FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30402 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00267-EFS

DUSTIN CHRISTENSEN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

May 7, 2007—Seattle, Washington

Filed March 23, 2009

Before: Procter Hug, Jr., M. Margaret McKeown, and

William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

3683
COUNSEL

Christina L. Hunt, Office of the Federal Public Defender,

Spokane, Washington, for the appellant.

George J.C. Jacobs, III, Office of the U.S. Attorney, Spokane,

Washington, for the appellee.

OPINION

W. FLETCHER, Circuit Judge: 

Dustin Christensen pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924, an offense carrying a maximum sentence of ten years. At

the government’s request, the district court enhanced Christensen’s sentence to fifteen years under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his

previous conviction of three “violent felon[ies].”

One of Christensen’s three prior violent felony convictions

arose out of a guilty plea to statutory rape in violation of

Washington Revised Code § 9A.44.079. Based on Begay v.

United States, 128 S. Ct. 1581 (2008), we hold under the categorical approach of Taylor v. United States, 495 U.S. 575

UNITED STATES v. CHRISTENSEN 3685
(1990), that a conviction for statutory rape under § 9A.44.079

does not constitute a violent felony under the ACCA. We

reverse and remand to the district court for further proceedings in light of this opinion. 

I. Background

Christensen has a history of drug abuse and other problems

with the law, including prior felony convictions. In early

2004, he had outstanding warrants for his arrest for third

degree theft and for failure to report to the Washington State

Department of Corrections. Hoping to get her son help with

his drug abuse, Christensen’s mother informed the Spokane

County Sheriff’s Office that Christensen would be in the

parking lot of a Petco Store on the afternoon of February 17,

2004. When Christensen and his mother drove into the parking lot, he was arrested without incident. He had two bullets

(but no gun) in his backpack. 

Christensen pled guilty to being a felon in possession of

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924.

The maximum sentence for being a felon in possession of

ammunition is ten years. See id. § 924(a)(2). However, the

government sought to enhance the sentence under the ACCA

based on three prior convictions for “violent felon[ies].” Id.

§ 924(e)(2)(B). The mandatory minimum sentence under the

ACCA is fifteen years. See id. § 924(e)(1). 

One of the felonies on which Christensen’s sentence

enhancement was based was a conviction for statutory rape in

violation of Washington Revised Code § 9A.44.079. Whether

Christensen’s sentence was properly enhanced turns on

whether that conviction constituted a “violent felony” under

the ACCA. Section 9A.44.079(1) provides: 

A person is guilty of rape of a child in the third

degree when the person has sexual intercourse with

another who is at least fourteen years old but less

3686 UNITED STATES v. CHRISTENSEN
than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight

months older than the victim. 

“Consent by the victim is not a defense” to a charge of statutory rape under § 9A.44.079. State v. Heming, 90 P.3d 62, 63

(Wash. Ct. App. 2004). 

The district court analyzed Christensen’s violation of

§ 9A.44.079 under the categorical approach of Taylor. The

court felt itself bound by our opinion in United States v.

Asberry, 394 F.3d 712 (9th Cir. 2005), which construed the

phrase “crime of violence” under § 4B1.2 of the United States

Sentencing Guidelines. The definition of “crime of violence”

in § 4B1.2 is almost word-for-word the same as the definition

of “violent felony” in the ACCA. In Asberry, we concluded

that statutory rape is categorically a “crime of violence” under

§ 4B1.2 because even consensual sexual intercourse “between

adults and adolescents ages fifteen and younger creates a

‘serious potential risk of physical injury.’ ” Id. at 718. Based

on Asberry, the district court concluded that Christensen’s

conviction for statutory rape categorically constituted a “violent felony” under the ACCA. The district court did not reach

the question whether Christensen’s conviction constituted a

violent felony under the modified categorical approach. 

The district judge sentenced Christensen to the fifteen-year

minimum sentence mandated by the ACCA. The judge was

clearly uncomfortable with that sentence. He did not minimize the importance of Christensen’s prior criminal history,

but made clear at the sentencing hearing that he would have

sentenced him to less than fifteen years if he had not been

compelled to do so by the ACCA: 

[I]t seems to me that the Ninth Circuit precedent

compels this outcome . . . . And I say that not to

assuage my conscience in this case at all but rather

to say that we find ourselves in this spot, it seems to

UNITED STATES v. CHRISTENSEN 3687
me, because there was a failure to consider the facts

of this case. 

This is a two bullet prohibited person case brought

by a mother trying to help her son and avoid risk to

the public and to her son, and under those circumstances, one would have wished for greater understanding of that dynamic and a greater respect for

that effort so that there was at the greatest a ten-year

maximum in this case. 

But I do respect the right of the Department of

Justice to say this is a serious felon who deserves to

be put away for a long time. I would have wished for

a different view of this so that we didn’t get ourselves in an ACCA status.

When this case was first before us, we affirmed in an

unpublished memorandum disposition based on Asberry. See

United States v. Christensen, No. 06-30402, 2007 WL

1544714 (9th Cir. May 25, 2007). After we filed our memorandum disposition but before the mandate issued, Christensen petitioned for rehearing. While that petition was pending,

the Supreme Court decided Begay, which construed “violent

felony” under the ACCA. For the reasons that follow, we conclude that Begay requires us to grant the petition for rehearing. Based on Begay, we now hold that under the categorical

approach, Christensen’s conviction for statutory rape in violation of § 9A.44.079 does not constitute a violent felony under

the ACCA.1 We reverse and remand for further proceedings.

1Christensen also contends that his Sixth Amendment rights were violated because the government failed to charge the ACCA sentence

enhancement in his indictment and to prove to a jury beyond a reasonable

doubt that his prior convictions were for violent felonies. In our earlier

unpublished memorandum disposition, we held that Christensen’s Sixth

Amendment rights were not violated. We do not revisit that holding. 

3688 UNITED STATES v. CHRISTENSEN
II. Discussion

A. Categorical Approach

The ACCA requires a minimum sentence of fifteen years

for individuals who violate 18 U.S.C. § 922(g) and have three

prior convictions for a “violent felony or a serious drug

offense.” 18 U.S.C. § 924(e)(1) (emphasis added). The central

question in this appeal is whether, under the categorical

approach, statutory rape qualifies as a “violent felony.” 

[1] The ACCA defines a “violent felony” as “any crime

punishable by imprisonment for a term 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) (emphasis added). Statutory rape qualifies

as a “violent felony” only if it comes within the italicized

catch-all clause — “otherwise involves conduct that presents

a serious potential risk of physical injury to another.” Id.

§ 924(e)(2)(B)(ii). 

[2] The Supreme Court construed the catch-all clause of the

ACCA in Begay, 128 S. Ct. at 1581. The question in Begay

was whether driving under the influence of alcohol (“DUI”)

under New Mexico law qualified as a “violent felony” under

the catch-all clause. See id. at 1583-84. The Court held that

it did not. See id. at 1583, 1588. 

[3] The Court used an ejusdem generis analysis, concluding

that crimes covered by the catch-all clause must involve conUNITED STATES v. CHRISTENSEN 3689
duct similar to the conduct in the four crimes specifically

named in the statute:

In our view, the provision’s listed examples —

burglary, arson, extortion, or crimes involving the

use of explosives — illustrate the kinds of crimes

that fall within the statute’s scope. Their presence

indicates that the statute covers only similar crimes,

rather than every crime that “presents a serious

potential risk of physical injury to another.” 

Id. at 1584-85 (emphasis in original). The Court went on: 

In our view, DUI differs from the example crimes

— burglary, arson, extortion, and crimes involving

the use of explosives — in at least one pertinent, and

important, respect. The listed crimes all typically

involve purposeful, “violent,” and “aggressive”

conduct. . . . 

By way of contrast, statutes that forbid driving

under the influence, such as the statute before us,

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 (emphasis added). 

The Court specifically rejected the approach of the dissent,

which would have analyzed the risk of harm posed by the

behavior without regard for whether the defendant’s crime

involved “purposeful, violent, and aggressive” conduct:

Were we to read the statute without this distinction, its 15-year mandatory minimum sentence

would apply to a host of crimes which, though dan3690 UNITED STATES v. CHRISTENSEN
gerous, are not typically committed by those whom

one normally labels “armed career criminals.” . . .

The statute’s use of examples (and the other considerations we have mentioned) indicate the contrary. 

The dissent’s approach . . . would likely include

these crimes within the statutory definition of “violent felony,” along with any other crime that can be

said to present “a serious potential risk of physical

injury.” 

Id. at 1587. 

[4] Because the Court in Begay used the conjunction “and,”

all three of its criteria — “purposeful, violent, and aggressive”

— must be satisfied. We do not decide whether statutory rape

is necessarily “purposeful” as the Court used that word in

Begay. But because statutory rape may involve consensual

sexual intercourse, Heming, 90 P.3d at 63, it does not necessarily involve either “violent” or “aggressive” conduct. We

therefore conclude that a conviction for statutory rape in violation of Washington Revised Code § 9A.44.079 does not

qualify under the categorical approach as a violent felony

under the ACCA.2

B. Modified Categorical Approach

[5] The district judge did not reach the question whether

under the modified categorical approach Christensen committed a “violent felony” under ACCA. Nor did the parties brief

that question on appeal. We remand to allow the district court

to consider the question in the first instance.

2

It is evident from our discussion that our earlier holding in Asberry that

statutory rape is a “crime of violence” under U.S.S.G. § 4.B1.2 may no

longer be good law. However, because the continuing vitality of Asberry

is not before us, we do not address this issue. 

UNITED STATES v. CHRISTENSEN 3691
III. Conclusion

For the foregoing reasons, we hold that statutory rape under

Washington Revised Code § 9A.44.079 is not categorically a

“violent felony” within the meaning of the ACCA. We withdraw our unpublished memorandum disposition, 2007 WL

1544714 (9th Cir. May 25, 2007), with respect to this issue,

reverse the decision of the district court, and remand for further proceedings in light of this opinion. 

REVERSED AND REMANDED. 

3692 UNITED STATES v. CHRISTENSEN