The Seventh Circuit had two new opinions in criminal cases this past week. In the first, United States v. Osborne (No. 08-1176), the court considered the scope of 18 U.S.C. §2252(b)(1), which imposes a fifteen-year mandatory minimum sentence on certain child pornography defendants who have a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Osborne, convicted of a qualifying pornography offense in federal court, had a prior conviction in Indiana state court for “fondling or touching” a person age fourteen or fifteen “with intent to arouse or . . . satisfy sexual desires.” Thus, Osborne plainly had a prior conviction for sexual conduct involving a minor, but was it “abusive”? The district court thought so, but the Seventh Circuit (per Chief Judge Easterbrook) rejected a broad interpretation of “abusive” that would result in all sexual conduct with a minor qualifying — such an approach would essentially write the word “abusive” out of the statute.
Section 2252 does not define “abusive,” but other federal statutes define “abuse” for other purposes. The court reasoned that such other statutes should be consulted to determine whether a prior state conviction counts as “abusive sexual conduct.”
Based on its review of other statutes, the court indicated that mere sexual contact (as opposed to a sexual act) with a fourteen- or fifteen-year old would not qualify as abusive, at least without an age difference of at least four years. (Cases of force, fraud, or intrafamilial sexual contact might be treated differently.)
The Indiana statute that defined Osborne’s prior offense was broad enough to include nonqualifying sexual touching between, say, a high school sophomore and a senior, but also included acts that would plainly count as “abusive.” In other words, examining the formal elements of the offense itself could not answer the question of whether Osborne’s prior offense constituted “abuse.” The Seventh Circuit thus remanded for the district court to consider the charging documents and guilty-plea colloquy in the earlier case to determine whether Osborne’s offense should count as “abusive.”
In the second (and much shorter and more straightforward) new opinion, United States v. Williams (No. 07-2841), the court (per Judge Sykes) remanded a drunk-driving case for resentencing where the district court had imposed an overly broad order revoking the defendant’s driver’s license. It is, of course, unusual to see a drunk-driving case in federal court, but the defendant in this case (Williams) was driving on a military installation. Offenses committed in such special enclaves of federal jurisdiction can indeed be prosecuted in federal court, even though they are normally only prosecuted in state court. In any event, Williams was not only sentenced to prison for eighteen months, but also had his driving privileges revoked for three years. However, under 18 U.S.C. §13(b), the sentencing judge only had the authority to revoke driving privileges in the “special maritime and territorial jurisdiction of the the United States” (i.e., in federal enclaves like militatary installations). Because the sentencing judge’s revocation order was not so limited, the defendant was entitled to a resentencing.