United States of America v. Robert R. Rogers

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 24, 2008
Decided February 1, 2010
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1499
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT R. ROGERS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:07-CR-24-RM
Robert L. Miller, Jr.
Chief Judge.
O R D E R
This appeal represents another entry in a long line of cases challenging a district
court’s classification of a prior offense as a crime of violence under U.S.S.G. § 4B1.2. While
in prison for a 2006 conviction for sexual misconduct with a minor, Robert Rogers sent a
threatening letter to a former friend who had assisted the government in obtaining a 2004
conviction of Rogers for possession of a firearm as a felon. Rogers pleaded guilty to mailing
a threatening communication and to retaliation against a government witness, in violation
of 18 U.S.C. §§ 876(b) and 1513(b)(2). The district court found that Rogers was a career
offender under U.S.S.G. § 4B1.1 because he had two prior felony convictions for crimes of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-1499 Page 2
violence. On that basis, the district court sentenced Rogers to 180 months on the first count
and 120 months on the second, to be served concurrently. Rogers argues that his earlier
conviction for sexual misconduct with a minor, IND. CODE § 35-42-4-9, is not a “crime of
violence” as § 4B1.1 uses that term and therefore he should not have been sentenced as a
career offender.
Under Indiana law, “[a] person at least eighteen (18) years of age who, with a child
at least fourteen (14) years of age but less than sixteen (16) years of age, performs or
submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a
minor, a Class C felony.” IND. CODE § 35-42-4-9(a). If the person is at least 21 years old, the
crime becomes a Class B felony. IND. CODE § 35-42-4-9(a)(1). Rogers was convicted of the
Class B felony. The statute also creates a separate Class A felony “if it is committed by
using or threatening the use of deadly force, if it is committed while armed with a deadly
weapon, if it results in serious bodily injury, or if the commission of the offense is
facilitated by furnishing the victim, without the victim’s knowledge, with a drug . . . or
controlled substance . . . or knowing that the victim was furnished with the drug or
controlled substance without the victim’s knowledge.” IND. CODE § 35-42-4-9(a)(2).
Following the Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008),
and our decision in United States v. Woods, 576 F.3d 400 (7th Cir. 2009), we held in United
States v. McDonald, No. 08-2703, slip op. at 13-14 (7th Cir. Jan. 25, 2010) that because the
Wisconsin crime of second-degree sexual assault of a child is a strict-liability offense – in
the sense that neither the victim’s consent nor ignorance or reasonable mistake regarding
the victim’s age exculpates the offender – it is not purposeful and therefore it is not a crime
of violence for the purpose of the career-offender enhancement. See WIS. STAT. § 948.02(2)
(“Whoever has sexual contact or sexual intercourse with a person who has not attained the
age of 16 years is guilty of a Class C felony.”)
Indiana courts similarly understand the crime of sexual misconduct with a minor to
be a strict liability offense. See, e.g., Wallace v. State, 905 N.E.2d 371, 381 n.11 (Ind. 2009). The
Class B felony of sexual misconduct with a minor, in violation of IND. CODE § 35-42-4-
9(a)(1), is therefore not a crime of violence for the specific purpose of the career-offender
enhancement, and the district court therefore erred by sentencing Rogers under § 4B1.1.
We therefore VACATE the sentence and REMAND for further proceedings in light of
Begay and McDonald.

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