UNITED STATES of America, Plaintiff-Appellee, v. Alvin James PIERCE, Defendant-Appellant, 278 F.3d 282

Affirmed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Judge WILKINS joined. Judge GREGORY wrote a dissenting opinion. OPINION NIEMEYER, Circuit Judge. We are presented with the single issue of whether Alvin Pierce’s prior conviction for taking indecent liberties with a child, in violation of N.C. Gen.Stat. § 14-202.1, constitutes a predicate “crime of violence” for purposes of enhancing his sentence in the instant case as a “career offender” under the Sentencing Guidelines, U.S.S.G. § 4B1.1.

Applying a categorical approach to the determination of career-offender status, we conclude as a matter of law that the state felony offense of taking indecent liberties with a child constitutes a crime of violence under U.S.S.G. § 4B1.1 both because it amounts to a forcible sex offense and because it creates a serious potential risk of physical injury. Accordingly, we affirm the district court’s sentence of Pierce as a career offender.

I On April 21, 1999, Alvin Pierce robbed a branch of the Branch Banking & Trust in Charlotte, North Carolina; on July 30, 1999, Pierce robbed a branch of the Wa-chovia Bank in Charlotte; and on August 11, 1999, Pierce robbed a branch of Central Carolina Bank in Charlotte. After being indicted for bank robbery and bank larceny in connection with each incident, in violation of 18 U.S.C. §§ 2113(

a) and 2113(b), Pierce pleaded guilty to three counts of bank robbery. The district court sentenced Pierce as a career offender under U.S.S.G. § 4B1.1 and imposed a 188 month term of imprisonment for each count of conviction, to be served concurrently. In sentencing Pierce as a career offender, the district court relied on two prior felony convictions, one in 1995 for bank robbery, in violation of 18 U.S.C. § 2113(a), for which he was sentenced to 57 months’ imprisonment; and one in 1992 for taking indecent liberties with a child, in violation of N.C.

Gen.Stat. § 14-202.1, for which he was sentenced to five years’ imprisonment. Although Pierce did not object to the district court’s use of the bank robbery conviction as a predicate offense for finding career-offender status, he did object to use of the indecent liberties conviction, arguing that the offense did not constitute a “crime of violence” as required by U.S.S.G. § 4B1.1.

In concluding that the indecent liberties offense did indeed constitute a crime of violence, the district court “specifically ... noted that the particular incident involved a young seven year old daughter of [Pierce’s] girlfriend.” When defense counsel noted that the age of the victim was not stated in the charging document, the court accepted into evidence a 1992 memorandum from the Greensboro Parole Services Department prepared in connection with the case.

That report noted that the victim was seven-and-one-half years old at the time of the crime and described the crime as follows: The victim stated that this defendant made her watch dirty movies. She stated that he made her touch his penis and that he had fondled her genital area. The child was examined by a doctor and there had been no penetration evident, but the vaginal area was irritated. The victim also stated that this had happened on numerous occasions when her mother was away from the home and that this had begun at age six.

The victim, when examined by a doctor, tested positive for Chlamydia, which is a sexually transmitted disease. Pierce objected to the district court’s use of the parole services report because it violated the categorical approach mandated for considering predicate offenses. In addition, Pierce took the witness stand and testified on his own behalf, denying that he took any indecent liberties with the child. He stated that the charge was “concocted” as the result of a custodial dispute and clarified that the child was his seven-year old daughter.

From the district court’s judgment, Pierce noticed this appeal raising only the issue of whether the district court erred in finding that his prior conviction for indecent liberties with a child was a crime of violence for the purpose of applying career-offender status. He arg-ues that under the categorical approach, the court should not have considered facts not contained in the charging document and that the charging document itself only alleges, in statutory language, a violation of N.C. Gen.Stat. § 14-202.1.

He asserts that, because the statutory language does not require physical force or touching, the offense is not a crime of violence. II

Section 994(

h) of Title 28 directs that the United States Sentencing Commission provide sentences “at or near the maximum” for defendants convicted of crimes of violence or drug crimes if those defendants have also twice previously been convicted for crimes of violence or drug crimes.

Section 4B1.1 of the Sentencing Guidelines, which implements Congress’ directive, thus enhances sentences for defendants who are “career offenders.” This

section defines a “career offender” as any defendant who (1) is at least 18 years old at the time he commits the instant offense; (2) is convicted of a felony that is either a crime of violence or a drug offense; and (3) has at least two prior felony convictions of either a crime of violence or a drug offense. U.S.S.G. § 4B1.1. A defendant found to be a career offender under § 4B1.1 is sentenced at a criminal history Category VI and at specified minimum offense levels. Id.

As used in § 4B1.1, “crime of violence” means any offense, whether federal or state, punishable by imprisonment for a term exceeding one year that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a potential risk of physical injury to another. U.S.S.G. § 4B1.2(a).

The relevant application notes amplify the definition, stating that crimes of violence include “murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling,” as well as any offense that, “by its nature, presents] a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, cmt. n. 1.

Even though the question of whether an offense is a crime of violence is a question of federal law, because the federal law includes the possibility that a predicate offense may be a prior violation of state law, see U.S.S.G. § 4Bl.l(a), in considering such an offense, we look to state law to determine its nature and whether its violation is a crime of violence under federal law.

The question presented in this case, therefore, is whether the North Carolina felony offense of taking indecent liberties with a child falls within the federal definition of a crime of violence because it is either a “forcible sex offense” or an offense which, “by its nature, presents a serious potential risk of physical injury to another.” This is a question of law that we review de novo. United States v. Dickerson, 77 F.3d 774, 775 (4th Cir.1996). In answering this question, we use the required categorical approach, which takes into account only the definition of the offense and the fact of conviction.

United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.1998); United States v. Wilson, 951 F.2d 586, 588 (4th Cir.1991). The principles for application of this approach were adopted from the analogous analysis prescribed in Taylor v. United States, 495 U.S. 575, 588-90, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in which the Supreme Court applied the same categorical approach to determine whether burglary was a predicate crime of violence for armed-career-offender status under 18 U.S.C. § 924(e). See Kirksey, 138 F.3d at 124.

In Kirksey, we pointed out that neither Congress nor the Sentencing Commission intended, by relying on predicate offenses in § 4B1.1, to open up the predicate offenses for retrial or reconsideration. See id. If we were to go behind the fact of conviction and attempt to determine the facts of each predicate offense, sentencing would become a series of minitrials for each prior offense, which would be both costly and unreliable.

When the definition of the predicate offense is ambiguous and does not reveal whether it is a crime of violence, we may discover the nature of the offense for which the defendant was actually convicted by looking at the charging document and the jury instructions. See Kirksey, 138 F.3d at 124. But in permitting this, we have admonished that the inquiry must never “involve[ ] a factual inquiry into the facts previously presented and tried.” Id. at 124-25.

In the case before us, the district court relied upon the parole services report that was contained in the record but was not included in the charging document to point out that the victim was seven years old. Pierce correctly notes, however, that this use of the parole services report was improper. Use of parole services reports or other noncharging documents could lead to the very factual inquiry that the categorical approach prohibits. Indeed, this case presents a relevant example.

The report consulted by the district court provided details about how Pierce was alleged to have engaged in a sexual act with a seven year old girl by touching her and having her touch him. Yet, in his sworn testimony before the district court, Pierce denied engaging in that conduct and asserted, to the contrary, that the charge was drummed up by his girlfriend in retaliation for disputing the young girl’s custody. The sentencing proceeding in this case could never have been the appropriate forum for the resolution of that factual dispute.

Thus, under the categorical approach in Kirksey, the district court should not have relied on any such facts taken from the case file or the testimony of witnesses. Rather, it should have approached the question of whether the offense of taking indecent liberties with a child was categorically a crime of violence, as defined by the Sentencing Guidelines. While we could look to the charging document and the contents of jury instructions, the charging document in this case adds no facts to the statutory elements alleged and there were no jury instructions because Pierce pleaded guilty.

Therefore, we are left with analyzing the nature of the offense itself. Because the offense under consideration was a state offense, we look to state law to understand whether a conviction under state law amounts to a crime of violence as defined by federal law. Pierce was convicted for violation of N.C. GemStat. § 14-202.1, which makes taking indecent liberties with children a felony. That statute provides in relevant part: A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. N.C. Gen.Stat. § 14-202.1(a). The North Carolina courts have stated that § 14-202.1 was enacted to protect children. See State v. Elam, 802 N.C. 157, 273 S.E.2d 661, 665 (1981) (noting the purpose as “the protection of children from the sexual advances of adults”); Matter of State v.

Turman, 52 N.C.App. 376, 278 S.E.2d 574, 575 (1981) (stating, “[t]he purpose of the statute is to give broader protection to children than the prior laws provided”); see also State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 682 (1987) (noting that the broad range of prohibited indecent conduct gives children broader protection than available under other statutes proscribing sex acts). The North Carolina Supreme Court explained that the provision “clearly prohibits sexual conduct with a minor child.

Indeed, the legislature enacted § 14-202.1 to encompass more types of deviant behavior, giving children broader protection than available under other statutes proscribing sexual acts.” State v. Banks, 322 N.C. 753, 370 S.E.2d 398, 406 (1988) (internal citations and quotation marks omitted). “The evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child ‘for the purpose of arousing or gratifying sexual desire.’ ” State v. Hartness, 326 N.C. 561, 391 S.E.2d 177, 180 (1990) (quoting N.C. Gen. Stat. § 14-202.1).

Consistent with this broad protection, the North Carolina statute requires neither physical force nor a touching. E.g., Hartness, 391 S.E.2d at 180; Etheridge, 352 S.E.2d at 682. As the Supreme Court explained in Banks, Undoubtedly [the statute’s] breadth is in recognition of the significantly greater risk of psychological damage to an impressionable child from overt sexual acts. We also bear in mind the enhanced power and control that adults, even strangers, may exercise over children who are outside the protection of home or school. Banks, 370 S.E.2d at 407 (quoting State v.

Hicks, 79 N.C.App. 599, 339 S.E.2d 806, 809 (1986)). Pierce argues that “[s]ince physical touching is not a required element of the offense, indecent liberties is not a crime of violence.” He also points out accurately that the charging document provides no facts demonstrating that physical touching was involved.

The government argues in response that under U.S.S.G. § 4B1.1, neither force nor a touching is a necessary aspect of a “crime of violence,” directing our attention to the portion of its definition that includes any crime which, “by its nature, presents] a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, cmt. n. 1 (emphasis added); see also U.S.S.G. § 4B1.2(a)(2) (defining crime of violence to include any offense “that presents a serious potential risk of physical injury to another”).

Following the contours of the categorical approach set out by the Supreme Court in Taylor and by this court in Kirksey, we use a “general approach,” applying “uniform, categorical

definitions to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof, and that are likely to be committed by career offenders, regardless of technical

definitions and labels under state law.” Taylor, 495 U.S. at 590, 110 S.Ct. 2143; see also Kirksey, 138 F.3d at 124 (limiting inquiry to fact of conviction and definition of the offense). Accordingly, this court must examine the offense as a category of criminal conduct defined by the statute and not “the particular facts underlying those convictions.” Taylor, 495 U.S. at 600, 601, 110 S.Ct. 2143.

Thus, when examining the indecent liberties statute involved in this case, which has been defined repeatedly by the North Carolina Supreme Court, we recognize first that the statute was enacted to provide broad protection against sexual abuse, a particularly pernicious form of personal injury, of the most vulnerable members of our society. As the North Carolina courts have observed, the statute is written in broad terms as part of its specific design to protect against the heightened risk of injury that comes when impressionable children are the victims.

See Banks, 370 S.E.2d at 407 (recognizing the “significantly greater risk” of injury to children from “overt sexual acts”). By emphasizing the breadth of protection provided by § 14-202.1, these courts have indicated that injury can be caused even in the absence of touching or explicit force. Relying on the breadth of the North Carolina statute, our dissenting colleague maintains that a conviction under the North Carolina indecent liberties statute is not a conviction for a crime of violence.

He rests his position on the propositions that (1) the language of the North Carolina statute is so broad that it criminalizes conduct beyond that which presents a serious risk of physical injury, and (2) the statute may be violated in a “vast array of means” that poses no risk of physical injury. This position, however, fails on two accounts. First, the Sentencing Guidelines provide a broad definition of a crime of violence, aiming at a crime that not only causes physical injury but also a crime that, by its nature, could cause physical injury.

Thus, the Guidelines expressly list arson and burglary of a dwelling as crimes of violence. See U.S.S.G. § 4B1.2, cmt. n. 1. Yet neither arson nor burglary of a dwelling categorically has as an element any touching or physical harm to a person. Indeed, a person need not even be threatened in such offenses. In a similar vein, we have held that a crime of violence includes: the crime of attempted breaking and entering of a dwelling, see United States v. Custis, 988 F.2d 1355, 1364 (4th Cir.1993); the crime of escape from custody, see United States v.

Hairston, 71 F.3d 115, 118 (4th Cir.1995); and the crime of attempted escape, see United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996). Again, none of these crimes requires a touching or even an actual threat of physical injury. What is common to all of these crimes, as well as to the North Carolina indecent liberties statute, however, is conduct that inherently presents a risk of physical injury.

Indeed, it is for this reason that the Sentencing Guidelines themselves classify criminal sexual abuse under 18 U.S.C. § 2242 as a crime of violence, even though, as we explain more fully below, a violation does not require a touching or physical injury. See U.S.S.G. § 2A3.1, cmt. background. Second, our dissenting colleague’s position is inconsistent with available empirical data relating to the application of the North Carolina indecent liberties statute.

In most instances, convictions under this statute have involved offenses committed in close proximity to victims so as to create a serious risk of physical injury. A review of North Carolina appellate decisions since 1980 that apply the indecent liberties statute reveals that in 98% of the cases, the crime is committed in situations where the victim is in such close proximity to the perpetrator that the victim was exposed to the serious risk of injury.

We have held that in determining whether a particular offense, which may be committed in both violent and nonviolent ways, is a crime of violence, “most” of the instances of the offense should present a serious risk of physical injury in order to be a crime of violence. See United States v. Martin, 215 F.3d 470, 475 (4th Cir.2000); cf. United States v. Johnson, 246 F.3d 330, 334 (4th Cir.2001) (noting that when “most instances” do not present a risk of physical injury, the offense is not a crime of violence).

Thus, because the North Carolina indecent liberties statute protects against the risk of physical injury and its violation therefore presents a serious risk of physical injury, such a violation categorically is a crime of violence. We come to this same conclusion also because the North Carolina statute protects against a “forcible sex offense,” which the Sentencing Guidelines also define to be a crime of violence. U.S.S.G. § 4B1.2, cmt. n. 1. The North Carolina courts have consistently held that constructive force may be inferred in sexual abuse cases involving children.

See, e.g., Etheridge, 352 S.E.2d at 680-81. The North Carolina Supreme Court has noted that “constructive force may be demonstrated by evidence of threats or other actions by the defendant which compel the victim’s submission to sexual acts, and such threats ‘need not be explicit so long as the totality of the circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat.’ ” North Carolina v. Penland, 343 N.C. 634, 472 S.E.2d 734, 742 (1996) (quoting Etheridge, 352 S.E.2d at 680); accord North Carolina v. Brown, 332 N.C. 262, 420 S.E.2d 147, 150 (1992).

In this case, the adult-child relationship between the defendant and the victim permits the inference of constructive force. See Etheridge, 352 S.E.2d at 681 (“We hold that constructive force could be reasonably inferred from the circumstances surrounding the parent-child relationship”); North Carolina v.

Hardy, 104 N.C.App. 226, 409 S.E.2d 96, 99 (1991) (same). “The youth and vulnerability of children, coupled with the power inherent in a parent’s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser’s purpose.” Eth-eridge, 352 S.E.2d at 681.

It would thus appear that North Carolina’s indecent liberties statute, as interpreted by the North Carolina courts, protects not only against the serious risk of physical injury but also against the application of constructive force created by the nature of the relationship of adult and child. Either aspect would satisfy the Sentencing Guidelines’ definition of a “crime of violence.” North Carolina’s own take on the indecent liberties statute which Pierce violated is similar to the Sentencing Guideline’s take on an analogous federal law of sexual abuse.

Sections 2241 and 2242 of Title 18 prohibit aggravated sexual abuse and sexual abuse, respectively, and § 2242 provides for punishment of persons who engage in sexual acts with other persons if the other person is “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” 18 U.S.C. § 2242. The statute also prohibits attempts to engage in sexual acts with persons incapable of appraising the act or communicating an unwillingness to participate. Id.

The Sentencing Guidelines applicable to these two sections state categorically that, even though a touching or physical injury is not a required element of a violation of § 2242, “[sjexual offenses addressed in this

section are crimes of violence. Because of their dangerousness, attempts are treated the same as completed acts of criminal sexual abuse.” U.S.S.G. § 2A3.1, cmt. background (emphasis added). This commentary also provides that “[a]ny criminal sexual abuse with a child less than twelve years of age, regardless of ‘consent,’ is governed by § 2A3.1 (Criminal Sexual Abuse).” Id. And any criminal sexual abuse is defined as crime of violence. Id.

Similarly, a violation of 18 U.S.C. § 2243, which prohibits sexual abuse (or attempt) with a minor or ward, is characterized as a crime of violence by the Sentencing Guidelines as long as the victim has not attained the age of 12, regardless of any purported consent. See U.S.S.G. § 2A3.2 cmt. background.

Accordingly, whether we look at North Carolina’s characterization of its indecent liberties statute which Pierce violated, or the federal characterization of an analogous federal law, the conclusion is the same that taking indecent liberties with a minor amounts to a crime of violence under U.S.S.G. § 4B1.1 because the offense involves “forcible sex” or “by its nature, presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, cmt. n. 1. When a child is the victim of adult conduct, force can be inferred.

Moreover, even if force and any resulting injury were not inferred, such child abuse by an adult would present a serious potential risk of physical injury to the child, a danger that is quite similar in character to the potential injury to persons involved in arson or burglary, both of which are specifically recognized as crimes of violence. The injury that sex abuse of children offers is not only a serious potential risk, but it is the very risk at which the North Carolina statute prohibiting indecent liberties with children is aimed.

Consequently, we conclude that a violation of that statute is categorically a crime of violence. In reaching this conclusion, we join every other circuit that has considered the question, even though the underlying factual circumstances in those cases involved either a sexual touching or a statute that required a sexual touching. See United States v. Meader, 118 F.3d 876, 885 (1st Cir.1997) (holding that statutory rape offense was a crime of violence for career offender purposes); United States v.

Kirk, 111 F.3d 390, 395-96 (5th Cir.1997) (holding that conviction of indecency with a child involving sexual contact is a crime of violence); United States v. Shannon, 110 F.3d 382, 389 (7th Cir.1997) (en banc) (holding that second degree sexual assault of a child, requiring sexual contact, is a crime of violence); United States v. Taylor, 98 F.3d 768, 773 (3d Cir.1996) (holding that statutory rape conviction for which facts supported allegation of use of physical force, was a crime of violence); United States v.

Passi, 62 F.3d 1278, 1282 (10th Cir.1995) (holding that sexual abuse of a minor involving contact is a crime of violence for purposes of calculation of offense level); United States v. Wood, 52 F.3d 272, 277 (9th Cir.1995) (holding that conviction under indecent liberties statute, where criminal information included facts that victim was five years old and sexual contact occurred, was crime of violence); United States v. Bauer, 990 F.2d 373, 375 (8th Cir.1993) (holding that statutory rape offense was a crime of violence).

But the violence in each of these cases was not necessarily the touching — as the touching itself may not cause injury — but rather it was either a “forcible sex offense” or an offense that, “by its nature, presents a serious potential risk of physical injury to another.” Accordingly, the judgment of the district court is AFFIRMED.

For the period from 1980, 150 reported decisions were found where (1) the facts were stated in sufficient detail to indicate whether the victim and the perpetrator were in close proximity, (2) the opinion did not specify that the defendant violated § 14-202.1(a)(2) rather than § 14-202.1(a)(1) (which does not require physical contact), and (3) the case did not reverse for insufficiency of evidence. Of these 150 cases, only 3 did not meet the criteria: State v. Nesbitt, 133 N.C.App. 420, 515 S.E.2d 503, 505-06 (1999) (masturbation while watching children play outside, 35 feet away); State v.

McClees, 108 N.C.App. 648, 424 S.E.2d 687, 690 (N.C.Ct.App.1993) (videotaping victim without victim’s knowledge); and State v. Strickland, 77 N.C.App. 454, 335 S.E.2d 74, 75-76 (1985) (masturbation while watching boys play across a creek). In the remaining 147 cases, the convictions involved offenses committed in such close proximity to the victim as to present a serious risk of physical injury.