Tenth Limits Meaning of "Forcible Sex Offense" in Guidelines

U.S. v. Dennis, 2008 WL 5274098 (12/22/08) (Published) - An excellent guideline "crime of violence" decision. The taking of indecent liberties with a minor in Wyoming is not a "forcible sex offense" and does not present a serious potential risk of physical injury to another under § 4B1.2. The Wyoming statute covered activities that are otherwise permissible between consenting adults when one of the parties is under 18. No force was required so it was not a forcible sex offense. [Note the where-the-consent-is-invalid amendment to "forcible sex offenses" in the § 2L1.2 definition of "crime of violence" might make Dennis unhelpful in the § 2L1.2 context]. The statute did not "necessarily" involve conduct that presented the same kind of risk as the other enumerated offenses, e.g. burglary. The 10th found the physical injury risk was not high enough, pointing to the application of the statute in case law to consensual sex with a 16 year-old, providing pornographic magazines, surreptitious videotaping. The 10th thought it significant there was no age difference requirement [i.e., it covered consensual sexual intercourse between a near 18 year-old and a just-turned 18 year-old]. Also, applying Begay, the 10th felt the dangers of pregnancy and sexually transmitted disease did not constitute the requisite similar kind of risk. The 10th also rejected the government's argument for "categorical plus" analysis by virtue of the reference in the "crime of violence" definition to conduct "expressly charged." That reference did not allow consideration of the defendant's actual conduct. It is the elements that matter.