* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See F ED
. R. A PP
. P. 34 (a)(2); 10 TH C IR
. R. 34.1(G). The case therefore is ordered submitted without ora l argument. 

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

### FEB 6 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-5190

v. (N.D. Oklahoma) ANDRE TERRELL ROWLAND,

Defendant-Appellant. (02-CR-67-H)

Appeal from the United States District Court for the Northern District of Oklahoma

(02-CR-67-H)

Submitted on the briefs: * Paul D. Brunton (with Julia L. O’Connell and Barry L. Derryberry on the briefs), Office of the Federal Public Defender, Northern andEastern Districts of Oklahoma, for the Appellant. David E. O’Meilia (with Kevin Danielson), United St ates Attorney, Northern District of Oklahoma, for the Appellee.

Before HENRY , BALDOCK , and HARTZ , Circuit Judges.-2-

HENRY , Circuit Judge.
Andre Rowland appeals his sentence for possession o f a firearm by a previously convicted felon, in violation of 18 U.S. C. §§ 922(g)(1) and 924(a)(2). Specifically, he appeals the district court’s determination that his prior state conviction for sexual battery constituted a prior c onviction for a “crime of violence” within the meaning of USSG § 4B1.2(a), re sulting in a base offense level of 24 under USSG § 2K2.1(a)(2) and a sentence of ninety-six months’ imprisonment. We exercise jurisdiction under 28 U. S.C. § 1291 and AFFIRM.

I. BACKGROUND Mr. Rowland was charged in a one-count indictment w ith possession of a firearm and ammunition after former conviction of afelony, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). The indictment als o alleged that Mr. Rowland had been convicted of the following three felonies: (1) sexual battery, (2) feloniously pointing a weapon, and (3) concealing s tolen property. Mr. Rowland pleaded guilty to the charge. The probation officer concluded that the sexual battery conviction and the felonious pointing of a weapon conviction were “cri mes of violence” under the guidelines. Under § 2K2.1(a)(2), two or more previ ous felony convictions for-3-

“crimes of violence” result in a base level of 24. After a downward adjustment of three points for acceptance of responsibility, the district court applied an offense level of 21 and criminal history category VI, and s entenced Mr. Rowland to the maximum ninety-six months in custody, to be followe d by three years of supervised release. Mr. Rowland challenges the district court’s enhance ment of his sentence under the Armed Career Criminal Act, 18 U.S.C. § 92 4(e)(1) (the “ACCA”). Specifically, Mr. Rowland contests the characterization of the prior conviction for sexual battery as premised upon conduct constitutin g a crime of violence.

II. DISCUSSION
A. Standard of Review The district court’s determination that the felony of sexual battery in Oklahoma is a crime of violence under the Guideline s is a legal ruling that we review de novo. See United States v. Vigil , 334 F.3d 1215, 1218 (10th Cir. 2003). We hold that Mr. Rowland has the two requisite conv ictions for crimes of violence for the application of the ACCA. B. Analysis Mr. Rowland objected to the presentence report’s ch aracterization of sexual battery as a crime of violence. Application Note 5 of USSG § 2K2.1(2) explains-4-

that the term “crime of violence” has the identical meaning given to the term in § 4B1.2(a) and its Application Note 1. Section 4B1.2 has alternative tests for determining whether an offense is a crime of violen ce. Mr. Rowland contends that sexual battery does not meet either definition

. Section 4B1.2(a)(1) states that a crime of violence includes any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1) . The second category includes any offense that “is burglary of a dwellin g, arson, or extortion, involves use of explosives, or otherwise involves conduct th at presents a serious potential risk of physical injury to another. ” Id. § 4B1.2(a)(2) (emphasis added). Under the analytic approach mapped out in Taylor v. United States , 495 U.S. 575 (1990), the sentencing court, when applyin g § 924(e), must “look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602; see United States v. Zamora , 222 F.3d 756, 764 (10th Cir. 2000) (considering definition of “crime of violence” unde r USSG § 4B1.2). If there is any ambiguity, we may “look beyond the statute to c ertain records . . . , such as the charging documents, the judgment, any plea ther eto, and findings by the
court.” Zamora , 222 F.3d at 764; see Taylor , 495 U.S. at 602 (outlining inquiry as to state statute’s definition of “burglary” under § 924(e)); USSG § 4B1.2 cmt.,-5-

n.2 (“[T]he offense of conviction (i.e., the condu ct of which the defendant was convicted) is the focus of inquiry.”). Because the enhancement statute does not specifica lly list the crime of sexual battery as a violent felony, we look to whether sexual battery “is a crime that either has an element of use, attempted use[,] or threatened use of physical force against the person of another, or whether that crime involves conduct that presents a serious potential risk of physical injury to another.” United States v. Phelps , 17 F.3d 1334, 1342 (10th Cir. 1994). Under Oklahoma law: Sexual battery shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner an d without the consent of that person. Okla. Stat. Ann. tit. 21, § 1123(B). The government concedes that sexual battery does no t satisfy § 4B1.2(a)(1), because it does not have “as an element the use, attempted use, or threatened use of physical force against the personof another.” USSG § 4B1.2(a)(1). However, the government urges us to h old that § 4B1.2(a)(2) encompasses Oklahoma’s definition of sexual batterybecause sexual battery “presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2). Mr. Rowland counters by emphasizing the ambiguity o f the statute: sexual battery can be the mere nonconsensual touching of an arm or a leg in a lewd and lascivious manner. Such contact entails neither vi olence nor serious potential risk-6-

of injury. To allow “[a]n inference of violence fr om mere unconsented-to physical contact . . . . would transform any uncon sented-to touching . . . into a crime of violence.” United States v. Shannon, 110 F.3d 382, 385 (7th Cir. 1997) (en banc). He urges us to look to the charging doc uments and examine the “‘nature’ of the criminal conduct in reaching an an swer.” Aplt’s Br. at 8 (citing United States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997) (after looki ng at the charging documents, we held that defendant’s “two prior escape convictions by their nature involved conduct that presented a s erious potential risk of physical injury”); and United States v. Gosling , 39 F.3d 1140, 1142 n.3 (10th Cir. 1994) (examining the charging documents and concluding th at the offense of escape “by its nature presented a serious potential risk of physical injury to another and thus is properly characterized as a crime of violence”)) . Mr. Rowland also suggests that, unlike the Ohio statute referred to by the di strict court, the Oklahoma statute requires no deception, and thus carries with it no serious potential risk of violence. See Rec. vol. III, at 18-19 (Sentencing Hr’g, dated Oc t. 10, 2002) (citing United States v. Mack , 53 F.3d 126, 128 (6th Cir. 1995)). We reject Mr. Rowland’s arguments. We find the reasoning of, and the difficult analysi s encountered by, the Seventh Circuit’s en banc opinion instructive, although we note that Shannon is not controlling here. In Shannon , the defendant had previously been convicted of-7-

second-degree sexual assault of a child. Second de gree sexual assault of a child constitutes a felony under Wisconsin law, and is co mmitted by anyone who “has sexual contact or sexual intercourse with a person who has not attained the age of 16.” 110 F.3d at 384 (quoting Wis. Stat. § 948.02( 2)). The Seventh Circuit recognized that the statute covered conduct that mi ght not present a serious risk of physical injury, in that it “cover[ed] a lot of ground, and some of it may not be a crime of violence ground.” Id. at 387. Specifically, the court rejected the government’s argument that “every felonious sexual act with a minor is per se a crime of violence.” Id. at 385. Judge Posner, writing for the court, noted that such a holding “would transform any unconsented-to touching that the law has made a felony into a crime of violence.” Id. The court stated that “a serious risk of physical injury cannot automatically be inferred from the existence of a statutory-rape law.” Id. at 386. The second-degree sexual assault statute was not li mited to sexual intercourse, but also included sexual contact, “whi ch can be as noninvasive as fondling a breast or buttock through clothing for the purpose of arousing the fondler sexually.” Id. at 387. “Such contact might disturb a young person , but it would be highly unlikely to cause physical injury.” Id. In determining that the court must look beyond the statute at the information, the Seventh Circuit held:-8-

To make the answer to the question whether feloniou s sex with a minor is a crime of violence a mechanical function of the laws of the different states would be arbitrary because it woul d make distinctions unsupportable on the basis of the risk of physical injury, that risk being a constant across states and the only relevant criterion (once the use of force is set to one side) in the guideli ne; would undermine the guidelines’ goal of bringing about a reasonable uniformity in federal sentencing; and would treat “crime of viole nce” as a question of state rather than federal law. Id. at 386.
In Shannon , the Seventh Circuit did not examine the “goals orgrounds” behind the passage of the Wisconsin statute, but in stead looked at the facts charged in the indictment or information, and in so doing, noted that the court was not bound by the “minimum conduct that would create the offense.” Id. at 387. The defendant pleaded guilty to sexual interc ourse with a girl who was 13 years and 10 months old at the time of the act. Th e court ultimately concluded, although with some uncertainty, that “any reasonabl e test would classify sexual intercourse with a 13 year old as conduct that creates a serious risk of physical injury and hence as a crime of violence within the meaning that the sentencing guidelines give the term.” Id. at 389. In so doing, the court “urge[d] the Sentencing Commission to clarify the crime of violence guideline,” id., because the decision left certain questions unresolved, suc h as the proper treatment of cases in which the victim of the statutory rape is above the age of 13.-9-

Although we encounter some similar tensions as the court faced in Shannon , in that the Oklahoma statute arguably makes the u nconsented to touching of any body part a sexual battery and ther efore a crime of violence, we have little difficulty distinguishing this case from the statute at issue in Shannon. Here, we are confronted with sexual battery of a vi ctim over the age of sixteen, which encompasses the intentional sexual touching o f another with a particular mental state and without consent. Such unconsentedto touching represents a particular subset of battery. See Okla. Stat. Ann. tit. 21, § 642 (“A battery is any willful and unlawful use of force or violence upon the person of another.”). We confronted this issue with respect to a similar Utah statute regarding forcible sexual abuse in McCann v. Bryon L. Rosquist, D.C., P.C., 185 F.3d 1113, 1119-20 (10th Cir. 1999), vacated on other grounds by 529 U.S. 1126 (2000). In determining that forcible sexual assault was a crim e of violence within the meaning of the Gender Motivated Violence Act (the V iolence Against Women Act’s civil liability provision), we “conclude[d] that nonconsensual physical sexual abuse implicates substantial risk of physica l force, even when unaccompanied by rape, bodily injury, or extreme forms of coercion.” Id. at 1121. Because the statute at issue here presuppose s a lack of consent, it necessarily carries with it a risk of physical force. See id. , 185 F.3d at 1120 (concluding that “the relationship between lack of consent and the substantial risk-10-

of the application of physical force . . . . is si gnificant regardless of the age of the victim”); cf. Phelps , 17 F.3d at 1342 (concluding that “it is plausible , and indeed even likely, that a non-consensual, unlawful kidnapping under the Missouri statute could potentially result in physic al injury to an involved party”); Mack , 53 F.3d at 128 (holding that sexual battery, as d efined under Ohio statute, constituted a crime of violence, because it “carries with it the ever-present possibility that the victim may figure out what’s r eally going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint ”) (internal quotation marks omitted) (emphasis suppli ed). As we noted in Vigil , § 4B1.2 “speaks in terms of probability–a ‘risk’–not certainty.” 334 F.3d at 1223. “‘[R]isk is by defi nition probable not certain; hence potential rather than actual.’” Id. (quoting Shannon , 110 F.3d at 385). One certainly need not impose a physical injury to be c onvicted of sexual battery. As we have stated previously, “physical injury need no t be a certainty for a crime to pose a serious risk of physical injury. Accordingl y, the possibility that a crime may be completed without injury is irrelevant to th e determination of whether it constitutes a crime of violence within the meaning of § 4B1.2.” Id. ; see id. at 1224 (holding that “aggravated incest, as defined b y section 18-6-302 of the Colorado Revised Statutes, constitutes a crime of v iolence within the meaning of USSG § 4B1.2”); see Mack, 53 F.3d at 128. We agree with the district court’s-11-

conclusion that Oklahoma’s statutory definition of sexual battery presents the “serious possibility[] of risk of physical injury.” Rec. vol. III, at 18 (Sentencing Hr’g, dated Oct. 10, 2002); see Mack , 53 F.3d at 128. Unlike the statute at issue in Shannon , there is little room for an arbitrary classification of sexual battery to be deemed a cri me of violence, and thus there is no threat to the uniform application of the federal sentencing laws. The serious risk of bodily injury is a constant in cases involving sexual battery. We thus reject Mr. Rowland’s unsound assertion that because no “deception” is required under the Oklahoma statute, there is “no premise fo r assuming that the perpetrator will resort to actual physical restraint in order t o force compliance.” Aplt’s Br. at 8, and we hold that sexual battery, as defined unde r Oklahoma law, implicates a concomitant serious risk of physical injury.

III. CONCLUSION For the reasons stated above, we AFFIRM Mr. Rowland’s conviction and
sentence.