UNITED STATES of America, Plaintiff-Appellee, v. Dustin CHRISTENSEN, Defendant-Appellant, 233 F. App'x 716

MEMORANDUM Appellant Dustin Christensen challenges the enhancement of his sentence under the Armed Career Criminal Act (“ACCA”). Christensen appeals the district court’s determination that third-degree rape of a child under Washington Revised Code § 9A.44.079 (so-called statutory rape) is a “violent felony” as that term is defined by the ACCA, 18 U.S.C. § 924(e)(2)(B).

Christensen 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. We affirm. It is true that § 9A.44.079, which prohibits sexual intercourse between a minor aged fourteen or fifteen and a person at least forty-eight months older than the minor, encompasses consensual sex.

However, the ACCA includes as violent felonies not only crimes involving an element of force but also crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). In United States v. Asberry, 394 F.3d 712 (9th Cir.2005), we held that even consensual “[s]exual intercourse with adults poses serious potential risks of physical injury to adolescents of ages fifteen and younger,” including sexually transmitted disease and pregnancy. Id. at 717.

Although in As-berry we applied the sentence enhancement provision in United States Sentencing Guidelines § 4B1.2, its language is identical in all material respects to that of the ACCA provision at issue here. See James v. United States, — U.S. -, 127 S.Ct. 1586, 1596, 167 L.Ed.2d 532 (2007). Under the rationale of our holding in Astern/, an offense under § 9A.44.079 is a violent felony for the purposes of the ACCA because it involves conduct that presents a serious potential risk of physical injury to an adolescent aged fourteen or fifteen.

Christensen’s Sixth Amendment rights were not violated by the enhancement of his sentence because “[ujnder the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt.” United States v. Tighe, 266 F.3d 1187, 1191 (9th Cir.2001); see also United States v. Ladwig, 432 F.3d 1001, 1005-06 (9th Cir.2005). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.