The opinion of the court was delivered by: Diamond, J.
I must determine in this case whether an adult defendant's prior conviction for statutory sexual assault of an eight-year-old girl constitutes a "crime of violence" warranting an enhancement under the Sentencing Guidelines. I determine that it is.
"The facts of this case are in large degree unusual and undisputed." Defendant's Sentencing Memorandum, Doc. No. 29 at 2. On January 30, 2009, Defendant, Rafael Rondon-Herrera, pled guilty before me to being a previously-convicted felon in possession of a firearm. 18 U.S.C. § 922(g)(1). His sentencing for that crime is to take place on October 19, 2009.
A. Defendant's Prior Convictions
On July 24, 2007, Defendant pled nolo contendere in the Philadelphia Common Pleas Court to statutory sexual assault and corrupting the morals of a minor. 18 Pa. Cons. Stat. §§ 3122.1, 6301. The Commonwealth was prepared to prove that on October 20, 2004, Defendant took several children from an after-school program to a tire shop. See Doc. No. 29, Ex. A at 15-16. Then thirty-four years old, Defendant led one of the children -- the eight-year-old daughter of his girlfriend -- to the back of the shop and had sexual intercourse with her. When police examined the dress the child was wearing, they found it was soiled with an enzyme predominantly found in human semen. Id.
The Commonwealth originally charged Defendant with rape and related offenses. 18 Pa. Cons. Stat. § 3121. When its witnesses failed to appear in court, the Commonwealth withdrew and then reinstated prosecution. The Parties eventually agreed that Defendant would plead nolo contendere to reduced charges of statutory sexual assault and corrupting the morals of a minor, and stipulated the Defendant would be sentenced for these offenses to two consecutive five-year terms of probation.See Doc. No. 29 at 2, Ex. A at 20-21.
At the outset of his state court plea hearing, Defendant, who was assisted by a translator, stated "I didn't do it." Doc. No. 29, Ex. A at 9. The court advised Defendant that if he "[did] not want to enter a no contest plea, then we will have a jury trial." Id. at 9. After speaking with his lawyer, Defendant stated, "[w]e are here today to do the no contest." Id. Defendant then participated in an extensive colloquy during which his competence and mental state were explored, and the factual basis and elements of the charges and myriad related rights were explained. Id. at 9-20. Defendant pled no contest to the charges. The court made the following findings:
The Court: Mr. Rondon, the Court listened to the answers that you gave to the questions [asked during the plea colloquy]. The Court is satisfied that you do understand what you're doing today. The Court also is satisfied that you have not been forced or threatened in order to get you to offer this no contest plea. Finally, the Court listened to the summary of the facts for the events that occurred beginning on October 20th of 2004, and is satisfied that the summary of events does make out the elements of statutory sexual assault and of corrupting the morals of a minor. Id. at 18-19.
The court then accepted Defendant's no contest plea, "enter[ed] verdicts of guilty [on the] two charges," and sentenced Defendant to the stipulated sentence of ten years probation. Id. at 19-20.
At the time of his nolo plea, Defendant was "a citizen of the Dominican Republic . . . [with] an alien registration card (green card)." Doc. No. 29 at 2. Although his state court counsel had advised Defendant that a sexual assault conviction would not affect his immigration status, on June 28, 2008, Immigration and Custom Enforcement agents went to Defendant's home to serve a warrant for his detention.See Doc. No. 28. The agents sought to retrieve Defendant's passport, which he kept in a locked box along with a fully loaded Smith & Wesson handgun. Defendant told the agents that he owned the firearm, which he had legally purchased in 2003. See Doc. No. 29 at 2-3. After his sexual assault conviction, however, his continued possession of the gun violated federal law. See 18 U.S.C. § 922(g)(1). Accordingly, on August 21, 2008, Defendant was charged with being a felon in possession of a firearm. Defendant pled guilty before me several months later.
Under Guidelines §2K2.1(a)(4)(a), a base offense level of twenty applies when "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense."
U.S.S.G. §2K2.1(a)(4)(a) (emphasis added). In its Presentence Investigation Report, the Probation Department did not designate either Defendant's conviction for statutory sexual assault or for corrupting the morals of a minor as a "crime of violence." Probation thus determined that Defendant's base level was fourteen. PSIR ¶ 16 n.1. The Government objected, arguing that because statutory sexual assault is a crime of violence, the base offense level should be twenty. Doc. No. 28 at 4. Pursuant to my May 5, 2009 Order, both sides have fully briefed this issue.
Defendant makes three arguments in response to the Government's objection to the Presentence Investigation Report: 1) that under the Supreme Court's "formal categorical approach," because § 3122.1 (Pennsylvania's statutory sexual assault law) does not require proof of the use of force, Defendant's § 3122.1 conviction was not for a "crime of violence"; 2) that because a violation of § 3122.1 does not invariably "present a risk of serious bodily injury," under the Supreme Court's decision in United States v. Begay, Defendant's prior conviction was not for a "crime of violence"; and 3) that Defendant's plea of nolo contendere precludes my recognizing any of the facts and circumstances underlying his 2007 convictions. These arguments are meritless.
A. Formal and Modified Categorical ...