Objected-to Booker Error Results in New Sentencing

U.S. v. Austin, 2005 WL 2600621 (10/14/05) - The 10th discusses at length its case law and other circuit's case law regarding whether sexual contact of a minor is a crime of violence under various definitions. So, if you have a similar question, this case has already done all the research for you. After all that discussion, it decides it is bound by prior precedent to hold that, where the defendant admitted as part of his guilty plea that he touched an "intimate part" [not over clothing] of a girl under 15, when he was 19, for his own sexual gratification, while the girl was over his house participating in his sister's slumber party, the defendant's prior Colorado attempted sexual assault of a minor conviction was for a crime of violence under § 2K2.1(a)2), which uses the career offender definition under § 4B1.2. The act could not be considered consensual because the girl was under the age of consent in Colorado. The defendant did get a remand for resentencing due to an objected-to non-constitutional Booker error that the government conceded it could not prove was harmless.