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United States v. Winston

United States District Court, W.D. Virginia, Charlottesville Division

April 25, 2017

United States of America,
v.
Robert McKinley Winston, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         This 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[1] and Johnson II[2]-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.

         I. Analysis of Defendant's Prior Conviction after Johnson I and II

         In 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).

         When 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.

         Under 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.

         Here, 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 these principles.

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 facilities").

         Military 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 ...


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