United States v. Dwaine Collins , 773 F.3d 25 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAINE ALLEN COLLINS, a/k/a Dwaine Allen Cline,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
Chief District Judge. (6:13-cr-00141-1)
Argued: October 30, 2014 Decided: December 8, 2014
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part; vacated and remanded in part by published
opinion. Judge Floyd wrote the opinion, in which Judge
Wilkinson and Judge Motz joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Jennifer
Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee. ON BRIEF: Brian J. Kornbrath,
Acting Federal Public Defender, Lex A. Coleman, Assistant
Federal Public Defender, Charleston, West Virginia, for
Appellant. R. Booth Goodwin, II, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
FLOYD, Circuit Judge:
Dwaine Allen Collins was convicted of knowingly failing to
register as a sex offender under the Sex Offender Registration
and Notification Act (SORNA). The district court sentenced
Collins to 30 months’ imprisonment and ten years of supervised
release. On this direct appeal, Collins contests his conviction
primarily on the grounds that the government failed to prove an
essential element of a SORNA violation: that he knew he had an
obligation to register.
In support, he points to comments made by a state court
judge in a separate proceeding, which in Collins’s view suggest
that his obligation to register had expired. We agree with the
district court, however, that the state judge appeared to be
giving advice rather than a binding legal opinion. Moreover,
there is substantial evidence in the record to support the
district court’s conclusion that Collins knowingly avoided an
obligation to register as a sex offender. We thus find
Collins’s claim unpersuasive and affirm his conviction.
Collins also appeals his sentence. We find his 30-month
term of imprisonment, which is within the applicable Guidelines
range, to be reasonable and thus affirm the district court’s
sentence in that respect. As to the term of supervised release,
however, the United States Sentencing Commission recently issued
a clarifying amendment stating that a failure to register under
2
SORNA is not a “sex offense” for the purposes of the Guidelines.
Consequently, we vacate the supervised release portion of
Collins’s sentence and remand for further proceedings.
I.
In 1998, Dwaine Allen Collins pleaded guilty to two counts
of taking indecent liberties with a child in North Carolina.
Upon his conviction, both North Carolina and federal law
required him to register as a sex offender.
After his release from prison in 2001, Collins moved to
Ohio, where he registered as a sex offender. As part of the
registration procedures, Collins signed a form, titled
“Explanation of Duties to Register as a Sex Offender,” which
explained that he was required to register annually for ten
years and verify his residence annually. Despite signing this
form, Collins failed to re-register in 2002. Thus a warrant was
issued in Ohio for his arrest. Before he could be apprehended,
he moved to Parkersburg, West Virginia, where he remained until
2011. He did not register his sex offender status in West
Virginia during that time.
In January 2011, Collins was arrested while attempting to
steal a television in Ohio. After being released, he was
detained on the 2002 warrant for failing to update his
registration. While in custody, Collins signed another form,
3
titled “Notice of Registration Duties of Sexually Oriented
Offender or Child-Victim Offender.” J.A. 145. The form listed
Collins’s expected address as Parkersburg, West Virginia, but
did not identify the sheriff’s office where Collins was to
register. The form also stated that: (i) Collins was classified
as a Tier II sex offender, a more serious category than his
original Tier I status; and (ii) he was required to register for
25 years. The 25-year requirement conflicts with his original
10-year requirement. 1
In March 2011, Collins pleaded no contest to the single
count indictment in Ohio state court charging him with failing
to verify his address. In the state court proceeding, the judge
suggested that a recent Ohio Supreme Court case rendered the
increase from a 10-year registration period to a 25-year
registration period “void.” 2 J.A. 78. The judge further
suggested that the original ten-year registration requirement
applied. Id.; see also J.A. 78 (stating that he thought “this
1
The district court later found that the Notice of
Registration form mandating 25 years of registration was
inaccurate.
2
Specifically, the state court judge cited State v. Bodyke,
933 N.E.2d 753 (Ohio 2010). In that case, the Ohio Supreme
Court held the Ohio Attorney General could not change the
classification of sex offenders and therefore severed the
provision giving the Attorney General the power to reclassify
sex offenders from the Ohio sex offender statute.
4
period was a ten year period dating from the time he would have
been released”). Thus the judge sentenced Collins to time
served for the outstanding 2002 warrant. J.A. 79-80.
After being released from custody in Ohio, Collins returned
to West Virginia. He again did not register as a sex offender
with West Virginia authorities, despite signing forms expressly
stating that he was required to do so.
In May 2013, Collins was again charged for failing to
register as a sex offender—this time under federal law (SORNA),
a violation separate from the one underlying the first
indictment in Ohio. In the federal proceeding, the parties
agreed to a bench trial on a single issue: whether Collins had
knowingly failed to register as a sex offender.
Collins agreed to a bench trial. Collins primarily argued
that he had not “knowingly” failed to register as a sex offender
in light of the Ohio state court judge’s comments that his 10
year registration period had expired. The district court
rejected this argument. Notwithstanding any requirement to
register under state law, the district court concluded that
Collins had a separate obligation to register under federal law—
namely SORNA. The district court found that the knowledge
element was satisfied as long as Collins knew he was required to
register “under some scheme”—that is, any state or federal law,
but not necessarily SORNA specifically. J.A. 147. The district
5
court also rejected Collins’s reliance on the Ohio state judge’s
statements, concluding that the judge “did not make a definite
legal ruling during the sentencing hearing as to whether
[Collins] was no longer required to register at all” and that
the judge was merely “stating his opinion.” J.A. 146.
The presentence investigation report (PSR) calculated the
Guideline range for Collins’s conviction as 30-37 months based
on a base offense level of 12 and Category VI criminal history.
The district court granted Collins’s request for a two-level
reduction (to level 10) for acceptance of responsibility, thus
reducing the Guideline range to 24-30 months. Emphasizing
Collins’s long criminal history, the district court imposed a
30-month sentence, finding that a sentence at the upper limit of
the Guidelines was “appropriate to protect the community.” J.A.
180. Although both Collins and the government agreed that a
five-year supervised release period was appropriate, the
district court imposed ten years of supervised release.
II.
A.
We first address Collins’s challenge to his SORNA
conviction. Following a bench trial, this Circuit reviews
findings of fact for clear error and findings of law de novo.
United States v. Leftenant, 341 F.3d 338, 342-43 (4th Cir.
6
2003). 3 A guilty verdict must be affirmed if “any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Poole, 640 F.3d
114, 121 (4th Cir. 2011) (quoting United States v. Madrigal–
Valadez, 561 F.3d 370, 374 (4th Cir. 2009)). “This standard is
met when there is substantial evidence in the record, viewed in
the light most favorable to the government, to support the
district court’s judgment.” Id. (internal quotation marks
omitted).
B.
Under SORNA, a “sex offender shall register, and keep the
registration current, 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). Failure to
register triggers an array of potential penalties, but only if
the offender has knowledge of the registration requirement. 18
U.S.C. § 2250(a)(3) (“Whoever . . . knowingly fails to register
or update a registration as required by [SORNA] . . . shall be
fined under this title or imprisoned not more than 10 years, or
both.”).
3
Collins’s appeal of his conviction pertains only to the
sufficiency of the prosecution’s evidence. There is no issue of
law in this case for knowingly failing to register under SORNA.
7
The parties do not dispute that Collins was a sex offender
under federal law, that he was required to register under SORNA,
and that he failed to do so. Appellee Br. at 12; Appellant Br.
at 13. The only issue regarding his conviction is whether
Collins knowingly failed to register, as required under 18
U.S.C. § 2250(a)(3).
In criminal trials, the government can “establish a
defendant’s guilty knowledge by either of two different means.”
Poole, 640 F.3d at 121. “The government may show that a
defendant actually was aware of a particular fact or
circumstance, or that the defendant knew of a high probability
that a fact or circumstance existed and deliberately sought to
avoid confirming that suspicion.” Id.
Here, the government relies on the latter means, arguing
that Collins’s previous failure to register in Ohio and West
Virginia showed, as the district court found, “his state of mind
and intention to avoid registration requirements.” J.A. 144.
In further support of its argument that Collins knew he had a
duty to register, the government also cites: (i) the fact that
Collins registered as a sex offender several times in North
Carolina and Ohio between 2002 and 2011; (ii) Collins’s signed
notification forms reminding him of his registration
obligations; (iii) his statements to the police that he disliked
registering as a sex offender because he had previously been
8
assaulted after doing so; and (iv) his use of an alias, which
the government contends he used to avoid being identified as a
sex offender.
Although Collins disputes much of this evidence, he
primarily seeks reversal based on the Ohio state judge’s
statement that he had no further registration requirements. In
Collins’s view, the state judge assured him that his obligations
to register as a sex offender had lapsed and therefore he could
not have knowingly failed to register. Collins believes the
state judge’s statements override much of the government’s other
evidence, including his signed registration forms, because
Collins cannot read or write and needs others’ help to
understand documents. In contrast, the government argues, and
the district court found, that the Ohio state judge “was merely
stating his opinion that the Ohio registration period may have
lapsed.” J.A. 146. We find no reason to part from the district
court’s interpretation of the state judge’s comments. The state
judge appeared to be couching his comments as advice to Collins
rather than as a binding legal ruling. Pursuant to the
deferential standard of review for convictions in this Circuit,
the district court’s interpretation of the state judge’s
comments was not clear error.
Even if we accepted Collins’s assertion that the state
judge issued a substantive legal ruling as to his registration
9
requirements, we would still affirm. Collins argues that the
state judge’s comments show a form of entrapment by estoppel,
which stands for the proposition that the state’s prosecution of
“someone for innocently acting upon . . . mistaken advice is
akin to throwing water on a man and arresting him because he’s
wet.” People v. Studifin, 504 N.Y.S.2d 608, 610 (N.Y. Sup. Ct.
1986). The Supreme Court narrowly defined entrapment by
estoppel in Cox v. Louisiana, 379 U.S. 559 (1965), and Raley v.
Ohio, 360 U.S. 423 (1959). Unlike here, the defendants in both
of those cases relied upon state officials’ prior interpretation
of state law and then were charged with a violation of state
law. In contrast, here Collins relied on a state official’s
interpretation of state law, but was later charged with a
violation of federal law. In other words, Collins effectively
asks us to extend the reach of entrapment by estoppel to cases
with two different sovereigns. 4
We have previously held that entrapment by estoppel occurs
only when the same sovereign advises that certain conduct is
permissible, but later initiates a prosecution based on that
conduct. In United States v. Etheridge, 932 F.2d 318, 320-21
4
Collins concedes that entrapment by estoppel does not
formally apply but urges that then “animating principle behind
it . . . still applies” here. Appellant’s Br. at 19. Even if
that were true, his argument is foreclosed by our prior
precedent, including Etheridge.
10
(4th Cir. 1991), we held that a convicted felon violated federal
law by possessing two shotguns used for hunting, even though a
state judge had advised him that he was permitted to possess the
shotguns for that purpose. The Etheridge court quoted at length
from an Eleventh Circuit case, United States v. Bruscantini, 761
F.2d 640, 642 (11th Cir. 1985), which distinguished Cox and
Raley by finding that when “the government that advises and the
government that prosecutes are not the same, the entrapment
problem is different.”
Etheridge controls the outcome in this case: here, as
there, the defendant was convicted for violating federal law
despite receiving conflicting advice from a state official about
similar state law. We of course are not free to disregard
binding precedent. And even if we were, we would reach the same
result. Entrapment by estoppel is a narrow exception to the
general principle that ignorance of the law is no excuse, and it
would be unwise to extend its application here.
Having disposed of Collins’s reliance on the Ohio state
judge’s comments, it is readily apparent that his conviction
should be affirmed. Over the years, Collins signed several
forms acknowledging his obligations to register. J.A. 143, 145.
Upon his arrest, he also made comments to federal marshals about
his reluctance to register due to the threats and assault he
received upon registering. J.A. 101-102. Taken together, these
11
facts constitute “substantial evidence in the record . . . to
support the district court’s judgment,” Poole, 640 F.3d at 121
(internal quotation marks omitted), that Collins knew he was
required to register as a sex offender. Consequently, we
affirm Collins’s conviction.
III.
Collins also argues that his 30-month sentence is excessive
and should be reduced. When using the Sentencing Guidelines,
“[t]he courts of appeals review sentencing decisions for
unreasonableness.” United States v. Booker, 543 U.S. 220, 264
(2005). The reasonableness of a sentence “is not measured
simply by whether the sentence falls within the statutory range,
but by whether the sentence was guided by the Sentencing
Guidelines and by the provisions of [18 U.S.C.] § 3553(a).”
United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). In
this Circuit, the reasonableness inquiry “focuses on whether the
sentencing court abused its discretion in imposing the chosen
sentence.” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007).
After applying a two-level reduction in light of Collins’s
accepting responsibility for his crime, the district court found
that Collins’s base offense level was 10. After the reduction,
Collins’s criminal history was determined to be in Category VI,
12
leading to an advisory guidelines range of 24-30 months. In
ultimately ordering a 30-month sentence, the district court
found that Collins’s criminal history included “extremely
serious crimes . . . [that] reflect the type of conduct that
would make one fear that this defendant is some type of a
predator.” J.A. 179. The district court went on to conclude
“that the defendant pretty much stays in trouble, irrespective
of his illiteracy, other problems.” J.A. 180; see also id.
(noting that Collins was “very prone to breaking the law” and
that he will “probably commit other offenses after he serves his
prison term here”). Because the 30-month sentence is within the
Guidelines range, we find it is entitled to a presumption of
reasonableness. Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Wright, 594 F.3d 259, 268 (4th Cir.
2010).
That is especially true because Collins actually requested
a sentence between 24-30 months in his presentencing memorandum,
thus clearly signaling that he believed such a sentence was
reasonable. In light of this request, his argument on appeal
that a 30-month term of imprisonment is excessive rings hollow.
Simply put, the district court’s decision was within the
applicable Guidelines range, was heavily influenced by the
§ 3553(a) factors, and was thorough. Accordingly, the sentence
is affirmed.
13
IV.
A.
Collins also contests the district court’s imposition of a
ten-year supervised release period. Specifically, he argues
that the district court used an incorrect Guidelines calculation
when making that determination. In support, he cites United
States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013), which held
the correct Guidelines calculation for a SORNA violation was a
single “point” of five years, rather than five years to life (as
stated in the PSR here). At oral argument, the government
agreed with Collins’s position. More importantly, in May 2014,
the Sentencing Commission published proposed amendments to the
Sentencing Guidelines that affects Collins’s case. Sentencing
Guidelines for United States Courts, 79 Fed. Reg. 25,996
(proposed May 6, 2014). Due to a lack of congressional action,
those amendments became effective on November 1, 2014. U.S.S.G.
§ 5D1.2 cmt. nn.1 & 6 (text of amendments). 5
In Goodwin, the Court considered whether failure to
register was a “sex offense” for the purposes of the Guidelines,
concluding that it was not because it was not “perpetrated
against a minor” as required by the Guidelines. Goodwin, 717
5
The amendments became effective after briefing and oral
argument in this case.
14
F.3d at 520. Congress enacted SORNA to protect the population
at large rather than the victim of the underlying crime. See
United States v. W.B.H., 664 F.3d 848, 854 (11th Cir. 2011)
(“SORNA plainly states that its purpose is to protect society
. . . from sexual offenders, 42 U.S.C. § 16901 . . . .”). Other
circuits have adopted the reasoning in Goodwin. United States
v. Segura, 747 F.3d 323, 329-30 (5th Cir. 2014); United States
v. Herbert, 428 Fed. App’x 37 (2d Cir. 2011).
The Sentencing Commission amended the Guidelines to
implement Goodwin’s holding. The Commission may generally enact
two types of amendments: clarifying and substantive. See
generally United States v. Butner, 277 F.3d 481, 489 (4th Cir.
2002) (explaining how to distinguish clarifying amendments from
substantive amendments). Clarifying amendments “change[]
nothing concerning the legal effect of the guidelines, but
merely clarif[y] what the Commission deems the guidelines to
have already meant.” United States v. Capers, 61 F.3d 1100,
1109 (4th Cir. 1995). A substantive amendment, by contrast,
“has the effect of changing the law in this circuit.” Id. at
1110.
The amendment does not change the law of this Circuit
because we do not have a published opinion addressing whether
the failure to register is itself a sex offense. Previous
unpublished opinions are contradictory. Compare United States
15
v. Nelson, 400 F. App’x 781, 782 (4th Cir. 2010) (per curiam)
(Guidelines range is five years to life) with United States v.
Acklin, 557 F. App’x 237, 240 (4th Cir. 2014) (per curiam)
(remanding for reconsideration in light of DOJ memo endorsing a
“single point” of five years). We find that this amendment to
the Guidelines is a clarifying amendment rather than a
substantive amendment. The amendment resolves an uncertainty
created by contradictory language in the Guidelines and § 2250
rather than revising a preexisting rule.
This Circuit has previously held that “a clarifying
amendment must be given effect at sentencing and on appeal, even
when the sentencing court uses an edition of the guidelines
manual that predated adoption of the amendment.” United States
v. Goines, 357 F.3d 469, 474 (4th Cir. 2004) (citations
omitted); U.S.S.G. § 1B1.11(b)(2) (“[I]f a court applies an
earlier edition of the Guidelines Manual, the court shall
consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes.”).
Accordingly, we must give effect to the amendment here. We
find that failing to register as a sex offender under SORNA is
not a “sex offense” for the purposes of the Guidelines.
16
B.
Because the maximum term of imprisonment for failing to
register under SORNA is ten years under § 2250(a), such a
failure constitutes a Class C felony. 18 U.S.C. § 3559(a)(3)
(defining a Class C felony as an offense with a maximum term of
imprisonment of “less than twenty-five years but ten or more
years”). The Guidelines recommend a term of supervised release
between one and three years for Class C felonies. U.S.S.G.
§ 5D1.2(a)(2). Thus, this entire Guidelines range is below the
statutory minimum of five years of supervised release. 18
U.S.C. § 2250(a).
Our sister circuits disagree as to how to resolve the
situation when a Guidelines range for supervised release is
below the statutory minimum. In Goodwin, the Seventh Circuit
relied on a rule developed in another case, Gibbs, to construe
the Guidelines to recommend a single “point” at the statutory
minimum: five years. 717 F.3d at 520 (citing United States v.
Gibbs, 578 F.3d 694, 695 (7th Cir. 2009)). The Gibbs rule holds
that when the Guidelines range is below the statutory minimum,
the Guidelines should be read to recommend a ‘single point’ at
the statutory minimum, rather than a range. Gibbs, 578 F.3d at
695. The Eighth Circuit in Deans took a different approach in
which the statutory requirement entirely supplants the
Guidelines range. United States v. Deans, 590 F.3d 907, 911 (8th
17
Cir. 2010). Under the Deans rule, the Guidelines are construed
to recommend the full statutory range irrespective of the lower
Guidelines range. Id.
The Sentencing Commission adopted the Gibbs rule as part of
its amendment on sex offenders. Cf. U.S.S.G. § 5D1.2 cmt. n.6.
As noted above, this Circuit has not ruled definitively on this
issue and has not adopted either the Gibbs rule or the Deans
rule. Consequently, this change is also a clarifying amendment
because it does not change our substantive law. Butner, 277 F.3d
at 489; Capers, 61 F.3d at 1109. We must give effect in this
direct appeal to the clarifying amendment adopting the Gibbs
rule on appeal. Goines, 357 F.3d at 474; U.S.S.G.
§ 1B1.11(b)(2).
C.
This Circuit’s practice is to vacate and remand for
resentencing when the Sentencing Commission enacts a clarifying
amendment. See, e.g., Goines, 357 F.3d at 480-81; United States
v. Ross, 352 F. App’x 771, 773 (4th Cir. 2009) (per curiam).
Because clarifying amendments simply elucidate existing law
rather than create new law or modify existing Circuit precedent,
Collins should benefit from reconsideration of his term of
supervised release in light of the Sentencing Commission’s
recent amendment. Although it is possible that the district
18
court will re-impose ten years of supervised release, this time
as an upward variance, the importance of the Guidelines’
recommended range to sentencing merits vacatur and remand. See
United States v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008)
(“Practically speaking, applicable Sentencing Guidelines provide
a starting point or ‘anchor’ for judges and are likely to
influence the sentences judges impose.”).
V.
For the reasons provided above, we affirm Collins’s
conviction and his term of imprisonment, and remand for further
proceedings consistent with this opinion as to his term of
supervised release.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
19