Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-1996

United States v. Taylor
Precedential or Non-Precedential:

Docket 95-3675




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                                 ___________

                                 No. 95-3675
                                 ___________

          UNITED STATES OF AMERICA

                            v.

          KEVIN E. TAYLOR,

                                         Appellant

                                 ___________

           Appeal from the United States District Court
             for the Western District of Pennsylvania
                   (D.C. Crim. No. 89-cr-00009)
                           ___________

                              Argued
                          June 12, 1996
            BEFORE: SCIRICA and ROTH, Circuit Judges,
and RESTANI, Judge, Court of International Trade

                    (Filed        October 25, l996)
                                 ___________

Shelley Stark
Federal Public Defender
W. Penn Hackney, I
Karen Sirianni Gerlach (Argued)
Assistant Federal Public Defenders
415 Convention Tower
960 Penn Avenue
Pittsburgh, PA 15222

     COUNSEL FOR APPELLANT

Frederick W. Thieman
United States Attorney
Bonnie R. Schlueter
Bruce J. Teitelbaum (Argued)
Assistant United States Attorneys
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219

     COUNSEL FOR APPELLEE

                                 ____________
                       OPINION OF THE COURT
                           ____________

RESTANI, Judge.
     Defendant Kevin E. Taylor ("Taylor") appeals his sentence
from the United States District Court for the Western District of
Pennsylvania following the denial of his motion for modification
of sentence based on recent amendments to the United States
Sentencing Guidelines (the "Sentencing Guidelines" or "USSG").
Taylor challenges his designation as a career offender pursuant
to USSG § 4B1.1, claiming that his two prior convictions for
statutory rape do not constitute the predicate "crimes of
violence" required to apply that guideline.

                           BACKGROUND
     On April 3, 1989, Taylor entered a plea of guilty to three
felony drug counts, specifically, one count of conspiring to
distribute 3-methyl-fentanyl, heroin, and cocaine, and two
substantive counts of distribution of heroin. At the sentencing
hearing held on June 28, 1989, the district court ruled that
Taylor was a career offender pursuant to USSG § 4B1.1. The court
determined that Taylor's previous conviction for aggravated
assault and two separate convictions for statutory rape
constituted three prior convictions for "crimes of violence"
under section 4B1.1. As a result, Taylor was sentenced to a term
of 20 years imprisonment. Taylor appealed and his sentence was
affirmed by an order dated March 8, 1990. United States v.
Taylor, 

(3d Cir. 1990). On November 30, 1995, the
district court denied Taylor's motion for modification of
sentence because of Sentencing Guideline changes with regard to
prior convictions for "crimes of violence." (App. 311) Taylor
does not challenge the determination that his 1984 conviction for
aggravated assault is a "crime of violence" under the new law.
Taylor does, however, challenge the district court's finding that
his two prior convictions for statutory rape in 1975 and 1980
continue to qualify as "crimes of violence."

                           JURISDICTION

     Taylor appeals from an order of the United States District
Court for the Western District of Pennsylvania denying his motion
for modification of sentence. The district court had subject
matter jurisdiction of the original proceeding against Taylor
pursuant to 18 U.S.C. § 3231 and the authority to consider the
motion for modification of sentence pursuant to 18 U.S.C. §
3742(a). We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.

                        STANDARD OF REVIEW
     We review a district court's factual determinations
underlying the application of the sentencing guidelines for clear
error. United States v. McMillen, 

, 774 (3d Cir.
1990). Although we give due deference to the district court's
application of the sentencing guidelines to those facts, id.(citing 18
U.S.C. § 3742(e)), we exercise plenary review over
legal questions concerning the proper interpretation of the
Sentencing Guidelines. United States v. Holifield, 

,
12-13 (3d Cir. 1995).

                            DISCUSSION
     The Sentencing Guidelines provide that a defendant is a
career offender if (1) the defendant was at least eighteen years
old at the time of the instant offense, (2) the instant offense
is a felony that is either a "crime of violence" or a controlled
substance offense, and (3) the defendant has at least two prior
felony convictions for either "crimes of violence" or controlled
substance offenses. See United States Sentencing Commission,
Guidelines Manual, § 4B1.1 (Nov. 1995) [hereinafter "USSG"].
Taylor does not dispute the district court's finding that the
first two subsections of § 4B1.1 are satisfied. He does,
however, argue that neither of his prior convictions for
statutory rape qualify as "crimes of violence" under section
4B1.1. In order to satisfy the two prior "crimes of violence"
requirement, one of these convictions must qualify, along with
the admittedly qualifying aggravated assault felony conviction.
     In concluding that Taylor's prior convictions for statutory
rape were "crimes of violence," the sentencing court originally
looked to the underlying conduct which gave rise to the offense.
This analysis was later affirmed as the law in this circuit in
United States v. John, 

, 767 (3d Cir. 1991). On
November 1, 1991 and November 1, 1992, however, Application Note
2 to USSG § 4B1.2 was modified by Amendments 433 and 461,
respectively. USSG App. C at 311-12, 342-43. Application Note 2
now provides in relevant part:
     "Crime of violence" includes murder, manslaughter,
     kidnapping, aggravated assault, forcible sex offenses,
     robbery, arson, extortion, extortionate extension of
     credit, and burglary of a dwelling. Other offenses are
     included where (A) that offense has as an element the
     use, attempted use, or threatened use of physical force
     against the person of another, or (B) the conduct set
     forth (i.e., expressly charged) in the count of which
     the defendant was convicted involved use of explosives
     (including any explosive material or destructive
     device) or, by its nature, presented a serious
     potential risk of physical injury to another. Under
     this section, the conduct of which the defendant was
     convicted is the focus of the inquiry.

USSG § 4B1.2, comment. (n.2) (emphasis added to indicate
additions made by Amendments 433 and 461).
     The retroactivity of the amendments is specifically
addressed in USSG § 1B1.10, which provides:
     (a) Where a defendant is serving a term of
     imprisonment, and the guideline range applicable to
     that defendant has subsequently been lowered as a
     result of an amendment to the Guidelines Manual listed
     in subsection (c) below, a reduction in the defendant's
     term of imprisonment is authorized under 18 U.S.C. §
     3582(c)(2). . . .

     * * *

     (c) Amendments covered by this policy statement are
     listed in Appendix C as follows: . . . 433, . . . 461
     . . . .

USSG § 1B1.10. The retroactivity of Amendments 433 and 461 was
recognized by the district court in its denial of Taylor's motion
for modification of sentence. (App. 312)
     Prior to the amendments to Application Note 2, this court
stated that:
     the Sentencing Commission essentially envisioned three
     independent ways by which a prior conviction will be
     considered a "crime of violence": (1) the prior
     conviction is for a crime that is among those
     specifically enumerated (murder, manslaughter,
     kidnapping, etc.); (2) the prior conviction is for a
     crime that, although not specifically enumerated, has
     as an element of the offense the use, attempted use, or
     threatened use of physical force; or (3) the prior
     conviction is for a crime that, although neither
     specifically enumerated nor involving physical force as
     an element of the offense, involves conduct posing a
     serious potential risk of physical injury to another.

United States v. 

(emphasis in original).
While recognizing that it is "impermissible" and "pointless" for
the court to look to the defendant's actual criminal conduct
under the first two prongs, the court found that, "the third
prong quite clearly permits the court to examine the defendant's
actual conduct to ascertain whether that conduct posed a
sufficient potential risk of physical injury to another to
elevate the crime to a 'crime of violence.'" 

     Following the amendments to Application Note 2, this court
reconsidered its prior holding in John. United States v. Joshua,

, 852 (3d Cir. 1992). The Joshua court noted that
its prior holding in John entitled the sentencing court to look
beyond the facts charged in the indictment to the defendant's
underlying conduct, including all relevant conduct under USSG §
1B1.3, in determining whether the defendant's predicate offense
involved a serious potential risk of injury to another under the
third prong of the analysis. 

acknowledged,
however, that the recent amendment to Application Note 2
restricted the sentencing court's power to look beyond the
conduct expressly charged in the indictment. 

conflict between the court's holding in John and the amended
commentary, the Joshua court decided that "a panel may consider
new commentary text where another panel of this court has already
resolved the ambiguity and that a second panel is entitled to
defer to the new commentary even when it mandates a result
different from that of the prior panel." 

accordStinson v.
United States, 

, 46 (1993) (stating,
"[a]mended commentary is binding on the federal courts even
though it is not reviewed by Congress, and prior judicial
constructions of a particular guideline cannot prevent the
Commission from adopting a conflicting interpretation that
satisfies the standard we set forth today"). The court then
concluded that, "a sentencing court should look solely to the
conduct alleged in the count of the indictment charging the
offense of conviction in order to determine whether that offense
is a crime of violence under subsection (ii) of the guideline."

. This law guides us today, as it did the
district court's consideration of the motion for sentence
modification.
     Taylor's first statutory rape conviction occurred in 1975.
The indictment for this offense charges six counts, in which
crimes were not specifically named. The guilty plea form,
however, summarizes the indictment as follows: 1st Count:
Attempt Rape (Sec. 901-3121); 2nd Count: Involuntary Sexual
Deviate Intercourse (Sec. 3123); 3rd Count: Indecent Assault
(Sec. 3126); 4th Count: Recklessly Endangering Another Person
(Sec. 2705); 5th Count: Simple Assault (Sec. 2701-a-1); and 6th
Count: Terroristic Threats (Sec. 2706). (App. 118-19) Despite
the absence of a statutory rape charge in the indictment, the
guilty plea form stated that on July 14, 1975, the defendant,
"pleads guilty to the charge of Statutory Rape (Section 3122) a
Felony of the 2nd degree proffered in the within indictment at
count (2) only and consents to the pronouncement of sentence
forthwith." (App. 119)
     The first count of the indictment alleges that Taylor
"unlawfully and feloniously did engage in deviate sexual
intercourse by or with the anus of [the victim], a minor under
the age of 16 years, to-wit: of the age of 12 years and upwards
. . . ." (App. 118) The second count of the indictment alleges
that Taylor:
     unlawfully and feloniously did attempt to engage in
     sexual intercourse with [the victim], not his spouse,
     she, [the victim], being under the age of 16 years, to
     wit: of the age of 12 years and upwards, and in
     furtherance of said attempt did do and commit certain
     acts constituting a substantial step toward the
     commission of said offense, to wit: . . . TAYLOR did
     grab [the victim] off the street onto the ballfield . .
     . threw her on the ground, got on top of [the victim],
     and attempted to have sexual intercourse with her, . .
     . ."

(App. 118) Both parties, however, agree that on the guilty plea
form where the counts of the indictment are listed, the captions
for Count 1 and Count 2 are reversed. There, Count 1 should be
listed as Involuntary Sexual Deviate Intercourse and Count 2
should be listed as Attempt Rape. See Appellant's Br. at 18 n.8;
Appellee's Br. at 10. Because of the confusion, the government
requests that we consider the crime of statutory rape as violent,
per se, without regard to the language of the indictment.
Appellee's Br. at 11.
     Taylor's second "statutory rape" conviction occurred in
1980. Taylor was charged by means of an information, which
alleged four counts. (App. 120-24) Count 1 of the information
charged Taylor with statutory rape; Count 2 charged Taylor with
involuntary deviate sexual intercourse; and Counts 3 and 4
charged Taylor with indecent exposure and corruption of minors,
respectively. Count 3 specifically alleged that:
     [t]he actor for the purpose of arousing or gratifying
     the sexual desire of himself or another person exposed
     his genitals under circumstances in which he knew his
     conduct was likely to cause affront or alarm, namely,
     forced [the victim] onto her bed and while holding her
     down opened his trousers and pulled out his penis . . .
     .

(App. 124) Taylor was tried on these charges and subsequently
convicted on July 15, 1980 as to Counts 1, 3, and 4 with a
demurrer being sustained as to Count 2. (App. 121)
     Upon consideration of Taylor's motion to modify the
sentence, the district court again found that the 1975 statutory
rape conviction constituted a "crime of violence." (App. 316)
At the outset, the court noted that under Pennsylvania law, the
crime of statutory rape does not contain an element of force.
(App. 314 & n.2) The court went on to state that USSG § 4B1.2
"instructs the courts to examine not only the elements of the
crime, but also whether the conduct of the defendant as set forth
in the counts at which he was convicted 'presented a serious
potential risk of physical injury to another.'" (App. 314) The
court then considered the language of the indictment, which the
government now abandons, and stated that, "Count two of the
indictment, the statutory rape count for which defendant was
convicted, specifically alleged that defendant 'did grab the
[victim] off the street onto the ballfield . . . threw her on the
ground, got on top of [her], and attempted to have sexual
intercourse with her . . . ." (App. 315) The district court
concluded that such action unquestionably presented a potential
risk of serious injury to a child of less than 14 years of age.
(App. 316)
     As to the 1980 conviction, the district court noted that
count one "expressly alleges that the defendant engaged in sexual
intercourse with the victim, who was less than 14 years of age"
and, "[c]ount three, indecent exposure, alleges that defendant
'forced' the victim onto a bed and, 'while holding her down,'
exposed himself in a manner which would knowingly affront and
alarm the victim." (App. 315)
     While this circuit has not ruled on the question of whether
statutory rape constitutes a "crime of violence" for purposes of
the sentencing guidelines, the district court noted that the
Court of Appeals for the Eighth Circuit has held that the crime
of sexual intercourse with a child under 16 years of age
constitutes a "crime of violence" under the career offender
statute. (App. 315) United States v. Bauer, 

, 375
(8th Cir. 1993) (per curiam). Additionally, the district court
noted several other cases cited by the government in which other
courts have held that crimes involving an adult having sexual
contact with a minor constitute "crimes of violence." (App. 316)
See United States v. Wood, 

(9th Cir.) (finding
indecent liberties a "crime of violence"), cert. denied, 

(1995); United States v. Reyes-Castro, 

(10th Cir. 1993) (finding sexual abuse a "crime of violence"
under 18 U.S.C. § 16(b)); United States v. Rodriguez, 

(8th Cir. 1992) (finding lascivious acts with children a
"crime of violence" under 18 U.S.C. § 16(b)).
     In the present case, because the district court held that
"the criminal counts for which defendant was convicted
specifically allege conduct which created a potential risk of
physical harm to the respective victims," it did not need to
resolve whether statutory rape is, in all cases, a "crime of
violence." (App. 316) The court stated that in its judgment:
     there is unquestionably a potential risk of serious
     injury to a child of less than 14 years of age where an
     adult grabs the victim off the street, throws her to
     the ground and attempts to engage in sexual intercourse
     [referring to the 1975 indictment]. Likewise, the
     potential for injury to a child who is forced onto a
     bed and restrained while the adult commits a sexual act
     upon her is no less manifest [referring to the 1980
     information]. (App. 316)

The government continues to rely on both the 1975 and 1980
convictions, arguing that the crime of statutory rape, by its
nature, qualifies as a "crime of violence." Like the district
court, however, we need not make this determination, as Taylor's
sentence may be affirmed based on the 1980 information and
conviction for indecent exposure.
     Taylor claims that the district court's determination may
not be sustained based on the facts alleged in the indecent
exposure count for two reasons. First, in finding Taylor to be a
career offender, the district court cited three prior crimes of
violence: the 1975 statutory rape, the 1980 statutory rape, and
the aggravated assault. Taylor contends that because the
district court did not rely upon the indecent exposure conviction
as one of the predicate offenses at sentencing, it cannot be used
now. Second, Taylor argues that once the statutory rape
conviction was chosen as a predicate offense, it is the charging
language with regard to that count and that count only which may
be examined to determine if that crime was a "crime of violence"
and language with regard to any other count in the information is
irrelevant.
     We find, however, that the district court, although making
an introductory reference to the 1980 conviction as "the second
statutory rape," clearly acknowledged that it was considering the
three separate counts of conviction. In finding that Taylor was
properly designated as a career offender, the district court
stated that, "the criminal counts for which defendant was
convicted specifically allege conduct which created a potential
risk of physical harm to the respective victims . . . ." (App.
316) The district court then referenced the facts alleged
relating to Taylor's 1975 statutory rape conviction and 1980
indecent exposure conviction 

at p. 13 (App. 316)).
We do not find it significant that the district court repeatedly
referred to Taylor's 1980 statutory rape conviction, rather than
his indecent exposure conviction, as the three counts of
conviction were merged for purposes of assessing criminal history
points in the presentence report pursuant to USSG § 4A1.1(a).
Moreover, even if the district court did not consider Taylor's
statutory rape and indecent exposure convictions separately,
appellee may assert any ground in support of the judgment below,
whether or not that ground was relied upon or even considered by
the district court. Colautti v. Franklin, 

, 397 n.16
(1979). As the facts alleged in the indecent exposure count
unquestionably present a potential for serious injury to the
victim, we find that the district court properly determined that
this conviction constituted a prior felony conviction for a
"crime of violence." Accordingly, given the indecent exposure
conviction and Taylor's prior conviction for aggravated assault,
we hold that Taylor's designation as a career offender pursuant
to USSG § 4B1.1 and his corresponding sentence was correct.
     The opinion of the district court is affirmed.