Background
Larry Doss pled guilty to being a felon in possession of a firearm in violation of eighteen U.S.C. section nine hundred twenty-two subsection g one. His prior criminal history included a 2017 felony conviction for sexual battery under Indiana Code section thirty-five forty-two four eight subsection a two. The district court enhanced Doss’s base offense level because it determined the sexual battery conviction was a crime of violence. Doss received a sentence of forty-one months imprisonment followed by two years of supervised release. On appeal, Doss argued the enhancement was erroneous because the Indiana statute did not constitute a crime of violence.
The court’s reasoning
The court applied the modified categorical approach to compare the elements of the Indiana statute with the generic offense. The court rejected the argument that the definition of forcible sex offense was limited to offenses against minors. Instead, the court adopted the ordinary, contemporary, and common meaning of the phrase. The court concluded that forcible sex offense means any nonconsensual sexual contact. Since the Indiana statute criminalizes touching when the person is unaware, it prohibits nonconsensual sexual touching. Therefore, the conviction qualifies as a crime of violence under the Guidelines.
We conclude that Doss was convicted of a forcible sex offense within the meaning of the Guidelines.
Opinion at 12
What it means going forward
The ruling clarifies that nonconsensual sexual battery convictions under statutes prohibiting touching when the victim is unaware qualify as crimes of violence for sentencing enhancements in the Seventh Circuit.