08-3328 U.S. v. Goodpasture

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Sentencing
ACCA

A prior conviction for an offense that includes non-violent fondling of a minor is not a “violent felony” under the Armed Career Criminal Act.
“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 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 sentencing 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.”
Reversed and Remanded.

08-3328 U.S. v. Goodpasture

Appeal from the United States District Court for the Southern District of Illinois, Stiehl, J., Easterbrook, J.