United States District Court, W.D. Virginia, Charlottesville Division
K. MOON UNITED STATES DISTRICT JUDGE
case is before the Court on remand from the Fourth Circuit
for further consideration of Defendant's habeas petition.
See generally United States v. Winston, - F.3d --,
No. 16-7252, 2017 WL 977031 (4th Cir. Mar. 13, 2017). The
present issue is whether-in light of the Supreme Court's
decisions in Johnson I and Johnson
II-Defendant's 1980 conviction for rape
under military law qualifies as a predicate offense within
the meaning of the Armed Career Criminal Act (ACCA).
See 18 U.S.C. § 924(e)(2)(B)(i). It does not.
Accordingly, the Court will GRANT
Winston's motion. The length of Defendant's original,
ACCA-enhanced sentence is vacated, and the Court will
resentence him to time served.
Analysis of Defendant's Prior Conviction after Johnson I
1980, Defendant was convicted of rape under Article 120 the
Uniform Code of Military Justice. See 10 U.S.C.
§ 920; dkt. 80 (PSR) ¶ 21. At that time, the
relevant statute read as follows:
(a) Any person subject to this chapter who commits an act of
sexual intercourse with a female not his wife, by
force and without her consent, is guilty of rape and
shall be punished by death or such other punishment as a
court-martial may direct.
(b) Any person subject to this chapter who, under
circumstances not amounting to rape, commits an act of sexual
intercourse with a female not his wife who has not attained
the age of sixteen years, is guilty of carnal knowledge and
shall be punished as a court-martial may direct.
(c) Penetration, however slight, is sufficient to
complete either of these offenses.
10 U.S.C. § 920 (1976) (emphasis added); 70A Stat. 73
(1956) (emphasis added); see Relford v. Commandant, U.S.
Disciplinary Barracks, Ft. Leavenworth, 401 U.S. 355,
361 n.9 (1971).
deciding if a crime qualifies as an ACCA predicate offense,
courts assess whether the crime is divisible (thus requiring
application of the modified categorical approach) or
indivisible (thus calling for the categorical approach).
See Winston, 2017 WL 977031, at *4 n.5; United
States v. Gardner, 823 F.3d 793, 802-03 (4th Cir. 2016).
The parties agree that Defendant was convicted of rape under
§ 920(a), rather than of carnal knowledge of a minor
under § 920(b). (See dkt. 58 (Def s Br.) at 6;
dkt. 62 (Gov't Br.) at 1-2, 6; PSR ¶ 21). Because
§ 920(a) consists of only a single crime and the parties
have not argued otherwise, the categorical approach applies.
that approach, the Court compares the generic elements of the
offense to the "violent force" requirement in the
ACCA, as articulated by Johnson I. In so doing, the
Court looks to the minimum conduct necessary to establish a
conviction for rape. See Winston, 2017 WL 977031, at
*5; Gardner, 823 F.3d at 803. If the generic
elements of rape under military law can be satisfied even
without a defendant's use of violent force, then that
crime does not qualify as an ACCA predicate offense.
the statute itself shows that a defendant can be guilty of
rape without the use of violent force. Although § 920(a)
requires the existence non-consensual sex "by
force" for a rape conviction, § 920(c) clarifies
that even "slight" penetration "is
sufficient." Likewise, the case law reveals that
military courts uphold rape convictions in the absence of
violent physical force.
In the law of rape, various types of conduct are universally
recognized as sufficient to constitute force. The most
obvious type is that brute force which is used to overcome or
prevent the victim's active resistance. Physical
contact, however, is not the only way force can be
established. Where intimidation or threats of death or
physical injury make resistance futile, it is said that
'constructive force' has been applied, satisfying
this element. Closely related to these is the situation in
which the victim is incapable of consenting because she is
asleep, unconscious, or lacks mental capacity to consent.
In such circumstances, the force component is established
by the penetration alone. Military law conforms with
United States v. Palmer, 33 MJ. 7, 9 (C.M.A. 1991)
(internal citations omitted) (emphasis added); see United
States v. Haire, 44 M.J. 520, 524 (C.G. Ct. Crim. App.
1996) ("the force element of the offense is established
by penetration alone" if "the victim is unable to
resist because of the lack of mental or physical
courts thus have explained that the "required
force" for a rape conviction need not be actual but
instead may be "constructive." United States v.
Simpson,55 M.J. 674, 696-97 (Army Ct. Crim. App. 2001)
(reviewing cases and concept of constructive force),
aff'd,58 M.J. 268, 378-39 (C.A.A.F. 2003).
"The doctrine of constructive force is used in those
situations when no force is needed to accomplish the rape
beyond what is involved in the act of intercourse itself . .
. ." United States v. Clark,35 M.J. 432,
425-436 (C.M.A. 1992). This concept in military law
"dates back at least as far as 1917" and possibly
as early as 1886, when Colonel William Winthrop wrote that ...