Christensen

MEMORANDUM *

Appellant Dustin Christensen challenges the enhancement of his sentence under the Armed Career Criminal Act (“ACCA”). Christensen appeals the district court’s determination that third-degree rape of a child under Washington Revised Code § 9A.44.079 (so-called statutory rape) is a “violent felony” as that term is defined by the ACCA, 18 U.S.C. § 924 (e)(2)(B). Christensen also contends that his Sixth Amendment rights were violated because the government failed to charge the ACCA sentence enhancement in his indictment and to prove to a jury beyond a reasonable doubt that his prior convictions were for violent felonies. We affirm.

It is true that § 9A.44.079, which prohibits sexual intercourse between a minor aged fourteen or fifteen and a person at least forty-eight months older than the minor, encompasses consensual sex. However, the ACCA includes as violent felonies not only crimes involving an element of force but also crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924 (e)(2)(B)(ii). In United States v. Asberry, 394 F.3d 712 (9th Cir.2005), we held that even consensual “[s]exual…