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Monday, January 05, 2009

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Sean Osborne (SD Ind., Judge Hamilton), an 8-page opinion, Chief Judge Easterbrook writes:

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 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. * * *

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 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) 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. * * *

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. VACATED AND REMANDED

Posted by Marcia Oddi on January 5, 2009 12:25 PM
Posted to Ind. (7th Cir.) Decisions