United States v. Berry

• Decision Date: 19 February 2016
• Docket Number: No. 14–4934.,14–4934.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian Keith BERRY, Defendant–Appellant. Federal Public Defender Office, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

814 F.3d 192

UNITED STATES of America, Plaintiff–Appellee,

v. Brian Keith BERRY, Defendant–Appellant.Federal Public Defender Office, Amicus Supporting Appellant.

No. 14–4934.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2015.

Decided: Feb. 19, 2016.

ARGUED:Jorgelina E. Araneda, Araneda Law Firm, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Yvonne V. Watford–McKinney, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, Office of the Federal Public Defender, Raleigh, North Carolina, for Amicus Curiae.

Before WILKINSON, KING, and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge WYNN wrote the opinion, in which Judge WILKINSON and Judge KING joined.

WYNN, Circuit Judge:

Defendant Brian Keith Berry was convicted of a sex offense in state court and obligated to register under the federal Sex Offender Registration and Notification Act, also known as SORNA. Defendant failed to register as required and pled guilty to violating 18 U.S.C. § 2250(a).

At sentencing, the district court calculated Defendant's United States Sentencing Guidelines ("Guidelines") range as if he were a tier III sex offender. Defendant challenges that tier designation. Using the categorical approach, which we hold applicable here, and comparing his state court conviction for endangering the welfare of a child to the generic offenses enumerated in 42 U.S.C. § 16911(4)(A), we must agree: the district court erred in deeming Defendant a tier III offender. Accordingly, we vacate Defendant's sentence and remand for resentencing.

I.

In 2002, Defendant pled guilty in New Jersey state court to endangering the welfare of a child in violation of N.J. Stat. Ann. § 2C:24–4(a) (2002). Upon Defendant's release from prison, he was advised that he must register as a sex offender with the New Jersey police. He initially registered with a New Brunswick, New Jersey, address; but, in March 2013, law enforcement agents found that he no longer lived at that listed address. Thereafter, the State of New Jersey thus issued a warrant to arrest Defendant for violating the conditions of his parole. Ultimately, Defendant was found in North Carolina where he admitted to law enforcement officials that he had not registered as a sex offender in the State of North Carolina.

Defendant pled guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250. At sentencing, the district court found Defendant to be a tier III sex offender under SORNA, with a corresponding base offense level of sixteen. In a memorandum opinion, the court explained that its tier III determination was "based upon description of the conduct underlying defendant's prior sex offense as set forth in the presentence report." United States v. Berry , No. 5:13–CR–329–FL–1, 2014 WL 7149736, at *1 (E.D.N.C. Dec. 15, 2014). The court found that the conduct underlying the offense, penetrating the vagina of a five-year-old victim with his hand, was comparable to the offense of "abusive sexual contact ... against a minor who has not attained the age of 13 years" listed in the definition of a tier III sex offender in 42 U.S.C. § 16911(4)(A). Id. at *3.

Based on his tier III designation and other factors, the district court determined Defendant's Guidelines range to be thirty-three to forty-one months. The district court sentenced Defendant to thirty-three months in prison and five years of supervised release. Defendant appeals, arguing that the district court erred in its determination that he qualified as a tier III sex offender.

II.

A.

On appeal, we must determine whether the district court imposed an unreasonable sentence by calculating Defendant's Guidelines range as if he were a tier III sex offender under SORNA. We review sentences under an abuse of discretion standard.¹ Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Such a review includes procedural and substantive reasonableness components. Id.; United States v. Dimache, 665 F.3d 603, 606 (4th Cir.2011). Relevant here, a sentence is procedurally unreasonable if the district court "fail[ed] to calculate (or improperly calculat[ed] ) the Guidelines range." Gall, 552 U.S. at 51, 128 S.Ct. 586 ; United States v. Avila, 770 F.3d 1100, 1103 (4th Cir.2014). Further, "[w]hen considering a sentence's reasonableness, we ‘review the district court's legal conclusions de novo and its factual findings for clear error.’ " United States v. Thornton, 554 F.3d 443, 445 (4th Cir.2009) (quoting United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008) ).

B.

SORNA requires sex offenders to register "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). Further, sex offenders must update their registration upon a change in residence. Id. § 16913(c). And 18 U.S.C. § 2250 imposes criminal penalties on persons who are required, but knowingly fail, to register.

SORNA classifies sex offenders into three tiers depending on the nature of their underlying sex offense. 42 U.S.C. § 16911(2) -(4). Sex offenders who have committed more serious sex offenses are classified under tiers II and III. Id. § 16911(3) -(4). Tier I is a catch-all provision for all other sex offenders. Id. § 16911(2). A defendant's tier designation plays into his sentencing, as the Guidelines assign base offense levels of sixteen, fourteen, and twelve for tier III, tier II, and tier I sex offenders, respectively. U.S.S.G. § 2A3.5(a).

To determine a defendant's tier classification, courts compare the defendant's prior sex offense conviction with the offenses listed in SORNA's tier definitions. See 42 U.S.C. § 16911(2) -(4). Courts have embraced two analytical frameworks for such inquiries: 1) the "categorical approach" and its derivative, the "modified categorical approach," and 2) the "circumstance-specific approach" (also known as the "noncategorical approach"). See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ; Nijhawan v. Holder, 557 U.S. 29, 34, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009).

The categorical approach focuses solely on the relevant offenses' elements, comparing the elements of the prior offense of conviction with the elements of the pertinent federal offense, also referred to as the "generic" offense. United States v. Price, 777 F.3d 700, 704 (4th Cir.), cert. denied, ––– U.S. ––––, 135 S.Ct. 2911, 192 L.Ed.2d 941 (2015). If the elements of the prior offense "are the same as, or narrower than," the offense listed in the federal statute, there is a categorical match. Descamps, 133 S.Ct. at 2281. But if the elements of the prior conviction "sweep[ ] more broadly," id. at 2283, such that there is a "realistic probability" that the statute of the offense of prior conviction encompasses conduct outside of the offense enumerated in the federal statute, the prior offense is not a match, Price, 777 F.3d at 704 (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

The modified categorical approach serves as a "tool for implementing the categorical approach" where the defendant's prior conviction is for violating a "divisible" statute—that is, a statute that "sets out one or more elements of the offense in the alternative." Descamps, 133 S.Ct. at 2281, 2284–85. The modified categorical approach permits the court to consult a limited menu of so-called Shepard documents, such as the indictment, the plea agreement, and jury instructions, to "determine which alternative formed the basis of the defendant's prior conviction." Id. at 2281 ; see also id. at 2283–85 (citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). Once the elements of the offense of conviction have been identified, the examination of any Shepard documents ends, and the court proceeds with employing the categorical approach, comparing the elements of the offense of conviction with the elements of the offense identified in the federal statute. Id. at 2281.

In contrast to the categorical and modified categorical approaches, the circumstance-specific approach focuses on the circumstances underlying the defendant's prior conviction, not the offense's elements. Price, 777 F.3d at 705. "In utilizing the circumstance-specific approach, the reviewing court may consider reliable evidence concerning whether the prior offense involved conduct or circumstances that are required by the federal statute." Id.

C.

The Tenth Circuit recently considered which approach best fits the portion of the tier III definition found in Section 16911(4)(A) —the precise question before us here—and held that "Congress intended courts to look to the actual age of the defendant's victim, but to otherwise employ a [categorical] approach." United States v. White, 782 F.3d 1118, 1133, 1135 (10th Cir.2015). We agree.

Like the Tenth Circuit, and as with any statutory interpretation, we begin by analyzing SORNA's text. Generally, when a federal statute refers to a generic offense, the text evidences Congress's intent that the categorical approach be applied. See Nijhawan, 557 U.S. at 34–35, 129 S.Ct. 2294 ; see also Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013). However, when the statute refers to specific conduct or a factual circumstance, its text suggests Congress's intent to allow for the circumstance-specific approach. Nijhawan, 557 U.S. at 34, 37–38, 129 S.Ct. 2294 ; Price, 777 F.3d at 705.

Here, Section 16911(4) defines a "tier III sex offender," in relevant part, as:

[an] offender whose offense

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