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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2179 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                       FRANCIS E. SHERWOOD, <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>                 Selya and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Robert B. Mann, by appointment of the Court, with whom Mann & <br>Mitchell was on brief, for appellant. <br>    Margaret E. Curran, Assistant United States Attorney, with <br>whom Sheldon Whitehouse, United States Attorney, <br> and Gerard B. Sullivan, Assistant United States Attorney, were on <br>brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                       September 11, 1998 <br>                       ____________________

         TORRUELLA, Chief Judge.  Defendant Francis E. Sherwood <br>was charged in a two-count indictment with being a convicted felon <br>in possession of firearms and of ammunition in violation of 18 <br>U.S.C.  922(g)(1).  He pled guilty to both counts, and the <br>district court subsequently sentenced him to concurrent terms of <br>seventy months of imprisonment and three years of supervised <br>release for each count.  Sherwood's prior felony record consisted <br>of a two-count conviction under Rhode Island law for second degree <br>child molestation. <br>         Sherwood challenges his sentence on two grounds.  First, <br>he contends that the district court incorrectly determined that <br>second degree child molestation was a "crime of violence" for <br>purposes of U.S. Sentencing Guidelines Manual  2K2.1(a).  Second, <br>he argues that the district court erroneously enhanced his criminal <br>history score by two points after concluding that he had committed <br>the instant offense while on probation for his previous felony <br>conviction.  We affirm. <br>                              I.  BACKGROUND  On May 14, 1997, a federal grand jury returned a two- <br>count indictment, charging the defendant with being a felon in <br>possession on or about April 22, 1997, of firearms and of <br>ammunition in violation of 18 U.S.C.  922(g)(1).  The indictment <br>stemmed from the seizure by federal agents of 111 firearms and <br>approximately 24,217 rounds of ammunition from Sherwood's home in <br>Charlestown, Rhode Island.  As part of the search, agents also <br>recovered documents relating to the ownership or acquisition of a <br>total of 172 firearms. <br>         Sherwood's prior criminal record reveals that, on <br>March 28, 1984, he pled nolo contendere in state court to two <br>counts of second degree child molestation.  A third count, alleging <br>assault with intent to commit first degree sexual assault against <br>a minor, was dismissed by the court.  He was sentenced on the first <br>count to four years' probation, and on the second count to six <br>years' imprisonment (four years of which was suspended), and to <br>four years' probation.  The defendant began acquiring weapons <br>related to his  922(g)(1) violation while on probation for this <br>state law offense. <br>         On June 30, 1997, the defendant entered a plea of guilty <br>to both felon-in-possession charges, and subsequently, the district <br>court sentenced him as a Level 25, Category III offender.  The <br>defendant's sentencing guideline level was based, in part, on the <br>court's determination that his prior felony conviction was for a <br>"crime of violence," which resulted in a four-level increase in the <br>defendant's base offense level.  See U.S.S.G.  2K2.1(a)(3).  <br>Sherwood's criminal history score was increased by two points based <br>on the court's finding that this offense was committed while the <br>defendant was on probation, which moved Sherwood from a criminal <br>history category of II to III.  See U.S.S.G.  4A1.1(d).  <br>Accordingly, the defendant was sentenced to seventy months of <br>imprisonment and three years of supervised release to be served <br>concurrently.

                        II.  DISCUSSION <br>         We review the district court's interpretation of the <br>Sentencing Guidelines de novo.  See United States v. Nicholas, 133 <br>F.3d 133, 134 (1st Cir. 1998). <br>         A.  Base Offense Level Determination <br>         The district court found that Sherwood's prior felony <br>conviction in state court was for a "crime of violence," and thus <br>under U.S.S.G.  2k2.1(a)(3), applied a base offense level of 22.  <br>The defendant challenges the district court's determination that <br>second degree child molestation under Rhode Island law constitutes <br>a "crime of violence."  Section 4B1.2 of the Sentencing Guidelines <br>defines a "crime of violence" as: <br>         (a)                                  . . . any offense under federal or state law, <br>                                              punishable by imprisonment for a term exceeding one year, <br>                                              that    <br> <br>               (1)  has as an element the use, attempted use, or <br>                    threatened use of physical force against the <br>                    person of another, or <br> <br>               (2)  . . . otherwise involves conduct that presents <br>                    a serious potential risk of physical injury to <br>                    another. <br> <br> 4B1.2(a)(1) & (2) (emphasis added).  The Rhode Island statute <br>under which Sherwood was convicted, at the time he was charged, <br>prohibited "sexual contact" with a person under 13 years of age.  <br>See R.I. Gen. Laws  11-37-4 (1956) (amended 1981).  Finding that <br>the offense defined in the state statute poses "a serious potential <br>risk of physical injury," we hold that Sherwood's Rhode Island <br>conviction was for a "crime of violence." <br>          "[T]he standard approach for determining whether a <br>particular crime fits within the 'crime of violence' rubric is a <br>general one, in which inquiry is restricted to the statutory <br>definitions of the prior offenses, without regard to the particular <br>facts underlying them."  United States v. Meader, 118 F.3d 876, 882 <br>(1st Cir. 1997) (citing Taylor v. United States, 495 U.S. 575, 600 <br>(1990)).  Thus, we engage in a categorical analysis of the <br>statutory crime.  See Taylor v. United States, 495 U.S. at 600-02.  <br>Sexual contact with a person under 13 years of age, as defined in <br>the Rhode Island statute, can encompass both violent and non- <br>violent conduct.  As such, the categorical approach allows us "to <br>go beyond the fact of conviction . . . [and] examine the indictment <br>or information and jury instructions in order to discern which type <br>of crime the offender was convicted of perpetrating."  United <br>States v. Damon, 127 F.3d 139, 145 (1st Cir. 1997).  However, since <br>the information underlying Sherwood's conviction simply reiterates <br>the elements of the statute and the defendant did not face a jury <br>trial (and thus, we lack jury instructions), our inquiry remains <br>limited to the statutory formulation of the prior offense. <br>          In deciding whether the statutory crime constitutes a <br>"crime of violence," we examine "the typical run of conduct," <br>Damon, 127 F.3d at 145, for this sort of offense.  While the <br>chronological gap between a perpetrator and his victim is not <br>obvious from the face of the statute, we do know from the statute <br>that, in every instance, the victim is at most 12 years old.  Cf. <br>Meader, 118 F.3d at 884 (finding age of victim to be "crucial fact" <br>and "relevant to the question of injury").  Moreover, we agree with <br>the Fifth Circuit that child molestation crimes "typically occur in <br>close quarters, and are generally perpetrated by an adult upon a <br>victim who is not only smaller, weaker, and less experienced, but <br>is also generally susceptible to acceding to the coercive power of <br>adult authority figures."  United States v. Velzquez-Overa, 100 <br>F.3d 418, 422 (5th Cir. 1996) (analyzing Texas statute prohibiting <br>indecency with a child by sexual contact). <br>          Sherwood attempts to distinguish  Meader from the instant <br>case by pointing out that Meader involved prior convictions for <br>statutory rape.  See 118 F.3d at 880-81.  Sherwood relies upon <br>United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997) (en <br>banc) cert. denied, 118 S. Ct. 223 (1997), to argue that the logic <br>which compels the conclusion that there is "a serious potential <br>risk of physical injury" when there is sexual intercourse does not <br>compel or even permit the same conclusion with respect to sexual <br>touching.  The Seventh Circuit, however, did not hold that sexual <br>touching could not constitute a "crime of violence."  See Shannon, <br>110 F.3d at 389.  Rather, the contrasting views of the Seventh <br>Circuit judges merely evidence the troubling and complex issues <br>involved in determining what crimes constitute "crimes of violence" <br>for federal sentencing purposes.  See Shannon, 110 F.3d at 387-90.  <br>          Whatever the dividing line between sexual offenses that <br>constitute crimes of violence and those that do not, we adopt our <br>sister circuit's conclusion that "there is a significant likelihood <br>that physical force may be used to perpetrate [this] crime," <br>Velzquez-Overa, 100 F.3d at 422, and find that the Rhode Island <br>statute at issue punishes a "crime of violence."  Thus, the <br>district court did not err in its base offense level determination. <br>     B.   Two-Point Addition to Criminal History Score <br>     Sherwood argues that the district court erroneously added <br>two points to his criminal history score because it found that the <br>defendant was on probation at the time of the commission of the <br>felon-in-possession-of-a-firearm offense.  The sentencing <br>guidelines require the court to "add two points if the defendant <br>committed the instant offense while under any criminal justice <br>sentence, including probation . . . ."  U.S.S.G.  4A1.1(d).  <br>Sherwood does not dispute the government's allegation and the <br>district court's finding that at least one of the firearms for <br>which he was charged was acquired when he was on probation for his <br>state felony conviction.  The defendant avers, however, that since <br>he pleaded guilty to possessing firearms on or about April 22, <br>1997, a time when he was, without question, not on probation, <br> 4A1.1(d) does not apply.  In other words, Sherwood claims that <br>his acquisition of weapons during his probation was not the basis <br>of  his indictment.  Instead, when he pled guilty, Sherwood was <br>admitting to a crime which took place after his earlier probation <br>had terminated. <br>     The commentary to that section instructs that "[t]wo <br>points are added if the defendant committed any part of the instant <br>offense (i.e., any relevant conduct) while under . . . probation."  <br>U.S.S.G.  4A1.1(d) commentary at n.4 (emphasis added).  Relevant <br>conduct includes "all acts . . . that were part of the same course <br>of conduct or common scheme or plan as the offense of conviction."  <br>U.S.S.G.  1B1.3(a)(2).  Sherwood's acquisition of firearms during <br>his probationary period was part of the same course of conduct as <br>the offense of conviction.  Thus, his acquisition of the guns <br>qualifies as relevant conduct under the sentencing guidelines.  Cf. <br>Sanders, 982 F.2d at 9-10 (finding prior possession of gun not <br>listed in indictment to be relevant conduct).  Accordingly, we <br>uphold the district court's decision to add two points to <br>Sherwood's criminal history score.

                          III.  CONCLUSION <br>     For the foregoing reasons, we affirm the sentencing <br>determination of the district court.</pre>

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