In a decision released this week, the Sixth Circuit Court of Appeals held that a conviction under Ohio’s sexual battery offense does not constitute a crime of violence. United States v. Wynn, No. 07-4307, slip op. (Sept. 2, 2009) (Moore, Gibbons, and Friedman). The majority’s decision was written by Judge Moore, joined by Judge Gibbons. Judge Friedman dissented.
Though this case addressed sentencing enhancements rather than any immigration law directly, the crime of violence language examined by the Court is identical to the COV language used by 18 U.S.C. § 16(b), which defines COV for purposes of INA § 101(a)(43)(F).
The criminal defendant in this case, Wynn, was convicted of violating Ohio’s sexual battery statute, Ohio Rev. Code § 2907.03. That statute provides:
“(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution. (2) The offender knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired. (3) The offender knows that the other person submits because the other person is unaware that the act is being committed. (4) The offender knows that the other person submits because the other person mistakenly identifies the offender as the other person’s spouse. (5) The offender is the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person. (6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person. (7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.
(8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution. (9) The other person is a minor, and the offender is the other person’s athletic or other type of coach, is the other person’s instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person. (10) The offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes. (11) The other person is confined in a detention facility, and the offender is an employee of that detention facility. (12) The other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.”
The Sixth Circuit first noted that it must use the categorical approach of statutory analysis required by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). Wynn, No. 07-4307, slip op. at 5. The Sixth Circuit quickly added that an exception exists to the categorical approach when the statutory definition of the criminal offense is ambiguous. Wynn, No. 07-4307, slip op. at 6. When this occurs, the Sixth Circuit explained, “the court may examine . . . ‘the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.’” Wynn, No. 07-4307, slip op. at 6 (quoting United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008)).
The Sixth Circuit first addressed whether Ohio’s sexual battery offense was categorically a COV. Wynn, No. 07-4307, slip op. at 6. Importantly, the record of conviction in this case did not specify which of the many subsections of Ohio Rev. Code § 2907.03 Wynn was convicted under. As such, the Court reviewed the entire statute to determine if, categorically, generic convictions under § 2907.03 are COVs. Wynn, No. 07-4307, slip op. at 6. In two sentences the Court held that sexual battery does not have as an element the use, attempted use, or threatened use of force, therefore it does not constitute a COV under the equivalent sentencing provision as 18 U.S.C. § 16(a). Wynn, No. 07-4307, slip op. at 7-8 (relying on United States v. Mack, 8 F.3d 1109, 1112 (6th Cir. 1993)).
The Court then addressed the equivalent of 18 U.S.C. § 16(b) and concluded that a conviction under § 2907.03 “is not categorically a “crime of violence” because some subsections of § 2907.03 can result in convictions for crimes that, while involving purposeful behavior, do not involve aggressive and violent behavior.” Wynn, No. 07-4307, slip op. at 9. The Sixth Circuit relied on the Supreme Court’s decision in Begay v. United States, 128 S.Ct. 1581 (2008), in which the Supreme Court held that a crime constitutes a COV under the second prong of the sentencing enhancement provision only if it is “purposeful, violent, and aggressive.” Wynn, No. 07-4307, slip op. at 9 (citing Begay, 128 S.Ct. at 1586). Citing to an Ohio Supreme Court case, the Sixth Circuit explained that “§ 2907.03(A)(5) criminalizes a consensual sexual encounter between a woman and her 21-year-old adopted stepson.” Wynn, No. 07-4307, slip op. at 9. As the Wynn Court explained, “Such a consensual sexual act between adults would not be violent and aggressive by nature, and thus would not be a ‘crime of violence’ under the Begay test.” Wynn, No. 07-4307, slip op. at 9.
The Court then turned to whether Wynn’s conviction constituted a COV if the Court examined the record of conviction. Wynn, No. 07-4307, slip op. at 11. The government argued that the court could examine Wynn’s Pre-Sentence Report and Wynn argued that the court could not. Wynn, No. 07-4307, slip op. at at 12.
For the government’s position to be correct, the Sixth Circuit explained, the facts recited in the PSR must constitute a “comparable judicial record” under Shepard. Wynn, No. 07-4307, slip op. at 12. Relying on Bartee, the Sixth Circuit held that “the factual descriptions contained in a PSR are ‘the sort of information that one might expect to find in a police report or application for criminal complaint.’” Wynn, No. 07-4307, slip op. at 13 (quoting Bartee, 529 F.3d at 361). Accordingly, the Sixth Circuit “conclude[d] that it would be improper for the district court to rely on the factual recitations in the PSR to determine that Wynn’s § 2907.03 conviction was for a “crime of violence.” Wynn, No. 07-4307, slip op. at 13.
Judge Friedman dissented because he would have allowed use of the PSR. Wynn, No. 07-4307, slip op. at 16 (Friedman, J. dissenting). His reasoning was essentially that “In criminal cases it is common practice for a defendant who wants to contest or challenge facts set forth in the presentence report to object to them. If a defendant does not do so, it is understood that those facts are admitted and accepted as a basis for determining the sentence.” Wynn, No. 07-4307, slip op. at 16 (Friedman, J. dissenting). Because there was no evidence that Wynn objected to the facts in the PSR “it would appear thathe acknowledges their accuracy as a basis for determining his sentence.” Wynn, No. 07-4307, slip op. at 17 (Friedman, J. dissenting).