United States v. Price

• Decision Date: 03 February 2015
• Docket Number: No. 13–4216.,13–4216.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Antwain Guanterio PRICE, Defendant–Appellant. Bradley Nelson Garcia, Court–Assigned Amicus Counsel.
• Court: U.S. Court of Appeals — Fourth Circuit

777 F.3d 700

UNITED STATES of America, Plaintiff–Appellee,

v.Antwain Guanterio PRICE, Defendant–Appellant.

Bradley Nelson Garcia, Court–Assigned Amicus Counsel.

No. 13–4216.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 9, 2014.

Decided: Feb. 3, 2015.

ARGUED: Kimberly Harvey Albro, Office of the Federal Public Defender, Columbia, South Carolina, for Appellant. Tommie DeWayne Pearson, Office of the United States Attorney, Columbia, South Carolina, for Appellee. Bradley Nelson Garcia, O'Melveny & Myers, LLP, Washington, D.C., as Court–Assigned Amicus Counsel. ON BRIEF:John H. Hare, Assistant Federal Public Defender, Office of the Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee. Gregory F. Jacob, Rakesh Kilaru, O'Melveny & Myers, LLP, Washington, D.C., for Court–Assigned Amicus Counsel.

Before MOTZ and KING, Circuit Judges, and ARENDA L. WRIGHT ALLEN, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge ALLEN joined.

KING, Circuit Judge:

Antwain Guanterio Price was charged in the District of South Carolina in May 2012 with knowingly failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (“SORNA”),in violation of 18 U.S.C. § 2250(a).¹ The single-count indictment alleged that Price was subject to SORNA's registration requirement because of his prior South Carolina conviction for the common law offense of assault and battery of a high and aggravated nature (“ABHAN”). Price sought dismissal on the ground that his ABHAN conviction was not for a “sex offense” under SORNA. By order of August 2, 2012, the district court denied Price's motion, predicating its ruling on the facts underlying the ABHAN conviction. See United States v. Price, No. 0:12–cr–00374, 2012 WL 3144669 (D.S.C. Aug. 2, 2012), ECF No. 55 (the “Denial Order”).² Price thereafter conditionally pleaded guilty to the § 2250(a) offense and was sentenced to two years in prison. The court also imposed a life term of supervised release, based on its determination that the ABHAN conviction was for a “sex offense” under section 5D1.2(b)(2) of the Sentencing Guidelines.

Price filed a timely notice of appeal, and we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. On appeal, he maintains that the district court erred in declining to dismiss the indictment and in calculating his advisory Guidelines range for supervised release. As explained below, we are satisfied that the Denial Order properly applied the “circumstance-specific approach” (sometimes called the “noncategorical approach”) in deciding that Price was subject to SORNA's registration requirement. The court erred, however, in ruling that Price's § 2250(a) conviction was for a sex offense under Guidelines section 5D1.2(b)(2). We therefore affirm in part, vacate in part, and remand for resentencing.³

I.

A.

We first address Price's contention that his indictment should have been dismissed. Before delving into the relevant factual and procedural background, we review certain legal principles that are important to this issue.

1.

SORNA establishes a comprehensive regulatory scheme to track and provide community notification regarding convicted sex offenders. Pursuant thereto, a person convicted of a sex offense must register in each state in which he resides, is employed, or is a student. See42 U.S.C. §§ 16911(1), 16913. If a sex offender changes his residence, employment, or student status, he must update his registration within three business days, so that the sex offender registry remains current. Id. § 16913(c). SORNA also requires each state to maintain its own sex offender registry that conforms to SORNA's requirements. Id. §§ 16911(10)(A), 16912(a).

Although SORNA “is a non-punitive, civil regulatory scheme, both in purpose and effect,” noncompliance with the statute can result in criminal prosecution under 18 U.S.C. § 2250(a). See United States v. Under Seal, 709 F.3d 257, 263 (4th Cir.2013). A prerequisite to SORNA's registration requirement—and to criminal penalties under § 2250(a)—is that the defendant has been convicted of a sex offense. See18 U.S.C. § 2250(a)(1); 42 U.S.C. §§ 16911(1), 16913. Section 16911(5)(A) of Title 42 includes the following definitions of a “sex offense” for purposes of SORNA:

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

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

42 U.S.C. § 16911(5)(A)(i)-(ii).⁴ Subsection (5)(A)(ii)'s reference to a “specified offense against a minor” is further defined in subsection (7) of § 16911, which identifies multiple offenses—such as kidnapping, child pornography, and criminal sexual conduct, see id. § 16911(7)(A)-(H)—and contains a catch-all that encompasses “[a]ny conduct that by its nature is a sex offense against a minor,” id. § 16911(7)(I).

2.

A person who fails to properly register violates 18 U.S.C. § 2250(a) if his prior conviction was for a sex offense within the meaning of SORNA. Therefore, a district court must examine the underlying offense of conviction to determine whether it satisfies the statutory definition. The Supreme Court has developed three analytical frameworks that potentially control the scope of materials that a court may consider in that regard, as well as the focus of the court's inquiry. Those frameworks are the “categorical approach,” the “modified categorical approach,” and, as previously mentioned, the “circumstance-specific approach” (also known as the “noncategorical approach”).

First, the categorical approach focuses solely on the elements of the offense of conviction, comparing those to the commonly understood elements of the generic offense identified in the federal statute. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (requiring court to “look only to the fact of conviction and the statutory definition of the prior offense”). The elements comprising the statute of conviction must be the same as, or narrower than, those of the generic offense in order to find a categorical match. Id. at 599, 110 S.Ct. 2143. If, however, the court finds “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime,” there is no categorical match and the prior conviction cannot be for an offense under the federal statute. See Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Because the categorical approach looks squarely at the elements of the offense of conviction, a reviewing court is precluded from examining the circumstancesunderlying the prior conviction. See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ( “The key ... is elements, not facts.”).

Second, the modified categorical approach is an off-shoot of the traditional categorical approach, and similarly focuses on elements rather than facts. The modified approach comes into play if the defendant was previously convicted under a divisible statute, meaning that the offense contains a set of alternative elements. See Descamps, 133 S.Ct. at 2281. In such circumstances, the reviewing court conducts an analysis identical to the categorical approach, but with a detour. That is, the court is entitled to refer to certain documents from the underlying case to discern which alternative element formed the basis of conviction. See Shepard v. United States, 544 U.S. 13, 19–20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The documents that may be referenced are limited, but include: the indictment or information; the plea agreement or transcript of the plea colloquy; the court's formal legal rulings and factual findings of a bench trial; and jury instructions. See id. at 20, 26, 125 S.Ct. 1254. The focus of the modified categorical approach remains squarely on the elements of the prior conviction, however, and the reviewing court is not entitled to assess whether the defendant's actual conduct matches the federal statute.

Finally, the circumstance-specific approach (or, noncategorical approach) is a different species of analysis altogether. The circumstance-specific approach focuses on the facts—not the elements—relating to the prior conviction. That broader framework applies when the federal statute refers “to the specific way in which an offender committed the crime on a specific occasion,” rather than to the generic crime. Nijhawan v. Holder, 557 U.S. 29, 34, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). 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.⁵

B.

Having identified and discussed the foregoing legal principles, we turn to the specifics of Price's motion to dismiss. The relevant facts are not in dispute.

1.

On May 13, 2010, a grand jury in York County, South Carolina, returned an indictment charging Price with a single count of criminal sexual conduct with a minor. SeeS.C.Code Ann. § 16–3–655. The indictment—which did not refer to an ABHAN offense—alleged that, on or about December 15, 2007, Price committed “criminal sexual conduct with a minor” by “commit[ting] a sexual battery” on a victim who was twelve years old. J.A. 23. Price subsequently entered into plea negotiations with the prosecution.

Pursuant to those negotiations, on July 15, 2010, Price pleaded no contest to an ABHAN offense in the Court of General Sessions of York County. In the plea proceedings, the prosecutor represented that ABHAN was a lesser-included offense of...