                            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




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