Indiana “Unaware Touching” Sexual Battery Is a Guidelines “Forcible Sex Offense” (and Thus a “Crime of Violence”) Under U.S.S.G. § 2K2.1(a)(4)(A)

Introduction

In United States v. Larry Doss (7th Cir. July 23, 2026), the Seventh Circuit addressed whether an Indiana felony conviction for sexual battery—specifically, touching certain intimate parts “when [the victim] is unaware that the touching is occurring,” IND. CODE § 35-42-4-8(a)(2)—qualifies as a “crime of violence” under the federal Sentencing Guidelines. The classification mattered because it increased the base offense level for Larry Darnell Doss’s federal felon-in-possession conviction under 18 U.S.C. § 922(g)(1) via U.S.S.G. § 2K2.1(a)(4)(A).

The case presented two interlocking issues: (1) how to interpret “forcible sex offense” in U.S.S.G. § 4B1.2(a)(2) and its commentary, and (2) whether the Indiana statute’s “unaware” element necessarily entails nonconsent, making the offense “forcible” as the Guidelines use that word. Because Doss did not object at sentencing, the appeal proceeded under plain-error review.

Summary of the Opinion

The Seventh Circuit affirmed. Applying the modified categorical approach (because the Indiana statute is divisible), the court held that IND. CODE § 35-42-4-8(a)(2) is a “forcible sex offense” under U.S.S.G. § 4B1.2(a)(2). It reasoned that:

  • “Sex offense” should be given its ordinary meaning—criminal offenses involving unlawful sexual conduct.
  • “Forcible,” as elaborated in U.S.S.G. § 4B1.2(e)(1), includes situations where consent “is not given or is not legally valid,” which the court read as “nonconsensual.”
  • A person “unaware” that touching is occurring cannot provide valid consent; thus the offense is categorically nonconsensual sexual contact and therefore “forcible.”

The court rejected Doss’s attempt to narrow “forcible sex offense” by importing the federal definition of “sexual act” from 18 U.S.C. § 2246(2)(D) via the child-focused limitation referencing 18 U.S.C. § 2241(c). That limitation, the court held, applies only to “sexual abuse of a minor and statutory rape,” not to adult-victim sex offenses generally.

Analysis

Precedents Cited

The opinion is built on a familiar sentencing-methodology scaffold (plain-error review and categorical-approach doctrine), while borrowing heavily from other circuits’ interpretations of “forcible sex offense.”

1) Plain-error framework and Guidelines mistakes

  • United States v. Van Sach, 104 F.4th 1003 (7th Cir. 2024) (per curiam): Cited for applying plain-error review when a defendant fails to object at sentencing. This set the procedural lens through which Doss’s claim was judged.
  • United States v. Brasher, 105 F.4th 1002 (7th Cir. 2024) (quoting United States v. Haas, 37 F.4th 1256 (7th Cir. 2022)): Provided the four-part plain-error test the panel used to structure the inquiry.
  • United States v. Jenkins, 772 F.3d 1092 (7th Cir. 2020) (quoting United States v. Love, 706 F.3d 832 (7th Cir. 2013)): Reinforced the sentencing principle that an incorrect Guidelines range typically constitutes plain error unless it did not affect the sentence selection.
  • United States v. Williams, 949 F.3d 1056 (7th Cir. 2020): Cited both for de novo review of the legal “crime of violence” classification and (in a footnote) for the proposition that statutes criminalizing “touching or fondling” do not necessarily satisfy the Guidelines’ “physical force” clause—helping narrow the dispute to the enumerated-offense route (“forcible sex offense”) rather than the force clause.

2) Categorical approach and divisibility

  • United States v. Dixon, 27 F.4th 568 (7th Cir. 2022): Grounded the court’s use of the categorical approach for “crime of violence” determinations under U.S.S.G. § 2K2.1(a)(4)(A), including the cross-reference to § 4B1.2 via Application Note 1.
  • United States v. Carr, 107 F.4th 636 (7th Cir. 2024) (citing Descamps v. United States, 570 U.S. 254 (2013)): Supplied the elements-comparison formulation—state elements versus the generic offense as commonly understood—and the rule that the state statute must be the same as or narrower than the generic definition.
  • Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019): Provided the test for divisibility and the gateway to the modified categorical approach.
  • United States v. Vesey, 966 F.3d 694 (7th Cir. 2020) (citing Mathis v. United States, 579 U.S. 500 (2016)): Clarified the limited purpose of the modified categorical approach—identifying which statutory alternative formed the conviction and then applying the categorical comparison to that alternative.

3) How to define non-common-law guideline phrases

  • United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (quoting Shular v. United States, 589 U.S. 154 (2020)): Used to distinguish between (a) deriving a “generic” offense by surveying state codes when the term refers to a common-law crime, and (b) using ordinary meaning when it does not.
  • United States v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001): Supplied the “ordinary, contemporary, and common meaning” approach and supported looking to sister-circuit consensus.

4) Rejecting the attempted importation of 18 U.S.C. § 2241(c)/§ 2246

  • United States v. Jones, 56 F.4th 455 (7th Cir. 2022) and United States v. Gregory, 591 F.3d 964 (7th Cir. 2010): Cited to support rejecting similar interpretive attempts to smuggle external limitations into Guidelines definitions where the text and structure do not warrant it. These cases functioned as intramural authority for textual discipline: the Commission’s selective cross-references should not be expanded beyond their stated scope.

5) Sister-circuit “forcible sex offense” interpretations (central persuasive authority)

The panel openly aligned with other circuits interpreting “forcible sex offense” (especially under U.S.S.G. § 2L1.2, where the term is defined identically), using that body of law to cement an ordinary-meaning definition:

  • United States v. Alfaro, 835 F.3d 470 (4th Cir. 2016): The court’s primary persuasive template. Alfaro used dictionary definitions (including BLACK’S LAW DICTIONARY) to define “sex offense” broadly as unlawful sexual conduct and treated “forcible” as encompassing nonconsensual conduct. The Seventh Circuit adopted that analytical posture.
  • United States v. Contreras, 739 F.3d 592 (11th Cir. 2014): Quoted for the key proposition that “any nonconsensual sexual contact will satisfy the [G]uidelines definition of ‘forcible sex offense.’” This became the Seventh Circuit’s operative rule statement.
  • United States v. Quintero-Junco, 754 F.3d 746 (9th Cir. 2014): Reinforced that statutes prohibiting nonconsensual touching of genitals/anus/female breast fall “comfortably” within “forcible sex offense.”
  • United States v. Garza-Guijan, 714 F.3d 332 (5th Cir. 2013) and United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007): Supported the broad conception of “sex offense” and the inclusion of nonconsensual touching (including through clothing) as “forcible.”
  • United States v. Diaz-Corado, 648 F.3d 290 (5th Cir. 2011) (per curiam): Added support for reading the Guidelines’ “forcible” concept to include nonconsent rather than requiring violent force.

Legal Reasoning

  1. Procedural posture: plain error, but the issue is purely legal.

    Doss raised his Guidelines objection for the first time on appeal, triggering plain-error review. Still, the classification question—whether a prior conviction is a “crime of violence”—is a legal issue reviewed de novo within that framework.

  2. Method: modified categorical approach because the Indiana statute is divisible.

    IND. CODE § 35-42-4-8 contains alternative elements: subsection (a)(1) covers compelled submission by force/threat or mental disability/deficiency; subsection (a)(2) covers intimate touching when the victim is unaware. The parties agreed the statute is divisible and that Doss was convicted under (a)(2). The court therefore examined only (a)(2)’s elements, not the underlying conduct.

  3. Guidelines pathway: enumerated-offense clause, not the “physical force” clause.

    The court accepted the parties’ agreement that Indiana sexual battery does not require “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1), consistent with United States v. Williams. The enhancement therefore depended on the enumerated item “forcible sex offense” in § 4B1.2(a)(2).

  4. Textual boundary: the § 2241(c) reference is limited to minor-victim crimes.

    Doss’s core interpretive move was to universalize a limitation that the Guidelines text expressly cabins to “sexual abuse of a minor and statutory rape.” The court rejected that as inconsistent with the text’s structure (“included only if” appears in a sentence expressly about those two categories) and with the Sentencing Commission’s stated intent in the 2024 supplement: to “make[] clear” that those minor-victim offenses are included when specified elements are present—not to redefine all forcible sex offenses via federal child-abuse provisions.

  5. Ordinary meaning: “sex offense” = unlawful sexual conduct; “forcible” = nonconsensual.

    Because “forcible sex offense” is not a common-law crime, the court used ordinary meaning, informed by dictionary usage and sister-circuit interpretation. It adopted a broad definition of “sex offense” and read “forcible,” in light of § 4B1.2(e)(1)’s consent language, to mean conduct lacking valid consent.

  6. Application to IND. CODE § 35-42-4-8(a)(2): unawareness implies inability to consent.

    The decisive step was the court’s conclusion that “Someone who is unaware of being touched cannot logically provide valid consent.” Thus, the statute categorically criminalizes nonconsensual sexual touching, making it a “forcible sex offense,” and therefore a “crime of violence” for § 2K2.1(a)(4)(A).

Impact

The decision supplies the Seventh Circuit’s clearest holding to date on “forcible sex offense” under U.S.S.G. § 4B1.2: nonconsensual sexual contact qualifies even without violent force. Several practical consequences follow.

  • Guidelines enhancements in firearms cases: Defendants with prior convictions under IND. CODE § 35-42-4-8(a)(2) should expect § 2K2.1(a)(4)(A)’s higher base offense level to apply absent an intervening change in the Guidelines or Supreme Court doctrine on commentary/definitions.
  • Broader interpretive rule for “forcible sex offense”: The court’s articulation—“forcible” as “nonconsensual”—is likely to extend beyond Indiana sexual battery to other state statutes criminalizing sexual touching where consent is absent or legally invalid (e.g., unconsciousness, incapacity, coercion, deception in some jurisdictions), so long as the elements ensure nonconsent categorically.
  • Limits on importing federal sex-offense definitions: The rejection of Doss’s § 2241(c)/§ 2246 importation argument signals that selective Guidelines cross-references will be treated as selective—especially where the Commission has spoken directly to the purpose of the reference (here, minor-victim offenses).
  • Reduced viability of force-clause challenges as a fallback: The opinion reinforces that many sex-touching statutes will not fit § 4B1.2(a)(1)’s “physical force” clause, but may still qualify under enumerated “forcible sex offense,” shifting litigation to the meaning of consent and statutory elements.

Complex Concepts Simplified

Plain error
A demanding standard applied when the defendant failed to object in the trial court. The defendant must show a clear legal mistake that likely mattered to the outcome and seriously undermines the fairness or integrity of the proceeding.
U.S.S.G. § 2K2.1(a)(4)(A) “crime of violence” enhancement
A Guideline rule that raises the starting (“base”) offense level for certain firearms crimes if the defendant has a prior felony conviction that counts as a “crime of violence,” which can increase the recommended sentencing range.
Categorical approach
A method that looks only at the statutory elements of the prior conviction, not at what the defendant actually did. If the statute covers any conduct that falls outside the Guidelines definition, the conviction may not qualify—unless the statute is divisible and the modified categorical approach applies.
Divisible statute / modified categorical approach
A statute is “divisible” if it lists alternative elements that define multiple distinct crimes. Courts may then identify which alternative formed the conviction (e.g., subsection (a)(2) rather than (a)(1)) and apply the categorical approach to that alternative alone.
“Forcible sex offense” under the Guidelines
As applied here, “forcible” does not require violence; it includes sex offenses where valid consent is absent. The court treated “forcible” as essentially “nonconsensual” based on § 4B1.2(e)(1)’s consent language.

Conclusion

United States v. Larry Doss establishes a straightforward Seventh Circuit rule: Indiana sexual battery under IND. CODE § 35-42-4-8(a)(2)—intimate touching while the victim is unaware—is categorically a “forcible sex offense” because unawareness precludes valid consent, and “forcible” in U.S.S.G. § 4B1.2 encompasses nonconsensual sexual conduct. The decision also reinforces a broader interpretive principle: absent an explicit, generally applicable cross-reference, “forcible sex offense” is defined by ordinary meaning (informed by the Guidelines’ consent-focused commentary), not by importing federal child-sex-abuse definitions beyond their expressly limited context.