Opinion · Court of Appeals for the Eleventh Circuit
United States v. Terrance Tyrone Davis
875 F.3d 592
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 2017-11-07
- Topic
- general
holding that Alabama’s first-degree sexual abuse statute was divisible because, on its face, the statute listed two different crimes | holding that a man charged with first-degree rape who pleaded to first-degree sexual abuse by forcible compulsion had not committed an ACCA “violent felony” because the force required was insuf- ficiently violent | concluding that Alabama’s first degree sexual abuse statute was not divisible, and that defendant’s conviction for sexual abuse by forcible compulsion was not a violent felony under ACCA | concluding that Alabama’s first degree sexual abuse statute was not divisible, and that defendant’s conviction for sexual abuse by forcible compulsion was not a violent felony under ACCA | concluding that Alabama’s first degree sexual abuse statute was not divisible, and that defendant’s conviction for sexual abuse by forcible compulsion was not a violent felony under ACCA | stating that the statute on its face may resolve whether the statute is divisible | stating that the categorical approach sends us “down the rabbit hole . . . to a realm where we must close our eyes as judges to what we know as men and women” | noting that we apply "federal law in interpreting the ACCA, but state law in determining the elements of state offenses, keeping in mind that state law is what the state supreme court says it is ." (emphasis added) | finding a statute divisible on its face because it clearly listed two distinct crimes | stating under the modified categorical approach, a district court may examine a limited set of judicial documents “in order to determine which of the multiple crimes listed in the statute the defendant was convicted of committing” | "All that counts ... are the elements of the statute of conviction, not the specific conduct of a particular offender." (quotation marks omitted) | “Once a defendant has sufficiently raised an issue for the district court's consideration, he has preserved the issue for appeal.” | “We apply federal law in interpreting the ACCA, but state law in determining the elements of state offenses, keeping in mind that state law is what the state supreme court says it is.” | "If we can tell which statutory phrase the defendant was necessarily convicted under [using the modified categorical approach], we return to the categorical approach and apply it to that statutory phrase." (internal quotation marks and citations omitted) | statute that criminalizes two types of sexual assault—one violent, one not—lists elements | statute that criminalizes two distinct forms of sexual assault is divisible | “If the statute is indivisible, we use the categorical approach. In that case a conviction under it qualifies as a violent felony only if all of the acts criminalized in the statute involve the use of physical force against the person of another.”
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- 48 opinions
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10789
________________________
D.C. Docket No. 1:15-cr-00158-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE TYRONE DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 7, 2017)
Before ED CARNES, Chief Judge, ROSENBAUM, and HIGGINBOTHAM, *
Circuit Judges.
ED CARNES, Chief Judge:
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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This is an ACCA “violent felony” issue case. So here we go down the rabbit
hole again to a realm where we must close our eyes as judges to what we know as
men and women. It is a pretend place in which a crime that the defendant
committed violently is transformed into a non-violent one because other
defendants at other times may have been convicted, or future defendants could be
convicted, of violating the same statute without violence. Curiouser and curiouser
it has all become, as the holding we must enter in this case shows. Still we are
required to follow the rabbit.
I. FACTS AND PROCEDURAL HISTORY
Terrance Tyrone Davis was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922
(g)(1). Based in part on his prior Alabama conviction for first degree sexual abuse, the district court enhanced his sentence under the Armed Career Criminal Act,18 U.S.C. § 924
(e). That law establishes a
mandatory minimum sentence of 15 years for defendants convicted of violating
§ 922(g) who have at least three prior convictions for violent felonies or serious
drug offenses. Davis contends that under Alabama law, first degree sexual abuse
does not qualify as a violent felony for ACCA purposes.
In 2012 Davis was indicted in Alabama state court for first degree rape. The
indictment stated that “Davis . . . , a male, did engage in sexual intercourse with
[the victim], a female, by forcible compulsion, in violation of [Alabama’s first
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degree rape statute].” He pleaded guilty to the lesser included felony offense of
first degree sexual abuse, in violation of Alabama Code § 13A-6-66, instead of the
rape charge.
In 2015 Davis was again convicted, this time for being a felon in possession
of a firearm. The presentence investigation report determined that he was an
armed career criminal based on three earlier convictions: (1) a 1998 conviction for
third degree robbery, in violation of Alabama Code § 13A-8-43; (2) a 2003
conviction for second degree assault, in violation of Alabama Code § 13A-6-21;
and (3) the 2012 conviction for first degree sexual abuse, in violation of Alabama
Code § 13A-6-66. Based in part on its determination that Davis was an armed
career criminal, the PSR calculated a total offense level of 31 and a criminal
history category of VI, yielding an advisory guidelines range of 188 to 235 months
imprisonment.
Davis objected to using his sexual abuse conviction to enhance his sentence
under the ACCA, contending that based on the Supreme Court’s decision in
Johnson v. United States, 559 U.S. 133
,130 S. Ct. 1265
(2010), it does not qualify
as a violent felony. Over his objection, the district court concluded that the
conviction does categorically qualify as a violent felony and the court treated him
as an armed career criminal subject to the 15-year mandatory minimum sentence.
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Davis was sentenced to 188 months, which was eight months above the mandatory
minimum and at the low end of his advisory guidelines range.
II. THE ACCA FRAMEWORK
Under the ACCA, a defendant who is convicted of being a felon in
possession of a firearm is subject to a 15-year mandatory minimum sentence if he
has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924
(e)(1). The ACCA defines a violent felony as any crime punishable
by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
Id.
§ 924(e)(2)(B). This case involves only the first part of that definition,
§ 924(e)(2)(B)(i), which is known as the elements clause.
“Whether a particular conviction is a violent felony for purposes of the
ACCA is a question of law we consider de novo.” United States v. Gundy, 842 F.3d 1156, 1160
(11th Cir. 2016). The answer here depends on whether one of the elements required by the statute of conviction is “the use, attempted use, or threatened use of physical force against the person of another.”18 U.S.C. § 924
(e)(2)(B)(i). If so, the conviction qualifies as a violent felony; if not, it
doesn’t.
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To determine whether the statute of conviction “has as an element the use,
attempted use, or threatened use of physical force against the person of another,”
18 U.S.C. § 924
(e)(2)(B)(i), we are confined to looking at the fact of conviction and the elements required for conviction. United States v. Hill,799 F.3d 1318, 1322
(11th Cir. 2015); United States v. Braun,801 F.3d 1301, 1303
(11th Cir. 2015); United States v. Estrella,758 F.3d 1239
, 1249 n.4 (11th Cir. 2014); see also Taylor v. United States,495 U.S. 575, 600
,110 S. Ct. 2143, 2159
(1990). “All that counts . . . are the elements of the statute of conviction,” not the “specific conduct of [a] particular offender.” Mathis v. United States,579 U.S. __
,136 S. Ct. 2243
, 2251–52 (2016) (quotation marks omitted).
We apply federal law in interpreting the ACCA, but state law in determining
the elements of state offenses, keeping in mind that state law is what the state
supreme court says that it is. Johnson, 559 U.S. at 138
,130 S. Ct. at 1269
(explaining that when deciding whether a prior conviction is a “violent felony” under the ACCA, “[w]e are . . . bound by [state courts’] interpretation of state law, including its determination of the elements of [the statute of conviction]”); Braun,801 F.3d at 1303
(“We are bound by federal law when we interpret terms in the ACCA, and we are bound by state law when we interpret the elements of state-law crimes.”); Estrella,758 F.3d at 1249
n.4 (explaining that “the question we are
answering here is whether those elements as defined by state law, including state
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court decisions,” qualify for a federal sentence enhancement); United States v.
Rosales–Bruno, 676 F.3d 1017, 1021
(11th Cir. 2012) (“[W]e look to [state] case
law to determine whether a conviction under [a state statute] necessarily involves
the employment of ‘physical force’ as that term is defined by federal law.”).
The Supreme Court has held that we must first employ what is known as the
“categorical approach.” Hill, 799 F.3d at 1322
. Under that approach, regardless of what the true facts are, “we presume that the state conviction rested upon the least of the acts criminalized by the statute . . . .” Esquivel-Quintana v. Sessions,581 U.S. __
,137 S. Ct. 1562, 1568
(2017) (alterations and quotation marks omitted); see, e.g., Braun,801 F.3d at 1307
. And then we must decide if the least of the acts criminalized includes the use, attempted use, or threatened use of physical force against another person,18 U.S.C. § 924
(e)(2)(B)(i). If not, that is the end of our
inquiry and the prior conviction does not count as a violent felony under the
elements clause.
The inquiry is more complicated when the statute of conviction makes
multiple acts criminal, if there are multiple ways to commit the crime that the
statute defines. If that is so, as it often is, we have to determine whether the statute
is indivisible, meaning that it includes multiple ways of committing the same
offense, or is instead divisible, meaning that it lists multiple offenses. Mathis, 136 S. Ct. at 2249
. If the statute is indivisible, we use the categorical approach. In that
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case a conviction under it qualifies as a violent felony only if all of acts
criminalized in the statute involve the use of physical force against the person of
another.
But if the statute is divisible, we employ a modification of the categorical
approach, aptly known as the “modified categorical approach,” to determine
“which crime in the statute formed the basis of the defendant’s conviction.”
Gundy, 842 F.3d at 1162
. Under the modified categorical approach, we can look at certain judicial records, such as the indictment or the plea colloquy, in order to determine which of the multiple crimes listed in the statute the defendant was convicted of committing. Shepard v. United States,544 U.S. 13, 26
,125 S. Ct. 1254, 1263
(2005). If we can tell “which statutory phrase the defendant was necessarily convicted under,” United States v. Howard,742 F.3d 1334, 1345
(11th Cir. 2014), we return to the categorical approach and apply it to that statutory phrase. Doing so requires us to decide whether the least of the acts criminalized by that statutory phrase (instead of whether all of the acts criminalized by all of the statutory phrases) includes the use, attempted use, or threatened use of physical force against another person, as required by the ACCA’s elements clause,18 U.S.C. § 924
(e)(2)(B)(i). The Supreme Court has held that the “physical force”
that the elements clause requires is “violent force — that is, force capable of
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causing physical pain or injury to another person.” Johnson, 559 U.S. at 140
,130 S. Ct. at 1271
.
The question we face in this appeal is whether Alabama’s first degree sexual
abuse statute, as interpreted by the Alabama Supreme Court, necessarily includes
as an element the use, attempted use, or threatened use of violent physical force.
III. DIVISIBILITY OF FIRST DEGREE SEXUAL ABUSE
Alabama Code § 13A-6-66(a), which is the statute Davis was convicted of
violating, provides:
A person commits the crime of sexual abuse in the first degree if:
(1) He subjects another person to sexual contact by forcible
compulsion; or
(2) He subjects another person to sexual contact who is incapable of
consent by reason of being physically helpless or mentally
incapacitated.
Ala. Code § 13A-6-66(a). Because the statute lists multiple acts that each qualify
as a crime, we must first determine if the statute is divisible or indivisible.
There are three methods for determining whether a statute is divisible. See
Gundy, 842 F.3d at 1163
. First, “the statute on its face may resolve the issue.”Id.
(quotation marks omitted). Second, “[i]f a precedential state court decision makes
clear that a statute’s alternative phrasing simply lists alternative methods of
committing one offense, such that a jury need not agree on which alternative
method the defendant committed in order to sustain a conviction, then the statute is
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not divisible.” Id.
(quotation marks omitted). And third, “if state law fails to provide clear answers, federal judges [may look at] the record of a prior conviction itself. . . . for the sole and limited purpose of determining whether the listed items are elements of the offense.”Id.
(quotation marks omitted).
On its face § 13A-6-66(a) lists two separate crimes: sexual abuse by forcible
compulsion and sexual abuse of a person incapable of consent by reason of being
physically helpless or mentally incapacitated. As a result, we turn to the modified
categorical approach to determine which of those crimes Davis was convicted of
committing. See id. at 1162.
It is clear from Davis’ plea colloquy that he was convicted of sexual abuse
by forcible compulsion. When Davis pleaded guilty to first degree sexual abuse,
the prosecutor described the factual basis of the plea as follows:
[T]he State would expect to show that on or about March 5th of 2011
here in Mobile County the victim who was 17 years of age entered the
defendant’s apartment. And while she was in his apartment the
defendant assaulted her and during the assault he placed his hands on
her vaginal area, that a witness — well, she was able to leave and the
witness observed her leaving. And she was sent to USA Children’s
and Women Hospital.
And Davis agreed with the State’s recounting of those facts. There is nothing in
the plea record or elsewhere to indicate that the victim was physically helpless or
mentally incapacitated as those terms are defined in the Alabama Code. See Ala.
Code § 13A-6-60(6) (defining mental incapacitation as being “temporarily
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incapable of appraising or controlling his conduct owing to the influence of a
narcotic or intoxicating substance administered to him without his consent, or to
any other incapacitating act committed upon him without his consent”); id. § 13A-
6-60(7) (defining physical helplessness as being “unconscious or for any other
reason . . . physically unable to communicate unwillingness to an act”). We
conclude, as the district court did, that Davis was convicted of sexual abuse by
forcible compulsion, in violation of § 13A-6-66(a)(1).
Davis contends that sexual abuse by forcible compulsion under § 13A-6-
66(a)(1) is itself divisible. Under Alabama law, sexual abuse by forcible
compulsion requires that the defendant have (1) subjected a person (2) to sexual
contact (3) by forcible compulsion. Ala. Code § 13A-6-66(a)(1). Davis argues
that, based on Alabama case law, the element of forcible compulsion can be
satisfied in “multiple ways,” making it divisible. He is right in his premise but
wrong in his conclusion.
The Alabama Code defines forcible compulsion as “[p]hysical force that
overcomes earnest resistance or a threat, express or implied, that places a person in
fear of immediate death or serious physical injury to himself or another person.”
Id. § 13A-6-60(8). Broken down, that definition describes three ways a jury could
find that a defendant used forcible compulsion: (1) physical force that overcomes
earnest resistance; (2) an express threat that places a person in fear of immediate
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death or serious physical injury; or (3) an implied threat that places a person in fear
of immediate death or serious physical injury. See id.
The fact that there are three ways of satisfying the forcible compulsion
element does not, however, make forcible compulsion divisible. If “[the] jury need
not agree on which alternative method the defendant committed in order to sustain
a conviction, then the statute is not divisible.” Gundy, 842 F.3d at 1163
(quotation marks omitted). And under Alabama case law, the jury does not need to agree on which type of forcible compulsion a defendant used in order to convict him of sexual abuse by forcible compulsion. See Powe v. State,597 So. 2d 721
, 726–28
(Ala. 1991) (addressing the three types of forcible compulsion to determine
whether there was sufficient evidence to convict the defendant under at least one
type). Sexual abuse by forcible compulsion is not itself divisible, so we use the
categorical approach to determine whether it qualifies as a violent felony under the
ACCA.
IV. CATEGORICAL ANALYSIS OF SEXUAL
ABUSE BY FORCIBLE COMPULSION
The Alabama Code defines sexual abuse by forcible compulsion as simply
“subject[ing] another person to sexual contact by forcible compulsion.” Ala. Code
§ 13A-6-66(a)(1). “Sexual contact” is defined as “[a]ny touching of the sexual or
other intimate parts of a person not married to the actor, done for the purpose of
gratifying the sexual desire of either party,” id. § 13A-6-60(3), and “forcible
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compulsion” is defined as “[p]hysical force that overcomes earnest resistance or a
threat, express or implied, that places a person in fear of immediate death or
serious physical injury to himself or another person,” id. § 13A-6-60(8).1 We must
determine whether those definitions necessarily include the use, attempted use, or
threatened use of violent force against another person. 18 U.S.C. § 924
(e)(2)(B)(i); Johnson,559 U.S. at 140
,130 S. Ct. at 1271
.
The sexual contact element of sexual abuse by forcible compulsion cannot
satisfy the elements clause’s “physical force” requirement because it does not
require any “violent force.” See Johnson, 559 U.S. at 139–40, 130 S. Ct. at 1269–
71 (emphasis omitted). Because sexual contact, as defined by § 13A-6-60(3), can
be satisfied by “[a]ny touching,” or what the Supreme Court in Johnson termed
“merest touching,” 559 U.S. at 139
,130 S.Ct. at 1270
, it cannot satisfy the physical
force requirement. That leaves only the forcible compulsion element to supply the
missing requirement.
The forcible compulsion element appears to require either the use, attempted
use, or threatened use of violent force. The statute defines “forcible compulsion”
as physical force that overcomes earnest resistance, an express threat that places a
person in fear of immediate death or serious physical injury, or an implied threat
1
“The definition of the term ‘forcible compulsion’ as an element is the same regardless
of whether the offense charged is for first-degree rape, first-degree sodomy, or first-degree
sexual abuse.” Ex parte Williford, 931 So. 2d 10
, 14 n.7 (Ala. 2005). For that reason we can
and do rely on Alabama decisions addressing rape by forcible compulsion and sodomy by
forcible compulsion as well as those addressing sexual abuse by forcible compulsion.
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that places a person in fear of immediate death or serious physical injury. Ala.
Code § 13A-6-60(8). “Serious physical injury” is defined as “[p]hysical injury
which creates a substantial risk of death, or which causes serious and protracted
disfigurement, protracted impairment of health, or protracted loss or impairment of
the function of any bodily organ.” Id. § 13A-1-2(14). One would expect that a
threat to inflict those types of injuries qualified as a threat of physical force. That
is how we would interpret the statute. The problem, as Davis points out, is that
some Alabama decisions interpret the implied threat alternative element in a way
that waters it down.
The first of those is the Alabama Supreme Court’s Powe decision. See 597 So. 2d at 722
. The defendant, a 40-year-old man, was convicted of first degree
rape of his 11-year-old daughter, N.S., by forcible compulsion in violation of
Alabama Code § 13A-6-66. He had told N.S. to lie on top of him, which she did,
and he then put his penis in her vagina. Id. at 723, 728. Although N.S. testified
that she was afraid of her father, she also testified that he “did not expressly
threaten her before or during the incident.” Id. at 723. There was no evidence that
the defendant used physical force, which left the court to determine whether the
rape had been committed using an implied threat of physical force that placed N.S.
in fear of serious physical injury or death. Id. at 726; see Ala. Code §§ 13A-6-66,
13A-6-60(8).
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In deciding that the facts in Powe were sufficient to prove that the defendant
had committed the crime of rape by forcible compulsion in violation of
§ 13A-6-66(a)(1), the Alabama Supreme Court discussed several decisions by
other state supreme courts. One of those decisions, State v. Etheridge, 352 S.E.2d 673
(N.C. 1987), had “[held] that a child’s general fear of a parent can suffice as the force necessary to commit a forcible sexual assault.” Powe,597 So. 2d at 726
(citing Etheridge,352 S.E.2d at 682
). The North Carolina Supreme Court had explained that “[t]he child’s knowledge of his father’s power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his father’s wrath.”Id.
at 726–27 (quoting Etheridge, 352 S.E.2d at 681–
82).
The Alabama Supreme Court in Powe also looked to a decision of the
Pennsylvania Supreme Court that had “[held] that the term ‘forcible compulsion,’
as used in Pennsylvania’s rape statute, includes not only physical force or violence
but also moral, psychological, or intellectual force used to compel a person to
engage in sexual intercourse against that person’s will.” Powe, 597 So. 2d at 727–
28 (citing Commonwealth v. Rhodes, 510 A.2d 1217, 1226
(Pa. 1986)). The
Pennsylvania Supreme Court had reasoned that:
There is an element of forcible compulsion . . . inherent in the
situation in which an adult who is with a child who is younger,
smaller, less psychologically and emotionally mature, and less
sophisticated than the adult, instructs the child to submit to the
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performance of sexual acts. This is especially so where the child
knows and trusts the adult. In such cases, forcible compulsion . . .
derives from the respective capacities of the child and the adult
sufficient to induce the child to submit to the wishes of the adult . . .
without the use of physical force or violence or the explicit threat of
physical force or violence.
Id.
(quoting Rhodes,510 A.2d at 1227
) (second and third alternation in original)
(emphasis added).
The Alabama Supreme Court in Powe noted that “[a]lthough there is
authority from other jurisdictions refusing to apply reasoning similar to that
employed in [Etheridge and Rhodes], we find the reasoning applied in Etheridge
and Rhodes to be the most logical.” Id. at 728 (citation omitted). It concluded that
“a jury could reasonably infer that Powe held a position of authority and
domination with regard to his daughter sufficient to allow the inference of an
implied threat to her if she refused to comply with his demands.” Id. The court
explained that its holding was:
limited to cases concerning the sexual assault of children by adults
with whom the children are in a relationship of trust. The reason for
the distinction between cases involving children as victims and those
involving adults as victims is the great influence and control that an
adult who plays a dominant role in a child’s life may exert over the
child. When a defendant who plays an authoritative role in a child’s
world instructs the child to submit to certain acts, an implied threat of
some sort of disciplinary action accompanies the instruction. If the
victim is young, inexperienced, and perhaps ignorant of the
“wrongness” of the conduct, the child may submit to the acts because
the child assumes that the conduct is acceptable or because the child
does not have the capacity to refuse. Moreover, fear of the parent
resulting from love or respect may play a role as great as or greater
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than that played by fear of threats of serious bodily harm in coercing a
child to submit to a sexual act.
Id. at 728–29 (emphasis added).
Davis contends that the Powe decision shows that an Alabama conviction for
sexual abuse by forcible compulsion does not necessarily include as an element the
use, attempted use, or threatened use of physical force against the person of
another.2 Reluctantly, we agree. Despite the statutory language requiring an
express or implied threat of “serious physical injury,” the Powe decision indicates
that where the victim is a child and the defendant is an authority figure in that
child’s life “an implied threat of some sort of disciplinary action” can be sufficient
to support a conviction for sexual abuse by forcible compulsion even without
evidence that the defendant expressly or impliedly threatened serious physical
2
Because Davis did not cite the Powe decision in the district court when arguing that his
first degree sexual abuse conviction did not qualify as a violent felony under the ACCA’s
elements clause, the government contends that we ought to review “[the] portion of Davis’s
argument . . . built upon Powe” only for plain error. After all, a defendant who fails to make a
“specific objection[ ] or argument[ ] . . . in the district court” forfeits that objection or argument,
and we review the issue only for plain error. United States v. Weeks, 711 F.3d 1255, 1261
(11th Cir. 2013); United States v. Massey,443 F.3d 814, 819
(11th Cir. 2006).
But the same is not true of a defendant’s failure to cite specific decisions supporting an
objection or argument. See United States v. Irey, 612 F.3d 1160
, 1215 n.33 (11th Cir. 2010) (en
banc) (rejecting the suggestion that “we should not consider [certain] decisions of the Supreme
Court and this Court . . . . [because] they were not cited in the district court. No member of this
Court . . . has ever before suggested that in determining the law we ought to confine ourselves to
the decisions that were cited in the district court. We, like all courts, have a duty to find and
apply the correct law”). Once a defendant has sufficiently raised an issue for the district court’s
consideration, he has preserved the issue for appeal. We do not require defendants raising an
issue in the district court to cite every decision that could support their position on that issue if it
arises on appeal. Davis preserved his argument in this case by objecting to the use of his first
degree sexual abuse conviction on the ground that it does not qualify as a violent felony under
the ACCA’s elements clause.
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injury or death. Id. at 729. Not all disciplinary actions involve violent force, that
is, force capable of causing physical pain or injury.
The government contends that Powe “has no application here” because that
decision is “narrow and fact-confined.” Even so, the Supreme Court requires that
we are to “presume that the state conviction rested upon the least of the acts
criminalized by the statute,” Esquivel-Quintana, 137 S. Ct. at 1568
(alterations and
quotation marks omitted). And the least of the acts criminalized by
§ 13A-6-66(a)(1) is described in the Powe decision as an implicit threat not of
violence but of “some sort of disciplinary action,” or taking advantage of a child
who “assumes that the conduct is acceptable or because the child does not have the
capacity to refuse.” See Powe, 597 So. 2d at 728–29. Violent force is not
necessary for any of those ways of violating § 13A-6-66, much less for all of them.
The government argues that most of the language in the Powe decision is
mere dicta that is not binding on Alabama courts or federal courts. See Edwards v.
Prime, Inc., 602 F.3d 1276, 1298
(11th Cir. 2010) (“[D]icta is not binding on
anyone for any purpose.”). The government argues that the Powe decision’s actual
holding is that where there is evidence the child victim was afraid of the defendant,
who is an adult in a position of domination and control over the child, a jury can
consider their relationship in finding that the defendant used forcible compulsion.
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The Powe opinion does contain some dicta, as many opinions do. See Evans
v. Stephens, 407 F.3d 1272
, 1292–93 (11th Cir. 2005) (Carnes, J., concurring) (“Indeed, when one looks for it, dicta appears to be scattered across the opinions of this Court like wildflowers in a spring meadow.”). For example, the Alabama Supreme Court wrote that “[i]f the victim is young, inexperienced, and perhaps ignorant of the ‘wrongness’ of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable.” Powe,597 So. 2d at 729
. But there were no facts in the Powe decision indicating that the victim submitted because she thought the conduct was acceptable. Seeid.
at 722–23. Instead, the facts supporting the finding of forcible compulsion were that the 40- year-old defendant was the 11-year-old victim’s father, they lived in the same house, the victim was afraid of him, and they were alone in the house when he sexually abused her.Id. at 723, 728
. So the Powe decision’s discussion of a
victim submitting due to a mistaken belief that the conduct is acceptable is
unquestionably dicta.
It is less clear whether the Powe decision’s discussion of “an implied threat
of some sort of disciplinary action” is dicta. The decision does not say what the
victim feared from her father — it could have been physical force or something
less. See id. at 723, 729
. There are all kinds of parental disciplinary actions that
do not involve physical force. And even if that language in Powe is dicta, a later
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decision by the Alabama Supreme Court makes clear that a jury can find that the
defendant used forcible compulsion for purposes of § 13A-6-66(a) even in the
absence of any use, attempt to use, or threat of using physical force.
In Higdon v. State, 197 So. 3d 1019, 1020
(Ala. 2015), the defendant was a 17-year-old intern at a day care facility. He performed oral sex on a 4-year-old student and was convicted of first degree sodomy by forcible compulsion.Id.
Even though there was no evidence that the child feared him in any way, seeid.,
the Alabama Supreme Court held that the Powe decision applied and explained
that:
[R]egardless of the defendant’s age, when determining as a matter of
law the sufficiency of the evidence of an implied threat from which a
jury may infer the element of forcible compulsion, the trial court may
consider from the child victim’s perspective, among other factors, the
difference in age or physical maturity between the defendant and the
child victim and the defendant’s conduct and exercise of a position of
authority or control over the child victim.
Id. at 1022
(emphasis omitted).
Under the Higdon decision, forcible compulsion for purposes of
§ 13A-6-66(a) does not require the use, attempted use, or threatened use of
physical force against another person. Although the Higdon decision was issued in
2015, several years after Davis was convicted in 2011 of first degree sexual abuse,
it still controls our analysis of the elements of the state statute. “A judicial
construction of a statute is an authoritative statement of what the statute meant
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before as well as after the decision of the case giving rise to that construction.”
Rivers v. Roadway Exp., Inc., 511 U.S. 298
, 312–13,114 S. Ct. 1510, 1519
(1994) (footnote omitted); see also United States v. Seabrooks,839 F.3d 1326, 1344
(11th
Cir. 2016) (“When the [state supreme court] interprets [a state] statute, it tells us
what that statute always meant.”). The Higdon decision is a statement of what the
sexual abuse by forcible compulsion statute meant at the time Davis was convicted
of violating § 13A-6-66.3
The Alabama Supreme Court’s interpretation of forcible compulsion means
that Alabama’s statute defining sexual abuse by forcible compulsion does not
categorically include as an element the use, attempted use, or threatened use of
physical force, as that term is defined by federal law. See 18 U.S.C. § 924
(e)(2)(B)(i); Johnson,559 U.S. at 140
,130 S. Ct. at 1271
. As a result, the
district court erred in concluding that Davis’ Alabama conviction for first degree
sexual abuse was a violent felony under the ACCA’s elements clause. 4
3
The Higdon decision did overrule another Alabama Supreme Court decision
interpreting another facet of the Powe decision. The overruled decision, Ex parte J.A.P., 853 So. 2d 280, 284
(Ala. 2002), had held that Powe did not apply in cases involving the sexual assault of children by other children. The J.A.P. decision never set out the “least of the acts criminalized” by § 13A-6-66(a)(1), Esquivel-Quintana,137 S. Ct. at 1568
(alterations and
quotation marks omitted), because it held that in those types of cases the State had to prove
something more than it had to prove in cases involving adults using forcible compulsion on
children. The J.A.P. decision has no relevance to the question before us of whether sexual abuse
by forcible compulsion is a violent felony.
4
Our decision is not inconsistent with this Court’s recent decision in United States v.
Vail-Bailon, 868 F.3d 1293
(11th Cir. 2017) (en banc). The non-violent force situations put
forward by the defendant in that case were, in the majority’s view, farfetched ones that had never
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We realize, of course, that the facts in this case do not involve a minor child
victimized by an adult in a position of authority in that child’s life. The transcript
of the plea hearing, which we have looked at as part of the modified categorical
approach, shows that the victim was 17 years old and does not indicate that the
defendant was related to the victim or otherwise had a position of authority over
her. But the true facts matter little, if at all, in this odd area of the law. See Taylor,
495 U.S. at 600
,110 S. Ct. at 2159
; Hill,799 F.3d at 1322
.
Davis’ sentence is VACATED and the case is REMANDED for
resentencing without the ACCA sentence enhancement.
led to a prosecution and were extremely unlikely to ever do so. Id.
at 1305–07. Unfortunately, as the Powe, Higdon, Etheridge, and Rhodes cases demonstrate, the sexual abuse of a child by someone in a position of authority over the child is anything but farfetched; tragically, it occurs with some regularity. See Facts and Statistics, U.S. Dep’t of Justice, https://www.nsopw.gov/en- US/Education/FactsStatistics (last visited Nov. 7, 2017) (providing that “approximately 1 in 6 boys and 1 in 4 girls are sexually abused before the age of 18,” and that about 90% of perpetrators of child sexual abuse either are family members of, or are otherwise known to, the child). And in Vail-Bailon there was no state supreme court decision indicating that the statute in that case would apply to the non-violent factual scenarios the defendant posed. In this case, however, Alabama Supreme Court decisions establish that Alabama’s sexual abuse by forcible compulsion statute applies to conduct that does not necessarily include the use, attempted use, or threatened use of physical force. Cf. Powe, 597 So. 2d at 728–29; Higdon,197 So. 3d at 1022
.
We do not join and, in fact, disagree with the criticisms that our concurring colleague
makes of the en banc decision in Vail-Bailon.
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ROSENBAUM, Circuit Judge, concurring in all but parts of footnote 4 in the panel
opinion:
Though I concur generally in the panel opinion, I write separately to explain
why I cannot join parts of footnote 4. I disagree that, when the facts and law we
considered in United States v. Vail-Bailon, 868 F.3d 1293, 1305-07
(11th Cir. 2017) (en banc), are properly accounted for, Vail-Bailon is materially distinguishable from the case here. 1 Specifically, I take issue with two of footnote 4’s statements: (1) “The non-violent force situations put forward by the defendant in [Vail-Bailon] were, in the majority’s view, farfetched ones that had never led to a prosecution and were extremely unlikely to ever do so.” Maj. Op. at 20-21 n.4 (citing Vail-Bailon,868 F.3d at 1305-07
); and (2) “And in Vail-Bailon there was no state supreme court decision indicating that the statute in that case would apply to the non-violent factual scenarios the defendant posed.”Id.
at 21 n.4. I continue
to believe that Vail-Bailon was decided incorrectly.
In Vail-Bailon, we considered whether Florida felony battery qualifies as a
“crime of violence” under the elements clause. Florida felony battery has two
elements: a person must (1) “[a]ctually and intentionally touch[] or strike[]
another person against the will of the other;” and (2) “[c]ause[] great bodily harm,
1
I acknowledge, however, that the facts here are materially distinguishable from how the
Court described the facts and law at issue in Vail-Bailon, and I agree that we are bound by the
prior-precedent rule, regardless of my view of our resolution of Vail-Bailon.
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permanent disability, or permanent disfigurement.” Fla. Stat. § 784.041
(1). As the panel opinion acknowledges and I have more thoroughly explained in my Vail- Bailon dissent, Vail-Bailon,868 F.3d at 1314-23
(Rosenbaum, J., dissenting), the Supreme Court itself has held that the first element of this crime does not satisfy the elements clause’s “physical force” requirement because it does not require “violent force” when committed by mere touch. See Maj. Op. at 12 (citing Johnson v. United States,559 U.S. 133, 139-40
(2010)). And the second element cannot supply the necessary “physical force” because it does not demand the “use” of “physical force” as the Supreme Court has construed the meaning of “use” in the elements clause. See Vail-Bailon,868 F.3d at 1316-18
(Rosenbaum, J., dissenting) (citing Leocal v. Ashcroft,543 U.S. 1
(2004), United States v. Castleman,134 S. Ct. 1405
(2014), and Voisine v. United States,136 S. Ct. 2272
(2016)).
As relevant in responding to the panel’s statements in footnote 4 here, the
Vail-Bailon majority opinion tried to overcome these problems in two ways. First,
it argued that grievous bodily injury as required by the second element of felony
battery cannot occur as the result of a mere touching, except in the case of
“farfetched hypotheticals,” so it is practically impossible to commit felony battery
by mere touch. Vail-Bailon, 868 F.3d at 1306
. And second, it asserted that even if
felony battery could occur by mere touch, Florida would not prosecute such cases.
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Id. at 1306
(“Nor has Vail-Bailon shown that prosecution under Florida Statute §
784.041 for the conduct described in the hypotheticals is a realistic probability.”).
With respect to the argument that felony battery by mere touch cannot
realistically occur, that assumption, as a matter of fact—and as many emergency-
room doctors can attest—is simply not correct. As I have previously noted,
“everyday experience tells us an unexpected touch can result in a start that causes a
person to jerk involuntarily and sometimes, consequently, to injure himself.
Indeed, some people tap or tickle another just to see their involuntary reactions,
though they no doubt think at the time that they are engaging in harmless pranks.”
Id. at 1320 (Rosenbaum, J., dissenting).
So to firm up its conclusion that Florida felony battery necessarily always
involves the “use of physical force,” the Court in Vail-Bailon next asserted that
Florida would not prosecute cases of felony battery involving mere touch. Id. at
1306 (“Nor has Vail-Bailon shown that prosecution under Florida Statute §
784.041 for the conduct described in the hypotheticals is a realistic probability.”).
Three points undermine that conclusion.
First, Florida courts have been clear in concluding that a prosecution under §
784.041 requires no showing that the defendant intended to harm another or had
reason to know that harm would result. See T.S. v. State, 965 So. 2d 1288, 1290-91
(Fla. 2d Dist. Ct. App. 2007); Jefferies v. State,849 So. 2d 401, 404
(Fla. 2d Dist.
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Ct. App. 2003) (“Felony battery is clearly a species of the specific intent crime of
battery . . . , but with resulting and unintended great bodily harm”), receded from
on other grounds by Hall v. State, 951 So. 2d 91
(Fla. 2d Dist. Ct. App. 2007). For
this reason, the mere fact that a person may not have intended or even had reason
to expect harm from his mere touch of another does not shield him from
prosecution under § 784.041 if his acts did, in fact, result in serious bodily injury.
Second, only a handful of the numerous cases prosecuted under § 784.041
have published opinions in them. As a result, we have no way of knowing the
scope of what Florida has actually prosecuted under that statute.
And finally, because grievous bodily injury can and does at times result from
mere touch, and because § 784.041 requires no showing that the defendant
intended to cause or had reason to believe his actions would cause harm, it is clear
that Florida could prosecute a mere touch that resulted in serious bodily injury
under § 784.041. Nothing more is required. As we have explained, a petitioner
does not engage in “legal imagination” “when the statutory language itself . . .
creates the ‘realistic probability’ that a state would apply the statute” to the
identified least culpable conduct,” regardless of whether it actually has done so.
Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1071-72
(11th Cir. 2013) (emphasis
added).
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For these reasons, I respectfully suggest that if, in the Court’s Vail-Bailon
opinion, we had properly accounted for the facts and law at issue in that case, we
would find the facts here to be materially indistinguishable from those there.
26