for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. Alvin James Pierce

Filed: February 14, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-4701
(CR-00-54)
United States of America,
Plaintiff - Appellee,
versus
Alvin James Pierce,
Defendant - Appellant.
O R D E R
The court amends its opinion filed January 10, 2002, as
follows:
On page 7, first paragraph, last line; and page 20, footnote
7, line 6 of second paragraph -- the section number is corrected to
read “§ 14-202.1(a).”
On page 10, continuation of footnote *, line 3; page 14, first
paragraph, line 2; and page 29, third full paragraph, line 3 -- the
section number is corrected to read “§ 14-202.1(a)(1).”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4701
ALVIN JAMES PIERCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-00-54)
Argued: September 28, 2001
Decided: January 10, 2002
Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the majority
opinion, in which Judge Wilkins joined. Judge Gregory wrote a dis-
senting opinion.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Eric A. Bach, Charlotte, North Carolina, for Appellant. C.
Nicks Williams, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Robert J. Conrad, Jr., United
States Attorney, Charlotte, North Carolina, for Appellee.
____________________________________________________________

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OPINION OPINION OPINION OPINION
NIEMEYER, Circuit Judge:
We are presented with the single issue of whether Alvin Pierce's
prior conviction for taking indecent liberties with a child, in violation
of N.C. Gen. Stat. § 14-202.1, constitutes a predicate "crime of vio-
lence" for purposes of enhancing his sentence in the instant case as
a "career offender" under the Sentencing Guidelines, U.S.S.G.
§ 4B1.1. Applying a categorical approach to the determination of
career-offender status, we conclude as a matter of law that the state
felony offense of taking indecent liberties with a child constitutes a
crime of violence under U.S.S.G. § 4B1.1 both because it amounts to
a forcible sex offense and because it creates a serious potential risk
of physical injury. Accordingly, we affirm the district court's sen-
tence of Pierce as a career offender.
I
On April 21, 1999, Alvin Pierce robbed a branch of the Branch
Banking & Trust in Charlotte, North Carolina; on July 30, 1999,
Pierce robbed a branch of the Wachovia Bank in Charlotte; and on
August 11, 1999, Pierce robbed a branch of Central Carolina Bank in
Charlotte. After being indicted for bank robbery and bank larceny in
connection with each incident, in violation of 18 U.S.C. §§ 2113(a)
and 2113(b), Pierce pleaded guilty to three counts of bank robbery.
The district court sentenced Pierce as a career offender under
U.S.S.G. § 4B1.1 and imposed a 188-month term of imprisonment for
each count of conviction, to be served concurrently.
In sentencing Pierce as a career offender, the district court relied
on two prior felony convictions, one in 1995 for bank robbery, in vio-
lation of 18 U.S.C. § 2113(a), for which he was sentenced to 57
months' imprisonment; and one in 1992 for taking indecent liberties
with a child, in violation of N.C. Gen. Stat. § 14-202.1, for which he
was sentenced to five years' imprisonment. Although Pierce did not
object to the district court's use of the bank robbery conviction as a
predicate offense for finding career-offender status, he did object to
use of the indecent liberties conviction, arguing that the offense did
not constitute a "crime of violence" as required by U.S.S.G. § 4B1.1.
2

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In concluding that the indecent liberties offense did indeed consti-
tute a crime of violence, the district court "specifically . . . noted that
the particular incident involved a young seven year old daughter of
[Pierce's] girlfriend." When defense counsel noted that the age of the
victim was not stated in the charging document, the court accepted
into evidence a 1992 memorandum from the Greensboro Parole Ser-
vices Department prepared in connection with the case. That report
noted that the victim was seven-and-one-half years old at the time of
the crime and described the crime as follows:
The victim stated that this defendant made her watch dirty
movies. She stated that he made her touch his penis and that
he had fondled her genital area. The child was examined by
a doctor and there had been no penetration evident, but the
vaginal area was irritated. The victim also stated that this
had happened on numerous occasions when her mother was
away from the home and that this had begun at age six. The
victim, when examined by a doctor, tested positive for Chla-
mydia, which is a sexually transmitted disease.
Pierce objected to the district court's use of the parole services report
because it violated the categorical approach mandated for considering
predicate offenses.
In addition, Pierce took the witness stand and testified on his own
behalf, denying that he took any indecent liberties with the child. He
stated that the charge was "concocted" as the result of a custodial dis-
pute and clarified that the child was his seven-year old daughter.
From the district court's judgment, Pierce noticed this appeal rais-
ing only the issue of whether the district court erred in finding that
his prior conviction for indecent liberties with a child was a crime of
violence for the purpose of applying career-offender status. He argues
that under the categorical approach, the court should not have consid-
ered facts not contained in the charging document and that the charg-
ing document itself only alleges, in statutory language, a violation of
N.C. Gen. Stat. § 14-202.1. He asserts that, because the statutory lan-
guage does not require physical force or touching, the offense is not
a crime of violence.
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II
Section 994(h) of Title 28 directs that the United States Sentencing
Commission provide sentences "at or near the maximum" for defen-
dants convicted of crimes of violence or drug crimes if those defen-
dants have also twice previously been convicted for crimes of
violence or drug crimes. Section 4B1.1 of the Sentencing Guidelines,
which implements Congress' directive, thus enhances sentences for
defendants who are "career offenders." This section defines a "career
offender" as any defendant who (1) is at least 18 years old at the time
he commits the instant offense; (2) is convicted of a felony that is
either a crime of violence or a drug offense; and (3) has at least two
prior felony convictions of either a crime of violence or a drug
offense. U.S.S.G. § 4B1.1. A defendant found to be a career offender
under § 4B1.1 is sentenced at a criminal history Category VI and at
specified minimum offense levels.
Id.
As used in § 4B1.1, "crime of violence" means any offense,
whether federal or state, punishable by imprisonment for a term
exceeding one year that
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that pre-
sents a potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The relevant application notes amplify the defi-
nition, stating that crimes of violence include "murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit, and burglary of a dwell-
ing," as well as any offense that, "by its nature, present[s] a serious
potential risk of physical injury to another." U.S.S.G. § 4B1.2, cmt.
n.1. Even though the question of whether an offense is a crime of vio-
lence is a question of
federal law, because the federal law includes the
possibility that a predicate offense may be a prior violation of state
law,
see U.S.S.G. § 4B1.1(a), in considering such an offense, we look
to
state law to determine its nature and whether its violation is a crime
of violence under federal law.
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The question presented in this case, therefore, is whether the North
Carolina felony offense of taking indecent liberties with a child falls
within the federal definition of a crime of violence because it is either
a "forcible sex offense" or an offense which, "by its nature, presents
a serious potential risk of physical injury to another." This is a ques-
tion of law that we review
de novo.
United States v. Dickerson, 77
F.3d 774, 775 (4th Cir. 1996).
In answering this question, we use the required categorical
approach, which takes into account only the definition of the offense
and the fact of conviction.
United States v. Kirksey, 138 F.3d 120, 124
(4th Cir. 1998);
United States v. Wilson, 951 F.2d 586, 588 (4th Cir.
1991). The principles for application of this approach were adopted
from the analogous analysis prescribed in
Taylor v. United States, 495
U.S. 575, 588-90 (1990), in which the Supreme Court applied the
same categorical approach to determine whether burglary was a predi-
cate crime of violence for armed-career-offender status under 18
U.S.C. § 924(e).
See Kirksey, 138 F.3d at 124. In
Kirksey, we pointed
out that neither Congress nor the Sentencing Commission intended,
by relying on predicate offenses in § 4B1.1, to open up the predicate
offenses for retrial or reconsideration.
See id. If we were to go behind
the fact of conviction and attempt to determine the facts of each predi-
cate offense, sentencing would become a series of minitrials for each
prior offense, which would be both costly and unreliable.
When the definition of the predicate offense is ambiguous and does
not reveal whether it is a crime of violence, we may discover the
nature of the offense for which the defendant was actually convicted
by looking at the charging document and the jury instructions.
See
Kirksey, 138 F.3d at 124. But in permitting this, we have admonished
that the inquiry must never "involve[ ] a factual inquiry into the facts
previously presented and tried."
Id. at 124-25.
In the case before us, the district court relied upon the parole ser-
vices report that was contained in the record but was not included in
the charging document to point out that the victim was seven years
old. Pierce correctly notes, however, that this use of the parole ser-
vices report was improper. Use of parole services reports or other
noncharging documents could lead to the very factual inquiry that the
categorical approach prohibits. Indeed, this case presents a relevant
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example. The report consulted by the district court provided details
about how Pierce was alleged to have engaged in a sexual act with
a seven year old girl by touching her and having her touch him. Yet,
in his sworn testimony before the district court, Pierce denied engag-
ing in that conduct and asserted, to the contrary, that the charge was
drummed up by his girlfriend in retaliation for disputing the young
girl's custody. The sentencing proceeding in this case could never
have been the appropriate forum for the resolution of that factual dis-
pute. Thus, under the categorical approach in
Kirksey, the district
court should not have relied on any such facts taken from the case file
or the testimony of witnesses. Rather, it should have approached the
question of whether the offense of taking indecent liberties with a
child was categorically a crime of violence, as defined by the Sen-
tencing Guidelines.
While we could look to the charging document and the contents of
jury instructions, the charging document in this case adds no facts to
the statutory elements alleged and there were no jury instructions
because Pierce pleaded guilty. Therefore, we are left with analyzing
the nature of the offense itself. Because the offense under consider-
ation was a state offense, we look to state law to understand whether
a conviction under state law amounts to a crime of violence as defined
by federal law.
Pierce was convicted for violation of N.C. Gen. Stat. § 14-202.1,
which makes taking indecent liberties with children a felony. That
statute provides in relevant part:
A person is guilty of taking indecent liberties with children
if, being 16 years of age or more and at least five years older
than the child in question, he either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties with any
child of either sex under the age of 16 years for the
purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit
any lewd or lascivious act upon or with the body
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or any part or member of the body of any child of
either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a).
The North Carolina courts have stated that § 14-202.1 was enacted
to protect children.
See State v. Elam, 273 S.E.2d 661, 665 (N.C.
1981) (noting the purpose as "the protection of children from the sex-
ual advances of adults");
Matter of State v. Turman, 278 S.E.2d 574,
575 (N.C. Ct. App. 1981) (stating, "[t]he purpose of the statute is to
give broader protection to children than the prior laws provided");
see
also State v. Etheridge, 352 S.E.2d 673, 682 (N.C. 1987) (noting that
the broad range of prohibited indecent conduct gives children broader
protection than available under other statutes proscribing sex acts).
The North Carolina Supreme Court explained that the provision
"clearly prohibits sexual conduct with a minor child. Indeed, the leg-
islature enacted § 14-202.1 to encompass more types of deviant
behavior, giving children broader protection than available under
other statutes proscribing sexual acts."
State v. Banks, 370 S.E.2d
398, 406 (N.C. 1988) (internal citations and quotation marks omitted).
"The evil the legislature sought to prevent in this context was the
defendant's performance of any immoral, improper, or indecent act in
the presence of a child `for the purpose of arousing or gratifying sex-
ual desire.'"
State v. Hartness, 391 S.E.2d 177, 180 (N.C. 1990)
(quoting N.C. Gen. Stat. § 14-202.1). Consistent with this broad pro-
tection, the North Carolina statute requires neither physical force nor
a touching.
E.g.,
Hartness, 391 S.E.2d at 180;
Etheridge, 352 S.E.2d
at 682. As the Supreme Court explained in
Banks ,
Undoubtedly [the statute's] breadth is in recognition of the
significantly greater risk of psychological damage to an
impressionable child from overt sexual acts. We also bear in
mind the enhanced power and control that adults, even
strangers, may exercise over children who are outside the
protection of home or school.
Banks, 370 S.E.2d at 407 (quoting
State v. Hicks, 339 S.E.2d 806, 809
(N.C. Ct. App. 1986)).
Pierce argues that "[s]ince physical touching is not a required ele-
ment of the offense, indecent liberties is not a crime of violence." He
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also points out accurately that the charging document provides no
facts demonstrating that physical touching was involved.
The government argues in response that under U.S.S.G. § 4B1.1,
neither force nor a touching is a necessary aspect of a "crime of vio-
lence," directing our attention to the portion of its definition that
includes any crime which, "
by its nature, present[s] a serious
poten-
tial risk of physical injury to another." U.S.S.G. § 4B1.2, cmt. n.1
(emphasis added);
see also U.S.S.G. § 4B1.2(a)(2) (defining crime of
violence to include any offense "that presents a serious potential risk
of physical injury to another").
Following the contours of the categorical approach set out by the
Supreme Court in
Taylor and by this court in
Kirksey, we use a "gen-
eral approach," applying "uniform, categorical definitions to capture
all offenses of a certain level of seriousness that involve violence or
an inherent risk thereof, and that are likely to be committed by career
offenders, regardless of technical definitions and labels under state
law."
Taylor, 495 U.S. at 590;
see also Kirksey, 138 F.3d at 124 (lim-
iting inquiry to fact of conviction and definition of the offense).
Accordingly, this court must examine the offense as a
category of
criminal conduct defined by the statute and not "the particular facts
underlying those convictions."
Taylor, 495 U.S. at 600, 601.
Thus, when examining the indecent liberties statute involved in this
case, which has been defined repeatedly by the North Carolina
Supreme Court, we recognize first that the statute was enacted to pro-
vide broad protection against sexual abuse, a particularly pernicious
form of personal injury, of the most vulnerable members of our soci-
ety. As the North Carolina courts have observed, the statute is written
in broad terms as part of its specific design to protect against the
heightened risk of injury that comes when impressionable children are
the victims.
See Banks, 370 S.E.2d at 407 (recognizing the "signifi-
cantly greater risk" of injury to children from "overt sexual acts"). By
emphasizing the breadth of protection provided by § 14-202.1, these
courts have indicated that injury can be caused even in the absence
of touching or explicit force.
Relying on the breadth of the North Carolina statute, our dissenting
colleague maintains that a conviction under the North Carolina inde-
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cent liberties statute is not a conviction for a crime of violence. He
rests his position on the propositions that (1) the language of the
North Carolina statute is so broad that it criminalizes conduct beyond
that which presents a serious risk of physical injury, and (2) the stat-
ute may be violated in a "vast array of means" that poses no risk of
physical injury. This position, however, fails on two accounts.
First, the Sentencing Guidelines provide a broad definition of a
crime of violence, aiming at a crime that not only causes physical
injury but also a crime that, by its nature,
could cause physical injury.
Thus, the Guidelines expressly list arson and burglary of a dwelling
as crimes of violence.
See U.S.S.G. § 4B1.2, cmt. n.1. Yet neither
arson nor burglary of a dwelling categorically has as an element any
touching or physical harm to a person. Indeed, a person need not even
be threatened in such offenses. In a similar vein, we have held that
a crime of violence includes: the crime of attempted breaking and
entering of a dwelling,
see United States v. Custis, 988 F.2d 1355,
1364 (4th Cir. 1993); the crime of escape from custody,
see United
States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995); and the crime
of attempted escape,
see United States v. Dickerson, 77 F.3d 774, 777
(4th Cir. 1996). Again, none of these crimes requires a touching or
even an actual threat of physical injury. What is common to all of
these crimes, as well as to the North Carolina indecent liberties stat-
ute, however, is conduct that inherently presents a risk of physical
injury. Indeed, it is for this reason that the Sentencing Guidelines
themselves classify criminal sexual abuse under 18 U.S.C. § 2242 as
a crime of violence, even though, as we explain more fully below, a
violation does not require a touching or physical injury.
See U.S.S.G.
§ 2A3.1, cmt. background.
Second, our dissenting colleague's position is inconsistent with
available empirical data relating to the application of the North Caro-
lina indecent liberties statute. In most instances, convictions under
this statute have involved offenses committed in close proximity to
victims so as to create a serious risk of physical injury. A review of
North Carolina appellate decisions since 1980 that apply the indecent
liberties statute reveals that in 98% of the cases, the crime is commit-
ted in situations where the victim is in such close proximity to the
perpetrator that the victim was exposed to the serious risk of injury.*
____________________________________________________________
*For the period from 1980, 150 reported decisions were found where
(1) the facts were stated in sufficient detail to indicate whether the victim
9

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We have held that in determining whether a particular offense, which
may be committed in both violent and non-violent ways, is a crime
of violence, "most" of the instances of the offense should present a
serious risk of physical injury in order to be a crime of violence.
See
United States v. Martin, 215 F.3d 470, 475 (4th Cir. 2000);
cf. United
States v. Johnson, 246 F.3d 330, 334 (4th Cir. 2001) (noting that
when "most instances" do not present a risk of physical injury, the
offense is not a crime of violence).
Thus, because the North Carolina indecent liberties statute protects
against the risk of physical injury and its violation therefore presents
a serious risk of physical injury, such a violation categorically is a
crime of violence.
We come to this same conclusion also because the North Carolina
statute protects against a "forcible sex offense," which the Sentencing
Guidelines also define to be a crime of violence. U.S.S.G. § 4B1.2,
cmt. n.1. The North Carolina courts have consistently held that con-
structive force may be inferred in sexual abuse cases involving chil-
dren.
See,
e.g.,
Etheridge, 352 S.E.2d at 680-81. The North Carolina
Supreme Court has noted that "constructive force may be demon-
strated by evidence of threats or other actions by the defendant which
compel the victim's submission to sexual acts, and such threats `need
not be explicit so long as the totality of the circumstances allows a
reasonable inference that such compulsion was the unspoken purpose
of the threat.'"
North Carolina v. Penland, 472 S.E.2d 734, 742 (N.C.
1996) (quoting
Etheridge, 352 S.E.2d at 680);
accord North Carolina
____________________________________________________________
and the perpetrator were in close proximity, (2) the opinion did not spec-
ify that the defendant violated § 14-202.1(a)(2) rather than § 14-
202.1(a)(1) (which does not require physical contact), and (3) the case
did not reverse for insufficiency of evidence. Of these 150 cases, only 3
did not meet the criteria:
State v. Nesbitt, 515 S.E.2d 503, 505-06 (N.C.
Ct. App. 1999) (masturbation while watching children play outside, 35
feet away);
State v. McClees, 424 S.E.2d 687, 690 (N.C. Ct. App. 1993)
(videotaping victim without victim's knowledge); and
State v. Strickland,
335 S.E.2d 74, 75-76 (N.C. Ct. App. 1985) (masturbation while watching
boys play across a creek). In the remaining 147 cases, the convictions
involved offenses committed in such close proximity to the victim as to
present a serious risk of physical injury.
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v. Brown, 420 S.E.2d 147, 150 (N.C. 1992). In this case, the adult-
child relationship between the defendant and the victim permits the
inference of constructive force.
See Etheridge, 352 S.E.2d at 681
("We hold that constructive force could be reasonably inferred from
the circumstances surrounding the parent-child relationship");
North
Carolina v. Hardy, 409 S.E.2d 96, 99 (N.C. Ct. App. 1991) (same).
"The youth and vulnerability of children, coupled with the power
inherent in a parent's position of authority, creates a unique situation
of dominance and control in which explicit threats and displays of
force are not necessary to effect the abuser's purpose."
Etheridge, 352
S.E.2d at 681.
It would thus appear that North Carolina's indecent liberties stat-
ute, as interpreted by the North Carolina courts, protects not only
against the serious risk of physical injury but also against the applica-
tion of constructive force created by the nature of the relationship of
adult and child. Either aspect would satisfy the Sentencing Guide-
lines' definition of a "crime of violence."
North Carolina's own take on the indecent liberties statute which
Pierce violated is similar to the Sentencing Guideline's take on an
analogous federal law of sexual abuse. Sections 2241 and 2242 of
Title 18 prohibit aggravated sexual abuse and sexual abuse, respec-
tively, and § 2242 provides for punishment of persons who engage in
sexual acts with other persons if the other person is "incapable of
appraising the nature of the conduct" or "physically incapable of
declining participation in, or communicating unwillingness to engage
in, that sexual act." 18 U.S.C. § 2242. The statute also prohibits
attempts to engage in sexual acts with persons incapable of appraising
the act or communicating an unwillingness to participate.
Id. The Sen-
tencing Guidelines applicable to these two sections state categorically
that, even though a touching or physical injury is not a required ele-
ment of a violation of § 2242, "[s]exual offenses addressed in this sec-
tion
are crimes of violence.
Because of their dangerousness, attempts
are treated the same as completed acts of criminal sexual abuse."
U.S.S.G. § 2A3.1, cmt. background (emphasis added). This commen-
tary also provides that "[a]ny criminal sexual abuse with a child less
than twelve years of age, regardless of `consent,' is governed by
§ 2A3.1 (Criminal Sexual Abuse)."
Id. And any criminal sexual abuse
is defined as crime of violence.
Id. Similarly, a violation of 18 U.S.C.
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§ 2243, which prohibits sexual abuse (or attempt) with a minor or
ward, is characterized as a crime of violence by the Sentencing
Guidelines as long as the victim has not attained the age of 12, regard-
less of any purported consent.
See U.S.S.G. § 2A3.2 cmt. background.
Accordingly, whether we look at North Carolina's characterization
of its indecent liberties statute which Pierce violated, or the federal
characterization of an analogous federal law, the conclusion is the
same that taking indecent liberties with a minor amounts to a crime
of violence under U.S.S.G. § 4B1.1 because the offense involves
"forcible sex" or "by its nature, presents a serious potential risk of
physical injury to another." U.S.S.G. § 4B1.2, cmt. n.1. When a child
is the victim of adult conduct, force can be inferred. Moreover, even
if force and any resulting injury were not inferred, such child abuse
by an adult would present a serious
potential risk of physical injury
to the child, a danger that is quite similar in character to the
potential
injury to persons involved in arson or burglary, both of which are spe-
cifically recognized as crimes of violence. The injury that sex abuse
of children offers is not only a serious potential risk, but it is the very
risk at which the North Carolina statute prohibiting indecent liberties
with children is aimed. Consequently, we conclude that a violation of
that statute is categorically a crime of violence.
In reaching this conclusion, we join every other circuit that has
considered the question, even though the underlying factual circum-
stances in those cases involved either a sexual touching or a statute
that required a sexual touching.
See United States v. Meader, 118
F.3d 876, 885 (1st Cir. 1997) (holding that statutory rape offense was
a crime of violence for career offender purposes);
United States v.
Kirk, 111 F.3d 390, 395-96 (5th Cir. 1997) (holding that conviction
of indecency with a child involving sexual contact is a crime of vio-
lence);
United States v. Shannon, 110 F.3d 382, 389 (7th Cir. 1997)
(en banc) (holding that second degree sexual assault of a child, requir-
ing sexual contact, is a crime of violence);
United States v. Taylor, 98
F.3d 768, 773 (3d Cir. 1996) (holding that statutory rape conviction
for which facts supported allegation of use of physical force, was a
crime of violence);
United States v. Passi, 62 F.3d 1278, 1282 (10th
Cir. 1995) (holding that sexual abuse of a minor involving contact is
a crime of violence for purposes of calculation of offense level);
United States v. Wood, 52 F.3d 272, 277 (9th Cir. 1995) (holding that
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conviction under indecent liberties statute, where criminal informa-
tion included facts that victim was five years old and sexual contact
occurred, was crime of violence);
United States v. Bauer, 990 F.2d
373, 375 (8th Cir. 1993) (holding that statutory rape offense was a
crime of violence). But the violence in each of these cases was not
necessarily the touching — as the touching itself may not cause injury
— but rather it was either a "forcible sex offense" or an offense that,
"by its nature, presents a serious potential risk of physical injury to
another."
Accordingly, the judgment of the district court is
AFFIRMED.
GREGORY, Circuit Judge, dissenting:
Fidelity to the text of the Sentencing Guidelines together with
respect for our precedent requires me to conclude that North Caroli-
na's offense of indecent liberties is not a "crime of violence" under
USSG § 4B1.1. Simply put, the defendant lacked one of the necessary
predicate offenses that would warrant a sentencing enhancement as a
"career offender" under USSG § 4B1.1. First, North Carolina's defini-
tion of taking indecent liberties with a child is broad, encompassing
much conduct that does not, by its nature, present a serious risk of
physical injury to another. Second, the offense cannot be classified as
a "forcible sex offense" because the use, attempted use, or threatened
use of physical force is not an element of the offense. The majority
has abandoned the approach we routinely employ in interpreting
§ 4B1.1, and its definitional section, § 4B1.2. In doing so, the major-
ity misapplies Supreme Court instruction and ignores binding Circuit
precedent. I must respectfully dissent.
The majority correctly recognizes that we are required to use a
"categorical approach," and correctly states that this approach prohib-
its us from taking into account the parole services report or the defen-
dant's testimony. We may only consider the definition of the offense
and information contained in the charging documents. The majority
13

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also correctly recognizes that the indictment involved in this case
merely repeats the language of § 14-202.1(a)(1) of the statute. 1111
I.
A.
This Court has repeatedly addressed the issue of whether a particu-
lar crime is a "crime of violence" under the "otherwise clause" of
§ 4B1.2. Our limited inquiry requires that
in assessing whether a particular offense satisfies the "other-
wise clause" of [USSG § 4B1.2(a)(2)], a sentencing court
must confine its factual inquiry to those facts charged in the
indictment. If the sentencing court cannot glean the circum-
stances surrounding the defendant's commission of the
crime from the indictment, the question for the sentencing
court becomes whether that crime,
in the abstract, involves
conduct that presents a serious potential risk of physical
injury to another.
United States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996) (internal
quotation marks & citations omitted) (emphasis added);
United States
v. Martin, 215 F.3d 470, 473 (4th Cir. 2000) (quoting
Dickerson).
The commentary to the guidelines indicates the same approach. In
explaining how the "otherwise clause" should be applied, the com-
mentary states that "[o]ther offenses are included as `crimes of vio-
lence' if . . . the conduct set forth (
i.e., expressly charged) in the count
of which the defendant was convicted involved the use of explosives
(including any explosive material or destructive device) or, by its
nature, presented a serious potential risk of physical injury to
another." USSG § 4B1.2, cmt. n.1. The commentary also states that
in determining whether a particular offense is a crime of violence,
"the offense of conviction (
i.e., the conduct of which the defendant
was convicted) is the focus of the inquiry." USSG § 4B1.2, cmt. n.2.
____________________________________________________________
1111 The majority's description of the alleged events that led to the defen-
dant's guilty plea to taking indecent liberties with a child is unnecessary.
14

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From this, it should be readily apparent that the relevant inquiry is
whether the
conduct presents a serious risk of physical injury
by its
nature, not whether the legislature was motivated by a desire to
reduce the risk of injury when it enacted the prohibition. We do not
look at the "aims" or "purposes" of the statute, except to the extent
they shed light on the range of conduct prohibited by the offense. If
we are unaware of the conduct of the specific offender, we endeavor
to understand whether a serious potential risk of physical injury is
inherent in the range of conduct prohibited by the offense. Using the
language of our prior cases, we ask whether the offense presents a
serious risk "in the abstract." 2222 Using the language of the sentencing
guidelines, we ask whether the offense "by its nature" presents such
a risk. The majority's approach, in contrast, reduces to an argument
that North Carolina's indecent liberties statute is a crime of violence
because its purpose is to protect children from the harms of sexual
abuse.
On numerous occasions, we have found offenses to present a seri-
ous potential risk of physical injury because of the substantial risk of
physical confrontation during the commission of the crime. For exam-
ple, in
United States v. Custis, 988 F.2d 1355 (4th Cir. 1993), we held
that attempted breaking and entering of a dwelling constitutes a vio-
lent felony because of the substantial risk of confrontation.
Id. at
1363-64 ("In most cases, attempted breaking and entering will be
charged when a defendant has been interrupted in the course of ille-
gally entering a home. Interrupting an intruder while breaking into a
home involves a risk of confrontation nearly as great as finding him
inside the house."). Similarly, in
United States v. Hairston, 71 F.3d
115, 118 (4th Cir. 1995), we held that escape from custody is a vio-
lent felony because "the chance that [even] in the case of an escape
by stealth, the escapee will be intentionally or unintentionally inter-
rupted by another" created the possibility that "the escapee [will]
choose to dispel the interference by means of physical force."
See
also Dickerson, 77 F.3d at 777 (relying on
Hairston in holding that
attempted escape from custody is a crime of violence);
United States
v. Aragon, 983 F.2d 1306, 1311-15 (4th Cir. 1993) (holding that
____________________________________________________________
2222
See also United States v. Thompson
See also United States v. Thompson
See also United States v. Thompson
See also United States v. Thompson, 891 F.2d 507, 511 (4th Cir.
1989) (Phillips, J., concurring) (stating that the phrase "by its nature" has
been interpreted as referring to "the intrinsic nature of the offense . . . .").
15

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attempting to rescue a prisoner or assisting his escape is a crime of
violence for purposes of 18 U.S.C.A. § 1952(a)(2) (West Supp.
2000));
United States v. Mobley, 40 F.3d 688, 696 (4th Cir. 1994)
(holding that pickpocketing is a violent felony because of the likeli-
hood of confrontation).
On another recent occasion, we looked at the instrumentality of the
offense to determine whether it presented a serious risk of physical
injury. In
United States v. Johnson, 246 F.3d 330 (4th Cir. 2001), we
held that the offense of knowing possession of a sawed-off shotgun
presented a serious risk of physical injury and was thus a crime of
violence. We did so because the
type of weapon involved created a
serious risk of physical injury.
Id. at 334 ("The crime involved in this
case requires the court to consider whether the possession of a certain
type of weapon creates a serious risk of physical injury to another.").
A sawed-off shotgun is inherently dangerous and lacks usefulness
except for purposes which would cause physical injury.
Id. at 334;
see
also United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001)
(holding possession of sawed-off shotgun always presents a serious
potential risk of physical injury);
United v. Allegree, 175 F.3d 648,
651 (8th Cir.),
cert. denied, 528 U.S. 958 (1999) (same);
United
States v. Fortes, 141 F.3d 1, 6-8 (1st Cir. 1998) (same);
United States
v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993) (same). And in
United
States v. Thompson, 891 F.2d 507, 510 (4th Cir. 1989), we held that
the South Carolina offense of pointing a firearm at another person
qualified as a violent crime for purposes of "career offender" status
because of the substantial risk of physical force that is "invariably
present" in that offense. In each of these cases, we looked at the
intrinsic circumstances of the offense and determined that a serious
risk of physical injury was present.
In contrast, when the generic conduct involved in a particular
offense does not carry with it a serious risk of physical injury, we
have held that the offense is not a crime of violence under
§ 4B1.2(a)(2). In
United States v. Johnson, 953 F.2d 110 (4th Cir.
1992), we held that the offense of possession of a firearm by a con-
victed felon is not a crime of violence. We contrasted the case with
Thompson, noting that
Thompson involved the
pointing of a firearm,
and stated that "simple possession of a firearm by a felon does not
present the same immediate threat. . . ."
Id. at 115. We then reasoned
16

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that "[t]he danger inherent in the mere possession of a firearm is, in
many cases, too highly attenuated to qualify the offense as a
per se
`crime of violence.'"
Id. We noted the broad range of conduct prohib-
ited by the offense, and found that it foreclosed a finding that the
offense was a crime of violence.
Id.
In
Johnson, we noted that the facts demonstrated why many
instances of the offense would not present a serious risk of injury.
Id.
The guns possessed by the defendant were buried in his backyard.
Id.
We stated that "[a]ny `serious potential risk of physical injury to
another' depends upon a speculative chain of events in which [the
offender] recovers the guns and then brandishes them in the presence
of another person. Such violent conduct may often underlie a charge
of gun possession, but it is not a necessary element of that offense."
Id.
Finally, we were unswayed by the status of the offender as a felon.
"While a felon in possession of a firearm may pose a statistical danger
to society, we refuse to interpret this statistical threat as evidence of
specific intent on the part of an individual defendant."
Id.
We have also held that the offense of bank larceny is not a crime
of violence.
United States v. Martin, 215 F.3d 470, 475 (4th Cir.
2000). In
Martin, our critical analysis was that "[a]lthough some bank
larcenies may present a risk of physical confrontation, bank larceny
may be committed by numerous means that present no such risk. . . .
The vast array of means of committing bank larceny that pose no
potential risk of physical injury to another, let alone a serious one,
precludes a determination that the offense in the abstract is a crime
of violence."
Id.
Based on these precedents, I must conclude that North Carolina's
offense of taking indecent liberties with a child is not a crime of vio-
lence. As the majority correctly notes, the range of conduct prohibited
by the statute is extremely broad.
See ante at 7. The North Carolina
Supreme Court has repeatedly held that "the legislature enacted § 14-
202.1 to encompass more types of deviant behavior, giving children
broader protection than available under other statutes proscribing sex-
ual acts."
State v. Banks, 370 S.E.2d 398, 406 (N.C. 1988);
State v.
Etheridge, 352 S.E.2d 673, 682 (N.C. 1987) (same);
Matter of State
17

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v. Turman, 278 S.E.2d 574, 575 (N.C. Ct. App. 1981) (same). The
facts to which the statute has been applied confirm the breadth of its
coverage. For example, in
State v. McClees, 424 S.E.2d 687 (N.C.
App. 1993), the Court of Appeals of North Carolina affirmed the con-
viction of a man who secretly videotaped a female high school stu-
dent undressing. Until informed by the police, the victim was unaware
that she had been videotaped.
Id. at 688. And in
State v. Strickland,
335 S.E.2d 74 (N.C. App. 1985), the court upheld the conviction of
a man who masturbated within sight of two boys who were some
sixty feet away, and invited them to join him. These cases demon-
strate that the generic conduct reached by the offense is not limited
to circumstances with a serious inherent risk of physical injury.
By enacting such a broad statute, North Carolina may have accom-
plished its purpose of giving maximum protection to children, but it
also prohibited more conduct than that which presents a serious risk
of physical injury. As in
Martin's analysis of bank larceny, the
repeated interpretations of North Carolina's statute indicate that there
are a "vast array of means of committing" indecent liberties with a
child "that pose no potential risk of physical injury to another, let
alone a serious one." 3333
Martin, 215 F.3d at 475. Whether a particular
instance of conduct presents a serious risk of injury is ultimately a
matter of degree—or the attenuation of the risk. In making the deter-
mination, we must attempt to measure the likelihood that the prohib-
ited conduct will result in violence. Here, I do not think North
Carolina's offense qualifies. 4444 "A court must . . . tread carefully when
____________________________________________________________
3333 Also relevant is
United States v. Brandon, 247 F.3d 186,193 (4th Cir.
2001), in which we held that the offense of possessing between twenty-
eight and two hundred grams of cocaine is not a "serious drug offense"
under 18 U.S.C. § 924(e) because "typical conduct reached" by the
offense does not inherently involve intent to manufacture or distribute,
as required for sentencing enhancement. Section 924(e) cases are useful
in considering cases under § 4B1.1.
Brandon, 247 F.3d at 193 n. 3;
Mar-
tin, 215 F.3d at 474 n. 2;
Unites States v. Kirksey, 138 F.3d 120, 124 (4th
Cir. 1998).
4444 The majority attempts to sidestep the numerous ways that this statute
can be violated without risk of violence by emphasizing that the guide-
line refers to a serious
potential risk of physical injury. U.S.S.G.
§ 4B1.2(a). The word "potential" is a redundancy in the guideline.
United
States v. Shannon, 110 F.3d 382, 385 (7th Cir. 1997) (en banc) ("A `risk'
is by definition probable not certain, hence potential rather than actual;
`potential risk' appears to be a redundancy in the guideline.").
18

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interpreting the `otherwise' clause. Conjecture or speculation about
possible harm is not sufficient to create a crime of violence under
§ 4B1.2; instead, there must be evidence that the crime, by its nature,
presents a substantial risk or an affirmative indication in the indict-
ment or information that the defendant engaged in conduct presenting
a serious risk of physical injury."
Martin, 215 F.3d at 475 (quoting
United States v. Rutherford, 54 F.3d 370, 375 (7th Cir. 1995)).
Under North Carolina law, the offender's purpose for committing
the act (to sexually gratify himself), and the requirement that the act
be committed "with" (which includes presence and constructive pres-
ence) a child are the important elements of the offense. 5555 "The evil the
legislature sought to prevent in this context was the defendant's per-
formance of any immoral, improper, or indecent act in the presence
of a child `for the purpose of arousing or gratifying sexual desire.'
Defendant's purpose for committing such act is the gravamen of this
offense; the particular act performed is immaterial."
State v. Hartness,
391 S.E.2d 177, 180 (N.C. 1990) (quoting N.C. Gen. Stat. § 14-
202.1). Thus, the offense turns almost entirely on the age of the vic-
tim and the purpose of the offender. The potential impact of the
offending act on the child, although no doubt a motivating factor in
the enactment of the statute, plays no part in corralling the expanse
of impermissible conduct. 6666
The majority relies on the status of the offender vis-a-vis the victim
in holding that the offense is a crime of violence. The government
also stresses the relationship of the offender to the victim, stating that
"the risk of violence is implicit in size, age and authority position of
____________________________________________________________
5555 Additionally, there is no requirement that the act performed be an
"unnatural act" such that could be considered inherently abusive regard-
less of the status of the offender and victim.
Hartness, 391 S.E.2d at 180.
6666 To make a fairly obvious additional point, North Carolina may be par-
ticularly risk-averse, wanting to punish any conduct which has the remot-
est chance of causing injury to a child or leading to further conduct
which has a chance of causing injury.
See Shannon, 110 F.3d at 386
(stating "that a serious risk of physical injury cannot be automatically
inferred from the existence of a statutory-rape law" because some states
may be more or less risk-averse than others). That is a laudable goal, but
it does not make the offense a crime of violence.
19

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the adult in dealing with a young and helpless child." 7777 Appellees Br.
at 8. I do not disagree that the age difference—and the accompanying
size and authority differences—provides a legitimate reason to crimi-
nalize all the conduct covered by the statute. But it is not a reason,
in the absence of some aggravating factor, to find that the offense
presents a serious risk of physical injury to another. The nature of the
relationship between offender and victim in this sexualized context
may pose a "statistical danger to society" (like felons in possession of
guns) but any serious risk of physical injury in many cases covered
by the statute will "depend[ ] upon a speculative chain of events" in
which the offender decides to engage in conduct putting the child at
risk. Again, in many cases covered by the statute, the offender's intent
and conduct will stop well short of creating a serious risk of physical
injury. "The danger inherent in the [offense] is, in many cases, too
highly attenuated to qualify the offense as a
per se `crime of vio-
lence.'"
Johnson, 953 F.2d at 115.
Attempting to turn a fatal weakness into a strength, the majority
relies on the purpose of North Carolina's statute to provide broad pro-
tection to children and to prevent injury. As should be clear, however,
our precedents require us to focus on the intrinsic nature of the con-
duct prohibited, and require us to make an independent judgment
about whether that conduct presents a serious risk of physical injury.
Martin, 215 F.3d at 475;
Johnson, 953 F.3d at 115;
Custis, 988 F.2d
at 1363-64;
Hairston, 71 F.3d at 118. We cannot simply acknowledge
____________________________________________________________
7777 The majority cites cases that note the position of authority a parent
holds with respect to a child. To the extent the majority is relying on the
fact that the offender in this case is the parent of the victim, it strays
beyond the required categorical approach.
In addition, the majority notes the adult-child relationship between the
offender and the victim. Again, this is not permitted under the appropri-
ate analysis. All that the North Carolina statute requires is that the
offender be at least 16 years of age, and at least five years older than the
victim. The victim must be under 16 years of age. N.C. Gen. Stat. § 14-
202.1(a). Thus, the offender could be 20 years old, and the victim 15
years old. Or the offender could be 16 years old, and the victim 11 years
old. Thus, the offense could involve conduct by offenders who could not
be considered adults, or could involve victims who are approaching the
outer years of their immaturity.
20

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the truth that many forms of sexual abuse lead to physical injury,
accept that reducing this risk was the purpose of the statute, and con-
clude that the offense, by its nature, presents a serious risk of physical
injury. Not even North Carolina has made the leap required for the
latter conclusion (and, if North Carolina had, it would be inappropri-
ate for us to defer to it). We must look at the range of conduct encom-
passed by the statute. A statutory purpose to prevent injury is simply
not enough unless it has been translated into a statutory prohibition
coextensive with that purpose. 8888 Here, the indecent liberties statute was
written to prohibit acts falling beyond those that present a serious risk
of injury. 9999
B.
In looking to North Carolina's motivation for enacting the statute,
the majority also improperly defers to state law to interpret § 4B1.2.
See ante (noting that indecent liberties statute has been "defined
repeatedly by the North Carolina Supreme Court" and "was enacted
to provide broad protection against sexual abuse. . . .");
id. ("As the
North Carolina courts have observed, the statute is written in broad
terms as part of its specific design to protect against the heightened
risk of injury that comes when impressionable children are the vic-
tims.");
id. ("By emphasizing the breadth of protection provided by
§ 14-202.1, these courts have indicated that injury can be caused even
____________________________________________________________
8888 It should come as no surprise that the conduct prohibited by a statute
is sometimes a broader range of conduct than a particular purpose might
justify.
Cf. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79
(1998) ("[S]tatutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the provisions of
our laws rather than the principal concerns of our legislators by which
we are governed.").
9999 If the statutory purpose of reducing the risk of physical injury were
sufficient to make an offense a "crime of violence," at least one of our
cases,
United States v. Johnson, 953 F.2d 110 (1992), would have come
out the other way. I have no doubt that one of the primary purposes of
prohibiting felons from possessing firearms is to reduce the risk of injury
to others. There is certainly adequate evidence, in the form of recidivism
rates, to show that felons are substantially more likely than non-felons to
use guns in a violent manner. But in
Johnson we found that the offense
was not a crime of violence.
Id. at 115.
21

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in the absence of touching or explicit force.");
id. (injury of sex abuse
"is the very risk at which the North Carolina statute prohibiting inde-
cent liberties with children is aimed"). I consider this approach to be
foreclosed by the Supreme Court's decision in
Taylor v. United
States, 495 U.S. 575 (1990). In
Taylor, the Court was faced with
determining the meaning of the word "burglary" as it was used in 18
U.S.C. § 924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii), a sentencing
enhancement, employs a definition of "crime of violence" virtually
identical to § 4B1.2, including any offense that is "burglary, arson, or
extortion, involves the use of explosives, or otherwise involves con-
duct that presents a serious risk of physical injury to another." The
Eighth Circuit held that the word "burglary" in § 924(e)(2)(B)(ii)
meant "`burglary' however a state chooses to define it."
Taylor, 495
U.S. at 579. The Supreme Court vacated the sentence, stating that
Congress had adopted a "general approach, in designating predicate
offenses, of using uniform, categorical definitions to capture all
offenses of a certain level of seriousness that involve violence or an
inherent risk thereof, and that are likely to be committed by career
offenders, regardless of technical definitions and labels under state
law." 495 U.S. at 590. The Court went on to state:
It seems to us to be implausible that Congress intended the
meaning of "burglary" for purposes of § 924(e) to depend on
the definition adopted by the State of conviction. That
would mean that a person convicted of unlawful possession
of a firearm would, or would not, receive a sentence
enhancement based on exactly the same conduct, depending
on whether the State of his prior conviction happened to call
that conduct "burglary."
Id. at 590-91. In the present case, the majority makes a similar error.
In
Taylor, the lower court made the sentencing enhancement depen-
dent on technical definitions and labels under state law. Here, the
majority makes the sentencing enhancement dependent on the state's
asserted aim or purpose for enacting the statute. Either way, the appli-
cation of the sentencing enhancement becomes improperly dependent
upon state law.
See id.;
Dickerson v. New Banner Institute, Inc., 460
U.S. 103, 119-20 (1983) (holding that absent plain indication to the
contrary, federal law should not be interpreted so that its application
is dependent on state law);
United States v. Turley, 352 U.S. 407, 411
22

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(1957) (same). If another state enacted the very same law, and then
stated (or left its courts' statements uncorrected) that the purpose of
the law was to protect the virtue of children, irrespective of any risk
of physical injury, would the majority then say that the offense, con-
sidered in the abstract, was not a crime of violence? Presumably so.
The contradiction of
Taylor is apparent. The offense would, or would
not, be a crime of violence depending on how the state characterized
the offense.
Cf. Shannon, 110 F.3d at 387, 389 (noting that original
purpose of statutes protecting against sexual contact was to protect
virginity and marriageability of female minors and noting that statu-
tory rape is often thought of as a "morals offense"). The only differ-
ence between this case and
Taylor is that the majority's approach in
this case has the added disadvantage of requiring courts to search out
the often elusive purposes of the relevant state law. At least in
Taylor,
the court of appeals rendered federal law dependent on the
text of
state law. 10101010
Rather than making the "career offender" enhancement dependent
on state law, the majority should have answered the question, as a
matter of federal law, whether the offense intrinsically involved con-
duct presenting a serious risk of physical injury. As discussed above,
this question must be answered in the negative.
See also Brandon,
247 F.3d at 195 (finding it impermissible under
Taylor to rely on
____________________________________________________________
10101010 The majority states that in considering whether a state law offense is
a crime of violence, "we look to
state law to determine its nature and
whether its violation is a crime of violence under federal law." Similarly,
the majority states that "we look to state law to understand whether a
conviction under state law amounts to a crime of violence as defined by
federal law." These statements obscure what has heretofore been a sub-
stantially more nuanced approach. We are, of course, bound by the
state's definition of its own offense. We have no business in refusing to
acknowledge the plain language of the indecent liberties statute, or with
the authoritative construction placed on it by the state's highest court.
But the ultimate legal conclusion of whether the state offense "amounts
to" a crime of violence is an issue of
federal law.
See Taylor, 495 U.S.
at 590-91. Here, resolving that issue will turn on whether the state
offense presents a serious risk of physical injury. To say—as the majority
does—that that question can be answered by state law is to refuse to
acknowledge its federal character.
23

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state's designation of possession of drugs as involving distribution for
purposes of § 924(e) sentencing enhancement).
II.
The majority also holds that the taking of an indecent liberty with
a child is a "forcible sex offense." I cannot agree.
As an initial matter, I note that the phrase "forcible sex offense"
does not appear in the guideline; rather, it appears in the commentary
to the guideline. USSG § 4B1.2, cmt. n.1. The offense at issue cannot
be a "forcible sex offense" that would qualify as a crime of violence
unless it is covered by one of the two alternatives in the guideline def-
inition. For reasons discussed above, the offense does not qualify
under the "otherwise clause." That leaves the portion of the definition
that makes a crime of violence an offense that "has as an element the
use, attempted use, or threatened use of physical force against the per-
son of another. . . ."
Id. § 4B1.2(a)(1). It seems logical that this is the
prong under which the majority is operating to conduct its "forcible
sex offense" analysis.
The majority finds that the offense is a "forcible sex offense"
because "North Carolina courts have consistently held that construc-
tive force may be inferred in sexual abuse cases involving children."
First, as discussed above,
Taylor precludes making the phrase "forc-
ible sex offense" dependent on state law. Second (and perhaps more
importantly), North Carolina's indecent liberties statute does not
require any force, constructive or otherwise. It only requires an inde-
cent liberty in the presence of a child—and constructive presence suf-
fices.
Hartness, 391 S.E.2d at 180-81. Each of the cases cited by the
majority deal with an entirely different North Carolina statute, which
requires a sexual act "by force and against the will of the other per-
son." N.C. Gen. Stat. § 14-27.5(a). I simply do not understand how
North Carolina's recognition of constructive force in interpreting an
entirely different statute helps the majority reach the conclusion that
taking indecent liberties with a child is a "forcible sex offense."
24

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III.
Finally, the majority attempts to buttress its conclusion by stating
that it "join[s] every other circuit that has considered the question
. . . ." No other circuit, however, has considered the question pre-
sented here. 11111111 Nor has any other circuit employed the reasoning the
majority uses here. 12121212 The majority acknowledges that in each of these
____________________________________________________________
11111111 Despite the majority's statement to the contrary,
ante at 10, none of
the cases it cites held that the offense was a crime of violence because
it was a "forcible sex offense."
12121212 In
Meader, 118 F.3d at 884, it was apparent from the definition of
the offense and the charging papers that the conduct involved sexual
intercourse between a thirteen-year old girl and a man three times her
age. I agree that such conduct, by its nature, presents a serious risk of
physical injury. In
Kirk, 111 F.3d at 395, the court took into account
(perhaps erroneously) the fact that the victim was an eight-year old boy
who had been lured into a secluded area and sexually abused. The abuse
included physical contact. Again, I have no problem with this holding.
As the Fifth Circuit stated: "[W]hen children are physically inferior to
and trusting of adults, a potentially dangerous situation exists. Anytime
an eight-year old child is molested by an adult there is a significant risk
that physical injury will result. When one couples a mature adult's inher-
ent authority over a helpless young child with the implicit threat that his
superior physical strength poses, the risk of physical injury is clear and
unequivocal."
Id. at 395. It is the threat of force that creates the risk of
injury. The threat of force exists, in turn, because of the offender's desire
to sexually touch the child. I also note that in
Kirk, the court specifically
declined to decide whether sexual indecency with a child not involving
sexual contact was a crime of violence.
Id. at 396. In
Shannon, the Sev-
enth Circuit held that sexual intercourse with a thirteen-year old victim
was a crime of violence. The court specifically relied on the disease and
fertility risks of intercourse, and injuries stemming from unwanted preg-
nancy.
Id. at 387-88. Chief Judge Posner's opinion for the majority con-
tains an extended discussion of that circuit's mode of deciding whether
a particular offense is a crime of violence, but a single quote is sufficient
to demonstrate that
Shannon does not support the majority here: "An
inference of violence from a mere unconsented-to physical contact, the
government's first reason for arguing that every felonious sexual act with
a minor is per se a crime of violence, would not wash in this circuit."
Id.
at 385. From this, it is clear enough that
Shannon does not support the
proposition that any sexual activity with a minor not even involving the
victim's awareness, much less contact, is a crime of violence. The court
did rely on the age of the victim, but only in regards to its reasoning that
25

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prior cases, the offense required—at a minimum—a sexual touching.
The majority deems this irrelevant, however, stating that the touching
may not cause the injury. It is, of course, true that sexual contact may
not cause injury, but the majority misses the relevance of the contact.
Sexual contact was important in the cited cases because it created cir-
cumstances where the risk of physical injury was present in the cate-
gorical definition of the offense. As several courts have reasoned,
sexual contact with a child may be enough to qualify the offense as
a crime of violence because of the "substantial risk that physical force
will be used to ensure the child's compliance."
Passi, 62 F.3d at 1282.
Sexual contact is not
necessary to finding a risk of injury, it is merely
one possible circumstance out of many which increases the risk of
injury. The majority offers nothing else in North Carolina's indecent
liberties offense that presents a similar risk of injury. 13131313 Because of the
____________________________________________________________
the risk of injury from sexual intercourse goes up as the age of victim
goes down.
Shannon is absolutely dependent on facts not presented here.
In
United States v. Taylor, 98 F.3d 768, 772-73 (3d Cir. 1996), the
indictment alleged that the offender "forced [the victim] onto her bed and
while holding her down opened his trousers and pulled out his penis
. . . ."
Id. at 772. The physical force used in
Taylor obviously presented
a risk of injury. In
United States v. Passi, 62 F.3d 1278, 1282 (10th Cir.
1995), the court relied on its previous reasoning that "when an older per-
son attempts to sexually touch a child under the age of fourteen, there is
always a substantial risk that physical force will be used to ensure the
child's compliance." Again, this differs from the situation where there is
no risk of forced compliance because the offender has no desire to physi-
cally touch or even approach his victim.
United States v. Wood, 52 F.3d
272, 277 (9th Cir. 1995), is the same as
Passi. The offense involved sex-
ual contact with a four-year old girl, and the court relied on "the substan-
tial risk that physical force will be used to ensure the child's
compliance."
Wood, 52 F.3d at 275 (quoting
Passi). Finally, in
United
States v. Bauer, 990 F.2d 373 (8th Cir. 1993), the court, without exten-
sive discussion, held that statutory rape was a crime of violence. It
appears that the court relied on the risk that physical force might be used
to engage in the offense. In all of these cases, the offense conduct intrin-
sically involved a serious risk of physical injury.
13131313 The majority compares North Carolina's indecent liberties offense
with arson and burglary, both of which are specifically identified as
crimes of violence, and points out that neither of these offenses has an
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breadth of the statute, I do not think such circumstances are inherent
in the offense. While North Carolina's intent may be to protect minors
from the risk of injury, they have chosen to effect this intent in a
broad manner, including criminalizing conduct which does not pre-
sent a serious risk of physical injury to another.
IV.
The majority points to 18 U.S.C. §§ 2241 and 2242 as comparable
to North Carolina's indecent liberties offense, but they are not compa-
rable. These statutes prohibit certain forcible sexual acts, non-
consensual sexual acts, and sexual acts with children under 12 years
of age. The commentary to the relevant sentencing guideline classifies
the offenses as crimes of violence. USSG § 2A3.1, cmt. background.
These offenses all involve conduct which presents a greater risk of
injury than North Carolina's indecent liberties offense. First, both
offenses require "sexual acts" or attempted "sexual acts." A "sexual
act" is defined as
(A) contact between the penis and the vulva or the penis
and the anus, and for purposes of this subparagraph
____________________________________________________________
element of touching, threatened touching, or physical harm. The majority
apparently understands my argument to be that an offense is a crime of
violence only if one of these elements is present. It is not. The majority
confuses what is necessary with what is sufficient. Arson and burglary
both involve conduct that inherently possess a serious risk of injury. As
for burglary, the offense has an "inherent potential for harm to persons"
because "[t]he fact that an offender enters a building to commit a crime
often creates the possibility of a violent confrontation between the
offender and an occupant, caretaker, or some other person who comes to
investigate."
Taylor, 495 U.S. at 588. As for arson, it presents the risk
of physical injury for the obvious reason that it involves the use of fire.
That neither crime requires touching or physical harm is beside the point.
The majority says that burglary, arson, and North Carolina's indecent lib-
erties offense all inherently present a serious risk of injury, but never
tells us why they all inherently present a risk sufficiently proximate to—
or not "attenuated" from—actual injury to pass muster under our
caselaw.
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contact involving the penis occurs upon penetration,
however slight;
(B) contact between the mouth and the penis, the mouth
and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any
object, with an intent ro abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(D) the intentional touching, not through the clothing, of
the genitalia of another person who has not attained
the age of 16 years with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire
of any person . . . .
18 U.S.C. § 2246(2). Second, both offenses require some aggravating
factor that would indicate an increased likelihood of injury—either
force, threatened force, placing the victim in fear, physical inability
of the victim to consent, inability of the victim to apprise the nature
of the conduct, or conduct involving a child of less than 12 years of
age.
North Carolina's indecent liberties statute, in contrast, does not
even require attempted contact. Nor does it require any of the same
aggravating factors, punishing both conduct of which the victim is
unaware and otherwise consensual conduct with a child under 16.
Consequently, there is substantially less risk of injury.
Much more closely analogous federal statutes are 18 U.S.C.
§§ 2243(a) and 2244. Section 2243(a) still has the performance of a
"sexual act" as an element, but applies to minor victims up to 16 years
of age. Section 2244 only requires "sexual contact," 14141414 but also requires
____________________________________________________________
14141414 Sexual contact is defined as "the intentional touching, either directly
or through the clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C.
§ 2246(3).
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the aggravating factors of § 2241 or § 2242. North Carolina's inde-
cent liberties offense, therefore, is much more similar to (although
still less risky than) §§ 2243 and 2244 offenses than §§ 2241 and
2242 offenses. And yet the relevant guidelines for§§ 2243 and 2244
do
not preemptively state that those offenses are crimes of violence.
See USSG §§ 2A3.2, 2A3.4. Because more analogous federal crimes
are not preemptively deemed by the guidelines to be crimes of vio-
lence, the majority's reliance on §§ 2241 and 2242 is not persuasive.
The majority also states that if an offense may be committed in
both violent and non-violent ways, it is a crime of violence if "most"
of the instances of the offense present a serious risk of physical
injury. The majority further states that this was the holding of
Martin.
The majority is wrong on both fronts. With respect to our precedent,
we had no occasion in
Martin to address the question of whether
every instance of an offense had to present a serious risk of physical
injury in order for that offense to qualify as a crime of violence. Our
statement that "most, if not all, instances of an offense" should pre-
sent a serious risk of physical injury in order for the sentencing
enhancement to apply was merely another way of expressing the spe-
cific holding of that case, viz., that bank larceny is not a crime of vio-
lence because of the "numerous" ways the offense could be
committed without a serious risk of injury.
Martin, 215 F.3d at 475.
I interpret "most, if not all" to mean "at least most, and maybe all."
In other words, the question remained open after
Martin. The majori-
ty's statement that the offense is a crime of violence if "most" of the
instances of the offense present a serious risk of injury is a non sequi-
tur.
In order for an offense to present a serious risk of injury
by its
nature, the generic conduct of the offense must always present that
high level of risk. That is what "by its nature" means. We have also
used the adjectives "inherent," "intrinsic," and "per se" to describe the
risk of injury required under the § 4B1.2. I cannot think of any clearer
way of conveying that the defining conduct of the offense must pre-
sent the risk if the offense is to be considered a crime of violence.
Finally, I am not persuaded by the majority's statistics. First, the
majority does not tell us how many of the cases in which the opinion
specified that the defendant violated § 14-202.1(a)(1), the subsection
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that applied to Pierce, was the offense committed in close proximity
to the victim.
Second, using these statistics as the majority does is not in keeping
with the holdings of
Martin and
Dickerson, which demand that we
consider the offense in the abstract.
Dickerson, 77 F.3d at 776;
Mar-
tin, 215 F.3d at 473. The majority fails to satisfactorily relate its sta-
tistics to this ultimate inquiry of the nature of the offense.
Notwithstanding the majority's numbers, there are a multitude of
ways this offense can, and may have been, committed without result-
ing in prosecution or a conviction, much less a reported decision with
information sufficient for the majority to include it in its statistics.
Martin, 215 F.3d at 473. Convictions are merely a reflection of the
realities of enforcement. It may well be that prosecutors in North Car-
olina agree that many instances of the offense create a low risk of
injury, and that it is not worth expending scarce resources in enforc-
ing the statute in these cases. In addition, many of the low risk occur-
rences of the offense may be difficult to detect. But whether the State
foregoes prosecution, or is simply unable to detect the violation, the
conduct is covered by the statute. The majority's data speaks only to
convictions under the statute, not the inherent nature of the myriad of
ways the statute can be violated. Given these flaws, the majority's
empirical data is not compelling.
V.
The taking of indecent liberties with a child is reprehensible. But
such conduct does not permit us to take liberties with the sentencing
guidelines. I respectfully dissent.
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