United States v. Beliew

United States Court of Appeals
Fifth Circuit
F I L E D
July 5, 2007
Charles R. Fulbruge III
Clerk
REVISED July 5, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMOS BELIEW,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before JONES, Chief Judge, and HIGGINBOTHAM, and CLEMENT, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant appeals his felon-in-possession sentence, arguing
that one of his prior Louisiana convictions for molesting a minor
is not a crime of violence. We affirm.
I
Amos Beliew was caught hunting food in a wildlife refuge with
a .22 rifle. He explained to the game warden that he didn’t have
a hunting licence because he is an ex-felon, having been twice
convicted in Louisiana for sexually molesting a juvenile.

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1La. Rev. Stat. § 14:81.2(A) (emphasis added).
2
Beliew was arrested and pleaded guilty to felon-in-possession
charges. At sentencing the district court applied a recidivist
enhancement for two prior crimes of violence. Beliew objected to
one of these, arguing that his second molestation conviction was
not a crime of violence because the indictment for that second
conviction did not say whether sexual contact had occurred during
the offense. The district court overruled this objection,
explaining that the Louisiana molestation statute was categorically
a crime of violence, and imposing a sentence of forty-six months.
Beliew appeals.
II
We hold that the Louisiana molestation statute is a crime of
violence because it is a “forcible sex offense” and affirm. The
statute provides:
Molestation of a juvenile is the commission by anyone
over the age of seventeen of any lewd or lascivious act
upon the person or in the presence of any child under the
age of seventeen, where there is an age difference of
greater than two years between the two persons, with the
intention of arousing or gratifying the sexual desires of
either person, by the use of force, violence, duress,
menace, psychological intimidation, threat of great
bodily harm, or by the use of influence by virtue of a
position of control or supervision over the juvenile.1
The applicable definition of “crime of violence” is set forth at
4B1.2(a), which provides:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that —

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2U.S.S.G. § 4B1.2(a).
3Id.
4Unites States v. Sarmiento-Funes, 374 F.3d 336, 342–45 (5th Cir. 2004).
5Id. at 344.
3
(1)has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2). . . otherwise involves conduct that presents a
serious potential risk of physical injury to
another.2
The definition continues in the application note, which further
provides:
“Crime of violence” includes . . . forcible sex offenses
. . . . Other offenses are included as “crimes of
violence” if that offense . . . by its nature presented
a serious risk of physical injury to another.3
The government argues, inter alia, that the molestation statute is
a “forcible sex offense.” We agree. We have previously educed the
generic contemporary meaning of “forcible sex offense” in the
context of a recidivist enhancement for statutory rape.4 In
Sarmiento-Funes we explained that “it seems that the adjective
‘forcible’ centrally denotes a species of force that either
approximates the concept of forcible compulsion or, at least, does
not embrace some of the assented-to-but-not-consented-to conduct at
issue here.”5 The Louisiana statute, in contrast, has an element
which approximates “forcible compulsion,” for it requires “force,
violence, duress, menace, psychological intimidation, threat of

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6La. Rev. Stat. § 14:81.2(A) (emphasis added). Cf. State v. Leblanc,
506 So.2d 1197, 1200 (La.1987).
7The Fourth Circuit looked to North Carolina law in holding that a
“forcible sex offense” may be committed by constructive force. Although we
look to state courts as one source of generic contemporary meaning, the
definition of “forcible sex offense” is ultimately a question of federal
common law. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.
2006).
8United States v. Pierce, 278 F.3d 282, 290 (4th Cir. 2002).
9Sarmiento-Funes, 374 F.3d at 342–345.
4
great bodily harm, or . . . use of influence by virtue of a
position of control or supervision over the juvenile.”6
This final clause poses the more difficult question, as an
adult’s “use of influence” over a juvenile isn’t obviously forcible
compulsion. The answer lies in whether such influence can be
deemed constructive force as the interstitial federal common law of
4B1.2.7 The Fourth Circuit deemed it so, explaining that “the
adult-child relationship between the defendant and the victim
permits the inference of constructive force,” and concluded that
“[w]hen a child is the victim of adult conduct, force can be
inferred.”8 We agree with this reasoning.
Expansion of the term “forcible sex offense” through the
fiction of “constructive force” is bounded by Sarmiento-Funes,
where this court held that a rape statute which encompasses
assented-to-but-not-consented-to conduct was not a forcible sex
offense.9 The statute in Sarmiento-Funes voided the victim’s
consent to sex in cases of deception and where the victim’s

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10Quoting Black's Law Dictionary 657 (7th ed.1999).
5
judgment was impaired by intoxication. Under such a statute, there
is at least assent, and so we held that there is no force extrinsic
to penetration, constructive or otherwise. But here the Louisiana
statute requires that an adult abuse his supervisional authority
over a juvenile, a form of psychological intimidation that carries
an implicit threat of force, a species of force extrinsic to
penetration, distinguishable from Sarmiento-Funes.
The defendant responds that the adjective “forcible” refers
only to that which is “[e]ffected by force or threat of force
against opposition or resistance.”10 The defendant argues that
“[t]his definition does not include an offense such as indecent
exposure, which is committed without physical contact and does not
even require awareness on the part of the victim.” With this
argument the defendant misconstrues the Louisiana statute, which
does not reach indecent exposure alone. The statute requires, at
least, “use of influence by virtue of control or supervision.” The
district court did not err in concluding that this was a “forcible
sex offense” under the guidelines.
III
Amos Beliew next argues that the district court unreasonably
denied downward departure at sentencing, believing itself legally
bound to ignore his mitigating evidence. Specifically, he explains

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11The guidelines apply an offense level of six if the gun was used
solely for lawful sporting purposes. U.S.S.G. 2K2.1(b)(2) (emphasis added).
6
that he was using the gun for hunting, an activity that might11 have
earned him a reduction had he not also been twice convicted of
child molestation, and he argues that this fact should have
reasonably earned him a reduction under the section 3553(a)
factors.
At sentencing, the district court criticized defense counsel
for urging a downward variance without first submitting a
supporting memorandum. The district court said:
I’m listening to your argument and I’m taking it into
account, but I have a standing rule that I don’t want
people coming in here the morning of sentencing and
saying “Hey, by the way, vary,’ because we can’t just
willy-nilly vary even though the guidelines are advisory
. . .
I have to tell you, Mr. Beliew, I really feel sorry for
you, but I don’t think I have a legal ground here to
deviate from the guideline range that puts you in a
position any different from somebody who is a felon in
possession with a criminal history like you, to give you
a sentence that is other than in the guideline range. I
really feel sorry for you, I have to tell you.
Beliew argues that second paragraph suggests that the district
court was not aware that section 3553(a) did provide a legal ground
for downward variance. We cannot agree. The first paragraph makes
clear that the district court was well aware that the guidelines
had become advisory. To make sense of the matter, the court’s
reference to no “legal ground” for departure must have been to the
court’s requirement that counsel abide her “standing rule” of

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7
giving notice of such arguments. The judgment of the district
court is
AFFIRMED.

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