United States v. Schofield

• Citation: 802 F.3d 722
• Decision Date: 23 September 2015
• Docket Number: No. 14–11293.,14–11293.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Nicholas W. SCHOFIELD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

802 F.3d 722

UNITED STATES of America, Plaintiff–Appellee

v.Nicholas W. SCHOFIELD, Defendant–Appellant.

No. 14–11293.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 2015.

Brian W. Portugal, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

Frank Alton Granger, Charles, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, DENNIS, and OWEN, Circuit Judges.

Opinion

PER CURIAM:

Nicholas W. Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the district court required him, as part of his sentence, to register as a sex offender after his release from prison. Schofield appeals the registration requirement. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2013, Nicholas W. Schofield, who was twenty-four at the time, began sending text messages to a fifteen-year-old girl in San Angelo, Texas. Schofield identified himself as an eighteen-year-old mechanic named “Nick,” and he continued to converse with the girl via text messages through February 2014. At that time, an undercover federal agent assumed the girl's side of the conversation, and Schofield continued the conversation with the agent through April 2014. Believing he was still communicating with the girl, Schofield sent the agent images of his erect penis, videos of himself and others masturbating, links to pornographic websites, and text messages describing himself masturbating. Schofield later admitted to sending eight pictures of his penis, three videos of himself masturbating, and messages describing himself masturbating and instructing the girl how to masturbate. Schofield also admitted to soliciting and receiving nude images of the girl.

On May 14, 2014, a grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470.¹ Pursuant to a written plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor—specifically, his attempted transfer via text message of a video of an adult male masturbating. The remaining counts were dismissed at sentencing. The district court sentenced Schofield to twenty-four months imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA).

Prior to and at sentencing, Schofield objected to the district court's requirement that he register as a sex offender under SORNA, arguing that the crime of attempted transfer of obscene material to a minor was not a sex offense within the meaning of SORNA and therefore did not require registration. Schofield contended that, because his offense is neither an enumerated federal offense nor a “specified offense against a minor” under 42 U.S.C. § 16911(5)(A), it is not a sex offense and therefore he is not required to register as a sex offender under SORNA. Schofield also argued that SORNA's definition of “sex offense” under 42 U.S.C. § 16911(5)(A) and (7)(I) is unconstitutionally vague. The district court overruled Schofield's objections and required him to register under SORNA upon release from prison. While Schofield waived the right to appeal his conviction as part of his plea agreement, he reserved the right to appeal the requirement to register as a sex offender. Schofield exercised that right and timely appealed.

II. STANDARD OF REVIEW

The Government argues that this court's review is limited to plain error because Schofield did not object after the district court pronounced his sentence. Schofield apparently concedes that plain error is the proper standard of review. However, the court, not the parties, must determine the appropriate standard of review. United States v. Torres–Perez, 777 F.3d 764, 766 (5th Cir.2015) ; see also United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.1992) (en banc) (“[N]o party has the power to control our standard of review.”). Schofield objected both to the presentence report and at his sentencing, raising the same arguments in the district court as he now raises on appeal. Although Schofield did not renew his objection to SORNA registration after the district court imposed his sentence, his earlier objections sufficiently preserved the issues he now raises in this court. Based on Schofield's earlier objections, the district court was aware of his arguments concerning why SORNA registration was not required. Therefore, “the purposes of the preservation requirement were met in th[is] case[ ]—namely, the [defendant] ‘raise[d] a claim of error with the district court in such a manner so that the district court may [have] correct[ed] itself and thus, obviate[d] the need for [this court's] review.’ ” Torres–Perez, 777 F.3d at 767 (quoting United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009) ). Because Schofield preserved the issues he now raises in this court and because he only challenges the district court's legal conclusions (not its factual findings), we review whether he is required to register under SORNA de novo. United States v. Gonzalez–Medina, 757 F.3d 425, 427 (5th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1529, 191 L.Ed.2d 562 (2015) ; United States v. Morgan, 311 F.3d 611, 613 (5th Cir.2002) (“We review the district court's legal conclusions, however, de novo. ”).

III. DISCUSSION

SORNA, 42 U.S.C. §§ 16901 –16962, establishes a national sex offender registry “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. A sex offender must “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA defines a “sex offender” as a person “who was convicted of a sex offense.” 42 U.S.C. § 16911(1). Excluding exceptions not relevant here, SORNA defines “sex offense” as:

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;

(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;

(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119 (10 U.S.C. 951 note); or

(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

42 U.S.C. § 16911(5)(A). Schofield's criminal offense did not involve sexual contact and was not a military offense, making subsections (i) and (iv) inapplicable here. Additionally, subsection (iii) does not include 18 U.S.C. § 1470, so Schofield's offense is not a sex offense under this subsection. Therefore, Schofield must register as a sex offender only if he attempted to commit an offense under subsection (v) that is “described in” subsection (ii) as “a criminal offense that is a specified offense against a minor.” 42 U.S.C. § 16911(5)(A)(ii), (v).

SORNA defines “criminal offense” as “a State, local, tribal, foreign, or military offense ... or other criminal offense.” 42 U.S.C. § 16911(6). SORNA then defines “a specified offense against a minor” as an offense against a minor that involves any of the following:

(A) An offense (unless committed by a parent or guardian) involving kidnapping.

(B) An offense (unless committed by a parent or guardian) involving false imprisonment.

(C) Solicitation to engage in sexual conduct.

(D) Use in a sexual performance.

(E) Solicitation to practice prostitution.

(F) Video voyeurism as described in section 1801 of Title 18.

(G) Possession, production, or distribution of child pornography.

(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.

(I) Any conduct that by its nature is a sex offense against a minor.

42 U.S.C. § 16911(7) (emphasis added). Subsection (I), the “SORNA residual clause,” is the relevant provision here since no other provision could encompass Schofield's offense. Thus, for Schofield's offense to constitute a sex offense, it must be a “criminal offense” that involves “any conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(5)(A)(ii), (7)(I). Our analysis of whether Schofield's attempted transfer of obscene material to a minor constitutes a sex offense proceeds in three parts. First, we consider whether a violation of 18 U.S.C. § 1470 can qualify as a sex offense under SORNA when it is not listed among the federal offenses SORNA defines as sex offenses. Because we conclude that it can qualify as a sex offense, we next consider whether Schofield's offense is a “specified offense against a minor” under the SORNA residual clause. Finally, we address whether the SORNA residual clause is ambiguous or unconstitutionally vague. We conclude that because the attempted transfer of obscene material to a minor is a “specified offense against a minor” and because SORNA is neither ambiguous nor vague, Schofield's offense is a sex offense, requiring SORNA registration.

A. Schofield's Offense Can Qualify as a Sex Offense Under SORNA

Although SORNA lists a number of federal offenses that qualify as sex offenses, Schofield's offense—a violation of 18 U.S.C. § 1470 —is not among them. Therefore, we first determine whether the attempted transfer of obscene material to a minor can qualify as a sex offense under SORNA. Because it is not an enumerated federal offense under 42 U.S.C. § 16911(5)(A)(iii), a violation of 18 U.S.C. § 1470 can only qualify as a sex offense if it is “a criminal offense that is a specified offense against a minor” under 42 U.S.C. § 16911(5)(A)(ii). Schofield argues that because subsection (iii) does not include 18 U.S.C. § 1470, Cong...