United States v. Alexander

• Citation: 802 F.3d 1134
• Decision Date: 21 September 2015
• Docket Number: No. 14–7058.,14–7058.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Albert Preston ALEXANDER, a/k/a Alexander Preston, a/k/a Albert Shadon, a/k/a Preston Alexander, a/k/a Albert Reton Alexander, a/k/a Albert Preton Alexander, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

802 F.3d 1134

UNITED STATES of America, Plaintiff–Appellee

v.Albert Preston ALEXANDER, a/k/a Alexander Preston, a/k/a Albert Shadon, a/k/a Preston Alexander, a/k/a Albert Reton Alexander, a/k/a Albert Preton Alexander, Defendant–Appellant.

No. 14–7058.

United States Court of Appeals, Tenth Circuit.

Sept. 21, 2015.

Chance Cammack, Research and Writing Specialist, (Julia L. O'Connell, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Muskogee, OK, for Defendant–Appellant.

Edward Snow, Assistant United States Attorney, (Mark F. Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, OK, for Plaintiff–Appellee.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

Under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901 –16962, a sex offender must register in each jurisdiction where he resides, see id. § 16913(a), and update that registration promptly upon moving, see id. § 16913(c). Failure to do so is a crime. See 18 U.S.C. § 2250. The duration of the offender's registration requirement depends on his “tier,” which reflects the severity of his predicate sex offense. See 42 U.S.C. §§ 16911(2) -(4), 16915(a). The offender's tier also affects his guidelines sentencing range if he is convicted of failure to register. See USSG § 2A3.5(a).

Defendant Albert Alexander pleaded guilty in 2012 to violating California Penal Code § 266c, which prohibits inducing another to engage in sexual conduct by misrepresentations creating fear. As required by California law, he registered as a sex offender in that state. But he did not register as a sex offender in Oklahoma when he moved there, and he was indicted in the United States District Court for the Eastern District of Oklahoma on one count of violating 18 U.S.C. § 2250. He filed a motion to dismiss the indictment on the ground that his § 266c conviction did not trigger SORNA's registration requirement. He argued that § 266c covers only consensual sexual conduct and so falls within SORNA's exception from the definition of sex offense for an “offense involving consensual sexual conduct ... if the victim was an adult....” 42 U.S.C. § 16911(5)(C). When the motion was denied, he entered a conditional plea of guilty, see Fed.R.Crim.P. 11(a)(2), permitting him to raise on appeal the issues he now presents to us: (1) his classification as a tier III sex offender when the district court imposed sentence and (2) the denial of his motion to dismiss.¹ Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. We reject Defendant's argument (part of which was not preserved below and is reviewed only for plain error) that a violation of § 266c does not qualify for tier III, and we hold that sexual conduct induced by the misrepresentations required under § 266c is not consensual within the meaning of the term in SORNA.

I. TIER III CLASSIFICATION

Under the sentencing guidelines the offense level for failing to register under SORNA depends on whether the predicate sex offense is classified as tier I, tier II, or tier III. See USSG § 2A3.5(a) (base offense level is 16 for tier III offenders; 14 for tier II offenders; and 12 for tier I offenders). Tier III is the classification for one whose “offense ... is comparable to or more severe than [the federal crimes of] ... aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18 ).” 42 U.S.C. § 16911(4)(A)(i). We review a challenge to an offense-level calculation for abuse of discretion, reviewing legal conclusions de novo and factual findings for clear error. See White, 782 F.3d at 1128–29.

As a general rule, to make the comparison required by § 16911, we apply what is called the categorical approach, examining the statutory elements of the state and federal offenses to see whether the defendant's prior offense is comparable to or more severe than § 2241 or § 2242. See id. at 1130–36.

The California statute under which Defendant was convicted states:

Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.

Cal.Penal Code § 266c (2014). The statute defines fear as “the fear of physical injury or death to the person or to any relative of the person or member of the person's family.” Id.

The relevant elements of the first comparator statute, 18 U.S.C. § 2241, are “knowingly caus[ing] another person to engage in a sexual act—... (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempt[ing] to do so....” § 2241(a)(2). And the relevant elements of § 2242 are “knowingly—(1) caus[ing] another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); ... or attempt[ing] to do so....” § 2242(1).

Defendant argues that he cannot be classified in tier III because the California statute “sweeps more broadly” than the federal offenses of aggravated sexual abuse (§ 2241 ) or sexual abuse (§ 2242 ). Aplt. Br. at 18. First, he appears to contend that to violate § 266c it is necessary only to “fraudulently induce[ ] another to consent to a sexual act,” but that such conduct would not violate the federal statutes. Id. at 17. Second, he asserts that § 266c “punishes a person who induces a consensual sexual act by fraudulent representation made with the intent to create fear,” which is a less severe offense than § 2241 and § 2242, which, he says, require that a sexual act follow “a direct threat or action that created fear.” Id. Third, he argues that § 266c is less severe because it “defines fear more broadly” than § 2241 and § 2242. Id. We reject each argument (the second, under plain-error review).

Defendant's first contention is based on a false premise. Section 266c is not violated by the mere act of fraudulently inducing consent to a sexual act. The statute requires more—a fraudulent representation “that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act.”Cal.Penal Code § 266c. It is therefore irrelevant that the federal statutes cannot be violated by (just any) misrepresentation.

Defendant's second argument is that § 2241 and § 2242, unlike § 266c, require “a direct threat or action that created fear.” Aplt. Br. at 17. In other words, even though both federal statutes are satisfied by “placing th [e] other person in fear,” 18 U.S.C. §§ 2241(a)(2), 2242(1), Defendant is saying that “placing” can be accomplished only by direct threat or action. But this argument is forfeited because he failed to argue below that the federal statutes do not encompass fear induced by fraud; our review is therefore only for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.2011) ; United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006). Because Defendant does not argue plain error, we could end our analysis there. See Richison, 634 F.3d at 1130–31. In any event, we see no reason to limit the meaning of “placing ... in fear” by excluding the making of false representations that induce fear, and we are aware of no precedent saying that. See Teague, 443 F.3d at 1318–19 (for asserted error to be “plain,” it must be “clear under current law” (internal quotation marks omitted)).

Finally, Defendant contends that § 266c defines fear more broadly than § 2241 and § 2242, because fear under the California statute means “the fear of physical injury or death to the person or to any relative of the person or member of the person's family,” Cal.Penal Code § 266c, while the federal statutes require “fear that any person will be subjected to death, serious bodily injury, or kidnapping.” Aplt. Br. at 17 (internal quotation marks omitted). Defendant is right about § 2241 but he misreads § 2242. Section 2241 requires inducing fear of death, serious bodily injury, or kidnapping. But § 2242 does not. Indeed, that is why § 2242 is entitled “Sexual abuse” while § 2241 is entitled “Aggravated sexual abuse.” What § 2242(1) prohibits is “knowingly—(1) caus[ing] another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping)” (emphasis added). Perhaps the fear required by § 2242(1) must be more than de minimis, but it surely does not require greater fear than what is defined in the California statute—“the fear of physical injury or death to the person or to any relative of the person or member of the person's family” that “would cause a reasonable person in like circumstances to act contrary to the person's free will.” Cal.Penal Code § 266c.

Defendant has failed to show that § 266c can be violated in a manner that would not also violate § 2241 (if the fear is that a person will be subjected to death, serious bodily injury, or kidnapping) or, at least, § 2242 (if the fear is otherwise). The California statute is therefore “comparable” to the federal statutes. Defendant is qualified to be a tier III sex offender.

We can briefly dispose of the one case cited by Defendant as support for his tier-classification...