United States v. Defabian C. Shannon

MANION, Circuit Judge,

with whom KANNE, Circuit Judge, joins, concurring.

I agree with the court’s conclusion that when assessing a defendant’s criminal history, the sentencing court is confined to the facts set out in the charging document when defining a “crime of violence” under U.S.S.G. § 4B1.2(1). The court properly followed United States v. Lee, 22 F.3d 736 (7th Cir.1994), in refusing to look at the facts other than the charges in the indictment to which Shannon pleaded guilty.

I also concur with the court’s conclusion that Shannon’s engaging a 13-year-old girl in sexual intercourse is a crime of violence because the act itself “presents a serious potential risk of physical injury to [her].” That act alone presented a threat of serious physical injury, meriting the enhancement. In my view, however, the risk of physical injury referred to in the Guideline must be confined to the act of intercourse, not the possible consequences that could develop, such as pregnancy or disease. Although it is usually true that pregnancy is more dangerous for a 13-year-old than a more mature woman, that should not be relevant when applying the Guideline. The possible longer-term consequences of sexual intercourse with a 13-year-old are not the kinds of risks that even in hindsight reflect violence that justifies enhancing a sentence. Pubescent pregnancy is risky for mother and child, and abortion, while a risk to the mother, obviously portends a violent end to the unborn. Nevertheless, these consequences are too attenuated from the actual crime — the sexual act itself — to be included under the potential risk of injury. If the result of sexual contact were at issue instead of the sexual contact itself, many nonviolent crimes would be renamed “violent” under § 4B1.2(l)(ii). The Application Notes interpreting this Guideline do not show that Congress or the Sentencing Commission intended for a potentially harmful consequence of a nonviolent act to replace the nonviolent act itself, and thereby upgrade nonviolent acts into “violent” ones. Yet that would be the effect of focusing on future physical risks to the victim instead of the actual crime committed by the defendant. Other consequences aside, sexual intercourse with a 13-year-old girl by itself creates a serious potential risk of physical injury. When the act is completed, so is the risk of the personal injury of that act. We need not speculate what else could happen as a result of the encounter, because the sexual encounter itself meets the risk of injury requirement of the Guideline.

While I am willing to go along with that narrow holding, it is still subject to criticism because it is merely based upon our own judicial impulses, not upon any legislative findings or any of the usual legislative procedures used for this type of determination. In part III of his concurrence and dissent, Judge Coffey explains in great detail the importance of leaving to federal and state legislatures the role of defining crimes of violence and the age when minors are subjected to such violence through sexual intercourse. It is extremely important that the Sentencing Commission, with the approval of Congress, not judges upon our own whim or study, determine what is and what is not a “crime of violence” under the applicable Sentencing Guideline. Judges should not usurp that legislative function. Still, I am willing to concur with the court’s opinion which is limited to this violation of the Wisconsin statute rather than a general declaration that Wisconsin’s or any other state’s statutory rape law is per se a “crime of violence” under § 4B1.2(l)(ii). I also underscore the court’s request that the Sentencing Commission, with the approval of Congress, look into whether “statutory rape” or “illegal underage sex” should be added as a “crime of violence” under this Guideline.