United States Court of Appeals

Fifth Circuit

FILED

July 5, 2007

Charles R. Fulbruge III

Clerk

REVISED July 5, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30400 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AMOS BELIEW,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

Before JONES, Chief Judge, and HIGGINBOTHAM, and CLEMENT, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant appeals his felon-in-possession sentence, arguing

that one of his prior Louisiana convictions for molesting a minor

is not a crime of violence. We affirm.

I

Amos Beliew was caught hunting food in a wildlife refuge with

a .22 rifle. He explained to the game warden that he didn’t have

a hunting licence because he is an ex-felon, having been twice

convicted in Louisiana for sexually molesting a juvenile. 
1La. Rev. Stat. § 14:81.2(A) (emphasis added).

2

Beliew was arrested and pleaded guilty to felon-in-possession

charges. At sentencing the district court applied a recidivist

enhancement for two prior crimes of violence. Beliew objected to

one of these, arguing that his second molestation conviction was

not a crime of violence because the indictment for that second

conviction did not say whether sexual contact had occurred during

the offense. The district court overruled this objection,

explaining that the Louisiana molestation statute was categorically

a crime of violence, and imposing a sentence of forty-six months.

Beliew appeals. 

II

We hold that the Louisiana molestation statute is a crime of

violence because it is a “forcible sex offense” and affirm. The

statute provides:

Molestation of a juvenile is the commission by anyone

over the age of seventeen of any lewd or lascivious act

upon the person or in the presence of any child under the

age of seventeen, where there is an age difference of

greater than two years between the two persons, with the

intention of arousing or gratifying the sexual desires of

either person, by the use of force, violence, duress,

menace, psychological intimidation, threat of great

bodily harm, or by the use of influence by virtue of a

position of control or supervision over the juvenile.

1

The applicable definition of “crime of violence” is set forth at

4B1.2(a), which provides:

The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a

term exceeding one year, that — 
2U.S.S.G. § 4B1.2(a). 

3Id.

4Unites States v. Sarmiento-Funes, 374 F.3d 336, 342–45 (5th Cir. 2004).

5Id. at 344.

3

(1)has as an element the use, attempted use, or

threatened use of physical force against the person

of another, or

(2). . . otherwise involves conduct that presents a

serious potential risk of physical injury to

another.2

The definition continues in the application note, which further

provides:

“Crime of violence” includes . . . forcible sex offenses

. . . . Other offenses are included as “crimes of

violence” if that offense . . . by its nature presented

a serious risk of physical injury to another.3

The government argues, inter alia, that the molestation statute is

a “forcible sex offense.” We agree. We have previously educed the

generic contemporary meaning of “forcible sex offense” in the

context of a recidivist enhancement for statutory rape.4 In

Sarmiento-Funes we explained that “it seems that the adjective

‘forcible’ centrally denotes a species of force that either

approximates the concept of forcible compulsion or, at least, does

not embrace some of the assented-to-but-not-consented-to conduct at

issue here.”5 The Louisiana statute, in contrast, has an element

which approximates “forcible compulsion,” for it requires “force,

violence, duress, menace, psychological intimidation, threat of
6La. Rev. Stat. § 14:81.2(A) (emphasis added). Cf. State v. Leblanc,

506 So.2d 1197, 1200 (La.1987).

7The Fourth Circuit looked to North Carolina law in holding that a

“forcible sex offense” may be committed by constructive force. Although we

look to state courts as one source of generic contemporary meaning, the

definition of “forcible sex offense” is ultimately a question of federal

common law. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.

2006).

8United States v. Pierce, 278 F.3d 282, 290 (4th Cir. 2002).

9Sarmiento-Funes, 374 F.3d at 342–345.

4

great bodily harm, or . . . use of influence by virtue of a

position of control or supervision over the juvenile.”6

This final clause poses the more difficult question, as an

adult’s “use of influence” over a juvenile isn’t obviously forcible

compulsion. The answer lies in whether such influence can be

deemed constructive force as the interstitial federal common law of

4B1.2.7 The Fourth Circuit deemed it so, explaining that “the

adult-child relationship between the defendant and the victim

permits the inference of constructive force,” and concluded that

“[w]hen a child is the victim of adult conduct, force can be

inferred.”8 We agree with this reasoning.

Expansion of the term “forcible sex offense” through the

fiction of “constructive force” is bounded by Sarmiento-Funes,

where this court held that a rape statute which encompasses

assented-to-but-not-consented-to conduct was not a forcible sex

offense.9 The statute in Sarmiento-Funes voided the victim’s

consent to sex in cases of deception and where the victim’s
10Quoting Black's Law Dictionary 657 (7th ed.1999).

5

judgment was impaired by intoxication. Under such a statute, there

is at least assent, and so we held that there is no force extrinsic

to penetration, constructive or otherwise. But here the Louisiana

statute requires that an adult abuse his supervisional authority

over a juvenile, a form of psychological intimidation that carries

an implicit threat of force, a species of force extrinsic to

penetration, distinguishable from Sarmiento-Funes.

The defendant responds that the adjective “forcible” refers

only to that which is “[e]ffected by force or threat of force

against opposition or resistance.”10 The defendant argues that

“[t]his definition does not include an offense such as indecent

exposure, which is committed without physical contact and does not

even require awareness on the part of the victim.” With this

argument the defendant misconstrues the Louisiana statute, which

does not reach indecent exposure alone. The statute requires, at

least, “use of influence by virtue of control or supervision.” The

district court did not err in concluding that this was a “forcible

sex offense” under the guidelines. 

III

Amos Beliew next argues that the district court unreasonably

denied downward departure at sentencing, believing itself legally

bound to ignore his mitigating evidence. Specifically, he explains
11The guidelines apply an offense level of six if the gun was used

solely for lawful sporting purposes. U.S.S.G. 2K2.1(b)(2) (emphasis added).

6

that he was using the gun for hunting, an activity that might11 have

earned him a reduction had he not also been twice convicted of

child molestation, and he argues that this fact should have

reasonably earned him a reduction under the section 3553(a)

factors.

At sentencing, the district court criticized defense counsel

for urging a downward variance without first submitting a

supporting memorandum. The district court said:

I’m listening to your argument and I’m taking it into

account, but I have a standing rule that I don’t want

people coming in here the morning of sentencing and

saying “Hey, by the way, vary,’ because we can’t just

willy-nilly vary even though the guidelines are advisory

. . . 

I have to tell you, Mr. Beliew, I really feel sorry for

you, but I don’t think I have a legal ground here to

deviate from the guideline range that puts you in a

position any different from somebody who is a felon in

possession with a criminal history like you, to give you

a sentence that is other than in the guideline range. I

really feel sorry for you, I have to tell you. 

Beliew argues that second paragraph suggests that the district

court was not aware that section 3553(a) did provide a legal ground

for downward variance. We cannot agree. The first paragraph makes

clear that the district court was well aware that the guidelines

had become advisory. To make sense of the matter, the court’s

reference to no “legal ground” for departure must have been to the

court’s requirement that counsel abide her “standing rule” of
7

giving notice of such arguments. The judgment of the district

court is 

AFFIRMED.