United States v. Sean Osborne ( 2009 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 08-1176
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    S EAN O SBORNE,
    Defendant-Appellant.
    Appeal from the United States District Court for the
    Southern District of Indiana, Indianapolis Division.
    No. 1:07CR00093-001—David F. Hamilton, Chief Judge.
    A RGUED O CTOBER 24, 2008—D ECIDED JANUARY 5, 2009
    Before E ASTERBROOK, Chief Judge, and P OSNER and
    R OVNER, Circuit Judges.
    E ASTERBROOK, Chief Judge. Sean Osborne pleaded guilty
    to possessing and distributing child pornography, in
    violation of 18 U.S.C. §2252(a). The minimum penalty for
    that crime is 5 years, and the maximum is 20 years, but
    if the defendant has a prior conviction “under the laws
    of any State relating to aggravated sexual abuse, sexual
    abuse, or abusive sexual conduct involving a minor or
    ward”, the minimum penalty rises to 15 years and the
    2                                               No. 08-1176
    maximum to 40. 18 U.S.C. §2252(b)(1). Osborne’s record
    includes a conviction for violating Ind. Code §35-42-4-9(b),
    which makes it a crime for a person age 18 or older to
    “perform[] or submit[] to any fondling or touching, of
    either the child [any person age 14 or 15] or the older
    person, with intent to arouse or to satisfy the sexual
    desires of either the child or the older person”. The dis-
    trict court concluded that every conviction under §35-42-4-
    9(b) arises from “abusive sexual conduct involving a
    minor or ward” and sentenced Osborne to 15 years’
    imprisonment.
    Section 35-42-4-9(b) doubtless defines a crime that
    entails “sexual conduct involving a minor or ward”. But
    is this sexual conduct “abusive?” Section 2252(b)(1) does
    not define that word, nor has any court of appeals ad-
    dressed what makes sexual conduct involving a minor
    “abusive.” The prosecutor contends that §2252(b)(1)
    must be read “broadly” and that any offense arising from
    sexual conduct with minors must be seen as “abusive.”
    That approach, however, would read the word “abusive”
    out of §2252(b)(1); it would be as if the statute covered
    any conviction for “sexual conduct involving a minor or
    ward”. The phrase “abusive sexual conduct involving a
    minor or ward” must be a subset of all “sexual conduct
    involving a minor or ward”. Yet when we asked the
    prosecutor at oral argument for an example of a crime
    that arises from “sexual conduct involving a minor or
    ward” that is not also “abusive,” she could not give one.
    Force and fraud are two reasons why sexual contact
    might be labeled “abusive,” but these are not required for
    No. 08-1176                                                  3
    conviction under §35-42-4-9(b). (The use or threatened use
    of deadly force, or administration of a drug, increases
    the maximum penalty, see §35-42-4-9(b)(2), but is not
    required for conviction.) Sexual contact with very young
    girls might be thought abusive simply because of the
    victim’s youth, or because pregnancy or the trauma of
    intercourse creates an elevated risk of injury. See United
    States v. Shannon, 
    110 F.3d 382
    (7th Cir. 1997) (en banc). But
    §35-42-4-9(b) applies only when the victim is at least 14;
    Indiana has a separate statute covering sexual contact
    with a person 13 or younger. Subsection 9(b) also
    does not cover sexual intercourse with a child; that’s the
    province of §35-42-4-9(a).
    What gives some support to classifying §35-42-4-9(b) as
    a crime of sexual “abuse” is the required age difference.
    Many criminal laws, of which statutory rape is the best-
    known example, rest on a belief that a combination of
    youth and age difference prevents an effective consent
    to sexual conduct. Sexual conduct without voluntary
    consent is abusive.
    But is all sexual conduct between people of different ages
    in the “abusive” subcategory? The age difference under
    §35-42-4-9(b) could be as small as two years (the older
    person could have just turned 18, and the younger could
    be one day short of 16), and the sexual contact could
    include behavior common among students in high
    school, such as kissing or petting “with intent to arouse . . .
    the sexual desires” of either person. Indiana has held
    that a touch on the buttocks or inner thigh comes within
    “any fondling or touching” under this statute. See Altes v.
    4                                                No. 08-1176
    State, 
    822 N.E.2d 1116
    , 1121–22 (Ind. App. 2005) (buttocks);
    Krebs v. State, 
    816 N.E.2d 469
    , 474 (Ind. App. 2004) (breast);
    Nuerge v. State, 
    677 N.E.2d 1043
    , 1048 (Ind. App. 1997)
    (thigh). Exploratory touching between students in high
    school is not a form of “abusive” sexual contact, as that
    word is ordinarily understood.
    Indiana has recognized this. Amendments to §35-42-4-9
    in 2007 create a defense that covers most high school
    students’ touching of the opposite sex. Subsection (e) now
    provides:
    It is a defense to a prosecution under this section if
    all the following apply:
    (1) The person is not more than four (4) years
    older than the victim.
    (2) The relationship between the person and
    the victim was a dating relationship or an
    ongoing personal relationship. The term
    “ongoing personal relationship” does not
    include a family relationship.
    (3) The crime: (A) was not committed by a
    person who is at least twenty-one (21) years of
    age; (B) was not committed by using or threat-
    ening the use of deadly force; (C) was not
    committed while armed with a deadly weapon;
    (D) did not result in serious bodily injury; (E)
    was not facilitated by furnishing the victim,
    without the victim’s knowledge, with a drug
    (as defined in IC 16-42-19-2(1)) or a controlled
    substance (as defined in IC 35-48-1-9) or know-
    No. 08-1176                                              5
    ing that the victim was furnished with the drug
    or controlled substance without the victim’s
    knowledge; and (F) was not committed by
    a person having a position of authority or sub-
    stantial influence over the victim.
    (4) The person has not committed another sex
    offense (as defined in IC 11-8-8-5.2) (including
    a delinquent act that would be a sex offense if
    committed by an adult) against any other
    person.
    Subsection (e) identifies circumstances under which sexual
    fondling or touching could not be called “abusive” in
    ordinary usage. Yet Osborne was convicted in 2002, before
    this defense was added to the statute.
    Although neither §2252 nor any other section of the
    Criminal Code defines the word “abusive,” some other
    sections shed light on how Congress understood the
    word. Section 2241 covers “aggravated sexual abuse”;
    §2242 deals with “sexual abuse”; §2243 addresses “sexual
    abuse of a minor or ward”. These are the same three terms
    that §2252(b)(1) employs to denote state convictions that
    support a recidivist enhancement, and §2252(b)(1) was
    added in 1990 at the same time that §§ 2241–43 were
    enacted, so these laws should be read together. Section
    2243 is most helpful for our purpose, as it covers the
    sexual abuse of a minor. Section 2243(a) makes it a crime
    to “engage[] in a sexual act” with a person between the
    ages of 12 and 15 who is at least 4 years younger than
    the defendant. Section 2246(2) in turn defines “sexual act”
    to include intercourse, fellatio, cunnilingus, and touching
    6                                                No. 08-1176
    the genitalia “not through the clothing”. “Sexual contact”
    is defined in §2246(3) to include touching, directly or
    through clothing, “the genitalia, anus, groin, breast, inner
    thigh, or buttocks of any person with an intent to abuse,
    humiliate, harass, degrade, or arouse or gratify the
    sexual desire of any person.”
    Given the lack of a definition in §2252, we think it best to
    say that, as a matter of federal law, sexual behavior is
    “abusive” only if it is similar to one of the crimes denomi-
    nated as a form of “abuse” elsewhere in Title 18. This is
    the approach the Supreme Court took in Begay v. United
    States, 
    128 S. Ct. 1581
    (2008), to the definition of a
    “violent felony” under 18 U.S.C. §924(e)(2)(B)(ii). Cf.
    Estrada-Espinoza v. Mukasey, 
    546 F.3d 1147
    (9th Cir. 2008)
    (en banc) (“sexual abuse of a minor” in immigration law
    means a state offense that would be a crime under §2243).
    Similar is not necessarily identical; federal law does not
    prohibit all kinds of abusive sexual contact, and statutes
    such as §2243 contain elements (interstate commerce or
    the special federal territorial jurisdiction) that are
    unrelated to the “abusive” nature of the sexual behavior.
    That’s why §2252 enhances the penalty following state
    as well as federal convictions. It is easy to see why any
    sexual contact by a child’s adult relatives might be
    deemed abusive even though no federal statute covers
    the subject. But a state statute that makes it a crime for
    one teenager to engage in sexual contact with another,
    without committing a sexual act or without a four-year
    difference in age, is hard to classify as “abusive” given
    the treatment that term receives in Chapter 109A of the
    Criminal Code (18 U.S.C. §§ 2241–48, and titled “Sexual
    Abuse”).
    No. 08-1176                                                 7
    The crime defined by Ind. Code §35-42-4-9(a) covers a
    “sexual act” and therefore would be classified as “abusive”
    under 2243(a) when the age difference is at least four
    years. But the crime defined by §35-42-4-9(b) is ambiguous.
    It covers some abusive “sexual acts”—for example, a 20-
    year-old man induces a 14-year-old girl to perform
    fellatio—and other sexual conduct that is not abusive—for
    example, a girl in her senior year of high school permits
    her boyfriend, in his sophomore year, to touch her
    breasts. When a state law covers conduct some of which
    is within, and the rest of which is outside, the scope of
    a recidivist statute, the federal court may examine the
    charging papers (and any guilty-plea colloquy) to
    classify the conviction. See Taylor v. United States, 
    495 U.S. 575
    (1990); Shepard v. United States, 
    544 U.S. 13
    (2005).
    The district court must find out, using the charging
    papers and any other documents that may be con-
    sidered under Taylor and Shepard, whether Osborne was
    convicted of conduct comparable to that covered by
    18 U.S.C. §2243. The parties tell us that Osborne, while
    age 21, had sexual intercourse with a girl of 14. How
    he came to be convicted under §35-42-4-9(b) rather than
    §35-42-4-9(a) is a mystery—and, to repeat, the question
    is not what he did but what he was convicted of. Unless
    the charging papers demonstrate that Osborne has been
    convicted of violating §35-42-4-9(b) in a way that shows
    “abusive” sexual behavior, as we have defined it, then
    the court must treat the 2002 conviction as non-abusive,
    because the elements of §35-42-4-9(b) permit a conviction
    for many kinds of conduct that federal law does not
    call “abusive.”
    8                                              No. 08-1176
    The district court must reconsider Osborne’s sentence in
    light of our discussion. Osborne’s argument about the
    application of U.S.S.G. §2G2.2(b)(5) (which adds five
    offense levels when a defendant has engaged in “a pattern
    of activity involving the sexual abuse or exploitation of
    a minor”) need not be reached if proceedings on
    remand show that his violation of §35-42-4-9(b) entailed
    abusive sexual contact, for the 15-year minimum under
    §2252(b) exceeds the sentence computed under the Sen-
    tencing Guidelines. But if the district court rules in
    Osborne’s favor on the characterization of his conviction
    under §35-42-4-9(b), the court should reconsider the
    §2G2.2(b)(5) question in light of its conclusion, and what
    we have said in this opinion.
    V ACATED AND R EMANDED
    1-5-09