United States v. Robert Rogers , 363 F. App'x 401 ( 2010 )


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  •                           NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued September 24, 2008
    Decided February 1, 2010
    Before
    RICHARD A. POSNER, Circuit Judge
    DIANE P. WOOD, Circuit Judge
    JOHN DANIEL TINDER, Circuit Judge
    No. 08-1499
    UNITED STATES OF AMERICA,                           Appeal from the United States District
    Plaintiff-Appellee,                            Court for the Northern District of Indiana,
    South Bend Division.
    v.
    No. 3:07-CR-24-RM
    ROBERT R. ROGERS,
    Defendant-Appellant.                           Robert L. Miller, Jr.
    Chief Judge.
    ORDER
    This appeal represents another entry in a long line of cases challenging a district
    court’s classification of a prior offense as a crime of violence under U.S.S.G. § 4B1.2. While
    in prison for a 2006 conviction for sexual misconduct with a minor, Robert Rogers sent a
    threatening letter to a former friend who had assisted the government in obtaining a 2004
    conviction of Rogers for possession of a firearm as a felon. Rogers pleaded guilty to mailing
    a threatening communication and to retaliation against a government witness, in violation
    of 
    18 U.S.C. §§ 876
    (b) and 1513(b)(2). The district court found that Rogers was a career
    offender under U.S.S.G. § 4B1.1 because he had two prior felony convictions for crimes of
    No. 08-1499                                                                                   Page 2
    violence. On that basis, the district court sentenced Rogers to 180 months on the first count
    and 120 months on the second, to be served concurrently. Rogers argues that his earlier
    conviction for sexual misconduct with a minor, IND. C ODE § 35-42-4-9, is not a “crime of
    violence” as § 4B1.1 uses that term and therefore he should not have been sentenced as a
    career offender.
    Under Indiana law, “[a] person at least eighteen (18) years of age who, with a child
    at least fourteen (14) years of age but less than sixteen (16) years of age, performs or
    submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a
    minor, a Class C felony.” IND. C ODE § 35-42-4-9(a). If the person is at least 21 years old, the
    crime becomes a Class B felony. IND. C ODE § 35-42-4-9(a)(1). Rogers was convicted of the
    Class B felony. The statute also creates a separate Class A felony “if it is committed by
    using or threatening the use of deadly force, if it is committed while armed with a deadly
    weapon, if it results in serious bodily injury, or if the commission of the offense is
    facilitated by furnishing the victim, without the victim’s knowledge, with a drug . . . or
    controlled substance . . . or knowing that the victim was furnished with the drug or
    controlled substance without the victim’s knowledge.” IND. C ODE § 35-42-4-9(a)(2).
    Following the Supreme Court’s decision in Begay v. United States, 
    553 U.S. 137
     (2008),
    and our decision in United States v. Woods, 
    576 F.3d 400
     (7th Cir. 2009), we held in United
    States v. McDonald, No. 08-2703, slip op. at 13-14 (7th Cir. Jan. 25, 2010) that because the
    Wisconsin crime of second-degree sexual assault of a child is a strict-liability offense – in
    the sense that neither the victim’s consent nor ignorance or reasonable mistake regarding
    the victim’s age exculpates the offender – it is not purposeful and therefore it is not a crime
    of violence for the purpose of the career-offender enhancement. See W IS. STAT. § 948.02(2)
    (“Whoever has sexual contact or sexual intercourse with a person who has not attained the
    age of 16 years is guilty of a Class C felony.”)
    Indiana courts similarly understand the crime of sexual misconduct with a minor to
    be a strict liability offense. See, e.g., Wallace v. State, 
    905 N.E.2d 371
    , 381 n.11 (Ind. 2009). The
    Class B felony of sexual misconduct with a minor, in violation of IND. C ODE § 35-42-4-
    9(a)(1), is therefore not a crime of violence for the specific purpose of the career-offender
    enhancement, and the district court therefore erred by sentencing Rogers under § 4B1.1.
    We therefore VACATE the sentence and REMAND for further proceedings in light of
    Begay and McDonald.
    

Document Info

Docket Number: 08-1499

Citation Numbers: 363 F. App'x 401

Judges: Per Curiam

Filed Date: 2/1/2010

Precedential Status: Non-Precedential

Modified Date: 1/12/2023