Friday, July 06, 2007

LA "Molestation of a Juvenile" Is a "Forcible Sex Offense," and Reasonableness Review Sans Rita

United States v. Beliew, No. 06-30400 (5th Cir. July 5, 2007) (Jones, Higginbotham, Clement)

The court addresses two questions in this felon-in-possession case: 1) whether "molestation of a child" under La. Rev. Stat. § 14:81.2(A) is a "crime of violence" as defined in U.S.S.G. §4B1.2(a), and 2) whether the "district court unreasonably denied downward departure at sentencing, believing itself legally bound to ignore his mitigating evidence." The answers: 1) yes, and 2) no.

We'll start with the COV question. The Louisiana statute prohibits a broad range of conduct, the broadest being "the commission . . . of any lewd or lascivious act . . . in the presence of any child [under 17], where there is an age difference of greater than two years between the two persons, . . . by the use of influence by virtue of a position of control or supervision over the juvenile." The court held that this offense is a "forcible sex offense," which is an enumerated COV under §4B1.2(a). It conceded that "an adult's 'use of influence' over a juvenile isn't obviously forcible compulsion[,]" but nevertheless held that the influence "can be deemed constructive force as the interstitial federal common law of 4B1.2." It agreed with the Fourth Circuit's reasoning in a case involving a similar North Carolina statute that "[w]hen a child is the victim of adult conduct, force can be inferred." (By the by, this opinion should be equally applicable to the enumerated "forcible sex offense" found in guideline §2L1.2's 16-level COV definition.)

You may be wondering how this squares with United States v. Sarmiento-Funes. Here's what the court had to say:
Expansion of the term “forcible sex offense” through the fiction of “constructive force” is bounded by Sarmiento-Funes, where this court held that a rape statute which encompasses assented-to-but-not-consented-to conduct was not a forcible sex offense. The statute in Sarmiento-Funes voided the victim’s consent to sex in cases of deception and where the victim’s judgment was impaired by intoxication. Under such a statute, there is at least assent, and so we held that there is no force extrinsic to penetration, constructive or otherwise. But here the Louisiana statute requires that an adult abuse his supervisional authority over a juvenile, a form of psychological intimidation that carries an implicit threat of force, a species of force extrinsic to penetration, distinguishable from Sarmiento-Funes.

Contrary to what the court says, I'm not sure the decision here is consistent with Sarmiento-Funes since the same constructive force argument could have been made with respsect to the Missouri statute at issue in that case. This opinion also pushes the boundaries of the Taylor/Shepard approach, raising the same kind of Sixth Amendment concerns that shaped the decisions in those cases.

But enough about that. Let's move on to Beliew's reasonableness challenge to his sentence (or what looks like a reasonableness challenge; the court's discussion of this issue isn't very clear). Beliew argued "that he was using the gun for hunting, an activity that might have earned him a reduction had he not also been twice convicted of child molestation, and he argues that this fact should have reasonably earned him a reduction under the section 3553(a) factors." At the sentencing hearing the district court told Beliew it was "listening to [his] argument and . . . taking it into account," even though the court had a "standing rule" against parties making such arguments without submitting a sentencing memorandum in advance of the hearing. The court went on to say,
I have to tell you, Mr. Beliew, I really feel sorry for you, but I don’t think I have a legal ground here to deviate from the guideline range that puts you in a position any different from somebody who is a felon in possession with a criminal history like you, to give you a sentence that is other than in the guideline range. I really feel sorry for you, I have to tell you.

And here's how the court of appeals resolved the reasonableness challenge:
Beliew argues that second paragraph suggests that the district court was not aware that section 3553(a) did provide a legal ground for downward variance. We cannot agree. The first paragraph makes clear that the district court was well aware that the guidelines had become advisory. To make sense of the matter, the court’s reference to no “legal ground” for departure must have been to the court’s requirement that counsel abide her “standing rule” of giving notice of such arguments. The judgment of the district court is AFFIRMED.

The district court's statement about no "legal ground" is ambiguous, to be sure, but it doesn't sound like the court was referring to its policy on written sentencing memoranda, especially since the district court told Beliew it was "taking [his argument] into account[.]" If anything, it sounds like the district court thought it needed some legal reason beyond 3553(a) itself in order to sentence outside the guidelines, a view that is plainly wrong, especially in light of Rita's holding that no presumption of reasonableness applies in the district court.

Which brings up one last odd point: this opinion doesn't even mention Rita, much less discuss how, if at all, Rita modified existing Fifth Circuit precedent on reasonableness review. For that reason it's hard to draw any broad conclusions about the post-Rita world of reasonableness review from this case. Except for the obvious one: if you're before a judge that prefers the parties to submit some form of written notice or argument in advance of the sentencing hearing, it would behoove you to do so.

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