United States v. Richard Walker ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3529
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RICHARD WALKER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17‐cr‐184 — Pamela Pepper, Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED JULY 23, 2019
____________________
Before RIPPLE, ROVNER, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Richard Walker was convicted for
failing to register as a sex offender between 2016 and 2017, as
required by the Sex Offender Registration and Notification
Act. He argues that his conviction must be vacated because he
did not have to register at that time. We agree. Because his
obligation to register—triggered by a 1998 Colorado convic‐
tion—expired after fifteen years, we reverse the district court
and vacate Walker’s conviction and sentence.
2 No. 18‐3529
I.
In 1997, Richard Walker sexually assaulted his four‐ and
six‐year‐old nephews. In 1998, he pleaded guilty to violating
a Colorado law that prohibits sexual contact with a child un‐
der fifteen by anyone who is a least four years older than the
child. COLO. REV. STAT. § 18‐3‐405(1). Walker was sentenced
to four years’ probation, but probation was later revoked, and
he served a term in prison. After his release, Walker had to
register as a sex offender under the Sex Offender Registration
and Notification Act (SORNA). SORNA imposes a three‐tier
progressive registration scheme that tracks the severity of the
original offense. Tier I offenders must register for 15 years,
Tier II offenders for 25 years, and Tier III offenders for life. See
34 U.S.C. § 20915(a).
In 2017, Walker was indicted for failing to register as a sex
offender from June 2016 to July 2017. See 18 U.S.C. § 2250(a).
To prove “failure to register,” the government must, among
other things, prove that the defendant was in fact required to
register. Id. § 2250(a)(1). Walker moved to dismiss the indict‐
ment, arguing that his 1998 conviction was only a Tier I of‐
fense, which would mean that his obligation to register as a
sex offender ended 15 years after his conviction and sentence.
Because he had no obligation to register between June 2016
and July 2017, he contended, he could not be convicted for
failing to do so.
The district court disagreed. It determined that Walker
was at least a Tier II offender and denied his motion to dis‐
miss. Walker later entered a conditional guilty plea, preserv‐
ing his right to appeal the district court’s decision about
whether the law required him to register as a sex offender.
No. 18‐3529 3
At sentencing, the district court had to determine more
precisely whether Walker was a Tier II or Tier III offender in
order to calculate his guidelines range. The relevant differ‐
ence between Tiers II and III for purposes of the district
court’s analysis is the age of the victim: if the defendant’s vic‐
tim was under 13, then he is a Tier III offender; if the victim
was a minor age 13 or older, then he is a Tier II offender. See
34 U.S.C. § 20911(4)(A)(ii) & (3)(A). Though Walker’s convic‐
tion under the Colorado statute communicated only that his
victim was under 15, the district court looked past the convic‐
tion to find that his victims were actually ages four and six.
The court thus held that Walker was a Tier III offender and
sentenced him to a below‐guidelines 26‐month term of im‐
prisonment.
Walker appeals, arguing that his conviction must be va‐
cated because he is a Tier I offender and was therefore not re‐
quired to register during the relevant time.
II.
Walker’s conviction and sentence both turn on his tier
classification. If he is a Tier I offender, we must reverse the
denial of his motion to dismiss and vacate his conviction. If
he is a Tier II offender, his conviction stands, but he must be
resentenced. If he is a Tier III offender, his conviction and sen‐
tence must be affirmed.
A.
As relevant here, a person is a Tier II sex offender if his
offense of conviction is “comparable to or more severe than …
abusive sexual contact (as described in section 2244 of title
18)” and is “committed against a minor.” 34 U.S.C.
§ 20911(3)(A)(iv). A person is a Tier III offender if he commits
4 No. 18‐3529
the same kind of offense “against a minor who has not at‐
tained the age of 13 years.” Id. § 20911(4)(A)(ii).1 And if a sex
offender does not satisfy the requirements of Tier II or Tier III,
then he is a Tier I offender. Id. § 20911(2).
Determining Walker’s proper tier classification thus re‐
quires us to compare his 1998 Colorado conviction with
SORNA’s tier definitions. Because SORNA instructs us to
compare Walker’s offense to the “offenses” described in cor‐
responding sections of the Federal Criminal Code (18 U.S.C.
§ 2244 and offenses listed therein), we employ the “categori‐
cal approach.” See United States v. Taylor, 644 F.3d 573, 576 (7th
Cir. 2011); see also Nijhawan v. Holder, 557 US. 29, 36–37 (2009)
(explaining that reference “to an ‘offense described in’ a par‐
ticular section of the Federal Criminal Code” indicates a ge‐
neric offense that calls for a categorical analysis); United States
v. White, 782 F.3d 1118, 1132–33 (10th Cir. 2015). Under the
categorical approach, the actual facts underlying the defend‐
ant’s conviction don’t matter. Instead, the court compares the
elements of the predicate offense—i.e., the facts necessary for
conviction—to the elements of the relevant federal offense. If
the elements of the predicate offense are the same (or nar‐
rower) than the federal offense, there is a categorical match.
See Descamps v. United States, 570 U.S. 254, 260–61 (2013). But
if the elements of the state conviction sweep more broadly
such that there is a “realistic probability … that the State
would apply its statute to conduct that falls outside” the def‐
inition of the federal crime, then the prior offense is not a
1 There are other ways to qualify as a Tier II or III offender, but none
is relevant here. See 34 U.S.C. § 20911(3) & (4).
No. 18‐3529 5
categorical match. Gonzales v. Duenas‐Alvarez, 549 U.S. 183,
193 (2007).2
SORNA, however, adds a wrinkle to the analysis. For a sex
offender to qualify for Tier II or III, SORNA also requires that
his victim have certain characteristics distinct from the ele‐
ments of the referenced federal offenses—namely, that the
victim be under a specified age. The two circuits to have di‐
rectly considered the implications of SORNA’s age require‐
ments agree that the text compels a circumstance‐specific
analysis of the victim’s age on top of the otherwise categorical
comparison between the state and federal offenses. See United
States v. Berry, 814 F.3d 192, 196–98 (4th Cir. 2016) (applying
“the categorical approach to the generic crimes listed in
SORNA’s tier III definition” but reading SORNA’s reference
to a victim “who has not attained the age of 13” to be “an
2 Other courts that have applied SORNA’s tier provisions seem to read
“whose offense … is comparable to or more severe than” one of the listed
federal “offenses,” see 34 U.S.C. § 20911(3)(A) & (4)(A), as collectively trig‐
gering a categorical approach identical to that employed under other stat‐
utes, see, e.g., United States v. Cammorto, 859 F.3d 311, 314 (4th Cir. 2017);
United States v. Young, 872 F.3d 742, 745–47 (5th Cir. 2017); White, 782 F.3d
at 1137. As we note above, our caselaw suggests that SORNA triggers at
least that much. It is possible, though, that the phrases “comparable to”
and “more severe than” trigger independent categorical commands such
that the predicate offense must be either comparable to or more severe than
the federal offense. On this reading, the latter phrase might encompass
predicate offenses that prohibit conduct that is not covered by, but is cat‐
egorically more severe than, that prohibited by the baseline federal of‐
fenses. For example, that phrase might encompass a predicate offense
whose elements reach victims younger than those included in the federal
offense because molesting a younger child is an even more severe offense
than molesting an older one. The government does not raise this possibil‐
ity, however, so we do not address it here.
6 No. 18‐3529
instruction to courts to consider the specific circumstance of a
victim’s age”); White, 782 F.3d at 1135 (“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 com‐
parison for the limited purpose of determining the victim’s
age.”).
We join the Fourth and Tenth Circuits in concluding that
SORNA’s text compels a hybrid approach. In so doing, we fol‐
low the Supreme Court’s analysis in Nijhawan v. Holder. See
557 U.S. at 37–38 (acknowledging that a single provision
might call for a hybrid approach—part categorical and part
circumstance‐specific—when comparing the defendant’s of‐
fense of conviction). In Nijhawan, the Supreme Court empha‐
sized that the “aggravated felony” provision of the Immigra‐
tion and Nationality Act “contains some language that refers
to generic crimes and some language that almost certainly re‐
fers to the specific circumstances in which a crime was com‐
mitted.” Id. at 38. Sometimes that dual language appears in a
single provision. The Court identified subparagraph (P) of the
aggravated felony statute as one such example. Id. at 37–38.
That provision refers to “an offense” that amounts to “forg‐
ing … passport[s]” but adds an exception to that qualifying
crime for offenses committed under particular circumstances.
Id. (alterations in original). The Court explained that while the
forging‐passports language “may well refer to a generic
crime … the exception cannot possibly refer to a generic
crime … because there is no such generic crime.” Id. at 37. If
no criminal statute contains both the offense and the excep‐
tion outlined in subparagraph (P), then it would be impossi‐
ble for a defendant’s conviction to qualify as a predicate un‐
der that provision, and the provision would be void of any
No. 18‐3529 7
meaningful application. Id. Thus, the Court concluded that
“the exception must refer to the particular circumstances in
which an offender committed the crime on a particular occa‐
sion.” Id. at 38; see also id. (explaining that, in the same way,
subparagraph (K)(ii) would be severely diluted without a hy‐
brid analysis). Similar considerations dictate a hybrid ap‐
proach in this case.
A person is a Tier II offender only if his prior offense
matches “abusive sexual contact (as described in section 2244
of title 18)” and was “committed against a minor.” 34 U.S.C.
§ 20911(3)(A). And he is a Tier III offender only if his prior
offense matches one of the same federal offenses and was com‐
mitted “against a minor who has not attained the age of 13
years.” Id. § 20911(4)(A). While the references to 18 U.S.C.
§ 2244 trigger a categorical approach, we must also give
meaning to the age‐qualifiers that appear in both Tier II and
Tier III. Only two of the five offenses cross‐referenced in
§ 2244 even refer to age, and none of them have SORNA’s spe‐
cific age requirements as elements. Cf. Nijhawan, 557 U.S. at 38
(when the statute’s added textual condition appears in only
one of three cross‐referenced criminal statutes, reading the
condition as part of the generic crime would render the other
two cross references “pointless”). Under Nijhawan, the age re‐
quirements are best and most naturally read to refer to the
“particular circumstances in which an offender committed
the crime on a particular occasion.” Id. Because SORNA’s tier
provisions highlight victim age as an additional circum‐
stance‐specific consideration—apart from the categorical
analysis comparing the defendant’s offense to the federal of‐
fenses listed in § 2244—we must treat it like one.
8 No. 18‐3529
The government argues that a circumstance‐specific in‐
quiry into victim age resolves this case because knowing the
actual ages of Walker’s victims (four and six) not only satisfies
SORNA’s Tier III victim‐age requirement, but also places his
offense within the scope of “abusive sexual contact (as de‐
scribed in section 2244 of title 18).” See 34 U.S.C.
§ 20911(4)(A)(ii); see also 18 U.S.C. § 2244(a)(5) (sexual contact
with a person who has not attained the age of 12 years consti‐
tutes abusive sexual contact). In other words, the government
wants to double dip: it asks us to apply SORNA’s age require‐
ment as both an independent addition to the categorical anal‐
ysis and an exception within the categorical analysis, thereby
collapsing the two‐part inquiry outlined above.
That approach is inconsistent with both the text of
SORNA—which, as we have already said, calls for a categor‐
ical approach—and the Supreme Court’s precedent on con‐
ducting a categorical analysis. The Court has made clear that
in a categorical analysis, there are no exceptions to the ele‐
mental comparison. See Mathis v. United States, 136 S. Ct. 2243,
2257 (2016) (“For more than 25 years, we have repeatedly
made clear that application of the [categorical approach] in‐
volves, and involves only, comparing elements.”). While it
may “seem counterintuitive,” id. at 2251, it isn’t enough to
know that Walker’s victims were four and six—nor is it
enough to know that he satisfies the “against a minor who has
not attained the age of 13” requirement of Tier III. We must
first consider whether his Colorado conviction is a categorical
match to “abusive sexual contact (as described in section 2244
of title 18).” 34 U.S.C. § 20911(3)(A)(iv) & (4)(A)(ii). If it is, we
then consider the age of the victim to complete the tier‐classi‐
fication determination.
No. 18‐3529 9
This kind of distinction, derived from the text and struc‐
ture of the statute, is familiar to our SORNA jurisprudence.
See United States v. Rogers, 804 F.3d 1233, 1234 (7th Cir. 2015)
(“We conclude that the threshold definition of ‘sex offense’
found in § 16911(5)(A)(i) requires a categorical approach—an
inquiry limited to the elements of the offense—but the excep‐
tion in subsection (5)(C) calls for an examination of the spe‐
cific facts of the offense conduct.”). We follow the same ap‐
proach in analyzing Walker’s case.
B.
We start with a categorical comparison of Walker’s Colo‐
rado conviction to the generic federal crime of abusive sexual
contact as defined by § 2244.
To sustain a conviction under the Colorado statute, a jury
must find (or, as here, a guilty plea must admit) that the de‐
fendant “knowingly subject[ed]” a child who was “less than
fifteen years of age” to “any sexual contact” and that the de‐
fendant was “at least four years older than the victim.” COLO.
REV. STAT. § 18‐3‐405(1). For its part, § 2244 defines abusive
sexual contact as “knowingly engag[ing] in or caus[ing] sex‐
ual contact with or by another person, if doing so would vio‐
late” any one of five cross‐referenced offenses “had the sexual
contact been a sexual act.” See 18 U.S.C. § 2244(a). As relevant
here, those cross‐referenced offenses prohibit knowingly en‐
gaging in a sexual act with another person if that person: is
“incapable of appraising the nature of the conduct,”
§ 2242(2)(A); “has attained the age of 12 years but has not at‐
tained the age of 16 years” and “is at least four years younger
than the person so engaging,” § 2243(a); or “has not attained
the age of 12 years,” § 2241(c). See id. § 2244(a)(2), (3), & (5).
10 No. 18‐3529
Because the cross‐referenced offenses (as modified by
§ 2244) and the Colorado statute both contain the element of
knowing sexual contact with another, the only question is
whether the Colorado statute’s requirements that the victim
be under 15 and at least four years younger than the defend‐
ant categorically match the remaining element(s) in any of the
federal offenses.
The district court determined that the Colorado statute is
a categorical match for § 2242(2)(A) (victim incapable of ap‐
praising the nature of sexual conduct). In reaching that con‐
clusion it explained that the federal statute “appears to be
very broad,” encompassing adult victims with cognitive dis‐
abilities, those incapacitated by drugs or alcohol, and seniors
with cognitive impairment. The court reasoned that young
children are incapable of understanding the nature of sexual
conduct. So, it continued, “if one assumes that children under
the age of fifteen are ‘incapable of appraising the nature’ of
sexual contact/assault, then § 2242(2)(A) appears to be much
broader, and to encompass far more behavior, than the Colo‐
rado statute,” making it a categorical match.
We disagree. Certainly, many children, and indisputably
all children under a certain age, are incapable of appraising
the nature of sexual conduct. But the assumption that children
under the age of 15 are categorically incapable of understand‐
ing sexual conduct goes too far. At the very least, it is safe to
say that many 14‐year‐olds understand the nature of sexual
conduct. That means that the Colorado statute criminalizes
conduct not covered by § 2242(2)(A)—i.e., the state statute
“sweeps more broadly” than the federal statute—and there is
no categorical match. See Descamps, 570 U.S. at 261.
No. 18‐3529 11
So that leaves either § 2243(a) (victim at least 12 but under
16, and four years younger than the defendant) or § 2241(c)
(victim under 12). Neither is a categorical match for the Colo‐
rado statute at issue here. Though narrower in some respects,
the Colorado statute sweeps more broadly than § 2243(a) be‐
cause it covers sexual contact against some victims under 12,
and § 2243(a) does not. Likewise, the Colorado statute is
broader than § 2241(c) to the extent that it covers some victims
between the ages of 12 and 15, and § 2241(c) does not. In short,
a conviction under the Colorado statute doesn’t necessarily
satisfy the elements of either federal offense and so fails the
categorical analysis.
Because Walker’s Colorado conviction is not a categorical
match with “abusive sexual contact (as described in section
2244 of title 18),” he does not qualify for Tier II or Tier III sta‐
tus regardless of the actual ages of his victims. Walker is thus
a Tier I offender. See 34 U.S.C. § 20911(2).
***
As a Tier I offender, Walker was not required to register
during the relevant period. We therefore REVERSE the dis‐
trict court’s decision denying Walker’s motion to dismiss, and
we VACATE Walker’s conviction and sentence.