United States v. Thayer
| Decision Date | 21 July 2022 |
| Docket Number | 21-2385 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellant, v. THOMAS P. THAYER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Argued March 29, 2022
Appeal from the United States District Court for the Western District of Wisconsin. No. 20-cr-88 - James D. Peterson Chief Judge.
Before FLAUM, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.
Appellant Thomas Thayer pled guilty to fourth-degree criminal sexual conduct under Minnesota law for groping his 14-year-old daughter while she slept. When Thayer later moved to Wisconsin without registering as a sex offender, the government indicted him for failing to comply with the Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20901, et seq., in violation of 18 U.S.C. § 2250(a). The district court dismissed the indictment, finding § 20911(5)(A)(ii), applied through § 20911(7)(I), and § 20911(5)(C) of SORNA were categorically misaligned with Thayer's Minnesota statute of conviction. The government appeals, arguing the district court erred in analyzing these provisions of SORNA under the categorical method. We agree with the government and vacate and remand the judgment of the district court.
Before delving into the factual and procedural background, we review a few relevant legal principles.
SORNA establishes a comprehensive national system of registration for sex offenders, the purpose of which is to "protect the public from sex offenders and offenders against children." Id. § 20901. SORNA defines a "sex offender" as "an individual who was convicted of a sex offense." Id. § 20911(1). "Sex offense" in turn encompasses both "a criminal offense that has an element involving a sexual act or sexual contact with another" and "a criminal offense that is a specified offense against a minor." Id. § 20911(5)(A)(i)-(ii). As relevant to the latter definition of "sex offense," a "specified offense against a minor" includes "an offense against a minor that involves ... [a]ny conduct that by its nature is a sex offense against a minor." 34 U.S.C. § 20911(7)(I). Certain categories of consensual sexual conduct are exempted from the definition of "sex offense," specifically "if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim." Id. § 20911(5)(C). The clause of § 20911(5)(C) relating to consensual sex between minors is colloquially referred to as the "Romeo and Juliet" exception. SORNA obligates sex offenders to register as such in each state in which they reside, work, or are a student. Id. § 20913(a).
Although itself a civil regulatory scheme, noncompliance with SORNA is a crime under 18 U.S.C. § 2250. Criminal liability under § 2250 turns upon whether a prior conviction constitutes a "sex offense" within the meaning of SORNA. Answering this question requires courts to examine the underlying conviction and determine whether it satisfies SORNA's statutory definition. The Supreme Court has identified three analytical frameworks to guide the lower courts, and to limit the universe of materials upon which they may rely, in making this determination.
The first and the second-the formal categorical approach and the modified categorical approach-require courts to ignore the defendant's actual conduct and "look solely to whether the elements of the crime of conviction match the elements of the federal [ ] statute." Gamboa v. Daniels, 26 F.4th 410, 415 (7th Cir. 2022) (internal quotations omitted); see also Shular v. United States, 140 S.Ct. 779, 783 (2020). Only where "the elements of the state law mirror or are narrower than the federal statute can the prior conviction qualify as a predicate .. offense." Gamboa, 26 F.4th at 415 (internal quotations omitted).
By contrast, the third method, the circumstance-specific approach, focuses on the facts-not the elements-of a prior conviction. Courts applying the circumstance-specific approach "look[] to 'the specific way in which an offender committed the crime on a specific occasion' to determine whether the prior conviction qualifies as a predicate offense under the federal statute at issue." United States v. Elder, 900 F.3d 491, 498 (7th Cir. 2018) (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)).
B.
Now to the specifics of this appeal. In a November 2003 criminal complaint, minor J.B. accused her father, appellant Thomas Thayer, of molesting her when she was 14 years old. According to J.B., she and Thayer fell asleep after a Christmas party in 2001. J.B. awoke to find her bra unhooked, her pants and underwear pulled aside, and Thayer touching her vagina. Upon noticing J.B. waking up, Thayer rolled over and went to sleep. During a subsequent law enforcement interview, Thayer admitted he was drunk on the night in question, "[found] himself in a bad position" with his daughter, and must have mistaken J.B. for his wife. Thayer ultimately pled guilty to fourth-degree criminal sexual conduct under Minnesota law. Minn. Stat. § 609.345(1)(b). Thayer was sentenced to 33 months' imprisonment (stayed for 10 years) and 10 years' probation and was required by Minnesota law to register as a sex offender for 10 years. Minn. Stat. §§ 243.166(1)(a)(i)(iii), 243.166(6)(a).
Thayer moved to Wisconsin sometime between August 2017 and February 2020. Thayer did not register as a sex offender in Wisconsin. On July 9, 2020, the government indicted Thayer for failing to register as a sex offender as required by SORNA. Thayer moved to dismiss the indictment, arguing his Minnesota conviction did not qualify as a "sex offense" triggering an obligation to register. Applying a categorical analysis to the definition of "sex offense" under 34 U.S.C. § 20911(5)(A)(i) and to the Romeo and Juliet exception housed in 34 U.S.C. § 20911(5)(C), Thayer identified a mismatch between SORNA and the Minnesota statute underlying his conviction.
In a January 4, 2021 report, the magistrate judge recommended granting Thayer's motion to dismiss the indictment. Apparently looking to § 20911(5)(A)(i), the magistrate judge applied a categorical analysis and determined there was a mismatch between the Minnesota statute and SORNA's definition of "sexual contact." While the magistrate judge also identified an "elemental distinction" between the Minnesota statue and SORNA's Romeo and Juliet exception, he questioned whether that distinction satisfied the realistic probability of application threshold. The government objected to the magistrate judge's recommendation, reiterating its views that (1) the court should look to § 20911(5)(A)(ii) to define sex offense and that (2) § 20911(5)(C) and §§ 20911(5)(A)(ii) and (7)(I) should be analyzed under a circumstance-specific method.
The district court overruled the government's objections and, while it disagreed with the magistrate judge's analysis, accepted the report's ultimate conclusion. The district court held § 20911(5)(A)(ii), operating through § 20911(7)(I), provided the relevant definition of "sex offense" under SORNA-not, as Thayer suggested, § 20911(5)(A)(i). Nonetheless, the district court agreed § 20911(5)(A)(ii), applied through § 20911(7)(I), and the § 20911(5)(C) Romeo and Juliet exception called for a categorical approach and were misaligned with the Minnesota statute of conviction. The district court dismissed the indictment against Thayer on June 29, 2021.
The government raises two narrow issues on appeal. First, the government contends the district court erred in analyzing § 20911(5)(A)(ii), as applied through § 20911(7)(I), under a categorical method. Second, the government claims the district court's application of a categorical approach to the Romeo and Juliet exception in § 20911(5)(C) runs afoul of United States v. Rogers, 804 F.3d 1233 (7th Cir. 2015), which requires a circumstance-specific approach.
Determining whether a federal statute calls for a categorical or circumstance-specific approach is a question of statutory interpretation. United States v. Davis, 139 S.Ct. 2319, 2327 (2019). We review a district court's interpretation of a federal statute de novo. White v. United Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021).
As with any issue of statutory interpretation, we begin with the text, attending also to the structure of the statute as a whole and any relevant legislative history. Nijhawan, 557 U.S. at 36-40; see also Taylor v. United States, 495 U.S. 575, 600-01 (1990). Next, we consider any potential constitutional implications arising from applying a circumstance-specific analysis. Descamps v. United States, 570 U.S. 254, 267 (2013). Finally, we examine the "practical difficulties and potential unfairness" of the circumstance-specific approach. Taylor, 495 U.S. at 601-02.
For the purposes of SORNA, a "sex offender" is "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). "Sex offense" is a defined term meaning:
Id. § 20911(5)(A) (emphasis added). A "specified offense against a minor" is itself defined to mean:
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