                              In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 08-3328

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

JAMES G OODPASTURE,
                                               Defendant-Appellant.


              Appeal from the United States District Court
                 for the Southern District of Illinois.
             No. 07-30185-WDS—William D. Stiehl, Judge.



      A RGUED JANUARY 11, 2010—D ECIDED F EBRUARY 8, 2010




  Before E ASTERBROOK, Chief Judge, K ANNE, Circuit Judge,
and K ENNELLY, District Judge.^
  E ASTERBROOK, Chief Judge. After pleading guilty to
unlawful possession of a firearm, 18 U.S.C. §922(g)(1),
James Goodpasture was sentenced to 180 months’ impris-
onment as an armed career criminal. This description
applies to any person who “has three previous
convictions . . . for a violent felony or a serious drug

^
    Of the Northern District of Illinois, sitting by designation.
2                                                 No. 08-3328

offense”. 18 U.S.C. §924(e)(1). Goodpasture concedes
that his two convictions for aggravated sexual abuse
meet the statutory definition of a “violent felony”. The
district court concluded that a third conviction—for a
lewd or lascivious act involving a person under the age
of 14, see Cal. Penal Code §288(a)—also satisfies the
federal definition. Goodpasture’s only appellate con-
tention is that the California crime is not a “violent
felony” for federal purposes.
    Section 288(a) provides:
     Any person who willfully and lewdly commits any
     lewd or lascivious act . . . upon or with the body, or
     any part or member thereof, of a child who
     is under the age of 14 years, with the intent of
     arousing, appealing to, or gratifying the lust,
     passions, or sexual desires of that person or the
     child, is guilty of a felony . . . .
(This is the current version, which differs only in irrelevant
detail from the version in force when Goodpasture com-
mitted his crime.) Any lascivious touching with the
prohibited intent violates this statute. People v. Martinez, 11
Cal. 4th 434, 442, 903 P.2d 1037, 1041 (1995). The prosecu-
tion need not show that the child was harmed (physically
or mentally) or at risk of harm. Nor need the prosecu-
tion show that force or fraud was used, see People v.
Fulcher, 136 Cal. App. 4th 41, 51, 38 Cal. Rptr. 3d 702, 709
(4th Dist. 2006), or that one participant was older than
the other. A person aged 13 or under may be convicted
under §288(a). See In re Paul C., 221 Cal. App. 3d 43, 270
Cal. Rptr. 369 (3d Dist. 1990); In re T.A.J., 62 Cal. App. 4th
No. 08-3328                                                  3

1350, 1365, 73 Cal. Rptr. 331, 340–41 (1st Dist. 1998). The
petting in which many middle school students engage is
a felony in California, if either party participates with a
goal of arousing sexual desire.
  A crime can be classified as a “violent felony” in either
of two ways: if it
    (i) has as an element the use, attempted use, or
    threatened use of physical force against the
    person of another; or
    (ii) is burglary, arson, or extortion, involves use of
    explosives, or otherwise involves conduct that
    presents a serious potential risk of physical injury
    to another[.]
18 U.S.C. §924(e)(2)(B). Romanette (i) does not apply to
Goodpasture, because physical force is not an element
of the §288(a) offense. Tickling involves a touching but
is not ordinarily understood to involve “force”; likewise
French kissing and fondling usually are gentle. A child
in California cannot give a valid consent to sexual acts,
but the absence of consent does not turn a light touch
into “physical force against the person of another”.
Unless the Supreme Court holds in Johnson v. United
States, cert. granted, 129 S. Ct. 1315 (2009) (argued Oct. 6,
2009), that any unconsented touching is “physical
force” for federal purposes, the sort of conduct covered
by §288(a) does not come within romanette (i). See Flores
v. Ashcroft, 350 F.3d 666 (7th Cir. 2003). The “physical
force” to which romanette (i) refers is the kind capable
of causing bodily injury, not the kind that poses a psycho-
logical risk (the subject of §288(a)).
4                                                 No. 08-3328

  Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008),
thought that “serious potential risk of physical injury”
in romanette (ii) must be read in the context of the lan-
guage about burglary, arson, extortion, and explosives.
Begay concludes that only “purposeful, violent, and
aggressive conduct” that creates a serious risk of
physical injury comes within the statute. 128 S. Ct. at
1586. This led it to hold that felony drunk driving is not
a violent felony, even if someone dies as a result. Nor
is failure to report to prison, because that is not violent
or aggressive. Chambers v. United States, 129 S. Ct. 687,
692 (2009). See also United States v. Templeton, 543 F.3d 378
(7th Cir. 2008) (walkaway escape from prison is not a
violent felony). Yet drunk driving and avoiding lawful
custody are easier to classify as violent and aggressive
than are tongue kissing and fondling. What is more,
nothing in the record (or any scholarly literature we
have seen) suggests that kissing or fondling is nearly as
dangerous as drunk driving. Sexual intercourse with a
child may well create a “serious potential risk of
physical injury”, see United States v. Shannon, 110 F.3d
382 (7th Cir. 1997) (en banc), but kissing and fondling
do not. Their potential injury is mental, not physical.
  A state crime counts for federal purposes only if the
offender was convicted as an adult (or the crime
involves weapons). 18 U.S.C. §924(e)(2)(B). So it is
possible, consistent with the categorical approach to
classifying prior convictions, see Taylor v. United States, 495
U.S. 575 (1990), to ask whether the fact that Goodpasture
was convicted of the §288(a) offense as an adult affects
the analysis. At the time, California permitted an adult
No. 08-3328                                                5

conviction of a person who committed a crime after
turning 16. See Cal. Welf. & Inst. Code §§ 602, 606, 707(a),
707.1. (Here we refer to the law in force when Goodpasture
was convicted; today California allows a person as
young as 14 to be prosecuted as an adult.) This means
that Goodpasture was at least two years and a day
older than his victim. We held in United States v.
Osborne, 551 F.3d 718 (7th Cir. 2009), that a statute
similar to §288(a), and including an express requirement
of a two-year age difference, did not create an offense
of “sexual abuse of a minor” for the purpose of the sen-
tencing enhancement in 18 U.S.C. §2252(b)(1). Drawing
on definitional language in §§ 2241–48, we held that at
least a four-year age difference, or use of force or fraud,
distinguishes “abusive” contact from the exploratory
touching in which many teenagers engage. Even given
the two-year age gap necessary to convict Goodpasture
as an adult, §288(a) does not define a crime of “sexual
abuse” for federal purposes; it is hard to see how it
could be called a “violent felony” either.
  The prosecutor wants us to look at what Goodpasture
did (and the ages of the people involved), rather than
the proof required by §288(a). But federal recidivist
statutes such as §924(e) ask what the defendant was
convicted of, not what he did in fact. See Taylor and
Shepard v. United States, 544 U.S. 13 (2005). “The statute’s
defining language, read naturally, uses ‘felony’ to refer to
a crime as generally committed. And by so construing
the statute, one avoids the practical difficulty of trying to
ascertain at sentencing, perhaps from a paper record
mentioning only a guilty plea, whether the present defen-
6                                               No. 08-3328

dant’s prior crime, as committed on a particular
occasion, did or did not involve violent behavior.” Cham-
bers, 129 S. Ct. at 690. The United States has not shown
that the §288(a) offense “as generally committed” meets
the criteria of Begay. It does contend that prosecutors
would exercise discretion not to proceed unless a sub-
stantial age difference, or some other aggravating factor,
existed, but it has not offered evidence to back up this
belief—and, more importantly, the Supreme Court’s
question is what the offense as generally committed
entails, not which offenses lead to criminal prosecutions.
  When a statute sets out different ways to commit a
crime, it may be necessary to consult the charging papers
and plea colloquy to classify such a “divisible” offense
correctly. See United States v. Woods, 576 F.3d 400 (7th Cir.
2009). But the prosecutor does not argue that Cal. Penal
Code §288(a) is “divisible” under the approach we took
to that subject in Woods. We therefore stop with the lan-
guage of §288(a), which is not a “violent felony” under
either subsection of §924(e)(2)(B).
   The district court is entitled to consider what
Goodpasture actually did, and the relative ages
(Goodpasture was 25 and the victim 11), when exercising
discretion under 18 U.S.C. §3553(a) and the Sentencing
Guidelines. See Woods, 576 F.3d at 403 n.2. But the 15-
year minimum sentence for an armed career criminal
does not apply. The judgment is reversed, and the case
is remanded for resentencing.



                            2-8-10
