United States v. James Armes

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0091p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 19-5539

v. │

│

│

JAMES ARMES, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 4:18-cr-00011-1—Joseph H. McKinley, Jr., District Judge.

Argued: January 28, 2020

Decided and Filed: March 26, 2020

Before: COLE, Chief Judge; COOK and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, INC., Louisville,

Kentucky, for Appellant. L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE,

Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE

OF THE FEDERAL DEFENDER, INC., Louisville, Kentucky, for Appellant. L. Jay Gilbert,

UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

THAPAR, J., delivered the opinion of the court in which COOK, J., joined. COLE, C.J.

(pp. 14–19), delivered a separate dissenting opinion.

_________________

OPINION

_________________

THAPAR, Circuit Judge. Federal law mandates tough sentences for child

pornographers—especially those with a history of sexual abuse. James Armes had such a history

No. 19-5539 United States v. Armes Page 2

and received an enhanced sentence as a result. Because the district court got the law right and

chose a reasonable sentence, we affirm.

I.

Armes pled guilty to five counts of producing, two counts of distributing, and one count

of possessing child pornography. See 18 U.S.C. §§ 2251(a), 2252A(a)(2), 2252A(a)(5)(B). The

images showed him molesting two members of his family—one an infant, the other a toddler—

by fondling them and placing his genitals on various parts of their bodies.

This wasn’t Armes’s first run-in with the law over his sexual behavior. The presentence

report related that in 2005 Armes pled guilty to two counts of Kentucky third-degree rape. See

Ky. Rev. Stat. Ann. § 510.060 (West 2005). The report added: “According to the Indictment,

the defendant engaged in sexual intercourse with a victim that was less than 16 years old . . .

while the defendant was over 21 years old.” R. 25, Pg. ID 167 (PSR ¶ 84). Armes didn’t object

to these statements or (for that matter) any other factual statements in the report.

These past convictions had sentencing consequences. Normally, the minimum prison

terms for producing, distributing, and possessing child pornography are fifteen, five, and zero

years (respectively). But those numbers rise to twenty-five, fifteen, and ten years for certain

repeat sex offenders—including those with a past conviction under a state law “relating to

aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward[.]”

18 U.S.C. §§ 2251(e), 2252A(b)(1)–(2). The district court found that Armes’s past convictions

for Kentucky third-degree rape qualified under this sentencing enhancement. So the court

applied the enhancement, making Armes’s minimum sentence twenty-five years.

The Sentencing Guidelines recommended the maximum possible sentence—three

hundred and fifty years. But the government asked for only seventy-five years. In the end, the

district court varied even lower and went with fifty years.

Armes now challenges his sentence on two grounds: (1) his Kentucky rape convictions

don’t trigger the sentencing enhancement, and (2) his fifty-year sentence is substantively

unreasonable.

No. 19-5539 United States v. Armes Page 3

II.

The first challenge calls for some background. The bottom-line question is whether

Armes’s state convictions relate to “aggravated sexual abuse, sexual abuse, [or] abusive sexual

contact involving a minor or ward,” as those terms are commonly understood. 18 U.S.C.

§§ 2251(e), 2252A(b)(1)–(2); see United States v. Mateen, 806 F.3d 857, 862 (6th Cir. 2015)

(holding that “sexual abuse” should be understood according to its “common meaning”).1 To

answer that question, we apply the so-called “categorical approach,” which means parsing the

elements of Armes’s state offense to determine whether the offense necessarily relates to “sexual

abuse” (or “aggravated sexual abuse” or “abusive sexual contact involving a minor or ward”).

Mateen, 806 F.3d at 862 (cleaned up).

But there’s a complication: at the time of Armes’s conviction, Kentucky used the “third-

degree rape” label for not one but three different ways of breaking the law:

(1) A person is guilty of rape in the third degree when:

(a) He engages in sexual intercourse with another person who is incapable of

consent because he is mentally retarded;

(b) Being twenty-one (21) years old or more, he engages in sexual intercourse

with another person less than sixteen (16) years old; or

(c) Being twenty-one (21) years old or more, he engages in sexual intercourse

with another person less than eighteen (18) years old and for whom he

provides a foster family home[.]

Ky. Rev. Stat. Ann. § 510.060 (West 2005). Since these three versions of third-degree rape had

distinct sets of elements, they were distinct crimes. In the jargon of federal criminal law, the

statute was “divisible,” meaning that we use the “modified categorical approach” to determine

the particular crime of conviction. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

1

This circuit doesn’t define those terms by cross-referencing the federal crimes defined in 18 U.S.C.

§§ 2241–44—entitled, respectively, “Aggravated sexual abuse,” “Sexual abuse,” “Sexual abuse of a minor or ward,”

and “Abusive sexual contact.” Mateen, 806 F.3d at 860–61; cf. 18 U.S.C. front matter (“Act June 25, 1948, ch. 645,

§ 19, 62 Stat. 862, provided that: ‘No inference of a legislative construction is to be drawn . . . by reason of the

catchlines used in [Title 18].’”). So Armes’s argument that the sentencing enhancement doesn’t apply because

Kentucky third-degree rape doesn’t track all the elements of § 2243 or § 2244 is simply wrong.

No. 19-5539 United States v. Armes Page 4

All this means that for Armes’s sentencing enhancement to be proper, one of two things

must be true. Option one: the district court had enough information to determine the particular

crime of conviction, and that crime categorically qualifies under the enhancement. Option two:

all three crimes categorically qualify under the enhancement. In this case both are true. Thus,

the district court properly applied the enhancement.

A.

Start with option one. The presentence report said (1) that Armes pled guilty to two

counts of third-degree rape and (2) that the indictment in that case alleged that Armes “engaged

in sexual intercourse with a victim that was less than 16 years old . . . while the defendant was

over 21 years old.” R. 25, Pg. ID 167 (PSR ¶ 84). That charge matches the elements of one (and

only one) version of Kentucky third-degree rape. See Ky. Rev. Stat. Ann. § 510.060(1)(b) (West

2005).

If Armes was convicted of that offense, then this case boils down to an easy question:

does the ordinary meaning of “sexual abuse” cover the statutory rape of a fifteen-year-old (or

younger) by someone who’s at least twenty-one? Of course it does. To state the obvious,

“sexual intercourse” is “sexual.” And when an adult takes sexual advantage of a child or early

teen, that’s “abuse.” See, e.g., United States v. Savoy, 280 F. App’x 504, 509 (6th Cir. 2008)

(“At a minimum [the defendant’s] act could constitute statutory rape, and consequently sexual

abuse.”); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). In fact, the

Supreme Court has held that “sexual intercourse” may be considered “abusive solely because of

the ages of the participants” if the victim is younger than sixteen. Esquivel-Quintana v. Sessions,

137 S. Ct. 1562, 1572 (2017) (interpreting “sexual abuse of a minor” as used in 8 U.S.C.

§ 1101(a)(43)(A)). In short, if Armes’s past convictions were under then-current Ky. Rev. Stat.

§ 510.060(1)(b), then they fit comfortably within the terms of the sentencing enhancement.

So could the district court determine that this was Armes’s crime of conviction based on

the presentence report? Well-settled principles tell us yes. If anything is certain in the oft-

confusing world of the modified categorical approach, it’s that a court can use a formal charging

document (i.e., an indictment or information) to determine a defendant’s crime of conviction.

No. 19-5539 United States v. Armes Page 5

Shepard v. United States, 544 U.S. 13, 16, 26 (2005); see also, e.g., United States v. Mahon,

444 F.3d 530, 535–36 (6th Cir. 2006). And if anything is certain in the world of sentencing

procedure, it’s that a court “may accept any undisputed portion of the presentence report as a

finding of fact.” Fed. R. Crim. P. 32(i)(3)(A) (emphasis added); see, e.g., United States v.

Denson, 728 F.3d 603, 614 (6th Cir. 2013). Armes raised no objections to the report, so the

district court properly adopted it in full—including its description of the charge in the

indictment. And the district court properly relied on the charge to determine Armes’s crime of

conviction.

But not so fast, says Armes: even if logic demands this result, binding circuit precedent

bars it. See United States v. Wynn, 579 F.3d 567 (6th Cir. 2009). In Wynn, this court stated that

a presentence report isn’t an acceptable “Shepard document”—that is, not a document courts

may use under the modified categorical approach. See id. at 576–77. Based on this language

from Wynn (and other cases that echo it), Armes concludes that the report’s description of the

indictment wasn’t enough to pinpoint his crime of conviction. Only the indictment itself would

do.

But as Chief Justice Marshall put it long ago, “[i]t is a maxim not to be disregarded, that

general expressions, in every opinion, are to be taken in connection with the case in which those

expressions are used.” Cohens v. Virginia, 19 U.S. 264, 399 (1821). To read our precedents as

Armes does would disregard that maxim.

To see why, consider three prior cases: (1) Wynn’s forerunner, United States v. Bartee,

529 F.3d 357 (6th Cir. 2008); (2) Wynn itself; and (3) United States v. Hockenberry, 730 F.3d

645 (6th Cir. 2013). Once we understand these three cases, the rest fall easily into place.

1. Start with Bartee. There, the defendant had a conviction for “engag[ing] in sexual

contact . . . under circumstances involving the commission of any other felony.” 529 F.3d at 360

(quoting Mich. Comp. Laws § 750.520c(1)(c)). The government argued this conviction should

count as a “crime of violence” because it involved sexual contact with a minor. Id. at 360–61.

True, the elements of the crime didn’t say anything about sex with a minor. See id. at 360. But

“the underlying facts” showed that the victim was fifteen. Id. at 361.

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The problem with this is that the categorical approach simply does not care about

“underlying facts”—a phrase courts use to refer to the specific circumstances of a specific

defendant’s violation of the law. See Mathis, 136 S. Ct. at 2252 (explaining that the categorical

approach “avoid[s] any inquiry into the underlying facts” (quoting James v. United States, 550

U.S. 192, 214 (2007))); Taylor v. United States, 495 U.S. 575, 601 (1990) (adopting the

categorical approach in part to avoid the need for a “record of the underlying facts”). The only

facts it cares about are the facts that were “integral to the defendant’s conviction”—the elements

“necessarily found [by a jury] or admitted [by a guilty plea].” Mathis, 136 S. Ct. at 2249.

Thus, in Bartee, this court held that relying on the underlying facts “did not adhere to the

categorical approach.” 529 F.3d at 360. It did not particularly matter that some of those facts

were in the presentence report—in fact, the government’s argument was based on the charging

document (an undoubted Shepard record). Id. at 361; see id. at 360 (noting that “the government

relied solely on the amended information”). The fundamental problem in Bartee was not that the

government was getting its information from the wrong document. The problem was that it was

looking to the wrong “sort of information”—“underlying facts” that were simply irrelevant to the

elements of the crime. Id. at 361.

2. With this background in mind, now consider Wynn. The defendant there had a

conviction under a state statute with nine widely disparate subsections. See Wynn, 579 F.3d at

572. The government argued that “the underlying facts of the prior conviction, as detailed in the

PSR,” could pinpoint which particular subsection the conviction was for. Id. at 575. Once

again, these “underlying facts” were the specific circumstances of the offense. See id. at 569–70.

Unsurprisingly, the Wynn panel found itself “bound by Bartee” to reject the

government’s argument. Id. at 576. The panel looked to Bartee for its understanding of the

categorical approach: that courts “must look only to the fact of conviction” and the elements it

implies—“not the facts underlying the offense.” Id. at 571 (quoting and adding emphasis to

Bartee, 529 F.3d at 359). It twice quoted Bartee’s concern that the facts in the presentence

report were the wrong “sort of information.” Id. at 576 (quoting Bartee, 529 F.3d at 361). On

top of this, a footnote in Wynn favorably quoted an unpublished case where the court used a

No. 19-5539 United States v. Armes Page 7

presentence report but “properly focused on the statutory definition”—not what the report said

about “the factual basis for the conviction.” Id. at 576 n.6 (cleaned up).

All this makes it seem that Wynn (like Bartee) simply applied basic categorical-approach

principles, excluding the facts in the report because they were “underlying facts.” Indeed, our

court later read Wynn and Bartee in exactly this way. See United States v. Gardner, 649 F.3d

437, 445 (6th Cir. 2011) (“Bartee and Wynn both limited consideration of [ ] PSRs because the

facts in the PSRs were not required to sustain the defendants’ convictions and were never

necessarily admitted by the defendants.” (emphasis added)). And under this reading, Wynn

doesn’t help Armes. Why not? Because his presentence report’s description of the indictment

doesn’t go to the “underlying facts.” It goes to the charges and thus the elements of his

convictions—just what we want to know under the categorical approach (whether regular or

modified).

Admittedly, Wynn includes some loose language suggesting a broader rule: that

presentence reports as such are off-limits in the modified categorical approach. See, e.g.,

579 F.3d at 576 (“declaring PSRs to be non-Shepard documents”); id. at 577 (reading Bartee to

hold “that a PSR is not a Shepard document”). But to understand loose language in an opinion,

we must read it in light of the more precise language in the opinion. See Cohens, 19 U.S. at 399.

The question in Wynn was whether “the factual recitation in a PSR” was acceptable under

Shepard. 579 F.3d at 575 (emphasis added). And that was just another way of asking whether a

court could consider “the underlying facts of the prior conviction.” Id.; see also id. at 575–76

(relying on Bartee’s prohibition against “use of the factual description of a prior conviction

contained in a PSR”). Reading the opinion as a whole, even Wynn’s loose language fits a simple

application of basic categorical-approach principles.

You might ask, if that’s all Wynn did, why did it include this loose language about

presentence reports? But there’s no surprise if we consider Wynn’s vintage. For years after

Shepard, courts struggled with how to articulate the relationship between the regular and

modified versions of the categorical approach. Not until United States v. Descamps did the

Supreme Court make crystal clear that the modified version is simply the way you apply the

categorical approach to a divisible statute. See 570 U.S. 254, 263 (2013).

No. 19-5539 United States v. Armes Page 8

Traces of an outdated type of analysis show up throughout Wynn. For instance, Wynn

(following Bartee) used the word “ambiguous” to mean what courts now understand by the term

“divisible.” 579 F.3d at 571 (quoting Bartee, 529 F.3d at 359); see also id. at 575. It also

framed the modified categorical approach as “an exception to the categorical approach.” Id. at

571; see also id. at 575. We now know that was incorrect. See Descamps, 570 U.S. at 263.

Given this confusion, one reading of Wynn might be that it did not apply basic

categorical-approach principles because it did not regard the modified approach as merely a

special case of the regular categorical approach. If so, Descamps cut Wynn’s legs out from

under it. But again, we don’t have to read Wynn that way. Notwithstanding its imprecise

language (a product of its time), Wynn reached the right result by applying the right principles—

the same ones as Bartee. And again, those principles don’t support Armes.

3. The third case, Hockenberry, is the clincher. There, the panel prefaced its sentencing

discussion with two rule statements—one positive, one negative:

(1) A court may “rely on unchallenged PSR findings to establish the existence of

prior convictions.” 730 F.3d at 666 (citing unpublished cases).

(2) But, because “PSR findings are not Shepard material,” a court may not use

them “to establish the specific nature of a conviction.” Id. (citing Wynn,

579 F.3d at 576–77).

At first, this dichotomy seems to support Armes. But let’s look a little more closely.

The Hockenberry panel did not explain what it meant by “existence” or “specific nature.”

That’s unfortunate because, on reflection, the distinction is far from self-evident. How do we

know which facts about a conviction go in which bucket? Is “existence” just the mere fact that

the defendant has a conviction? Or does it also cover at least some basic facts about the

conviction? There are some facts for which courts routinely rely on uncontested presentence

reports—for instance, the state and court that imposed the conviction, the date of the conviction,

and the statute (divisible or not) supporting the conviction. No one (not even Armes) thinks that

using presentence reports for these facts is problematic. But if these facts are permissible, what

separates them from the impermissible facts? Where does “existence” end and “specific nature”

No. 19-5539 United States v. Armes Page 9

begin? (For that matter, does existence end where specific nature begins—or is there a third

category in between?)

The upshot of these questions is that Hockenberry’s two broad rule statements do not

interpret themselves. So let’s try a different approach and look at how the panel decided the

concrete sentencing issues that were before it. As relevant here, Hockenberry held three things:

(1) The district court didn’t err by using the presentence report to find that the defendant had

three prior convictions. Id. at 666–67. (2) Charging documents in the record showed that two of

those convictions (for Pennsylvania burglary) were violent felonies. Id. at 668–69. (3) The third

conviction—for Ohio fourth-degree failure to comply—was also a violent felony under the now-

invalid residual clause of the Armed Career Criminal Act. Id. at 669–71.

What do these holdings tell us? For one, notice what Hockenberry did not hold: that the

district court committed any error in its use of the presentence report. So regardless of what the

second, negative rule statement meant, it looks like dictum. If you’re skeptical, try this handy

dicta-spotting test: black out the relevant sentence and then see if the opinion still makes sense.

If it does—as here—then the removed sentence is dictum. See Wynn, 579 F.3d at 577

(A statement is dictum “if it was not necessary to the determination of the issue on appeal.”

(cleaned up)).

More importantly, these holdings show that Hockenberry’s negative rule statement could

not mean what Armes needs it to mean (dictum or not). Why not? Because Hockenberry itself

relied on the presentence report—and nothing but the presentence report—to pinpoint which part

of a divisible statute a conviction was for. The defendant’s third violent-felony conviction was

under the Ohio failure-to-comply statute, which is divisible into several distinct offenses. See

Ohio Rev. Code § 2921.331(A)–(C)(5)(a). The government produced no Shepard evidence to

narrow down this conviction. See Hockenberry, 730 F.3d at 666. But the presentence report said

that the conviction was a fourth-degree felony, which meant that it could only match one set of

elements in the statute. See id. at 670–71; Ohio Rev. Code § 2921.331(B), (C)(4). The panel

accepted this finding at face value and held that fourth-degree-felony failure to comply was a

violent felony. Hockenberry, 730 F.3d at 670–71.

No. 19-5539 United States v. Armes Page 10

Given that Hockenberry used a presentence report (and nothing more) to find the right set

of elements within a divisible code section, it’s hard to see what it would mean for Hockenberry

to hold that courts may not use a report to find a crime’s “specific nature.” But if we step back

and simply ask why it was acceptable for Hockenberry to use the report as it did, the answer is

obvious: the “fourth-degree felony” specification in the report was the right kind of information.

It went to the elements of the conviction—not the underlying facts. Thus, considering it did not

violate the categorical approach (as considering the facts in Bartee and Wynn would have).

In short, Hockenberry doesn’t bar courts from relying on undisputed presentence reports

for the right kind of information. And we can quickly confirm that no other published case does

either. To be sure, several decisions cite Wynn for its broad language about the irrelevance of

presentence reports. But of those cases, the ones that apply Wynn only reject attempts to use

underlying facts. See In re Sargent, 837 F.3d 675, 678 & n.2 (6th Cir. 2016)2; United States v.

Ferguson, 681 F.3d 826, 830, 832 (6th Cir. 2012); Gardner, 649 F.3d at 440–41, 445; United

States v. Anglin, 601 F.3d 523, 529 (6th Cir. 2010). Others don’t apply Wynn at all; they just cite

it in dicta. See United States v. Kearney, 675 F.3d 571, 575 n.4 (6th Cir. 2012); United States v.

Gross, 662 F.3d 393, 407 n.7 (6th Cir. 2011); see also United States v. Cooper, 739 F.3d 873,

881 (6th Cir. 2014) (citing Hockenberry, 730 F.3d at 666–67, in dictum). And one just notes

(without citing precedent) that the parties agreed that using the presentence report would be

improper. United States v. Stafford, 721 F.3d 380, 397 (6th Cir. 2013). That does not constitute

a holding. See Wright v. Spaulding, 939 F.3d 695, 704 (6th Cir. 2019).

In the end, this court has never extended Bartee and Wynn beyond this simple rule: under

the categorical approach (regular or modified), a court may not consider the underlying facts of

an offense contained in a presentence report. This rule is based on the nature of the categorical

approach, which ignores underlying facts regardless of the document in which they are set forth.

The rule is not based on any peculiar traits of presentence reports as such. To the extent that

general expressions in our precedents (especially Wynn and Hockenberry) suggest a different

2

The opinion in Sargent does not make clear what possible use of the presentence report the panel was

rejecting. See 837 F.3d at 678. But for the conviction in question, the report itself set forth only underlying facts; it

did not include any information going to the elements. Thus, any consideration of the report would have been of the

same forbidden kind as in Bartee and Wynn.

No. 19-5539 United States v. Armes Page 11

understanding, those expressions were imprecise and are best retired. Under this understanding,

courts may determine the elements of a prior conviction based on a presentence report’s

undisputed characterization of relevant Shepard material.

Contrary to the dissent’s worries, this holding doesn’t collapse the distinction between

Shepard’s “source limitation” and the “elemental-facts-only restriction.” See Dissenting Op. at

15–16 (quoting United States v. Hennessee, 932 F.3d 437, 442–44 (6th Cir. 2019)). The point is

not that courts can treat presentence reports like Shepard documents. Rather, it’s that courts can

trust undisputed presentence reports when they describe the contents of actual Shepard

documents. So a court may use a presentence report only when: (1) the relevant part of the

report is undisputed; (2) it characterizes an underlying state-court record; and (3) that underlying

record is itself acceptable Shepard material (that’s the “source limitation”). And the court may

consider the presentence report only to determine the elements of the prior conviction (that’s the

“elemental-facts-only restriction”).

All this may sound a bit abstract, but this case should make clear why it must be right.

Again, Armes doesn’t dispute that the district court could trust the following findings in his

presentence report: (1) he had two state convictions; (2) those convictions were from 2005; and

(3) they were for some form of third-degree rape under Ky. Stat. Rev. § 510.060. Now, those

findings are ultimately statements about the contents of state-court records: they mean that

fifteen years ago, a Kentucky court entered judgment against Armes on two counts of third-

degree rape. No court has ever required a district court to have the actual judgment before it

could credit these findings. After all, the findings were undisputed. And district courts trust

undisputed descriptions in presentence reports every day.

But if the district court could trust the report’s description of the judgment, then surely it

could trust its description of the indictment too. Both documents are state-court records that

define Armes’s past conviction. What principled rule could justify treating them differently?

And if the district court could trust the report’s description of the indictment, then surely

it could use the indictment to determine the elements of Armes’s crime. Indictments are classic

No. 19-5539 United States v. Armes Page 12

Shepard-approved sources. The dissent shows no gaps anywhere in this logic. And as we’ve

seen, a careful reading of circuit precedent doesn’t bar the conclusion either.

In sum, the presentence report allowed the court to find that Armes was indicted for and

pled guilty to having sex with someone under sixteen while he was twenty-one or older, contrary

to then-existing Ky. Rev. Stat. § 510.060(1)(b). And that crime categorically qualifies for the

sentencing enhancement. Thus, Armes’s enhanced sentence was proper.

B.

The result is the same even if we assume that the presentence report did not allow the

district court to find that Armes’s convictions were under then-existing Ky. Rev. Stat.

§ 510.060(1)(b). That’s because the two other versions of Kentucky third-degree rape that

existed in 2005 also qualify for the sentencing enhancement. Again, those crimes are: (1) sexual

intercourse with a victim “incapable of consent because he [or she] is mentally retarded” and

(2) sexual intercourse between a foster child under eighteen and his or her foster guardian

twenty-one or older. Ky. Rev. Stat. Ann. § 510.060(1)(a), (c) (West 2005).

Both crimes fit comfortably within the common meaning of the term “sexual abuse.”

Why? Because both involve sexual intercourse that tends to “injure, hurt, or damage” the victim.

Mateen, 806 F.3d at 861. In the first case, this is because the victim is categorically unable to

consent. See id. at 863 (holding that nonconsensual sex is abusive). In the second, it’s because

the foster guardian has not only taken advantage of the victim’s youth but also abused a position

of trust. This extra element cures any worry about the higher age ceiling (eighteen versus

sixteen). In Esquivel-Quintana, the Supreme Court held that the generic immigration-law

offense of “sexual abuse of a minor” requires a victim younger than sixteen when the crime is

defined solely by the ages of the participants. 137 S. Ct. at 1572. But it also acknowledged

(based on state statutes very similar to this one) that the crime “may include a different age of

consent where the perpetrator and victim are in a significant relationship of trust.” Id.; see also

Thompson v. Barr, 922 F.3d 528, 535 (4th Cir. 2019). Although this was not technically a

holding, it’s a strong hint and we have no reason not to take it. (If you still have any doubts,

imagine a news story about an adult who had sex with his seventeen-year-old foster child.

No. 19-5539 United States v. Armes Page 13

Would it violate ordinary English if that story used the words “abuse” or “abusive” to describe

the adult’s behavior? Clearly not.)

Because each version of Kentucky third-degree rape that existed in 2005 qualifies for the

sentencing enhancement, Armes’s enhanced sentence was proper.3

III.

Finally, Armes argues that a fifty-year sentence is too long for what he did. But the

district court reached that sentence after giving due deliberation to the sentencing factors. See

18 U.S.C. § 3553(a). And this circuit presumes that within-Guidelines sentences are reasonable.

See, e.g., United States v. Burns, 498 F.3d 578, 581 (6th Cir. 2007). Given Armes’s disturbing

crimes and extensive criminal history, we can’t say the district court abused its discretion by

imposing a sentence one-seventh of what the Guidelines advised. See Gall v. United States,

552 U.S. 38, 51 (2007) (defining the standard of review).

We affirm.

3

The dissent doesn’t challenge this holding on the merits. Instead, it argues that we shouldn’t reach the

issue because the government has “forfeited” it. Dissenting Op. at 18. But as our court often says, we may affirm

on an alternative legal ground even if the parties haven’t raised it. See, e.g., Hutcherson v. Lauderdale Cty., Tenn.,

326 F.3d 747, 756 (6th Cir. 2003).

What’s more, the dissent leaves out the other (and more important) side of the story: Armes has failed to

argue that the other two versions of third-degree rape are not qualifying offenses. As the appellant, Armes has the

burden to explain why his sentence is erroneous. See, e.g., McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S.

429, 436 (1988). And his sentence cannot possibly be erroneous unless at least one version of the Kentucky third-

degree rape does not qualify as a predicate offense. In short, Armes hasn’t carried his burden to show error. The

dissent’s approach “would open the door to a perverse jurisprudence by which properly decided district court

decisions could be reversed” “simply because an appellee fails to defend [them] adequately.” United States v.

Iverson, 818 F.3d 1015, 1023 (10th Cir. 2016) (cleaned up). And that result would be especially perverse here given

that Armes failed to make any substantive argument against the sentencing enhancement in the district court.

No. 19-5539 United States v. Armes Page 14

_________________

DISSENT

_________________

COLE, Chief Judge, dissenting. Where we use the modified categorical approach to

determine whether a state offense is a predicate crime for purposes of a federal sentencing

enhancement, our court’s binding precedent forbids relying on a presentence report (PSR) to

determine the specific iteration of a divisible statute under which the defendant was previously

convicted. See United States v. Wynn, 579 F.3d 567, 575–77 (6th Cir. 2009). Because the

majority defies this precedent, I respectfully dissent.

To start, let’s consider the context of why our caselaw constrains a sentencing court’s

factfinding in the present circumstances. The Sixth Amendment generally requires any fact that

increases a defendant’s statutory minimum or maximum sentence be found by a jury, not a

judge. Alleyne v. United States, 570 U.S. 99, 103 (2013); Apprendi v. New Jersey, 530 U.S. 466,

476 (2000). When a sentencing court utilizes the modified categorical approach to determine the

applicability of a statutory sentencing enhancement, we are dealing with a narrow exception to

this general rule. In an “exceptional departure” from the Sixth Amendment’s ordinary jury-

factfinding requirement, the Supreme Court has allowed district courts—rather than a jury—to

find the fact of a prior conviction, even where that fact is used to enhance a defendant’s statutory

sentencing range. See Apprendi, 530 U.S. at 487 (citing Almendarez-Torres v. United States,

523 U.S. 224 (1998)).

Cognizant of the consequences that prior-conviction findings can have for a defendant’s

sentence, the Supreme Court has imposed procedural safeguards on sentencing courts to ensure

that courts do not violate a defendant’s Sixth Amendment rights when they conduct factfinding

that alters a statutory sentencing range. See Mathis v. United States, 136 S. Ct. 2243, 2252

(2016); Descamps v. United States, 570 U.S. 254, 269–70 (2013). To illustrate why such

safeguards are important, consider the case at issue here. The district court’s finding of fact

regarding Armes’s prior convictions raised his statutory mandatory minimum sentence as to each

count of the eight-count indictment by ten years.

No. 19-5539 United States v. Armes Page 15

Two safeguards are pertinent to the present case: 1) “the Shepard-Taylor source

limitation” and 2) “the elemental-facts-only restriction.” See United States v. Hennessee,

932 F.3d 437, 443 (6th Cir. 2019). The first restriction, the source limitation, constrains the

documents on which a court may rely when using the modified categorical approach. See

Descamps, 570 U.S. at 262 (explaining that “sentencing courts” are only “authorized” to

“scrutinize a restricted set of materials” when utilizing the modified categorical approach);

United States v. Burris, 912 F.3d 386, 393 (6th Cir. 2019) (en banc) (reiterating that a court may

only consult a “limited class of documents” when using this approach).

In particular, under the Supreme Court’s decisions in Shepard and Taylor, when a

sentencing court attempts to determine the specific iteration of a divisible statute under which a

defendant previously pleaded guilty, it must restrict its review to the following list of “records of

the convicting court”: the “charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”

Shepard v. United States, 544 U.S. 13, 16, 23 (2005) (citing Taylor v. United States, 495 U.S.

575 (1990)).

In United States v. Wynn, 579 F.3d 567 (6th Cir. 2009), the government asked that we

rely on a PSR, rather than a source specifically approved of in Shepard and Taylor, to determine

the particular subsection of a statute under which the defendant had been convicted, and we

unequivocally rejected that request. See id. at 575–77. We held that Shepard and Taylor forbid

relying on a PSR because “evidence of [a] [prior] conviction [must] be confined to records of the

convicting court,” and “a PSR prepared for a federal district-court sentencing can never be a

record of a convicting state court.” Id. at 576–77 (quoting Shepard, 544 U.S. at 23). The district

court here flouted Wynn’s holding when it relied on a PSR to determine that Armes had been

convicted of subsection (b)’s version of Kentucky third-degree rape, Ky. Rev. Stat. Ann.

§ 510.060(1)(b) (West 2005).

The second requirement, the “elemental-facts-only restriction,” is a distinct limitation.

Hennessee, 932 F.3d at 442–44. This restriction provides that when a court reviews a Shepard-

Taylor source, the court may only look to “the elements, rather than the facts, of [the defendant’s

prior] crime.” Descamps, 570 U.S. at 263. Elements are “what the jury must find beyond a

No. 19-5539 United States v. Armes Page 16

reasonable doubt to convict the defendant” at trial or “what the defendant necessarily admits

when he pleads guilty.” Mathis, 136 S. Ct. at 2248. The elemental-facts-only restriction is

necessary because Shepard-Taylor documents often contain non-elemental facts. Relying on

non-elemental facts—which were never found by a jury or admitted to in a plea—would

undermine the purpose of the categorical approach and run afoul of the Sixth Amendment. See

Descamps, 570 U.S. at 266–67, 269–70.

The majority here focuses on the second limitation, seeming to imply that because the

district court focused on elemental facts (thereby abiding by the second restriction), we can

ignore the district court’s violation of the Shepard-Taylor source limitation. Such reasoning

flouts our binding precedent, as both restrictions apply when a sentencing court uses the

modified categorical approach to make a predicate offense determination under the statutory

sentencing enhancements at issue here. See, e.g., United States v. Davis, 751 F.3d 769, 774–76

(6th Cir. 2014) (describing that courts are restricted to “Shepard-approved documents” to

conduct an elements-only inquiry when determining the applicability of the statutory sentencing

enhancement under 18 U.S.C. § 2252A(b)(2)); see also Descamps, 570 U.S. at 263 (explaining

that sentencing courts are only permitted to “review[] the . . . materials approved in” Shepard

and Taylor to “discover which statutory phrase, contained within a statute listing several

different crimes, covered a prior conviction”) (internal citation and quotation marks omitted);

Mathis, 136 S. Ct. at 2249 (“Under [the modified categorical] approach, a sentencing court looks

to a limited class of [Shepard-Taylor] documents . . . to determine what crime, with what

elements, a defendant was convicted of.”).

The majority can only evade Wynn by misconstruing it. The majority’s analysis suggests

that upon close examination of Wynn, one could discern that both restrictions had been

disregarded by the district court; that is, both the Shepard-Taylor source limitation and the

elemental-facts-only requirement had been violated when the district court relied on a PSR to

discover non-elemental facts. (See Maj. Op. 6 (pointing out that the PSR in Wynn described the

“specific circumstances of the offense”).) Thus, the Wynn court could have—hypothetically—

reversed the defendant’s sentence on the basis of either violation. But the Wynn court chose to

reverse based on the Shepard-Taylor source violation, vacating the defendant’s sentence because

No. 19-5539 United States v. Armes Page 17

“there [was] no Shepard-approved document in the record that [could] be used to determine . . .

[the defendant’s] specific conviction.” Wynn, 579 F.3d at 577. Wynn held that a PSR is not a

document approved by Shepard and Taylor, and thus it is not a source upon which a court may

rely under the modified categorical approach. See id. at 575–77. We are compelled to abide by

this holding.

The majority’s reasons for dodging Wynn’s holding are unpersuasive. Wynn relied in part

on United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), explaining that “a necessary precursor

to the panel’s decision to vacate the defendant’s sentence in Bartee was its determination that a

PSR is not a Shepard document.” Wynn, 579 F.3d at 577. The majority now indicates that this

was not an accurate characterization of Bartee’s holding. The truth of this assertion is

immaterial, as Wynn did not simply rely on Bartee. Wynn held that the Supreme Court’s

decisions in Shepard and Taylor mandated its holding because Shepard and Taylor restrict a

court’s review to documents of a “convicting court,” and a PSR prepared for a federal sentencing

“can never be a record of a convicting state court.” Wynn, 579 F.3d at 576–77 (quoting Shepard,

544 U.S. at 23).

The majority also indicates that United States v. Hockenberry, 730 F.3d 645 (6th Cir.

2013), may have ignored Wynn’s directive that Shepard and Taylor prohibit relying on a PSR

when using the modified categorical approach. This is similarly unpersuasive, as a subsequent

panel cannot overturn the holding of a prior panel. See, e.g., Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985). Alleging this was done in Hockenberry provides no

basis for us to make that mistake as well.

I cannot join in the majority’s attempt to “retire[]” Wynn, which provides a sensible,

long-standing rule of this circuit. (See Maj. Op. 10–11.) Wynn’s rule derives from a plain

reading of Taylor and Shepard. See Wynn, 579 F.3d at 576–77. Moreover, a key concern

animating the Shepard-Taylor source limitation is ensuring that the sentencing court, in

conducting factfinding related to a defendant’s prior conviction, relies on “conclusive records”

from the convicting court. Shepard, 544 U.S. at 21; see also id. at 23 (explaining that the

sentencing court’s review must be “confined to records of the convicting court approaching the

certainty of the record of conviction”); Mathis, 136 S. Ct. at 2257 (describing “Taylor’s demand

No. 19-5539 United States v. Armes Page 18

for certainty”). A summary of an indictment prepared by a probation officer and written in a

PSR is less conclusive, and provides a lesser degree of certainty, than if the sentencing court

were required to review the actual indictment itself. Wynn’s requirement that the sentencing

court rely only on actual Shepard-Taylor documents, rather than a PSR, is a prudent one given

the importance of the sentencing court’s factfinding in this context. And Wynn’s rule, as a

practical matter, is an easy one by which to abide. If a Shepard-Taylor source, such as the state-

court indictment, has already been located in order to be summarized in the PSR, the prosecutor

should have ready access to the document to present it to the sentencing court.

I am also unable to join the majority in its alternative holding, but for different reasons.

The majority explains that, in the alternative, every iteration of Kentucky third-degree rape

qualifies as a predicate offense under the relevant statutory sentencing provisions, 18 U.S.C.

§§ 2251(e), 2252A(b)(1)–(2), and thus we can uphold Armes’s sentence even if the district court

erred in relying on the PSR to identify the version of Kentucky third-degree rape under which

Armes was convicted.

But there’s a problem: The government forfeited this argument. The government did not

raise this argument in its sentencing memorandum to the district court, at the district court’s

sentencing hearing, or in its appellate brief. Indeed, the government’s briefs (to the district court

and this court) do not even acknowledge what these other iterations of Kentucky third-degree

rape are. That is because, at every stage, the government has advocated for the court to rely on

the PSR to determine that Armes was convicted under § 510.060(1)(b) and failed to provide any

discussion of the other versions of Kentucky third-degree rape, Ky. Rev. Stat. Ann.

§§ 510.060(1)(a), (c).

We should refuse to consider an argument that the government has forfeited. See, e.g.,

Davis, 751 F.3d at 777 (refusing to consider the government’s new argument on appeal for

upholding a district court’s predicate offense determination under the statutory sentencing

enhancement at 18 U.S.C. § 2252A(b)(2) “because the government waived it below by failing to

make it in the district court.”). As our court has previously explained:

The premise of our adversarial system is that appellate courts do not sit as self-

directed boards of legal inquiry and research. Instead, we rely on the parties to

No. 19-5539 United States v. Armes Page 19

frame the issues for decision and assign to courts the role of neutral arbiter of

matters the parties present. Only in exceptional cases . . . or when the rule would

produce a plain miscarriage of justice do we exercise our discretion to entertain

arguments not raised before the district court.

Koprowski v. Baker, 822 F.3d 248, 258–59 (6th Cir. 2016) (internal citations and quotation

marks omitted). No such exceptional circumstance exists here. Not only do we lack the benefit

of the district court’s consideration of this question, we lack the benefit of full briefing on this

issue in this appeal.

The imprudence of the majority’s action is even more pronounced given that the question

appears to be one of first impression. The majority does not cite to a prior case addressing

whether Kentucky third-degree rape is a predicate offense under the relevant sentencing statutes,

18 U.S.C. §§ 2251(e), 2252A(b)(1)–(2). Instead, the majority itself admits that in determining

whether § 510.060(1)(c), which governs sexual relations in a foster home with a person under

18-years-old, qualifies as a predicate offense, it relies on language from a Supreme Court case,

Esquivel-Quintana, that is plainly not “a holding.” (Maj. Op. 12 (citing Esquivel-Quintana v.

Sessions, 137 S. Ct. 1562, 1572 (2017).) In Esquivel-Quintana, the Supreme Court left open the

possibility that “sexual abuse of a minor” under the Immigration and Nationality Act “could

encompass[] sexual intercourse involving victims over the age of 16 that is abusive because of

the nature of the relationship between the participants,” but expressly declined to rule on that

question, “leav[ing]” it “for another day.” 137 S. Ct. at 1572. The majority now relies on

Esquivel-Quintana—where the issue relevant to this appeal was left open—to make a

pronouncement regarding unrelated statutory sentencing provisions.

Prudence and fairness demand that we leave it to a future panel to decide whether every

iteration of Kentucky third-degree rape categorically qualifies as “sexual abuse” within the

meaning of these sentencing statutes. Waiting to decide this question until it has been properly

raised would “promote respect . . . for the Court’s adjudicatory process” and avoid the

“tempt[ation] to engage in ill-considered” decision-making. Adarand Constructors, Inc. v.

Mineta, 534 U.S. 103, 110–11 (2001) (internal citation and quotation marks omitted).

I respectfully dissent.