Tuesday, May 19, 2015

Tenth Circuit uses categorical approach (for the most part) to determine SORNA Tier classification

Last month, the Tenth Circuit decided United States v. White, No. 14-7031 (April 6, 2015), reversing Mr. White’s sentence and lifetime term of offender registration and holding that he was improperly classified as a tier III sex offender under SORNA. The court held that Mr. White's sentence was procedurally unreasonable because he should have been classified as a tier I sex offender under 42 U.S.C. § 16911 (which results in a lower base offense level under U.S.S.G. § 2A3.5). Deciding a matter of first impression for the circuit, the court held that a categorical approach should be used to determine the tier classification for those offenders required to register under SORNA (except when looking to the victim's age). (Editor’s note: the author of this post was the counsel of record for Mr. White, and Mr. White has consented to this blog post.)

In doing so, the court reversed Mr. White’s sentence, which was determined using the base offense level of 16 based on a tier III SORNA classification. The court also explained that Mr. White’s term of offender registration would be affected by its ruling, making his new registration term 15 years (for tier I status) instead of life (for tier III status).

The court explained SORNA’s tier classification as follows:

Under SORNA, a defendant’s tier classification is determined by comparing the defendant’s prior sex offense to statutory criteria. For example, if Mr. White’s prior offense “is comparable to or more severe than [the federal crime of]. . . (i) aggravated sexual abuse or sexual abuse . . . ; or (ii) abusive sexual contact . . . against a minor who has not attained the age of 13 years,” he was appropriately classified as a tier III sex offender. 42 U.S.C. § 16911(4)(A). But if he does not qualify as a tier III sex offender, he will be classified as a tier II sex offender if, as relevant here, his underlying offense is “comparable to or more severe than [the federal crime of] . . . (iv) abusive sexual contact,” irrespective of the victim’s age. Id. at § 16911(3)(A)(iv). And a sex offender who qualifies as neither a tier III nor a tier II sex offender is a tier I sex offender. Id. at § 16911(4)(C).

The court explained that there are two options for determining a defendant’s tier classification under this process: the court could use a categorical approach, looking only at the elements of the prior offense and comparing it to the listed tier II or tier III offenses; or the court could use a circumstance-specific approach, looking to the defendant’s specific conduct.

The Tenth Circuit ultimately held that the categorical approach, for the most part, was what Congress intended:
In light of the text of the statute, its legislative history, and these practical and equitable concerns, we conclude Congress intended courts to apply a categorical approach to sex offender tier classifications designated by reference to a specific federal criminal statute, but to employ a circumstance-specific comparison for the limited purpose of determining the victim’s age.

In reviewing Mr. White’s tier classification, the Tenth Circuit used a modified categorical approach because the statute for Mr. White’s prior sex offense was a divisible statute (to determine the exact subsection of the state statute for which Mr. White was convicted). In holding that Mr. White should have been sentenced as a tier I offender, the court explained that Mr. White’s prior conviction for indecent liberties with a child, under North Carolina law, was not comparable to the federal offenses designated by SORNA as tier II or tier III offenses (looking only at the elements of the prior offense). The court explained that the North Carolina statute for which Mr. White was convicted did not require physical contact with the victim. And the tier II and tier III offenses listed in 42 U.S.C. § 16911 all require physical contact with the victim. So Mr. White's prior conviction was not comparable to the tier II or tier III offenses, and he gets resentenced and his offender registration term reduced to that of a tier I offender. 
--Carl Folsom

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