US v. Brian Berry

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-cr-00329-FL-1. [999758149]. [14-4934]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4934

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN KEITH BERRY,
Defendant - Appellant.
-------------------------FEDERAL PUBLIC DEFENDER OFFICE,
Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00329-FL-1)

Argued:

December 10, 2015

Decided:

February 19, 2016

Before WILKINSON, KING, and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Wilkinson and Judge King joined.

ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant.
Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States

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Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus
Curiae.

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WYNN, Circuit Judge:
Defendant Brian Keith Berry was convicted of a sex offense
in state court and obligated to register under the federal Sex
Offender Registration and Notification Act, also known as SORNA.
Defendant

failed

to

register

as

required

and

pled

guilty

to

violating 18 U.S.C. § 2250(a).
At

sentencing,

the

district

court

calculated

Defendant’s

United States Sentencing Guidelines (“Guidelines”) range as if
he were a tier III sex offender.
designation.

Using

the

Defendant challenges that tier

categorical

approach,

which

we

hold

applicable here, and comparing his state court conviction for
endangering
enumerated

the
in

welfare
42

of

to

the

§ 16911(4)(A),

U.S.C.

a

child

we

generic
must

offenses

agree:

the

district court erred in deeming Defendant a tier III offender.
Accordingly,

we

vacate

Defendant’s

sentence

and

remand

for

resentencing.
I.
In 2002, Defendant pled guilty in New Jersey state court to
endangering the welfare of a child in violation of N.J. Stat.
Ann. § 2C:24-4(a) (2002).

Upon Defendant’s release from prison,

he was advised that he must register as a sex offender with the
New

Jersey

Brunswick,

police.
New

Jersey,

He

initially

address;

registered

but,

in

March

with

a

New

2013,

law

enforcement agents found that he no longer lived at that listed
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Thereafter, the State of New Jersey thus issued a

warrant to arrest Defendant for violating the conditions of his
parole.
he

Ultimately, Defendant was found in North Carolina where

admitted

to

law

enforcement

officials

that

he

had

not

registered as a sex offender in the State of North Carolina.
Defendant pled guilty to one count of failing to register
as

a

sex

offender

in

violation

of

18

U.S.C.

§ 2250.

At

sentencing, the district court found Defendant to be a tier III
sex

offender

under

level of sixteen.

SORNA,

with

a

corresponding

base

offense

In a memorandum opinion, the court explained

that its tier III determination was “based upon description of
the

conduct

underlying

defendant’s

prior

forth in the presentence report.”
5:13-CR-329-FL-1,
2014).

2014

WL

sex

offense

as

set

United States v. Berry, No.

7149736,

at

*1

(E.D.N.C.

Dec.

15,

The court found that the conduct underlying the offense,

penetrating the vagina of a five-year-old victim with his hand,
was comparable to the offense of “abusive sexual contact . . .
against a minor who has not attained the age of 13 years” listed
in

the

definition

§ 16911(4)(A).

of

a

tier

III

sex

offender

in

42

U.S.C.

Id. at *3.

Based on his tier III designation and other factors, the
district

court

determined

Defendant’s

thirty-three to forty-one months.

Guidelines

range

to

be

The district court sentenced

Defendant to thirty-three months in prison and five years of
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supervised

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release.

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Defendant

appeals,

arguing

that

the

district court erred in its determination that he qualified as a
tier III sex offender.
II.
A.
On appeal, we must determine whether the district court
imposed

an

unreasonable

sentence

by

calculating

Defendant’s

Guidelines range as if he were a tier III sex offender under
SORNA.

We

standard. 1
a

includes

components.
Cir.

sentences

under

an

abuse

of

discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

review

(4th

review

procedural

and

substantive

Such

reasonableness

Id.; United States v. Dimache, 665 F.3d 603, 606
2011).

Relevant

here,

a

sentence

is

procedurally

unreasonable if the district court “fail[ed] to calculate (or
improperly calculat[ed]) the Guidelines range.”

Gall, 552 U.S.

at 51; United States v. Avila, 770 F.3d 1100, 1103 (4th Cir.
2014).

Further,

reasonableness,

we

“[w]hen
‘review

considering
the

1

district

a

sentence’s

court’s

legal

We reject out of hand the government’s suggestion that
Defendant failed to preserve this issue and that we should thus
review only for plain error.
The record clearly shows that
Defendant’s counsel objected to the district court’s tier
classification and the court’s consideration of the facts and
circumstances
surrounding
Defendant’s
prior
sex
offense
conviction. Not surprisingly, the district court thus addressed
the preserved argument in its memorandum opinion.
Berry, 2014
WL 7149736, at *2. We do the same.

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conclusions de novo and its factual findings for clear error.’”
United States v. Thornton, 554 F.3d 443, 445 (4th Cir. 2009)
(quoting United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.
2008)).
B.
SORNA

requires

sex

offenders

to

register

“in

each

jurisdiction where the offender resides, where the offender is
an employee, and where the offender is a student.”
§ 16913(a).

Further,

sex

offenders

must

registration upon a change in residence.

42 U.S.C.

update

their

Id. § 16913(c).

And

18 U.S.C. § 2250 imposes criminal penalties on persons who are
required, but knowingly fail, to register.
SORNA classifies sex offenders into three tiers depending
on

the

nature

of

§ 16911(2)–(4).
sex

offenses

sex offenders.

underlying

sex

offense.

42

U.S.C.

Sex offenders who have committed more serious

are

§ 16911(3)–(4).

their

classified

under

tiers

II

and

III.

Id.

Tier I is a catch-all provision for all other
Id. § 16911(2).

A defendant’s tier designation

plays into his sentencing, as the Guidelines assign base offense
levels of sixteen, fourteen, and twelve for tier III, tier II,
and tier I sex offenders, respectively.
To

determine

a

defendant’s

tier

U.S.S.G. § 2A3.5(a).
classification,

courts

compare the defendant’s prior sex offense conviction with the
offenses

listed

in

SORNA’s

tier
6

definitions.

See

42

U.S.C.

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§ 16911(2)–(4).
for

such

Courts have embraced two analytical frameworks

inquiries:

derivative,

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the

1)

the

“modified

“circumstance-specific

“categorical

categorical

approach”

“noncategorical approach”).

approach”

approach,”

(also

and

and

known

its

2)

the

as

the

See Descamps v. United States, 133

S. Ct. 2276, 2281 (2013); Nijhawan v. Holder, 557 U.S. 29, 34
(2009).
The

categorical

approach

focuses

solely

on

the

relevant

offenses’ elements, comparing the elements of the prior offense
of

conviction

offense,

also

with

the

referred

elements

to

as

the

of

the

pertinent

federal

offense.

United

“generic”

States v. Price, 777 F.3d 700, 704 (4th Cir.), cert. denied, 135
S. Ct. 2911 (2015).
the

same

as,

or

If the elements of the prior offense “are

narrower

than,”

the

offense

listed

in

the

federal statute, there is a categorical match.

Descamps, 133 S.

Ct.

prior

at

“sweep[]

2281.
more

But

if

broadly,”

the
id.

elements
at

of

2283,

the

such

that

conviction
there

is

a

“realistic probability” that the statute of the offense of prior
conviction encompasses conduct outside of the offense enumerated
in the federal statute, the prior offense is not a match, Price,
777 F.3d at 704 (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007)).
The modified categorical approach serves as a “tool for
implementing

the

categorical

approach”
7

where

the

defendant’s

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prior conviction is for violating a “divisible” statute—that is,
a statute that “sets out one or more elements of the offense in
the alternative.”

Descamps, 133 S. Ct. at 2281, 2284–85.

The

modified categorical approach permits the court to consult a
limited

menu

indictment,

of

so-called

the

plea

Shepard

agreement,

documents,

and

jury

such

as

the

instructions,

to

“determine which alternative formed the basis of the defendant’s
prior conviction.”

Id. at 2281; see also id. at 2283–85 (citing

Shepard

States,

v.

United

544

U.S.

13

(2005)).

Once

the

elements of the offense of conviction have been identified, the
examination

of

any

Shepard

documents

ends,

and

the

court

proceeds with employing the categorical approach, comparing the
elements of the offense of conviction with the elements of the
offense identified in the federal statute.
In

contrast

approaches,

the

to

the

categorical

circumstance-specific

and

Id. at 2281.
modified

approach

categorical

focuses

on

the

circumstances underlying the defendant’s prior conviction, not
the offense’s elements.
the

Price, 777 F.3d at 705.

circumstance-specific

approach,

the

“In utilizing

reviewing

court

may

consider reliable evidence concerning whether the prior offense
involved

conduct

federal statute.”

or

circumstances

Id.

8

that

are

required

by

the

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C.
The Tenth Circuit recently considered which approach best
fits the portion of the tier III definition found in Section
16911(4)(A)—the precise question before us here—and held that
“Congress

intended

courts

to

actual

employ

a

age

of

the

approach.”

United States v. White, 782 F.3d 1118, 1133, 1135

the

otherwise

the

victim,

Like

to

look

defendant’s

(10th Cir. 2015).

but

to

[categorical]

We agree.

Tenth

Circuit,

and

as

with

any

interpretation, we begin by analyzing SORNA’s text.

statutory
Generally,

when a federal statute refers to a generic offense, the text
evidences

Congress’s

intent

that

the

categorical

applied.

See Nijhawan, 557 U.S. at 34–35; see also Moncrieffe

v. Holder, 133 S. Ct. 1678, 1685 (2013).

approach

be

However, when the

statute refers to specific conduct or a factual circumstance,
its

text

suggests

Congress’s

circumstance-specific approach.

intent

to

allow

for

the

Nijhawan, 557 U.S. at 34, 37–

38; Price 777 F.3d at 705.
Here, Section 16911(4) defines a “tier III sex offender,”
in relevant part, as:
[an] offender whose offense is punishable by imprisonment
for more than 1 year and—
(A) is comparable to or more severe than the
following offenses, or an attempt or conspiracy to
commit such an offense:
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(i) aggravated sexual abuse or sexual abuse (as
described in sections 2241 and 2242 of Title 18); or
(ii) abusive sexual contact (as described in section
2244 of Title 18) against a minor who has not
attained the age of 13 years.
42 U.S.C. § 16911(4)(A).

Thus, a defendant cannot be classified

as a tier III sex offender under Section 16911(4)(A) unless the
prior sex offense conviction is “comparable to or more severe
than” aggravated sexual abuse, sexual abuse, or abusive sexual
contact as the offenses are “described in” Sections 2241, 2242,
and 2244 of the Criminal Code.

Id. § 16911(4)(A)(i)–(ii).

As the Tenth Circuit recently noted in White, “a reference
to a corresponding section of the [C]riminal [C]ode” like here
“strongly suggests a generic intent.”

782 F.3d at 1132.

Nijhawan

Supreme

v.

subsections

Holder,
of

§ 1101(a)(43),
described
Code.”

in’

an
which
a

for

example,

“aggravated
similarly

particular

the

felony”

Court

provision,

cross-references

section

of

the

557 U.S. at 37 (citation omitted).

In

analyzed
8

U.S.C.

“‘offense[s]

Federal

Criminal

According to the

Supreme Court, such language “must refer to generic crimes.”
Id. (emphasis added).

SORNA’s text therefore suggests that the

categorical approach should be used to determine whether a prior
conviction

is

comparable

to

or

more

crimes listed in Section 16911(4)(A).

10

severe

than

the

generic

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Nonetheless, we must also consider the language in Section
16911(4)(A)(ii)

stating

that

a

defendant

is

a

tier

III

sex

offender if his prior conviction is comparable to or more severe
than

abusive

attained
(emphasis

the

sexual
age

of

added).

contact
13
The

“against

years.”

42

definition

a

minor

U.S.C.

of

§ 2244.

has

not

§ 16911(4)(A)(ii)

abusive

encompasses a number of alternative elements.

who

sexual

contact

See 18 U.S.C.

However, it does not include an element specifying a

victim “who has not attained the age of 13 years.”
§ 16911(4)(A)(ii); see 18 U.S.C. § 2244.

42 U.S.C.

Congress’s decision to

reference in SORNA a victim “who has not attained the age of 13
years,” 42 U.S.C. § 16911(4)(A)(ii), must therefore be read as
an instruction to courts to consider the specific circumstance
of a victim’s age, rather than simply applying the categorical
approach.
The language used to define a tier II sex offender also
supports the conclusion that Congress intended courts to use a
categorical

approach

when

the

sex

offender

tier

definition

references a generic offense, with the exception of the specific
circumstance regarding the victim’s age.
1133−34.

White, 782 F.3d at

Section 16911(3)(A) indicates that a defendant is a

tier II sex offender if he has committed an offense that is
“comparable to or more severe than” a list of generic crimes
cross-referenced

in

the

Criminal
11

Code.

See

42

U.S.C.

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§ 16911(3)(A)(i)−(iv) (listing the offenses of sex trafficking,
coercion and enticement, transportation with intent to engage in
criminal

sexual

described

in”

respectively).

activity,
Sections

and

abusive

1591,

sexual

2422(b),

contact

2423(a),

and

“as
2244

However, Section 16911(3)(A) qualifies that such

a generic offense reaches tier II status only when committed
“against a minor,” i.e., “an individual who has not attained the
age of 18 years.”

Id. § 16911(3)(A), (14) (emphasis added).

Thus, the language of Section 16911(3)(A), like the language of
Section 16911(4)(A), instructs courts to apply the categorical
approach
offenses

when

comparing

listed

except

prior

convictions

when

it

circumstance of the victims’ ages.

comes

with
to

the
the

generic
specific

White, 782 F.3d at 1134; see

also United States v. Mi Kyung Byun, 539 F.3d 982, 991 (9th Cir.
2008).
In sum, an examination of 42 U.S.C. § 16911(4)(A)’s text
and structure leads us to the same conclusion the Tenth Circuit
reached

in

categorical

White:
approach

“Congress
to

sex

intended

courts

offender

tier

to

apply

a

classifications

designated by reference to a specific federal criminal statute,

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but to employ a circumstance-specific comparison for the limited
purpose of determining the victim’s age.”

782 F.3d at 1135. 2

Our approach to Section 16911(4)(A) also accords with the
Supreme Court’s instructions that courts account for practical
considerations

when

categorical

circumstance-specific

Court
create
them

has

or
noted

“daunting
with

that

determining

the

to

approach. 3

circumstance-specific

difficulties”

examining

whether

for

evidence

circumstances of past convictions.

sentencing

to

understand

employ
The

the

Supreme

approach

can

courts,

tasking

the

specific

Descamps, 133 S. Ct. at 2289

2

The portions of the tier III definition found in 42 U.S.C.
§ 16911(4)(B) and (C) are irrelevant to this case. We therefore
do not address them here.
3

The Supreme Court has identified additional factors,
including legislative history, equitable considerations, and
Sixth Amendment implications, relevant to the determination of
whether to apply the categorical or circumstance-specific
approach.
See Descamps, 133 S. Ct. at 2287–89.
Because the
text and structure of Section 16911(4)(A) clearly evidence
Congress’s intent, we need not address these additional factors
in our analysis, as none would change the result here. We note,
however, that two of these factors—legislative history and
equitable considerations—lend particularly strong additional
support to our conclusion that the categorical approach should
apply with the exception that we look to the specific
circumstance of a victim’s age. See White, 782 F.3d at 1134–35
(discussing SORNA’s legislative history); see also Descamps, 133
S. Ct. at 2289 (explaining the potential unfairness of the
circumstance-specific
approach
in
the
context
of
prior
conviction sentencing enhancements, as it may allow for
consideration of factual allegations from past convictions that
the defendant had little incentive to challenge at trial or
deprive the defendant of the benefits of a negotiated plea
deal).

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(internal

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quotation

marks

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omitted).

Such

examinations

could

require the review of aged documents, “[t]he meaning of [which]
will often be uncertain,” and “statements of fact . . . [that
are] downright wrong.”
this,

raising

the

Id.

A defendant may contest much of

possibility

convictions are re-litigated.

of

“minitrials”

wherein

past

Moncrieffe, 133 S. Ct. at 1690;

see Taylor v. United States, 495 U.S. 575, 601–02 (1990).
Applying

the

categorical

approach

to

the

generic

crimes

listed in SORNA’s tier III definition will avoid such practical
difficulties.

And

looking

to

the

circumstances

of

prior

convictions for the limited purpose of identifying the age of
the

victim

raises

“straightforward

less

and

concern.

objective”

Determining

inquiry

inspection of a single threshold fact.”

that

age

is

“involves

a
the

Hernandez-Zavala v.

Lynch, 806 F.3d 259, 267 (4th Cir. 2015).
The government nevertheless contends that we should employ
the circumstance-specific approach wholesale, relying primarily
on our recent United States v. Price decision.

True, we there

employed the circumstance-specific approach—but to a different,
and differently-worded, SORNA subsection.

777 F.3d 700.

In

Price, we had to decide which approach to employ in assessing
whether

a

defendant’s

prior

conviction

offense” under Section 16911(7)(I).

qualified

Id. at 707–09.

as

a

“sex

That term

includes “[a]ny conduct that by its nature is a sex offense
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against a minor.”

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42 U.S.C. § 16911(7)(I) (emphasis added).

Examining this language, we found that the “explicit reference
to the ‘conduct’ underlying a prior offense, as well as the
‘nature’

of

that

conduct,

refers

to

how

an

offense

committed—not a generic offense.”

Price, 777 F.3d at 709.

explained

statutory

was

above,

the

relevant

As

language—and

the

conclusions we must draw from it—differ markedly here.
We also reject the government’s contention that practical
considerations
specific

weigh

approach

considering

the

in

favor

wholesale.
specific

of

adopting

According

to

circumstances

a

to

circumstance-

the

government,

determine

tier

classifications should be unproblematic after Price, since the
factfinder must already consider the specific circumstances to
determine whether a defendant has committed a “sex offense.”
While perhaps true in some cases, that assertion may well be
untrue in many others, like here, where it is uncontested that
Defendant’s prior conviction constitutes a sex offense.
Moreover,
approach

is

Price

held

applicable

U.S.C. § 16911(7)(I).

to

only

that

the

determinations

777 F.3d at 709.

circumstance-specific
with

respect

to

42

Subsection (7)(I) is

but one of several subsections comprising SORNA’s definition of
the

term

(7)(A)–(I).

“sex

offense.”

See

42

U.S.C.

§ 16911(5)(A)–(C),

The Court acknowledged in Price that the language

of at least one other subsection included in the sex offense
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definition

Filed: 02/19/2016

calls

for

an

See 777 F.3d at 708.

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elements-based,

categorical

approach.

Thus, in some cases, one can and should

determine whether a defendant was convicted of a sex offense
without

looking

at

the

factual

circumstances

of

the

prior

offense.
D.
Having determined that we apply the categorical approach in
assessing whether a defendant’s prior conviction constitutes a
tier

III

exception

sex

offense

that

we

look

under
to

Section

the

16911(4)(A),

specific

with

circumstance

of

the
the

victim’s age, we now apply this approach to Defendant’s case.
And, doing so, we conclude that the district court erred in
deeming Defendant a tier III sex offender.
As

we

already

noted,

in

2002

Defendant

pled

guilty

to

endangering the welfare of a child in violation of N.J. Stat.
Ann. § 2C:24-4(a).

At that time, the statute stated:

Any person having a legal duty for the care of a child
or who has assumed responsibility for the care of a
child who engages in sexual conduct which would impair
or debauch the morals of the child, or who causes the
child harm that would make the child an abused or
neglected child as defined in R.S.9:6-1, R.S.9:6-3 and
P.L.1974, c. 119, s.1 (C.9:6-8.21) is guilty of a
crime of the second degree. Any other person who
engages in conduct or who causes harm as described in
this subsection to a child under the age of 16 is
guilty of a crime of the third degree.
N.J. Stat. Ann. § 2C:24-4(a) (2002) (emphasis added).

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Because
could

Filed: 02/19/2016

the

statute

constitute

conduct”

or

child

“caus[ing]

Pg: 17 of 20

provided

alternative

elements

endangerment—“engag[ing]

. . .

harm”—the

statute

is

in

that
sexual

divisible.

Id.; see Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014)
(“[C]rimes are divisible . . . if they set out elements in the
alternative and thus create multiple versions of the crime.”
(internal quotation marks omitted)).

Generally, therefore, we

would use the modified categorical approach to determine the
elements

of

Defendant’s

child

endangerment

conviction.

See

Descamps, 133 S. Ct. at 2281.
Here, however, there is no need to do so—because regardless
of

whether

Defendant’s

New

Jersey

conviction

was

based

on

“sexual conduct which would impair or debauch the morals of [a]
child”

or

neglected,”

“harm

that

N.J.

would

Stat.

make

Ann.

[a]

child

§ 2C:24-4(a)

. . .

abused

(2002),

or

neither

alternative would qualify as a tier III sex offense.
The only subsection of relevance to Defendant’s potential
tier III classification is subsection (4)(A), which identifies
the generic crimes of aggravated sexual abuse, sexual abuse, and
abusive sexual contact defined in the Criminal Code.
§ 16911(4)(A).

42 U.S.C.

And all three—aggravated sexual abuse, sexual

abuse, and abusive sexual contact—require a defendant to have
engaged in or attempted physical contact.

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Specifically,

aggravated

Pg: 18 of 20

sexual

abuse

and

sexual

abuse

require an actual or attempted sexual act, 18 U.S.C. §§ 2241,
2242,

which,

§ 2246(2)

in

turn,

(defining

involves

sexual

act

physical
to

contact,

include

see

contact

id.

between

genitals, contact between the mouth and genitals, penetration of
genitals

with

a

hand

or

object

with

a

specific

intent,

or

intentional touching of a person under the age of sixteen with a
specific

intent).

Similarly,

the

contact requires physical contact.
“abusive

sexual

contact”);

id.

offense

of

abusive

sexual

See id. § 2244 (defining

§ 2246(3)

(defining

“sexual

contact” as “intentional touching” with a specific intent).
The New Jersey Supreme Court has, however, made clear that
actual or even attempted physical contact is not necessary for
conviction under the child endangerment statute at issue here.
For example, the New Jersey Supreme Court held in 2001 that
“mere nudity repeatedly presented at a window can constitute
endangering the welfare of children if the other elements of the
endangering crime are met.”
(N.J. 2001).

State v. Hackett, 764 A.2d 421, 428

The statute’s first alternative, “sexual conduct

which would impair or debauch the morals of [a] child,” N.J.
Stat. Ann. § 2C:24-4(a) (2002), thus does not qualify for tier
III

classification,

see

United

States

v.

Aparicio-Soria,

740

F.3d 152, 154 (4th Cir. 2014) (en banc) (“To the extent that the
statutory definition of the prior offense has been interpreted
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by the state’s highest court, that interpretation constrains our
analysis of the elements of state law.”).
Nor is physical contact necessary to “cause[] [a] child
harm that would make the child an abused or neglected child”—the
statute’s
(2002).

second

alternative.

N.J.

Stat.

Ann.

§ 2C:24-4(a)

For example, one could cause such harm by “willfully

failing to provide proper and sufficient food.”

See id. § 9:6-

1.
In sum, the New Jersey child endangerment statute under
which

Defendant

(2002),

can

willing

failure

was

convicted,

encompass
to

N.J.
such

conduct,

provide

Stat.
as

proper

food,

Ann.

repeated
that

§ 2C:24-4(a)
nudity

clearly

and

falls

outside of the generic crimes of aggravated sexual abuse, sexual
abuse, and abusive sexual contact, all of which require actual
or

attempted

physical

contact.

And

because

the

New

Jersey

statute sweeps more broadly than the generic crimes listed in 42
U.S.C. § 16911(4)(A), Defendant’s New Jersey conviction is not
“comparable to or more severe than” those crimes.
§ 16911(4)(A); see Descamps, 133 S. Ct. at 2283.

42 U.S.C.
Accordingly,

Defendant cannot properly be classified as a tier III offender,
and

the

district

court

thus

erred

in

so

classifying

him.

Because that error led to an improper calculation of Defendant’s
base offense level under the Sentencing Guidelines, Defendant’s
sentence is procedurally unreasonable and must be vacated.
19

See,

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Pg: 20 of 20

e.g., United States v. Clay, 627 F.3d 959, 964, 970 (4th Cir.
2010). 4
III.
For

the

reasons

above,

the

district

court

classifying Defendant as a tier III sex offender.

erred

in

We therefore

vacate Defendant’s sentence and remand for the district court to
determine

Defendant’s

II), calculate

the

proper

tier

corresponding

classification
Sentencing

(i.e.,

Guidelines

I

or

range,

and impose a sentence.
VACATED AND REMANDED

4

We summarily reject Defendant’s argument that the Court
should defer to New Jersey’s classification of him as a tier II
offender.
The Guidelines make clear that a defendant’s base
offense level for violation of 18 U.S.C. § 2250 is determined by
the defendant’s tier classification under SORNA.
U.S.S.G.
§ 2A3.5 cmt.
And even a cursory review of New Jersey’s sex
offender tier system reveals that it is grounded in criteria
distinct from SORNA’s tier definitions.
See, e.g., N.J. Stat.
Ann. § 2C:7-8.

20