Thomas

MEMORANDUM *

Appellant Jerry Wayne Thomas challenges the enhancement of his sentence under the Armed Career Criminal Act (“ACCA”). Thomas argues that his prior conviction for third-degree rape under Washington Revised Code § 9A.44.060(l)(a) does not qualify as a predicate “violent felony” under the ACCA, 18 U.S.C. § 924 (e)(2)(B)(ii). Thomas also argues that the sentence enhancement violated his Sixth Amendment rights because the fact of his prior convictions was not found by a jury beyond a reasonable doubt. We affirm.

Third-degree rape does not require an element of force under Washington law, but it necessarily involves close physical contact with a victim who has clearly expressed lack of consent to sexual intercourse. Wash. Rev.Code § 9A.44.060(l)(a). The district court correctly concluded that such an offense qualifies as a violent felony under § 924(e)(2)(B)(ii) because it “involves conduct that presents a serious potential risk of physical injury to another.” See James v.United States, — U.S. —, 127 S.Ct. 1586, 1596-97 , 167 L.Ed.2d 532 (2007); United States v. Riley, 183 F.3d 1155, 1159 (9th Cir.1999) (explaining that even “in its least violent form” non-consensual rape…