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.”