UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 99-31083 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

VERNESSA BATTLEY, Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Louisiana (99-CR-38-ALL-B) ___________________________________________________

September 11, 2000

Before WOOD*, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:**

Appellant Vernessa Battley pleaded guilty to an indictment

charging her with possession of a firearm by a convicted felon.

(g)(1). The district court sentenced Battley to a

federal prison term of 87 months, a penalty at the top of the

guideline range. The district court explained that it arrived at

this sentence after concluding that Battley had a prior conviction

* Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. for a crime of violence –- a 1995 Louisiana state conviction of

enticing persons into prostitution. See U.S.S.G. § 2K2.1(a)(4)(A)

(stating that the offense level for the offense of felon in

possession of a firearm is 20 if the defendant had a prior

conviction for a crime of violence).

Battley challenges this sentence, arguing that the district

court applied the wrong guideline. Although Battley concedes that

she has a prior conviction for enticing persons into prostitution,

she contends that enticement into prostitution does not qualify as

a crime of violence. For the reasons that follow, we disagree and

affirm Battley’s sentence.

I.

Section 2K2.1 of the U.S. Sentencing Guidelines establishes

the base offense levels for unlawful possession of firearms.

Section 2K2.1(a)(4)(A) states that sentencing judges should apply

a base level of 20 if “the defendant had one prior felony

conviction of either a crime of violence or a controlled substance

offense.” Section 4B1.2(a), in turn, defines a crime of violence

as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that –- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

See U.S.S.G. § 2k2.1, n.5 (1998) (adopting definitions in § 4B1.2).

-2- When determining whether an offense constitutes a crime of

violence under 4B1.2(a), we must first look to the statutory

elements of the crime, inquiring whether the elements of the crime

itself require the state to show that the defendant threatened

physical force, burgled a building, exposed others to a serious

risk of physical injury, etc. See United States v. Jackson,

, *3 & n.3 (5th Cir. July 26, 2000). If the statute

itself does not impose such a “categorical” requirement, we then

look to the charging instrument to see whether the defendant’s

conduct falls within section 4B1.2(a)’s definition of a crime of

violence. Id. at *3. As this Court has recently explained,

however, “we may not ... consider the specific conduct underlying

[a Defendant’s] convictions unless that conduct were included in

the charging instrument for those offenses.” Id.

Viewing Battley’s conviction “categorically,” we conclude that

the crime of enticing persons into prostitution is a crime of

violence as defined by section 4B1.2(a). By enticing persons, in

this case, her two minor stepdaughters, into prostitution, Battley

undoubtedly exposed them to “a serious risk of physical injury.”

See § 4B1.2(a). The well-documented perils of prostitution include

contracting sexually transmitted diseases, suffering physical

abuse, rape, and murder by clients, and a wide-variety of other

physiological harms. See e.g., Sylvia A. Law, Commercial Sex:

Beyond Decriminalization,

, 533 & nn. 47-50

-3- (2000)(noting a “study of 130 street prostitutes in San Fransisco

found that 82% had been physically assaulted, 83% had been

threatened with a weapon [and], 68% had been raped while working as

prostitutes”); Margaret A. Baldwin, Split at the Root: Prostitution

and Feminist Discourses of Law Reform, 5 Yale J.L. & Feminisim 47,

89 (1992)(citing Canadian study that women and girls in

prostitution suffer a mortality rate 40 times the national

average); Catharine A. MacKinnon, Prostitution and Civil Rights, 1

Mich J. Gender & L. 13, 25 (1993)(“No social institution exceeds

[prostitution] in its physical violence.”). These inherent dangers

easily surpass, both in terms of severity and likelihood, risks

that we have found attendant to other crimes and sufficient to

bring those crimes within the grasp of 4B1.2(a). See, e.g., United

States v. DeSantiago-Gonzalez,

(5th Cir.

2000)(holding that driving while intoxicated constitutes a crime of

violence because it involves serious risk of physical injury);

United States v. Galvan-Rodriguez,

(5th Cir.),

cert. denied --- U.S. --—,

(1999)(holding that

unauthorized use of a motor vehicle constitutes a crime of violence

because of the “substantial risk that the vehicle might become

involved in an accident”). Thus, the district court did not err in

concluding that Battley had previously been convicted of a crime of

violence.

AFFIRMED.

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