                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4602



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


MICHAEL RAY THORNTON,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:05-cr-00029-JCT)


Argued:   February 2, 2007                 Decided:   March 21, 2007


Before WILKINS, Chief Judge, and SHEDD and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Fay Frances Spence, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.      ON BRIEF: Larry W.
Shelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Michael Ray Thornton appeals his criminal sentence.                 As we

explain below, we vacate the sentence and remand for further

proceedings.

     Thornton    was   convicted    of    one   count       of   illegal   firearm

possession and one count of illegal body armor possession, in

violation of 18 U.S.C. §§ 922(g)(1) and 931, respectively.                  Under

18 U.S.C. § 924(e), a person convicted of § 922(g) who has three

prior    convictions   “for   a   violent   felony      .    .   .   committed   on

occasions different from one another” is subject to a 15-year

mandatory minimum term of imprisonment.           For purposes of § 924(e),

a “violent felony” is any crime punishable by more than one year of

imprisonment that “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).

     Thornton’s presentence report (“PSR”) indicates that he has

prior felony convictions for statutory burglary and maiming (which

occurred in 1973), and for aggravated sexual battery, attempted

rape, and statutory rape (which occurred in 1986).                     Because of

these convictions, the PSR recommended that Thornton receive the §

924(e) 15-year mandatory minimum.               Thornton objected to this

recommendation, arguing that he only has two, rather than three,


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qualifying   “violent   felony”    convictions    because   his      statutory

burglary and maiming convictions count as one conviction, his

aggravated sexual battery and attempted rape convictions count as

one conviction, and his conviction for statutory rape is not a

“violent felony” and therefore does not count at all. The district

court overruled Thornton’s objection, holding that the statutory

rape conviction is a “violent felony.” Alternatively, the district

court held that even if the statutory rape conviction is not a

“violent felony,” Thornton still has three qualifying “violent

felony” convictions because the aggravated sexual battery and

attempted    rape   convictions   count    separately   (i.e.,    they      were

“committed on occasions different from one another”).                Thornton

challenges both of these holdings on appeal.

     Thornton’s sentence can stand only if we conclude that (1) his

statutory    rape   conviction    is   a   “violent   felony”   or    (2)    his

aggravated sexual battery and attempted rape convictions were

“committed on occasions different from one another.”                   Either

alternative would suffice to give him three qualifying “violent

felony” convictions.

     While not conceding that the aggravated sexual battery and

attempted rape convictions arose from a single criminal episode,

the government does concede that the record does not contain

sufficient information from approved judicial sources from which

the district court could have determined that the convictions were


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committed on different occasions.               Brief of Appellee, at 19.

Accordingly,    the    government     argues    that   if   we   conclude   that

Thornton’s statutory rape conviction is not a “violent felony,”

then we should remand this case for further proceedings in order to

allow the district court to determine whether the aggravated sexual

battery and attempted rape convictions were committed on different

occasions.    Id. at 20-21.

     In light of this concession, we can uphold Thornton’s sentence

at this stage of the proceedings only if we conclude that his

statutory rape conviction constitutes a “violent felony.”              Without

expressing an opinion on the merits of that issue, we have decided

that the prudent course under the circumstances is to remand this

case for further sentencing proceedings in order to allow the

district     court    to    explore   further    and   explain    whether   the

aggravated sexual battery and attempted rape convictions each

qualify as a “violent felony.”         See Anderson v. United States, 417

U.S. 211, 218 (1974) (“We think it inadvisable . . . to reach out

. . . to pass on important questions of statutory construction when

simpler, and more settled, grounds are available for deciding the

case at hand.”).           Further, in order to provide a more complete

record on the statutory rape issue, the district court should also

consider and address whether most violations of Va. Code § 18.2-63,

which is the statute under which Thornton was convicted, present a

serious potential risk of physical injury to another person.                See


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United States v. Sacko, 178 F.3d 1, 6 (1st Cir. 1999) (remanding to

the district court for evidentiary hearing on issue of whether

sexual penetration of 14-year-old girl by an adult involves conduct

presenting a serious risk of physical injury).        On both of these

issues,   the   district   court   should   permit   the   parties,   if

appropriate, to present evidence.

     Based on the foregoing, we vacate the sentence and remand for

further proceedings consistent with this opinion.



                                                 VACATED AND REMANDED




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