyers, we noted that in light of the Supreme Court’s recent decision in Shepard v.

United States, 125 S. Ct. 1254 (2005), the correct approach was to remand the case “for the district

court to consider, along with the statutory definition, the ‘charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which

the defendant assented.’” Sawyers, 409 F.3d at 742 (quoting Shepard, 125 S. at 1257). We believe

that approach is also correct in the present case, as our decision in Sawyers requires consideration

of documents not included in the Joint Appendix, and likely not yet part of the district court record.

                                       III. CONCLUSION

       We VACATE the sentence imposed by the district court and remand the case for

resentencing in accordance with this opinion and Sawyers, Shepard, and Booker.




                                                  6
