FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30307 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00045-DWM

DAVID RAY TEEPLES,

OPINION Defendant-Appellant. 

On Remand from the United States Supreme Court

Filed January 5, 2006

Before: Mary M. Schroeder, Chief Judge,

James R. Browning, and A. Wallace Tashima,

Circuit Judges.

Per Curiam Opinion

59
COUNSEL

Melissa Harrison and John Rhodes, Assistant Federal Defenders, Federal Defenders of Montana, Missoula, Montana, for

the defendant-appellant. 

David G. Dennis and Joshua S. Van De Wetering, Assistant

U.S. Attorneys, U.S. Attorney’s Office, Great Falls, Montana,

for the appellee. 

OPINION

PER CURIAM: 

This matter is before us after the United States Supreme

Court vacated our earlier memorandum disposition and

60 UNITED STATES v. TEEPLES
remanded for further consideration in light of its recent opinion in United States v. Booker, 125 S.Ct. 738 (2005). In this

appeal, David Ray Teeples challenges the district court’s

determination that, on the basis of his two prior convictions

for lewd and lascivious acts with a child under fourteen, he is

a career offender under the U.S. Sentencing Guidelines,

(“Guidelines”), U.S.S.G. § 4B1.1 (2003). Teeples argues that

the district court erred in holding that his convictions under

Cal. Penal Code § 288(a) (2004) are crimes of violence under

U.S.S.G. § 4B1.2 (2004). 

[1] Upon further consideration, after Booker, we conclude

as we did earlier, that the district court correctly determined

that Teeples’s conviction was in fact a crime of violence. We

have previously held that “anytime an adult engages in sexual

contact with a four year old child, there is always a serious

potential risk of physical injury and ‘there is always a substantial risk that physical force will be used to ensure the

child’s compliance.’ ” U.S. v. Wood, 52 F.3d 272, 275 (9th

Cir. 1995) (quoting United States v. Reyes-Castro, 13 F.3d

377, 379 (10th Cir. 1993)). While Teeples’s victim was

twelve rather than four, “the risk of violence is implicit in the

size, age and authority position of the adult in dealing with a

child.” Id. Moreover, Teeples’s victim was his own daughter,

and we have recognized that the “special and unique dynamic

of a parent-child relationship,” coupled with “such factors as

age and the authority position of the offender contribute to the

risks inherent in the sexual abuse of a minor.” United States

v. Melton, 344 F.3d 1021, 1029 (9th Cir. 2003). The district

court did not err in finding Teeples’s conviction to be a crime

of violence and therefore sentencing him as a career offender.

[2] Given the current non-mandatory nature of the Guidelines, and the state of the record before us in this case, it is

not clear whether the sentencing judge might have sentenced

Teeples differently had he known he was not constrained by

the Guidelines. See United States v. Ameline, 409 F.3d 1073,

1083 (9th Cir. 2005) (en banc). We therefore REMAND to

UNITED STATES v. TEEPLES 61
the district court for the limited purpose of reconsidering Teeples’s sentence under the now discretionary guidelines. We

ORDER the parties to notify the court within 10 days of the

filing of this opinion if either wants to pursue an Ameline

remand. See Ameline, 409 F.3d at 1084 (“When faced with an

unpreserved Booker/Fanfan error, the reviewing panel must

first determine if an eligible party wants to pursue the subject.”). We adhere to our prior memorandum disposition in all

other respects. 

62 UNITED STATES v. TEEPLES