August 21, 2019

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wray on Tuesday, January 27, 2015.

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.

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