United States v. Antwain Price , 777 F.3d 700 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4216
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTWAIN GUANTERIO PRICE,
Defendant – Appellant.
---------------------------
BRADLEY NELSON GARCIA,
Court-Assigned Amicus Counsel.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:12-cr-00374-JFA-1)
Argued: December 9, 2014 Decided: February 3, 2015
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.
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.
2
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 (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
1
SORNA is primarily codified at 42 U.S.C. §§ 16901-16962,
and a failure to register pursuant to its provisions violates 18
U.S.C. § 2250(a). As relevant here, § 2250(a) provides criminal
penalties for any person who “is required to register under
[SORNA],” “travels in . . . interstate commerce,” and “knowingly
fails to register or update a registration as required by
[SORNA].” 18 U.S.C. § 2250(a)(1), (2)(B), (3).
2
The Denial Order is found at J.A. 78-82. (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)
3
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
3
We ordered the parties to submit supplemental briefing in
this appeal to address recent authorities that might be
applicable, including Descamps v. United States, 133 S. Ct. 2276
(2013), and United States v. Hemingway, 734 F.3d 323 (4th Cir.
2013). Because the government initially asserted that a
different approach applied to an analysis of Price’s dismissal
issue, we appointed amicus counsel (the “Amicus”) to argue the
position of the district court — namely, that the circumstance-
specific approach was the correct analytical vehicle. The
government thereafter submitted a letter under Federal Rule of
Appellate Procedure 28(j), altering its position and agreeing
with the Amicus that the circumstance-specific approach is
correct. The Amicus has ably discharged his duties, and we
commend his efforts.
4
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. See 42 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
5
been convicted of a sex offense. See 18 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
4
SORNA also defines a “sex offense” to include certain
specified federal and military offenses. See 42 U.S.C.
§ 16911(5)(A)(iii)-(iv). Additionally, an attempt or conspiracy
to commit one of the enumerated sex offenses constitutes a sex
offense. Id. § 16911(5)(A)(v).
6
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 (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. 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 (2007). Because the categorical
approach looks squarely at the elements of the offense of
conviction, a reviewing court is precluded from examining the
7
circumstances underlying the prior conviction. See Descamps v.
United States, 133 S. Ct. 2276, 2283 (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 (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. 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.
8
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 (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
5
We are satisfied to utilize the term “circumstance-
specific” to describe this third approach, adhering to the
example set by the Supreme Court in Nijhawan. See 557 U.S. at
34 (using term “circumstance-specific” to describe analytic
framework “referring to the specific way in which an offender
committed the crime on a specific occasion”).
9
count of criminal sexual conduct with a minor. See S.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 the charge in the indictment. At the time of Price’s
offense, ABHAN was a common law crime in South Carolina, the
elements of which included “the unlawful act of violent injury
to another, accompanied by circumstances of aggravation.” See
State v. Easler, 489 S.E.2d 617, 624 (S.C. 1997). 6 The
“circumstances of aggravation” requirement of an ABHAN offense
could be satisfied in a number of ways, including
6
Although South Carolina codified ABHAN as a felony offense
effective June 2, 2010, see S.C. Code Ann. § 16-3-600(B)(1),
that enactment post-dated the commission of Price’s offense.
Thus, the common law crime of ABHAN is the only ABHAN offense
relevant to this appeal. See United States v. Hemingway, 734
F.3d 323, 327 n.1 (4th Cir. 2013) (applying common law ABHAN
elements — rather than statutory ones — because offense conduct
occurred prior to enactment of ABHAN statute).
10
use of a deadly weapon, infliction of serious bodily
injury, intent to commit a felony, disparity in age,
physical condition or sex, indecent liberties,
purposeful infliction of shame, resistance of law
authority, and others.
Id. at 624 n.17.
During Price’s plea colloquy in the state court in 2010,
the prosecutor — apparently pursuant to an oral plea agreement
— summarized the factual basis for the ABHAN offense as follows:
These events occurred — reported to have occurred back
between 2007 and 2008. Initially a report was made to
the Akron Ohio Police Department that the step-father
of the minor who was . . . eleven at the time in Ohio
had been abused by Mr. Price, her step-father. This
continued when the family moved to . . . Rock Hill,
York County, South Carolina. The allegations were
alleged to have happened at that house as well as
another jurisdiction in South Carolina, and the victim
would’ve been twelve years old at the time and she
reported in 2009 that she had been abused and been
required to perform oral sex on this defendant.
J.A. 52. Price responded in the affirmative when the state
court asked, “Do you agree if you went to trial those facts
would be what the State would present to the jury?” Id. The
court then accepted his no-contest plea to the ABHAN offense.
The court also accepted Price’s negotiated sentence, which was
for time served, but required that Price be placed on South
Carolina’s central registry of child abuse and sex offender
registry.
Following his release from state custody after his ABHAN
conviction and sentencing, Price moved to Georgia. He
11
registered there as a sex offender on July 27, 2010. Around
November 1, 2010, Price moved to Ohio but failed to register as
a sex offender there. As a result, the City of Akron issued a
warrant for his arrest on February 1, 2011. Price, then a
fugitive, resided in Arizona from September 2011 until February
2012. He moved back to South Carolina in February 2012, where
he again failed to register as a sex offender. On March 17,
2012, Price was arrested on the basis of the Ohio warrant in
Rock Hill, South Carolina.
2.
On April 2, 2012, a criminal complaint was filed in the
District of South Carolina, alleging that Price had knowingly
failed to register as a sex offender, in contravention of 18
U.S.C. § 2250(a). The single-count indictment for that offense
was returned on May 1, 2012, alleging that Price’s South
Carolina ABHAN conviction in July 2010 was for a sex offense
under SORNA, and that he violated § 2250(a) by travelling in
interstate commerce and failing to register and update his
registration as a sex offender, as required by SORNA.
By motion of June 21, 2012, Price sought dismissal of the
indictment. He therein argued that his ABHAN conviction was not
for a sex offense under SORNA, and therefore that he was not
subject to SORNA’s registration requirement. The district court
denied Price’s dismissal motion on August 2, 2012, deeming the
12
record “sufficient to indicate that [Price] was convicted of a
sex offense as defined by SORNA.” See Denial Order 3. The
court reasoned that it could review the record of Price’s ABHAN
conviction under the noncategorical approach — which we call the
circumstance-specific approach — relying on decisions of the
Ninth and Eleventh Circuits. Id. at 4 (citing United States v.
Dodge, 597 F.3d 1347, 1354 (11th Cir. 2010) (en banc); United
States v. Mi Kyung Byun, 539 F.3d 982, 992 (9th Cir. 2008)).
Employing that approach, the court reviewed the facts underlying
Price’s ABHAN conviction, as reflected in the plea colloquy in
the York County proceedings. That colloquy revealed that the
prosecutor had “recounted the facts of the offense: defendant
forced his twelve year old step-daughter to perform oral sex on
him.” Id. at 3. Price “affirmatively answered that he knew
those facts would be presented to the jury if he went to trial,”
evidencing that he understood the ABHAN charge. Id. The court
observed that Price had agreed to register on the state sex
offender registry. The court thus discerned “ample evidence to
indicate that the ABHAN plea in this case rested on indecent
liberties with a female as the aggravating circumstance, and
therefore constituted a sex offense.” Id. As a result, the
court concluded that Price was required to register under SORNA
and denied his motion to dismiss.
13
On August 27, 2012, Price pleaded guilty in the district
court to violating 18 U.S.C. § 2250(a), as charged in the
indictment. Nonetheless, Price reserved his right, pursuant to
Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to
appeal the court’s denial of his motion to dismiss.
C.
The issue with respect to the dismissal motion is purely
legal and one that we review de novo: Did the district court
err in applying the circumstance-specific approach to its
assessment of whether Price’s ABHAN offense satisfied the
statutory definition of a “sex offense” under SORNA? See United
States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (“This
Court reviews de novo the district court’s denial of a motion to
dismiss an indictment where the denial depends solely on
questions of law.”). At the outset, that question is
circumscribed in certain respects. As the government now
concedes, our decision in United States v. Hemingway, 734 F.3d
323, 333-34 (4th Cir. 2013), determined that the common law
offense of ABHAN — on which Price was convicted in York County
— is indivisible, rendering the modified categorical approach
inapplicable. Additionally, because our review is de novo and
we “may affirm on any grounds apparent from the record,” United
States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005), we are
entitled to focus on the definition of a “sex offense” provided
14
by 42 U.S.C. § 16911(5)(A)(ii) and its extended definition at
§ 16911(7)(I), as those provisions contain the definition of a
“sex offense” that is most relevant here. Read together, they
define a “sex offense” as a criminal offense involving “[a]ny
conduct that by its nature is a sex offense against a minor.”
See 42 U.S.C. § 16911(5)(A)(ii), (7)(I). 7
1.
We must assess, then, whether the categorical approach or
the circumstance-specific approach applies to our analysis. At
least two of our sister circuits have grappled with that very
question, and each has concluded that what we call the
circumstance-specific approach — which they refer to as the
noncategorical approach — is applicable to an analysis under 42
U.S.C. § 16911(7). See United States v. Dodge, 597 F.3d 1347,
1356 (11th Cir. 2010) (en banc) (holding that “courts may employ
a noncategorical approach to examine the underlying facts of a
defendant’s offense, to determine whether a defendant has
committed a ‘specified offense against a minor’ [under 42 U.S.C.
§ 16911(7)]”), cert. denied, 131 S. Ct. 457 (2010); United
States v. Mi Kyung Byun, 539 F.3d 982, 990-94 (9th Cir. 2008)
7
The Denial Order did not explicitly identify which aspect
of 42 U.S.C. § 16911’s definition of a “sex offense” it relied
upon in determining that Price’s ABHAN conviction constituted a
sex offense.
15
(concluding that court should apply noncategorical approach to
determination of age of victim under 42 U.S.C. § 16911(7)),
cert. denied, 555 U.S. 1088 (2008). We agree with those courts
of appeals and are satisfied to apply the circumstance-specific
approach to our resolution of this appeal.
a.
First, the text, structure, and purpose of the relevant
SORNA provisions show that Congress intended for the
circumstance-specific approach to apply to an analysis of
subsection (7)(I). The Supreme Court has repeatedly analyzed
the specific terms in federal statutes to determine whether
Congress intended for an element- or fact-based approach to
apply. For example, the Court has interpreted the words
“conviction” and “element” to indicate that Congress meant for
the statutory definition to cover a generic offense, implicating
the categorical and modified categorical frameworks. See, e.g.,
Taylor, 495 U.S. at 600-01 (reasoning that Congress’s use of
words “conviction” and “element” in Armed Career Criminal Act,
18 U.S.C. § 924(e), supports categorical approach). By
contrast, where a statute contains “language that . . . refers
to specific circumstances” or conduct, the Court has determined
that Congress meant to allow the circumstance-specific
approach’s more searching factual inquiry concerning a prior
offense. See Nijhawan, 557 U.S. at 37.
16
The language and structure of § 16911 underscore the
proposition that an analysis of subsection (7)(I) requires use
of the circumstance-specific approach. 8 Congress expressly
referenced the “elements” of the offense in subsection
(5)(A)(i), providing that one such element must involve “a
sexual act or sexual contact with another.” But neither
subsection (5)(A)(ii) nor its extension at subsection (7) refers
to “elements.” That contrasting terminology indicates that
Congress drafted subsections (5)(A)(ii) and (7) to cover a
broader range of prior offenses than those reached by subsection
(5)(A)(i). See Jama v. Immigration & Customs Enforcement, 543
U.S. 335, 341 (2005) (“We do not lightly assume that Congress
has omitted from its adopted text requirements that it
nonetheless intends to apply, and our reluctance is even greater
when Congress has shown elsewhere in the same statute that it
knows how to make such a requirement manifest.”). Similarly,
8
Repetition sometimes being helpful, 42 U.S.C. § 16911
defines a “sex offense” at subsections (5)(A)(i) and (5)(A)(ii)
as follows:
(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.
Additionally, a “specified offense against a minor” is defined
at subsection (7)(I) to include “[a]ny conduct that by its
nature is a sex offense against a minor.”
17
subsection (7)(I)’s explicit reference to the “conduct”
underlying a prior offense, as well as the “nature” of that
conduct, refers to how an offense was committed — not a generic
offense. See Nijhawan, 557 U.S. at 37-39. The text of SORNA
thus indicates that Congress intended that the broader
circumstance-specific analysis be applicable with respect to
subsection (7)(I). See Dodge, 597 F.3d at 1354-55.
The purpose of SORNA also supports the use of a
circumstance-specific approach and our interpretation of
subsection (7)(I). Although subsection (5)(A)(i) includes
certain prior offenses without regard to whether the victim was
a child or an adult, subsections (5)(A)(ii) and (7) are
applicable only where the victim was a minor. Through SORNA,
Congress sought “to protect the public from sex offenders and
offenders against children,” and was responding “to the vicious
attacks by violent predators.” 42 U.S.C. § 16901. In light of
SORNA’s focus on children, Congress’s use of broader language in
defining a “sex offense” for victims who are minors makes clear
its intention that the circumstance-specific approach should
apply. The Supreme Court reached a similar conclusion in United
States v. Hayes, 555 U.S. 415, 426-27 (2009), where it analyzed
a statute criminalizing firearm possession by persons convicted
of a “misdemeanor crime of domestic violence.” Observing that
Congress intended to close loopholes and apply the statute
18
broadly to confront domestic violence, the Court reasoned that
the legislative history supported use of a factual analysis on
the specific issue of a domestic relationship. See id. We thus
agree with the Eleventh Circuit’s well-reasoned conclusion in
Dodge that the text and purpose of SORNA demonstrate Congress’s
intention that the circumstance-specific approach should be
utilized in an analysis of the applicability of subsection
(7)(I). See Dodge, 597 F.3d at 1352-53. 9
b.
Second, Sixth Amendment concerns that compel the judicial
use of the categorical approach in other contexts are simply not
9
We are also satisfied to reject Price’s contention that
the federal regulations interpreting SORNA, commonly called the
“SMART Guidelines,” are helpful to him here. See Office of the
Attorney General, National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38,030, 38,052 (July
2, 2008). The SMART Guidelines address subsection (7)(I) by
using terms such as “convictions” and “element,” which could
indicate a preference for the categorical approach — had
Congress used them in the text of subsection (7)(I). We need
not accord Chevron deference to those Guidelines, although Price
urges us to do so. See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (concluding
that, where federal statute is silent or ambiguous,
administering agency’s permissible construction controls). To
accept Price’s argument on that point, we would have to decide
that Congress’s use of the terms “conduct” and “nature” of that
conduct, combined with its omission of the word “element” in
subsections (5)(A)(ii) and (7), is ambiguous or silent as to the
proper method of analysis. We would then have to decide that
the SMART Guidelines provide a clear and reasonable
interpretation of those subsections. We are unwilling to accept
those propositions.
19
present here. In other situations — such as where a prior
conviction may trigger a sentencing enhancement, increasing a
defendant’s punishment — the Sixth Amendment requires a
reviewing court to apply the categorical approach. See
Descamps, 133 S. Ct. at 2288. As Descamps explained, the
categorical approach is essential in the context of a sentencing
enhancement, in order to ensure that a defendant’s punishment is
not increased on the basis of facts that were not found by a
jury. See id. And “the only facts the court can be sure the
jury so found are those constituting elements of the offense —
as distinct from amplifying but legally extraneous
circumstances.” Id.
Price argues, however, that the Sixth Amendment also
requires use of the categorical approach in an analysis of a 42
U.S.C. § 16911(7)(I) issue, in order to ensure that the
defendant was, in fact, convicted of a sex offense. On that
point, the Supreme Court’s Nijhawan decision is instructive.
There, the Court considered whether the categorical approach was
required by the Sixth Amendment to be used in the determination
of a loss amount in a deportation proceeding. The petitioner
argued that the loss-amount finding could lead to a more severe
sentence in a criminal proceeding for illegal reentry, and thus
contended that the Sixth Amendment required use of the
categorical analysis with respect to loss amount. See Nijhawan,
20
557 U.S. at 40. The Court disagreed, reasoning that “the later
jury, during the illegal reentry trial, would have to find loss
amount beyond a reasonable doubt,” thereby “eliminating any
constitutional concern.” Id.
Here, even applying the circumstance-specific approach,
Price was entitled to go to trial and have a jury determine
beyond a reasonable doubt whether his York County conviction was
for a sex offense under SORNA. Price gave up that Sixth
Amendment right, however, when he pleaded guilty to the
§ 2250(a) offense in federal court. See United States v. Ruiz,
536 U.S. 622, 629 (2002) (observing that, by pleading guilty,
defendant “forgoes not only a fair trial, but also other
accompanying constitutional guarantees,” including the Sixth
Amendment right to a jury trial). Had Price gone to trial in
the District of South Carolina, the prosecution would have borne
the burden of proving, beyond a reasonable doubt, that he had
been previously convicted of a sex offense — an essential
element of 18 U.S.C. § 2250(a). The jury would thus have
examined the evidence presented to it concerning the facts
underlying Price’s 2010 ABHAN offense, and then decided whether
that evidence satisfied SORNA’s definition of a “sex offense.”
2.
In sum, we conclude that Congress intended for reviewing
courts to utilize the circumstance-specific approach to
21
determine whether a prior conviction was for a sex offense under
SORNA, within the meaning of 42 U.S.C. § 11691(5)(A)(ii), as
expanded by subsection (7)(I). We therefore affirm the district
court’s denial of Price’s motion to dismiss the indictment.
II.
Price additionally assigned error to the district court’s
calculation of his advisory Sentencing Guidelines range with
respect to supervised release. Guidelines section 5D1.2
contains the applicable supervised-release provisions. As
relevant here, subsection (a)(2) provides for an advisory range
of one to three years for a defendant convicted of a Class C
felony (such as a violation of 18 U.S.C. § 2250(a)), except as
provided by subsections (b) and (c). Pursuant to subsection
(b)(2), the term of supervised release “may be up to life if the
offense is . . . a sex offense.” Under subsection (c), the
“term of supervised release imposed shall be not less than any
statutorily required term of supervised release.”
The facts relating to Price’s sentence are straightforward.
Price’s presentence report (the “PSR”), which was accepted by
the district court at the sentencing hearing on March 14, 2013,
concluded that the applicable statutory provision required
imposition of a term of supervised release of five years to
life. See 18 U.S.C. § 3583(k). The PSR computed Price’s
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advisory Guidelines range by first observing that the five-year
minimum term of supervised release required by statute fixed the
minimum advisory Guidelines range. See USSG § 5D1.2(c). The
PSR then determined that Price’s § 2250(a) conviction was for a
sex offense, and thus calculated the upper-end of the advisory
range to be life, applying Guidelines section 5D1.2(b)(2).
Consequently, the PSR concluded, Price’s advisory Guidelines
range for supervised release was five years to life. Price made
no objections to the PSR. The court then sentenced Price to
twenty-four months in prison and imposed a life term of
supervised release, “with the provisio” that he could seek to
terminate supervision after five years if he complied with the
conditions of release. See J.A. 115.
Price now argues that the district court erred in applying
Guidelines section 5D1.2(b)(2) to increase the upper-limit of
his advisory Guidelines range to a life term. He maintains that
the offense at issue — failing to register as a sex offender in
violation of § 2250(a) — is not a “sex offense” under that
Guidelines provision. When a defendant has failed to object on
a sentencing contention being pursued on appeal, the issue is
subject to plain error review only. See United States v. Grubb,
11 F.3d 426, 440 (4th Cir. 1993). To satisfy such a review, “we
must find that (1) an error was committed, (2) the error was
plain, and (3) the error affected the defendant’s substantial
23
rights.” United States v. Ford, 88 F.3d 1350, 1355 (4th Cir.
1996). If those “threshold requirements are satisfied, we must
also decide whether the error ‘seriously affect[ed] the
fairness, integrity, or public reputation of judicial
proceedings.’” Id. at 1355-56 (quoting United States v. Olano,
507 U.S. 725, 736 (1993)).
Our Court decided the precise issue raised by Price only a
few weeks ago in United States v. Collins, 773 F.3d 25 (4th Cir.
2014). Judge Floyd’s decision recognized that a clarifying
amendment to the Guidelines, effective November 1, 2014, makes
clear that “failing to register as a sex offender under SORNA is
not a ‘sex offense’ for the purposes of the Guidelines.” Id. at
32. Thus, Price was not subject to the enhanced advisory
Guidelines range for supervised release under section
5D1.2(b)(2). Moreover, a second clarifying amendment, also
effective November 1, 2014, establishes that, where the
statutory minimum term of supervised release is greater than the
advisory Guidelines range, section 5D1.2(c) operates to create
an advisory term of a “single point” at the statutory minimum.
Id. The phrase “single point” refers to a Guidelines
recommendation of a specific sentence, rather than a range. See
United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013)
(“[T]he properly calculated advisory Guidelines ‘range’ for
[defendant’s] offense appears to actually be a point: five
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years.”). As a result, the Guidelines recommend that Price
receive a five-year term of supervised release, rather than a
term within a range of five years to life.
In light of our Collins decision, Price has shown plain
error that entitles him to relief. First, Collins establishes
that the district court’s calculation of Price’s advisory
Guidelines range as to supervised release was erroneous.
Second, because the issue concerning the Guidelines range
calculation has been resolved in this Court, the error is plain.
See Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)
(concluding that, “whether a legal question was settled or
unsettled at the time of trial, it is enough that an error be
plain at the time of appellate consideration” (internal
quotation marks omitted)). Third, the calculation error
affected Price’s substantial rights because the record indicates
that the erroneous calculation of the advisory Guidelines range
caused him to be sentenced to a more severe term of supervised
release. See Ford, 88 F.3d at 1356 (“The error clearly affected
[defendant’s] substantial rights because the extra points caused
[him] to be sentenced at a more severe guideline range.”).
Finally, “sentencing a defendant at the wrong guideline range
seriously affects the fairness, integrity, and public reputation
of the judicial proceedings.” Id.
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We thus conclude that the district court’s calculation of
Price’s advisory Guidelines range concerning supervised release
was plainly erroneous and that the error should be recognized
and corrected. We therefore vacate and remand for resentencing
on the supervised release question.
III.
Pursuant to the foregoing, we affirm Price’s conviction for
failing to register under SORNA, vacate the supervised release
sentence, and remand for such further sentencing proceedings as
may be appropriate.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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