“Indecent assault” is a “crime of violence” under the guidelines, categorical approach does not apply and court can look to underlying facts

In U.S. v. Siegel, http://www.ca3.uscourts.gov/opinarch/054537p.pdf, (3d Cir. 2/16/07), the defendant had a prior Pa. conviction for "indecent assault." Under U.S.S.G. § 4A1.1(f), an extra criminal history point is awarded under certain circumstances for prior crimes of violence, as defined under section 4B1.2(a). The question on review was whether the indecent assault conviction qualified as a "forcible sexual offense," one of the enumerated crimes of violence under section 4B1.2(a). The Pa. statute has numerous subsections, some of which have an element of force and some of which do not. The charging information did not identify any particular subsection, but rather listed all of them. Also, the government did not introduce a plea agreement or colloquy from the prior case. Therefore, under a strict categorical approach, the conviction would not qualify. However, applying its 2004 decision in Singh v. Ashcroft, 383 F.3d 144, the court decided that it was not bound by the categorical approach to an analysis of the elements of the offense, because "the disjunctive phrasing of the particular state statute . . . invites inquiry into the specifics of the conviction." The court then looked to the PSR, which contained a factual description of the offense that included the application of force. Because the defense had not objected to the PSR, the court took that as an admission of the facts and concluded that the admission was sufficient for application of the additional criminal history point. This case present a potentially significant inroad into application of the categorical approach to prior conviction enhancements.