Does rape involving a minor who cannot consent but does not involve overt acts of violence qualify as "violent felony" under the Armed Career Criminal Act? According to the 11th Circuit the answer is "no" decided last month in US v. Owens, Docket No. 07-00124-CR-S, slip op. (11th Cir. February 27, 2012). Citing the Supreme Court's holding in Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010), the court held:
For this court to uphold Owens's sentence, we would have to conclude that Ivory's holding--that Alabama's second degree rape statute "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence under § 4B1.2(a)(2)"--comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative. As the Court stated in Johnson, a crime must have as an element the use of physical force against the person of another and that physical force in the context of the ACCA means violent force. Johnson, 130 S. Ct.at 1271.