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File Name: 08a0210p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

QUINCY DONELL BARTEE,

 Defendant-Appellant.

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No. 07-1522

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 06-00242—Richard A. Enslen, District Judge.

Argued: April 29, 2008

Decided and Filed: June 10, 2008 

Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Richard D. Stroba, FEDERAL PUBLIC DEFENDER OFFICE, Grand Rapids,

Michigan, for Appellant. Elisa Castrolugo, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. ON BRIEF: Richard D. Stroba, FEDERAL PUBLIC

DEFENDER OFFICE, Grand Rapids, Michigan, for Appellant. Elisa Castrolugo, ASSISTANT

UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. 

_________________

OPINION _________________

RALPH B. GUY, JR., Circuit Judge. Defendant Quincy Donell Bartee pleaded guilty to one

count of being a felon in possession of a firearm and was sentenced to a 43-month term of

imprisonment. The only issue on appeal is whether it was error to find that defendant’s prior felony

conviction for attempted criminal sexual conduct in the second degree (CSC-2) constituted a “crime

of violence” that would justify a base offense level of 22 rather than 20. UNITED STATES

SENTENCING GUIDELINES MANUAL (USSG) § 2K2.1(a)(3) and (4) (2006). After review of the

record, and in light of the recent decision in Begay v. United States, 128 S. Ct. 1581 (2008), we

vacate defendant’s sentence and remand for resentencing consistent with this opinion.

I.

On July 6, 2006, police officers were called to 435 Amity Avenue, Muskegon, Michigan, a

house in which defendant was renting a room. Police responded to a complaint by one of

1
No. 07-1522 United States v. Bartee Page 2

1

Without the 2-level increase, the guideline range would have been 37 to 46 months.

defendant’s housemates against two others who were trying to evict her. The officers secured an

agreement allowing the complainant to store her belongings at the house and left, only to be called

back when the complainant reported being threatened with a shotgun. A search of the premises

resulted in the discovery of a sawed-off Mossberg .12 gauge shotgun in a bedroom closet. One

resident explained that the shotgun belonged to the defendant, who was in jail at the time. When

questioned, defendant said he found the shotgun and took it back to his room. Defendant, then 23

years of age, had not completed high school. Defendant had one prior felony conviction—attempted

CSC-2—that served both as the predicate for the felon-in-possession charge and as the “crime of

violence” for guideline purposes.

Charged in a two-count indictment, defendant pleaded guilty to being a felon in possession

of a firearm. There is no dispute that since the shotgun was one having a barrel of less than 18

inches as described in 26 U.S.C. § 5845(a), the applicable base offense level would be 22 if the prior

conviction qualified as a “crime of violence.” USSG § 2K2.1(a)(3). Over defendant’s written

objections to the higher base offense level, the district court agreed with the government that the

prior conviction qualified as a “crime of violence.” An additional two-level increase in the offense

level for the shotgun having been reported stolen was offset by a three-level decrease for acceptance

of responsibility. USSG § 2K2.1(b)(4) and § 3E1.1(a) and (b). Defendant was assessed five

criminal history points: two points for the attempted CSC-2 conviction, two points because the

instant offense was committed while on probation from that conviction, and one point because the

instant offense was committed within two years of release from custody on that conviction. USSG

§ 4A1.1(b), (d), and (e). With a total offense level of 21 and criminal history category III, the

guideline range was 46 to 57 months.1

 After considering the relevant sentencing factors under

18 U.S.C. § 3553(a), the district court selected a sentence at the bottom of the guideline range, gave

defendant credit for the three months he was held in state custody in connection with this offense,

and sentenced defendant to a term of 43 months of imprisonment to be followed by three years of

supervised release. This appeal followed.

II.

Sentences imposed post-Booker are reviewed for reasonableness—including for procedural

error in the calculation of the guideline range such as defendant asserts in this case. Gall v. United

States, 128 S. Ct. 586, 596 (2007); United States v. Booker, 543 U.S. 220, 261 (2005). We review

de novo the district court’s conclusion that the defendant’s prior conviction constituted a “crime of

violence.” United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005) (“This Court reviews a

district court’s conclusion that a crime constitutes a violent felony under the ACCA or a crime of

violence under the ACCA’s parallel provision in the Guidelines de novo.”).

The term “crime of violence” in USSG § 2K2.1 is defined by cross-reference to USSG

§ 4B1.2(a), which provides as follows:

The term “crime of violence” means any offense under federal or state law,

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 the use of 

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.
No. 07-1522 United States v. Bartee Page 3

In making this determination, “the offense of conviction (i.e., the conduct of which the defendant

was convicted) is the focus of inquiry.” § 4B1.2, comment n.2. It is clear as well that the term

“crime of violence” encompasses aiding and abetting, conspiring, and attempting to commit such

offenses. USSG § 4B1.2, comment n.1. Defendant contends on appeal that the district court erred

both in its application of the categorical approach in determining the nature of his prior conviction

and in its conclusion that the offense was one that qualified as a “crime of violence.”

The categorical approach articulated in Taylor v. United States, 495 U.S. 575, 601 (1990),

and extended to plea-based convictions in Shepard v. United States, 544 U.S. 13, 26 (2005), for

determining whether a prior conviction constitutes a “violent felony” under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), has been applied by this court to the parallel

determination of whether a prior conviction constitutes a “crime of violence” under USSG

§ 4B1.2(a). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995); United States v.

Foreman, 436 F.3d 638, 641 (6th Cir. 2006). Under this categorical approach, the court must look

only to the fact of conviction and the statutory definition—not the facts underlying the offense—to

determine whether that definition supports a conclusion that the conviction was for a crime of

violence. United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006) (discussing Taylor and

Shepard). “One of the policies animating the Court’s adoption of this approach was to avoid ‘the

practical difficulties and potential unfairness’ of permitting a sentencing court to relitigate the facts

and delve into the details of a prior conviction.” Id. (quoting Taylor, 495 U.S. at 601).

Taylor recognized a “narrow exception” when the statutory definition is ambiguous, under

which the court may examine the charging papers or jury instructions to determine whether the

convicting jury necessarily found all the requisite elements of an offense that would qualify as a

“violent felony” under the ACCA. Id. at 947. In addressing plea-based convictions in Shepard, the

Court limited examination under this exception to “the terms of the charging document, the terms

of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or to some comparable judicial record of this

information.” Shepard, 544 U.S. at 26. In doing so, the Court specifically rejected the

government’s call to permit consideration of police reports and criminal complaint applications to

support a finding that the guilty plea could only have been based on facts that would qualify the

conviction as a “violent felony.” Id. at 21. With these principles in mind, we turn first to the

statutory definition of CSC-2.

A. Categorical Approach

In Michigan, CSC-2 may be committed in one of several ways. As noted, however,

defendant’s conviction was specifically for violation of Mich. Comp. Laws Ann. § 750.520c(1)(c),

which defines the offense as follows:

 (1) A person is guilty of criminal sexual conduct in the second degree if the person

engages in sexual contact with another person and if any of the following

circumstances exist:

. . . .

(c) Sexual contact occurs under circumstances involving the commission of

any other felony.

It is at least ambiguous whether the statutory definition of the offense—sexual contact with another

person under circumstances involving the commission of any other felony—constitutes a “crime of

violence.” Looking beyond the statutory definition, the government relied solely on the amended

information, which identified the “other felony” as solicitation of a minor for immoral purposes.

Specifically, the amended information charged defendant with having “sexual contact with another
No. 07-1522 United States v. Bartee Page 4

2

The conviction was also not one of the offenses enumerated in the commentary to USSG § 4B1.2, comment

n.1 (“murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate

extension of credit, and burglary of a dwelling”).

3

Without attempting to determine the precise nexus required between the sexual contact and the “other felony,”

we note that the Michigan courts have required a direct interrelationship between the sexual contact and the other felony

but have not insisted that the sexual contact be “during” the felony, or that the sexual contact and the other felony involve

a single victim. People v. Waltonen, 728 N.W.2d 881, 889 (Mich. Ct. App. 2006), lv. denied, 741 N.W.2d 343 (Mich.

2007); People v. White, 425 N.W.2d 193, 197 (Mich. Ct. App. 1988).

person, to-wit: Angela . . . during the commission of another felony, to-wit: solicit[ing] minor for

immoral purposes.” Michigan makes it a felony to accost, entice, or solicit “a child less than 16

years of age . . . with the intent to induce or force that child . . . to commit an immoral act, to submit

to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or

delinquency,” or to encourage the child to engage in any of those acts. MICH. COMP. LAWS ANN. § 750.145a.

It is clear, as the government concedes, that defendant’s prior conviction does not have as

an element “the use, attempted use, or threatened use of physical force against the person of

another.” Nor is it one of the enumerated property offenses—burglary of a dwelling, arson, or

extortion—or an offense that involves the use of explosives.2

 Rather, the government argues that

the conviction qualifies as a crime of violence under the “otherwise” clause of § 4B1.2(a)(2) because

the offense involved sexual contact with a minor. The reach of this clause has been the subject of

some debate, including in cases where the prior offense involved sexual contact with a minor, with

varying results. Compare, e.g., United States v. Campbell, 256 F.3d 381, 395-97 (6th Cir. 2001);

United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001); United States v. Hargrove, 416 F.3d

486, 494-99 (6th Cir. 2005); United States v. Sawyers, 409 F.3d 732, 740-42 (6th Cir. 2005).

Defendant’s first claim of error is that the district court did not adhere to the categorical

approach in concluding that the prior conviction was one that involved sexual contact with a minor.

As defendant rightly points out, although CSC-2 may be committed by sexual contact with a minor

less than 13 years of age, or with a minor 13 to 16 years of age if one of four variables are also

present, his conviction for “other felony” CSC-2 did not require proof that the sexual contact was

with a minor. See MICH. COMP. LAWS ANN. § 750.520c(1)(a), (b), and (c). That is, the sexual

contact may be with any other person, irrespective of age or consent, as long as it occurred “under

circumstances involving the commission of any other felony.” Id. Nor did the “other felony,”

solicitation of a minor, require that the immoral purposes involve sexual contact.

Indeed, the government acknowledged at sentencing that neither the statutory definition nor

the amended information specified that the sexual contact was with a minor. Instead, the

government urged the district court to use “common sense” to infer that since the defendant had

sexual contact with Angela “while” soliciting a minor, Angela must have been that minor and,

therefore, the sexual contact must have been with a minor. Although this appears to have been the

case factually, we agree with defendant that, categorically speaking, the conviction did not

necessarily require proof of sexual contact with a minor.3

In fact, given the record before the district court, the inference urged by the government

could only have been drawn by considering the underlying facts. Specifically, in assessing the

defendant’s criminal history, the Presentence Report revealed that the prior conviction arose out of

a consensual sexual relationship between Angela, who was 15 years old, and the defendant, who was

19 and 20 years old. That relationship came to the attention of the authorities after Angela ran away

and stayed with the defendant. Not only is this the sort of information that one might expect to find

in a police report or application for criminal complaint, but the government also makes no attempt
No. 07-1522 United States v. Bartee Page 5

4

The government contends that any such error is harmless because it could have presented other judicial

documents to establish that the prior conviction involved sexual contact with a minor; namely, the judgment of sentence

and initial felony information reflecting a dismissed charge of CSC-3, specifically, sexual penetration with a person who

is at least 13 and under 16 years of age. MICH.COMP. LAWS ANN. § 750.520d(1)(a). Those documents, however, were

not before the district court or made part of the record on appeal. Moreover, the significance of those documents is not

obvious because the court may only consider the elements of a dismissed charge that are essential to the offense to which

the defendant pleaded guilty. Armstead, 467 F.3d at 949; Arnold, 58 F.3d at 1124. Nor can we conclude that the error

was harmless simply because the defendant never denied that the prior conviction involved sexual contact with a minor.

See Shepard, 544 U.S. at 28-29 (O’Connor, dissenting) (criticizing the majority for rejecting a “common sense” inference

that the state burglary convictions involved entry into buildings).

to argue that it was based on Shepard-eligible records. While these underlying facts reflect conduct

known in common parlance as “statutory rape,” that was not the offense to which defendant pleaded

guilty.

Moreover, that these facts invaded the district court’s analysis is demonstrated by its

characterization of the conviction as: “Statutory rape of a minor which occurs during the

commission of another offense, in this case solicitation for immoral purposes.” A second reference

to the conviction as sexual contact with a minor in the commission of another offense confirms that

the district court did not adhere to the dictates of Taylor and Shepard in determining that the prior

conviction in this case was an offense involving sexual contact with a minor. As the Court recently

explained, the categorical approach requires that “we consider the offense generically, that is to say,

we examine it in terms of how the law defines the offense and not in terms of how an individual

offender might have committed it on a particular occasion.” Begay v. United States, 128 S. Ct. 1581,

1584 (2008).4

B. “Otherwise” Clause

Where the conviction does not have as an element the use, attempted use, or threatened use

of force, courts have struggled with the question of when sexual contact with a minor “otherwise

involves conduct that presents a serious potential risk of physical injury to another.” See Hargrove, 416 F.3d at 495-99 (discussing cases); Sawyers, 409 F.3d at 740-42 (same). Arguing that the

government reads this court’s precedent too broadly, defendant’s position is that a conviction

involving consensual sexual contact with a minor presents the requisite “serious potential risk of

physical injury” only when it also involves an aggravating factor, such as the minor is less than 13

or 14 years of age or is a minor related to the defendant by blood or affinity. In other words, even

if it can be shown that defendant’s prior conviction involved consensual sexual contact between a

15-year-old and a 19-year-old, the defendant contends that since no aggravating factor was present

the conviction did not present the serious potential risk of physical injury required under the

“otherwise” clause of USSG § 4B1.2(a)(2).

 In Campbell, on which the government places particular reliance, this court held that a

conviction for CSC-2 under Michigan law constituted a “crime of violence.” The court’s reasoning

rested, however, on the fact that the conviction was for having sexual contact with a person who was

between 13 and 16 years of age and was related by blood to the defendant. The court explained that,

“[a]lthough the crime can occur through mere consented touching, . . . there is a real possibility that

physical force may be used in making sexual contact, particularly when the victim is a minor

between 13 and 16 and within the strictures of familiarity and proximity bred by kinship.” 256 F.3d

at 396.

In Champion we recognized a congressional finding that the use of children in the production

of sexually explicit materials can result in physical or psychological harm. 248 F.3d at 506. We

also observed that “the likelihood of physical injury increases as the child’s age decreases.” Id. This is because a “‘younger child is likely to have poorer judgment, less knowledge about sex, and
No. 07-1522 United States v. Bartee Page 6

less money, all of which deficits will make it less likely that she will use or insist that her partner

use effective measures to prevent pregnancy and disease.’” Id. (quoting United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997)); see also United States v. Grundy, 178 Fed. App’x 509, 513 (6th

Cir. 2006) (holding that conviction for sexual abuse involving a child under the age of 12 was a

crime of violence under USSG § 4B1.2(a)).

As the Supreme Court made clear in its recent decision in Begay, however, this court’s

determination that at least some convictions involving sexual contact with minors present “a serious

potential risk of physical injury” is not sufficient to establish that the conviction comes within the

scope of the “otherwise” clause. Addressing the scope of the “otherwise” or “residual” clause under

the ACCA, the Court in Begay assumed that a conviction for driving under the influence of

intoxicating liquor (DUI) involves conduct that “presents a serious potential risk of physical injury

to another.” 128 S. Ct. at 1584. Indeed, the Court agreed that drunk driving is an extremely

dangerous crime. Id. Nonetheless, the Court held that a conviction for DUI falls outside the scope

of the “otherwise” clause because it “is simply too unlike the provisions’s listed examples for us to

believe that Congress intended the provision to cover it.” Id. The Court explained that the presence

of the listed examples—burglary, arson, extortion, or crimes involving the use of

explosives—“indicates that the statute covers only similar crimes, rather than every crime that

‘presents a serious potential risk of physical injury to another.’ § 924(e)(2)(B)(ii).” Id. at 1585.

Next, referencing its earlier decision in James, which addressed whether attempted burglary

presented comparable amount of risk as the enumerated crime of burglary, the Court in

Begay concluded that similarity in the degree of risk was not a sufficient basis to conclude that a

crime should come within the scope of the clause. Id.; see James v. United States, 127 S. Ct. 1586,

1594-97 (2007). Rather, the Court held that, in order to give effect to every part of the statutory

definition, the examples should be read “as limiting the crimes that clause (ii) covers to crimes that

are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Begay, 128 S. Ct. at 1585.

Offering further insight, the Court in Begay explained that the crime of DUI differs from the

examples “in at least one pertinent, and important, respect. The listed crimes all typically involve

purposeful, ‘violent’ and ‘aggressive’ conduct. . . . And such crimes are ‘characteristic of the armed

career criminal, the eponym of the statute.” Id. at 1586 (citations omitted). DUI statutes, by

contrast, “typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or

are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect

to which the offender need not have had any criminal intent at all.” Id. at 1586-87. As a result, the

Court held that New Mexico’s crime of DUI fell outside the scope of the ACCA’s “clause (ii)”

definition of a “violent felony.” Id. at 1588.

Adhering to our view that the parallel provisions in the definitions of a “violent felony”

under the ACCA and a “crime of violence” under USSG § 4B1.2(a)(2) should be interpreted in a

consistent manner, we conclude that § 4B1.2(a)(2) also should be limited to crimes that are similar

in both kind and in degree of risk to the enumerated examples—burglary of a dwelling, arson,

extortion, or crimes involving the use of explosives. While this interpretation narrows the scope of

convictions that qualify as a “crime of violence” under § 4B1.2(a)(2), making it more difficult for

the government to invoke the enhancement, it would be inappropriate for this court to speculate on

the arguments that might be made in light of Begay if the government is able to establish, consistent

with Shepard, that the conviction necessarily required proof of sexual contact with a minor that

presents a “serious potential risk of physical injury to another.”

Having concluded that the district court erred in the calculation of the guidelines, we

VACATE the defendant’s sentence and REMAND for further proceedings consistent with this

opinion.