Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-04-00267-EFS Edward F. Shea, District Judge, Presiding.
The opinion of the court was delivered by: W. Fletcher, Circuit Judge
Argued and Submitted May 7, 2007 -- Seattle, Washington.
Before: Procter Hug, Jr., M. Margaret McKeown, and William A. Fletcher, Circuit Judges.
Dustin Christensen pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924, an offense carrying a maximum sentence of ten years. At the government's request, the district court enhanced Chris-tensen's sentence to fifteen years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on his previous conviction of three "violent felon[ies]."
One of Christensen's three prior violent felony convictions arose out of a guilty plea to statutory rape in violation of Washington Revised Code § 9A.44.079. Based on Begay v. United States, 128 S.Ct. 1581 (2008), we hold under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), that a conviction for statutory rape under § 9A.44.079 does not constitute a violent felony under the ACCA. We reverse and remand to the district court for further proceedings in light of this opinion.
Christensen has a history of drug abuse and other problems with the law, including prior felony convictions. In early 2004, he had outstanding warrants for his arrest for third degree theft and for failure to report to the Washington State Department of Corrections. Hoping to get her son help with his drug abuse, Christensen's mother informed the Spokane County Sheriff's Office that Christensen would be in the parking lot of a Petco Store on the afternoon of February 17, 2004. When Christensen and his mother drove into the parking lot, he was arrested without incident. He had two bullets (but no gun) in his backpack.
Christensen pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. The maximum sentence for being a felon in possession of ammunition is ten years. See id. § 924(a)(2). However, the government sought to enhance the sentence under the ACCA based on three prior convictions for "violent felon[ies]." Id. § 924(e)(2)(B). The mandatory minimum sentence under the ACCA is fifteen years. See id. § 924(e)(1).
One of the felonies on which Christensen's sentence enhancement was based was a conviction for statutory rape in violation of Washington Revised Code § 9A.44.079. Whether Christensen's sentence was properly enhanced turns on whether that conviction constituted a "violent felony" under the ACCA. Section 9A.44.079(1) provides:
A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.
"Consent by the victim is not a defense" to a charge of statutory rape under § 9A.44.079. State v. Heming, 90 P.3d 62, 63 (Wash. Ct. App. 2004).
The district court analyzed Christensen's violation of § 9A.44.079 under the categorical approach of Taylor. The court felt itself bound by our opinion in United States v. Asberry, 394 F.3d 712 (9th Cir. 2005), which construed the phrase "crime of violence" under § 4B1.2 of the United States Sentencing Guidelines. The definition of "crime of violence" in § 4B1.2 is almost word-for-word the same as the definition of "violent felony" in the ACCA. In Asberry, we concluded that statutory rape is categorically a "crime of violence" under § 4B1.2 because even consensual sexual intercourse "between adults and adolescents ages fifteen and younger creates a 'serious potential risk of physical injury.' " Id. at 718. Based on Asberry, the district court concluded that Christensen's conviction for statutory rape ...