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Very interesting opinion just released?United States v. Wynn, No. 07?4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit).

Issue: Is a conviction under Ohio?s Section 2907.03 for "sexual battery" a crime of violence?

Points:

* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted. So the Court had to look at the statute broadly.

* Offense does not have force as an element. Coercion is enough. And it is not an enumerated offense, so the analysis had to proceed under the "otherwise clause" of Section 4B1.2(a)(2).

* Based on Begay, this Court overruled its prior decision in United States v. Mack, 53 F.3d 126 (6th Cir. 1995), which had found the offense to be a violent felony for ACCA purposes. One can commit the offense of Ohio sexual battery without aggression or violence. The offense is not categorically a crime of violence.

* The commentary to Section 2L1.2, contributing to the definition of crime of violence as it regards sex offenses for purposes of that guideline section, does not broaden the definition for Section 4B1.2.

* Courts may not use the factual recitations in the PSIR to determine whether a prior offense was a crime of violence. PSIRs are not documents available for review under Shepard.

* United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), foreclosed the use of the PSIR for such a purpose.

* On remand, the district court can consider Shepard documents to determine whether the prior offense qualifies as a crime of violence.

Dissent by Judge Friedman:

* Very interesting.

* Judge Friedman feels that courts should be able to consider the facts in the PSIR if the defendant does not object to them. He does not read Bartee as barring the PSIR?s recitation of facts from consideration. This approach is problematic though because it puts the defendant in the position of having to choose between fighting a crime-of-violence determination and not jeopardizing their acceptance-of-responsibility points (at least in some districts with some POs).

* Judge Friedman also believes there are resources available to use to determine the subsection under which the defendant was previously convicted of sexual battery. Judge Friedman determined the subsection using the state court?s on-line resources. The judge feels this approach to fact determination is appropriate under United States v. Alexander, 543 F.3d 819 (6th Cir. 2008), in which the Court looked to Michigan Department of Corrections on-line records to make a similar determination. Such judicial fact-finding is problematic. A colleague who reads this blog pointed out the dangers of such fact-finding when Alexander first came out. Now, his predictions are being fulfilled. . . . Judge Friedman feels that such judicial fact-finding is more reliable because there is no danger of the government giving inaccurate information. (The majority had to point out the government?s misquote of Taylor?the government quoted Taylor as requiring "that a court look to the ?facts of conviction?" during the crime-of-violence determination.)

This case is worth a read to keep tabs on the crime-of-violence evolution.

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