United States Court of Appeals

For the Eighth Circuit

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No. 13-2632

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Leo Berger

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: February 10, 2014

 Filed: July 7, 2014 

[Unpublished]

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Before SMITH, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.
Leo Berger appeals the district court's1

 classification of his prior Iowa state

conviction for lascivious acts with a child as a crime of violence. Applying controlling

circuit precedent, we affirm. 

I. Background

In 2002, Leo Berger was convicted of conspiracy to distribute 50 grams or more

of a mixture containing a detectable amount of methamphetamine to persons under 21

years of age, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 859. He

was sentenced to 70 months' imprisonment, followed by eight years of supervised

release.

In September 2012, Berger was charged in state court with second-degree

sexual abuse, in violation of Iowa Code § 709.3. In May 2013, Berger pleaded guilty

to two counts of lascivious acts with a child, in violation of Iowa Code § 709.8. The

state court sentenced Berger to two consecutive ten-year terms. 

Because of Berger's arrest and state conviction, his federal probation officer

filed a petition to revoke sentencing with the district court. Berger admitted the

allegations in the revocation petition. The district court found that a violation of

§ 709.8 is a "crime of violence" under this court's precedents and thus a Grade "A"

violation under the Sentencing Guidelines. The district court revoked Berger's

supervised release and sentenced him to five years' imprisonment, four years running

consecutive to his state court sentence. Berger appeals the district court's "crime of

violence" ruling.

1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

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II. Discussion

"This Court reviews de novo a district court's determination that a conviction

constitutes a crime of violence under the sentencing guidelines." United States v.

Tessmer, 659 F.3d 716, 717 (8th Cir. 2011) (per curiam) (citation omitted). A

violation of Iowa Code § 709.8 represents a "crime of violence." United States v.

Rodriguez, 979 F.2d 138, 140–41 (8th Cir. 1992). The district court applied

Rodriguez. 

Berger concedes that Rodriguez is binding precedent but urges this court to

reconsider it. Berger correctly states that Rodriguez did not apply the "formal

categorical" or "modified categorical" approaches to determine whether a violation of

Iowa Code § 709.8 is a "crime of violence." Those approaches were developed in the

Taylor v. United States line of cases,2

 most of which post-date our decision in

Rodriguez. Berger requests that we look at Rodriguez anew in light of intervening

Supreme Court precedent.

Iowa Code § 709.8 provides: 

1. It is unlawful for any person sixteen years of age or older to perform

any of the following acts with a child with or without the child's consent

unless married to each other, for the purpose of arousing or satisfying the

sexual desires of either of them: 

a. Fondle or touch the pubes or genitals of a child. 

b. Permit or cause a child to fondle or touch the person's genitals or

pubes. 

2

Descamps v. United States; 133 S. Ct. 2276 (2013); Begay v. United States,

553 U.S. 137 (2008); Shepherd v. United States, 544 U.S. 13 (2005); Taylor v. United

States, 495 U.S. 575 (1990).

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c. Cause the touching of the person's genitals to any part of the body of

a child.

d. Solicit a child to engage in a sex act or solicit a person to arrange a sex

act with a child. 

e. Inflict pain or discomfort upon a child or permit a child to inflict pain

or discomfort on the person.

2. a. Any person who violates a provision of this section involving an act

included in subsection 1, paragraph "a" through "c", shall, upon

conviction, be guilty of a class "C" felony.

b. Any person who violates a provision of this section involving an act

included in subsection 1, paragraph "d" or "e", shall, upon conviction, be

guilty of a class "D" felony.

"[A] 'child' is any person under the age of fourteen years." Iowa Code § 702.5. 

A class "C" felony is punishable by up to ten years' imprisonment. Iowa Code

§ 902.9.1(d). A class "D" felony is punishable by up to five years' imprisonment. Iowa

Code § 902.9.1(e). Berger's ten-year sentences indicate that he pleaded guilty to

violations of subsection (a), (b), or (c). Consequently, we need only determine

whether subsections (a)–(c) represent crimes of violence. 

Under the Sentencing Guidelines, a crime qualifies as a "crime of violence" if

it is a felony that "has as an element the use, attempted use, or threatened use of

physical force against the person of another." U.S.S.G. § 4B1.2. In United States v.

Dawn, we considered Arkansas Code Annotated § 5-14-125(a)(3) (2002). 685 F.3d

790 (8th Cir. 2012). Arkansas's statute substantially resembles the Iowa statute in

relevant part. The Arkansas statute provides, in part, that "[a] person commits sexual

assault in the second degree if the person. . . [b]eing eighteen (18) years of age or

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older, engages in sexual contact with the sex organs of another person, not the person's

spouse, who is less than fourteen (14) years of age."3

 Ark. Code Ann. § 5-14-125(a)(3)

(2002). We reasoned that "sexual contact between parties of differing physical and

emotional maturity carries a substantial risk that physical force may be used in the

course of committing the offense." Dawn, 685 F.3d at 796 (quotation, alteration, and

citations omitted). Consequently, we held that a conviction under the Arkansas statute

was for a "crime of violence" under the Sentencing Guidelines. Id. Given the

similarities between the Iowa and Arkansas states, we apply our holding in Dawn and

conclude that a violation of subsection (a), (b), or (c) of Iowa Code § 709.8.1 is a

"crime of violence" under the Guidelines. The district court thus did not err.

III. Conclusion

Accordingly, the judgment of the district court is affirmed.

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3

Arkansas defines "sexual contact" as "any act of sexual gratification involving

the touching, directly or through clothing, of the sex organs, buttocks, or anus of a

person or the breast of a female." Ark. Code Ann. § 5-14-101(10). This definition

would cover all of the prohibited contact in subsections (a)–(c) of Iowa Code § 709.8.

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