* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL NATHAN STARR, Defendant - Appellant. No. 98-2065 (D.C. No. CR-97-420) (District of New Mexico)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY and LUCERO , Circuit Judges.

Daniel Nathan Starr appeals his jury conviction foraggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a) and 2246(2). This court has jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm. On June 24, 1997, appellant and the victim, residen ts of the Mescalero Apache Reservation in New Mexico, attended an outdo or party at the reservation’s feast grounds. Appellant took the vi ctim to a wooded area near the1 Appellant’s argument that the statute is unconstitutionally underbroad is wholly

without merit. Appellant himself devotes only one sentence to this argument, claiming that the statute fails because “a person who did not consent to a sexual act, but who was not forced or threatened . . . has no recourse against their assailant.” Appellant’s Br. at 20. Even if appellant’s claim were true, exclusion of such a crime would not render the statute unconstitutional. SeeUnited States v. Ransom , 942 F.2d 775, 777-78 (10th Cir. 1991). - 2 - party where he hit her, slashed her face and fingerwith broken glass, forced her to perform oral sex, and forcibly penetrated her ge nitalia with his fingers. The victim escaped to a nearby road after appellant pas sed out, and she was picked up and taken to the reservation medical clinic by a pa ssing motorist. As a result of the assault, the victim sustained injuries includin g a lacerated face, a deep cut to her ring finger, bruises, and a broken ankle. Appe llant was convicted of four counts of assault and aggravated sexual abuse by a jury and sentenced to twenty years in prison. Appellant raises three claims on appeal. He argues that his conviction should be reversed because 18 U.S.C. § 2241(a) is u nconstitutionally overbroad and underbroad resulting in a denial of his due pro cess rights. 1 He also claims that 18 U.S.C. § 2241(a) is unconstitutionally vagu e, resulting in a denial of due process. Finally, he asserts that his trial counse l rendered constitutionally ineffective assistance by failing to object to the constitutionality of § 2241(a) and by failing to request a jury instruction regarding lack of consent. We examine these arguments in turn.- 3 - I Given appellant’s conceded failure to raise his con stitutional challenges to 18 U.S.C. § 2241(a) before the district court, the court reviews this matter for plain error. See Fed. R. Crim. P. 52(b); United States v. Orr , 864 F.2d 1505, 1508-09 (10th Cir. 1988). Plain error is error that “seriously affect[s] the fairness, integrity or public reputation of judicia l proceedings.” United States v. Olano , 507 U.S. 725, 732 (1993) (citation omitted). To determine whether a statute is unconstitutionall y overbroad, we consider “whether the enactment reaches a substantial amountof constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494 (1982). “If it does not, then the ov erbreadth challenge must fail.” Id. To determine whether a statute is void for vaguenes s, we consider whether the statute provides a defendant with fair warning of the particular conduct that it prohibits. See United States v. Walker , 137 F.3d 1217, 1219 (10th Cir. 1998). The statute must define the prohibited conduct with sufficient specificity so that ordinary people can understand the law’s requirements and so the law does not encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson , 461 U.S. 352, 357 (1983). Where a vagueness challe nge does not implicate the First Amendment, we review the statutory challenge only with respect to the- 4 -

particular conduct charged. See Flipside , 455 U.S. at 495 n.7 (citations omitted); Walker , 137 F.3d at 1219. “A plaintiff who engages in so me conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Flipside , 455 U.S. at 495. The statutory language at issue in this case provid es as follows: § 2241. Aggravated sexual abuse (a) By force or threat.—Whoseoever, in the special maritime and territorial jurisdiction of the United States o r in a Federal prison, knowingly causes another person to engage i n a sexual act— (1) by using force against that other person; or attempts to do so, shall be fined under this tit le, imprisoned for any term of years or life, or both. 18 U.S.C. § 2241. Forcible fellatio and forcible p enetration of the genitalia by the hand or finger of another constitute “sexual ac ts” under the statute. See 18 U.S.C. § 2246(2).
II We reject appellant’s contention that 18 U.S.C. § 2 241(a) is overly broad. Appellant argues that § 2241(a) is unconstitutional because absent a lack-ofconsent element, it prohibits all violent sex, even consensual violent sex. We must consider, as an initial matter, whether the st atute reaches a substantial amount of constitutionally protected conduct. See Flipside , 455 U.S. at 494-95.- 5 -

We conclude that it does not; the statute prohibits sexual abuse and rape. There is no support for the theory that such conduct is prot ected by the Constitution. Even assuming the right to engage in sexual relations is constitutionally protected, appellant has no right to engage in sexual assault. That is what the statute prohibits, and that is what the record indicates oc curred in this case. Moreover, the statute is not constitutionally infir m because it contains no explicit lack-of-consent element. “[T]he legislatu re has wide latitude to declare what constitutes an offense against society and to define the elements that constitute such an offense.” Ransom , 942 F.2d at 776. The statute’s requirement of force or threat of force is sufficient to exclud e from its ambit constitutionally protected conduct.
III We also reject appellant’s assertion that this stat ute is unconstitutionally vague. Here, again, appellant points to the absenc e of a “lack of consent” element in the statute in support of his claim. Ap pellant argues that the absence of this element deprives citizens of sufficient gui dance regarding the prohibited conduct and will lead to arbitrary and discriminato ry enforcement of the statute. This argument, too, lacks merit. Assessing the statute in light of its application to this case, see Flipside , 455 U.S. at 495 n.7 (citations omitted), it is cl ear that the statute adequately informed appellant that the cond uct at issue here was illegal,- 6 -

and provided sufficient guidance for law enforcement officers. See Walker , 137 F.3d at 1219.
IV Finally, we reject appellant’s claim that he was de nied constitutionally effective assistance of counsel based on counsel’s failure to challenge the constitutionality of 18 U.S.C. § 2241(a) and failur e to request a jury instruction on the element of “lack of consent.” “Ineffective assistance of counsel claims should be brought in collateral proceedings, not ondirect appeal. Such claims brought on direct appeal are presumptively dismissi ble, and virtually all will be dismissed.” See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). This principle is intended to permit de velopment of the factual record by the district court and to give this court the be nefit of the district court’s views.
See id. Accordingly, we DISMISS appellant’s ineffective assistance of counsel claims without prejudice.
AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge