                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 12a0417p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 DERECK DAWSON,
                                                 -
                           Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 11-5021
           v.
                                                 ,
                                                  >
                                                 -
                        Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                N
                   Appeal from the United States District Court
                for the Western District of Tennessee at Memphis.
   Nos. 2:03-cr-20275-1; 2:09-CV-2240—Bernice Bouie Donald, District Judge.
                                Argued: October 3, 2012
                       Decided and Filed: December 21, 2012
                  Before: GUY, SILER, and COOK, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Hyland Hunt, AKIN, GUMP, STRAUSS, HAUER & FELD, LLP, Dallas,
Texas, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE,
Memphis, Tennessee, for Appellee. ON BRIEF: Hyland Hunt, AKIN, GUMP,
STRAUSS, HAUER & FELD, LLP, Dallas, Texas, for Appellant. Kevin G. Ritz,
UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       SILER, Circuit Judge. Dereck Dawson petitions for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2255, from federal firearms convictions. The district court
denied his application for the writ and we granted a certificate of appealability. Dawson
argues that the district court violated his constitutional rights by improperly instructing
the jury and admitting evidence of an assault that occurred in connection with the crimes
charged. Further, Dawson alleges that he was deprived of the effective assistance of

                                            1
No. 11-5021        Dawson v. United States                                          Page 2


counsel at trial and during appeal. For the following reasons, we deny Dawson’s
petition.

                                            I.

        In 2003, Dawson was involved in an altercation with his girlfriend Paula Smith
and her son Victor Harris. Trial testimony revealed that, during the altercation, Dawson
hit Smith and pointed a gun at Harris, threatening to kill them both. Police responded
to the scene and saw Dawson discarding a firearm that turned out to be stolen.

        Dawson was indicted on two federal firearms charges in connection with the
incident. The first was possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g), and the second was possession of a stolen firearm, in violation of 18 U.S.C.
§ 922(j). Dawson moved to exclude any testimony regarding the altercation that
occurred just before his arrest. The trial court, finding the testimony necessary to paint
a complete picture of the events at issue, granted the motion only to the extent of
excluding references to the term “aggravated assault.” It instructed the jury that it could
convict based on either actual or constructive possession of a firearm. Dawson did not
object to the jury instructions. The jury found Dawson guilty as charged.

        Dawson argued that he should not be sentenced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he did not have the requisite
three qualifying prior convictions.     Of significance here, Dawson argued that a
1993 conviction for attempted rape did not qualify as a violent felony and that two
1988 convictions for violent felonies should count as only one ACCA predicate because
they were based on a single event. The district court concluded that the 1993 attempted
rape conviction counted as a violent offense and, therefore, it did not need to determine
whether the crimes underlying the 1988 convictions were committed on separate
occasions. The 1993 attempted rape conviction, a 2001 conviction for aggravated
burglary, and just one of the 1988 convictions satisfied the “three previous convictions”
requirement of § 924(e). The court sentenced Dawson to 262 months’ imprisonment,
the low end of the Guidelines range.
No. 11-5021         Dawson v. United States                                        Page 3


         Dawson appealed his conviction and sentence, arguing that there was insufficient
evidence to support his conviction for possession of a stolen firearm. He also argued
that his sentence was improper in light of United States v. Booker, 543 U.S. 220 (2005).
We affirmed Dawson’s conviction but vacated and remanded for resentencing in light
of Booker.      On remand, the district court sentenced Dawson to 180 months’
imprisonment, the statutory minimum sentence required under the ACCA.

         Later, Dawson filed his motion to vacate his sentence under 28 U.S.C. § 2255.
He claimed error in the district court’s admission of evidence regarding the assault on
Smith and Harris and also in the court’s instruction permitting the jury to convict on a
theory of constructive possession. He further claimed that his counsel was ineffective
for failing to raise these claims. The district court reached the merits of each of the
claims presented, but denied Dawson’s motion for relief.

                                           II.

         In reviewing a denial of a motion under 28 U.S.C. § 2255, we review the district
court’s legal conclusions de novo and its factual findings for clear error. Hamblen v.
United States, 591 F.3d 471, 473 (6th Cir. 2009). Claims of ineffective assistance of
counsel present mixed questions of law and fact, which we review de novo. Mallett v.
United States, 334 F.3d 491, 497 (6th Cir. 2003).

         A.     Jury Instruction on Constructive Possession

         Dawson argues that his trial attorney’s performance was deficient as a result of
his failure to object to the district court’s jury instruction on constructive possession.
The government did not request a constructive possession instruction and it did not
present evidence to support a theory of constructive possession. Nevertheless, the trial
court instructed the jury that it could convict Dawson based on actual or constructive
possession of the firearm at issue. Upon its review of Dawson’s habeas petition, the
district court found that the constructive possession instruction constituted harmless
error.
No. 11-5021         Dawson v. United States                                          Page 4


        Relying upon United States v. James, 819 F.2d 674 (6th Cir. 1987), Dawson
argues that the instruction constitutes reversible error. As stated in James, errors in jury
instructions generally are harmless “unless it is more probable than not that the error
materially affected the verdict.” Id. at 676 (citing United States v. Neuroth, 809 F.2d
339, 342 (6th Cir. 1987)). However, James is distinguishable from the case at hand
because in James, the circumstances revealed that the jury had likely relied on the
constructive possession instruction to convict the defendant. Here, there is no indication
that the jury relied on the constructive possession instruction in convicting Dawson.

        This case is more analogous to United States v. McCoy, 767 F.2d 395 (6th Cir.
1985), where we found that a constructive possession instruction constituted harmless
error. As in McCoy, the jury in Dawson’s trial is unlikely to have been confused by the
instruction. See id. at 398. The government presented evidence that Dawson was in
actual possession of the firearm – namely, a police officer observed Dawson in
possession of the firearm before Dawson discarded it underneath an air-conditioning
unit. There was no testimony suggesting that Dawson constructively possessed the
firearm. Viewing the record as a whole, it is clear that the jury found Dawson guilty
based on a theory of actual possession. While the constructive possession instruction
was error, it was harmless because, had it not been given, the jury undoubtedly would
have convicted Dawson of actual possession. See McCoy, 767 F.2d at 397 (citing United
States v. Hasting, 461 U.S. 499, 510-11 (1983)).

        B.      Testimony Regarding Assault

        Dawson also contends that his appellate counsel rendered a deficient
performance by failing to appeal the district court’s admission of evidence regarding
Dawson’s attack upon his former girlfriend and her son. To establish ineffective
assistance of counsel, however, Dawson must meet the familiar standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Specifically, Dawson must establish not
only that his attorney’s performance was deficient, but also that he was prejudiced as a
result of the deficient performance. Id. at 687. Because Dawson was not prejudiced by
No. 11-5021        Dawson v. United States                                          Page 5


his appellate attorney’s failure to contest the admission of the assault-related testimony,
he cannot establish that counsel’s assistance was constitutionally ineffective.

       “Under [Federal] Rule [of Evidence] 403, a district court is granted ‘very broad
discretion in determining whether the danger of undue prejudice outweighs the probative
value of the evidence.’” United States v. Fisher, 648 F.3d 442, 449 (6th Cir. 2011)
(quoting United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989)). We review a
district court’s rulings under Rule 403 for abuse of discretion. See Nolan v. Memphis
City Sch., 589 F.3d 257, 264 (6th Cir. 2009). Evidence of uncharged misconduct may
be admissible when it “arises from the same events as the charged offense, forms an
integral part of a witness’s testimony, or completes the story of the charged offense.”
United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Dawson has not presented
any compelling support for the notion that the admission of the testimony was unduly
prejudicial to him or that it was material to the outcome of his trial. Excluding the
testimony at issue, there was ample evidence from which a jury could have found
Dawson guilty. Further, this evidence was not the type that would “engender vindictive
passions within the jury or . . . confuse the issues.” United States v. Green, 548 F.2d
1261, 1268 (6th Cir. 1977). Accordingly, the district court did not abuse its discretion
in admitting the testimony and, as a result, no prejudice resulted from Dawson’s
appellate lawyer’s failure to raise the issue on appeal.

       C.      Dawson’s Attempted Rape Conviction Under the ACCA

       Dawson also challenges his fifteen-year mandatory minimum sentence. The
ACCA imposes a fifteen-year mandatory minimum sentence when a defendant convicted
under 18 U.S.C. § 922(g) has three or more prior convictions for “violent felonies” or
“serious drug offenses.”      18 U.S.C. § 922(e)(1).        Dawson concedes that his
2001 conviction for aggravated burglary qualifies as a violent felony but argues that his
1993 conviction for attempted rape does not. Further, he contends that his two
1988 convictions cannot be counted separately, because the crimes involved were not
committed on separate occasions, as required by 18 U.S.C. § 924(e)(1). The government
contends that, because Dawson failed to raise these issues in his initial § 2255 petition,
No. 11-5021            Dawson v. United States                                      Page 6


he is foreclosed from raising them here. But because Dawson’s initial petition was filed
pro se and no further factual development is needed, we will consider the merits of this
portion of Dawson’s petition. Because we hold that Dawson’s attempted rape conviction
is categorically a violent felony, however, Dawson’s arguments fail.

        The Tennessee rape statute under which Dawson was convicted reads as follows:
        (a) Rape is unlawful sexual penetration of a victim by the defendant or
        of the defendant by a victim accompanied by any of the following
        circumstances:
        (1) Force or coercion is used to accomplish the act;
        (2) The sexual penetration is accomplished without the consent of the
        victim and the defendant knows or has reason to know at the time of the
        penetration that the victim did not consent;
        (3) The defendant knows or has reason to know that the victim is
        mentally defective, mentally incapacitated or physically helpless; or
        (4) The sexual penetration is accomplished by fraud.

Tenn. Code Ann. § 39-13-503. Further, a criminal attempt requires not only that the
defendant have the requisite culpability for the underlying offense, but also that a
substantial step toward completion of the offense be committed. See Tenn. Code Ann.
§ 39-12-101. Based on his conviction for attempted rape, Dawson was sentenced to
three years in jail.

        A “violent felony” under the ACCA is an offense that is punishable by a term of
imprisonment exceeding one year and either “has as an element the use, attempted use,
or threatened use of physical force against the person of another,” or “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).
Dawson’s attempted rape conviction was punishable by more than one year, thus
satisfying the threshold requirement of the Act. Dawson argues that the crime, however,
is not categorically violent for purposes of the Act, however, because rape can be
achieved through fraud and does not necessarily involve the use of physical force against
another person. Despite the fact that the crime can be achieved through fraud, the
offense clearly falls within the ACCA’s residual clause as a crime that presents a serious
No. 11-5021        Dawson v. United States                                          Page 7


potential risk of physical injury to another. Accordingly, Dawson was not prejudiced
by his appellate counsel’s failure to challenge the ACCA sentence upon appeal.

       An offense falls within the ACCA’s residual clause if it poses a serious potential
risk of injury to others and involves the same kind of purposeful, violent, and aggressive
conduct as the enumerated offenses of burglary, arson, extortion, or criminal acts
involving the use of explosives. Begay v. United States, 553 U.S. 137, 145 (2008). In
conducting this inquiry, we employ the “categorical approach,” examining only
“whether the elements of the offense are of the type that would justify its inclusion
within the residual provision.” James v. United States, 550 U.S. 192, 202 (2007).
Further, we consider the behavior underlying the offense as it is ordinarily committed,
“not in terms of how an individual offender might have committed [the offense] on a
particular occasion.” Begay, 553 U.S. at 141.

       Under the categorical approach to evaluating offenses under the ACCA’s residual
clause, Dawson’s conviction for attempted rape qualifies as a violent felony under the
Act. Under Tennessee law, attempted rape requires that “the defendant acted with intent
to rape and that his conduct constituted a substantial step toward the commission of a
rape.” State v. Bowles, 52 S.W.3d 69, 78 (Tenn. 2001). In arguing that attempted rape
is not categorically violent, Dawson relies on United States v. Arnold, 58 F.3d 1117
(6th Cir. 1995), where we held that assault with intent to commit sexual battery was not
categorically violent for purposes of the ACCA. Assault with the intent to commit
sexual battery, however, involves intent to commit “unlawful sexual contact” as opposed
to unlawful sexual penetration, as in attempted rape. It bears noting that the crime at
issue in Arnold was assault which, under Tennessee law, includes merely putting another
person in fear of imminent bodily harm. See id. at 1122 n.4.

       Further, sexual battery poses less of a risk of physical injury than attempted rape.
“Short of homicide, [rape] is the ultimate violation of self. . . . Rape is very often
accompanied by physical injury . . . and can also inflict mental and psychological
damage.” Coker v. Georgia, 433 U.S. 584, 597–98 (1977) (internal quotation marks
omitted). The purposeful and aggressive nature of the crime, even when perpetrated by
No. 11-5021        Dawson v. United States                                          Page 8


fraud, creates an inherently high degree of risk of physical injury. See Sykes v. United
States, 131 S. Ct. 2267, 2276 (2011). Thus, attempted rape falls squarely within the
class of crimes that present a serious risk of physical injury to another, as contemplated
by the ACCA. See id.; see also United States v. Terrell, 593 F.3d 1084,1090 (9th Cir.
2010) (“[E]ven in those cases where the rape is achieved by trickery or deception, that
fact does not erase the ever-present possibility that the victim may figure out what’s
really going on and decide to resist, in turn requiring the perpetrator to resort to actual
physical restraint that could then easily escalate into a violent confrontation.” (internal
quotation marks omitted)); United States v. Rooks, 556 F.3d 1145, 1150-51 (10th Cir.
2009).

         Dawson’s 1993 attempted rape conviction, his 2001 aggravated burglary
conviction, and either of his 1988 convictions constitute three previous crimes of
violence for purposes of the ACCA. Accordingly, we need not consider whether
Dawson’s two 1988 convictions arose from acts committed on separate occasions.

         AFFIRMED.
