USA v. Kenneth Taylor
Filing
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6320582-3] [6320582] [10-3132]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3132
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENNETH L EE T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cr-30032-MJR-1—Michael J. Reagan, Judge.
A RGUED F EBRUARY 11, 2011—D ECIDED JULY 7, 2011
Before B AUER, P OSNER and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Kenneth Lee Taylor entered an
open plea of guilty, without the benefit of a plea agreement, for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act
(SORNA), 18 U.S.C. § 2250. The district court judge sentenced Taylor to eighteen months in prison, twenty
years of supervised released, and a $100 special assessment fee. We affirm.
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I. BACKGROUND
Taylor was serving in the Navy when he was charged
with forcible sodomy in violation of the Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 925. He pleaded
guilty, and a general court-martial sentenced him to
seven months in prison.
As required by SORNA, Taylor registered as a sex
offender in 2003 and listed an address in East St. Louis
as his residence. In 2006, the Illinois State Police discovered that Taylor was no longer residing at his
registered address and that he had not updated his registration to reflect this change. Despite many attempts,
authorities did not locate Taylor until early 2010.
In April 2010, Taylor pleaded guilty to failing to
register as a sex offender. While released on bond and
awaiting sentencing, Taylor again changed residences
without updating his sex offender registration or
notifying the United States Probation Office.
The district court judge classified Taylor as a Tier III
sex offender and calculated the United States Sentencing
Guideline range to be 24 to 30 months in prison and 5 years
to life of supervised release. The judge sentenced Taylor
to 18 months in prison and 20 years of supervised
release, but he indicated a willingness to reduce the
supervised release term if Taylor remained out of
trouble for a “significant” amount of time.
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II. ANALYSIS
The defendant presents two issues on appeal. He
first argues that the district court improperly classified
Taylor as a Tier III sex offender, and he then argues that
his sentence is unreasonable. We disagree.
A. The Statutory Framework
SORNA requires sex offenders to register in the jurisdictions in which they live, work, or go to school. 18 U.S.C.
§ 2250. The term “sex offender” is defined as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911
(emphasis added). A sex offense is “a criminal offense
that has an element involving a sexual act or sexual
contact with another,” and a criminal offense is “a
State, local, tribal, foreign, or military offense (to the
extent specified by the Secretary of Defense under
section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C.
951 note)).” Id. (emphasis added).
Public Law 105-119, referenced above, provides that
the Secretary of Defense “shall specify categories of
conduct punishable under the Uniform Code of
Military Justice which encompasses a range of conduct
comparable to that described in . . . the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C.
§ 14071(a)(3)(A) and (B)).” Section 14071 of the Violent
Crime Control Act established the Jacob Wetterling
Act, and 32 C.F.R. § 635.7 (which was enacted under
the authority of the Jacob Wetterling Act) states,
Soldiers who are convicted by court-martial for
certain sexual offenses must comply with all
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applicable state registration requirements in effect
in the state in which they reside. . . . This is a statutory requirement based on the Jacob Wetterling
Act, and implemented by DOD Instruction 1325.7.
DOD Instruction 1325.7, in turn, contains a “Listing of
Offenses Requiring Sex Offender Processing.” It provides, “convictions of any of the following offenses punishable under the Uniform Code of Military Justice
shall trigger requirements to notify State and local law
enforcement agencies and to provide information to
inmates concerning sex offender registration requirements.” See http://www.dtic.mil/whs/directives/corres/
pdf/132507p.pdf (last visited July 1, 2011). One of
the listed offenses is “Forcible Sodomy.” 1 Id.
Therefore, through a series of cross references,
SORNA requires individuals who are convicted of
certain sex offenses under the UCMJ—including forcible
sodomy—to register as a sex offender.
In addition to defining the terms “sex offender” and “sex
offense,” 42 U.S.C. § 16911 classifies sex offenders into
three different categories:
1
Courts-martial recognize the offense of “forcible sodomy.” See,
e.g., United States v. Rangel, 64 MJ. 678, 684 (AF. Ct. Crim. App.
2007) (explaining that force is an element of the offense
of “forcible sodomy”). According to the Manual for CourtsMartial, “[t]hat the act was done by force and without the
consent of the other person” may be added as an “element”
under UCMJ Article 125, as applicable. Manual For CourtsMartial United States, pt. IV, ¶ 51(b) (2008).
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(2) Tier I sex offender
The term “Tier I sex offender” means a sex offender
other than a Tier II or Tier III sex offender.
(3) Tier II sex offender
The term “Tier II sex offender” means a sex offender
other than a Tier III sex offender whose offense
is punishable by imprisonment for more than 1 year
and—
(A) is comparable to or more severe than the
following offenses . . .
(iv) abusive sexual contact (as described in
section 2244 of Title 18) . . . .
(4) Tier III sex offender
The term “Tier III sex offender” means a sex offender
whose offense is punishable by imprisonment for
more than 1 year and—
(A) is comparable to or more severe than the
following offenses . . .
(i) aggravated sexual abuse or sexual abuse
(as described in sections 2241 and 2242 of
Title 18) . . . .2
2
Taylor concedes that forcible sodomy is similar to a violation
of 18 U.S.C. § 2241, which provides, “Whoever, in the special
maritime and territorial jurisdiction of the United States . . .
knowingly causes another person to engage in a sexual act
by using force against that other person,” shall be imprisoned
for up to life.
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These tier levels are incorporated into the United States
Sentencing Guidelines and used to determine the defendant’s base offense level. U.S.S.G. § 2A3.5.
B. Modified Categorical Approach
To calculate the advisory Guideline range for a violation of SORNA, the judge must first determine the defendant’s tier classification. See U.S.S.G. § 2A3.5. The
judge usually accomplishes this task by examining the
elements of the statute under which the defendant was
convicted. This is called the “categorical approach.” See
United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008);
Begay v. United States, 553 U.S. 137, 141 (2008). However,
because the statute under which Taylor was convicted
prohibited all sodomy—whether consensual, forcible,
or involving a child—the judge in this case also examined the charging document to determine the type
of sodomy to which the defendant pleaded guilty. This
is called the “modified categorical approach.” See Smith,
544 F.3d at 786. Taylor contends that the judge’s use of
the modified categorical approach constitutes reversible
error, a question of law which we review de novo. United
States v. Franco-Fernandez, 511 F.3d 768, 769 (7th Cir. 2008).
Although we have never addressed whether a judge
may use the modified categorical in this particular circumstance, we have held that when a statute proscribes
multiple types of conduct, some of which would constitute a violent felony and some of which would not,
a judge may examine a “limited range of additional
material” in order to determine whether the defendant
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pleaded guilty to the portion of the statute that constitutes a violent felony. See id. (citing Shepard v. United
States, 544 U.S. 13, 16-17 (2005); Taylor v. United States,
495 U.S. 575, 602 (1990); United States v. Spells, 537 F.3d
743, 749 (7th Cir. 2008); United States v. Mathews, 453 F.3d
830, 833-34 (7th Cir. 2006)). The rationale behind this
rule applies with equal force to this case.
Taylor was convicted under 10 U.S.C. § 925, a statute
that prohibits sodomy in all its forms. It is therefore
impossible to determine from the face of the statute
whether Taylor pleaded guilty to forcible sodomy, consensual sodomy, or sodomy of a child. Consequently,
under the categorical approach, forcible sodomy convictions under 10 U.S.C. § 925 would always be a Tier I
offense. We need not confine ourselves to the categorical
approach in this case, however, because the statute at
issue here prohibits multiple types of conduct, including
“forcible sodomy,” which is considered to be an offense
with different elements than “sodomy” alone. See supra
Part A; United States v. Woods, 576 F.3d 400, 403-07 (7th
Cir. 2009). We therefore affirm the district court’s use of
the modified categorical approach and hold that a
judge may examine a limited set of additional materials—such as the charging instrument in this case—
to determine the portion of 10 U.S.C. § 925 to which
the defendant pleaded guilty.
C. Reasonableness of the Sentence
The Sentencing Guideline range for Taylor’s offense
was 24 to 30 months in prison and 5 years to life of super-
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vised release. Although the judge sentenced Taylor to
a prison term that was below the Guideline range (18
months) and a supervised release term that was within
the Guideline range (20 years), Taylor challenges his
sentence as unreasonable. We review the substantive
reasonableness of his sentence for abuse of discretion.3
A sentencing judge must consult the Sentencing Guidelines and consider the factors set forth in 18 U.S.C.
§ 3553(a). Where, as here, a sentence is within the
advisory Guideline range, the sentence is presumed
reasonable. See United States v. Hills, 618 F.3d 619, 636
(7th Cir. 2010).
Although the district court found that Taylor is not
dangerous and that he maintained steady employment,
the district court also noted that Taylor committed a
very serious sex offense and intentionally refused to
register as a sex offender for seven years. Then, while
out on bond for failing to register as a sex offender,
Taylor again changed residences without updating his
registration. The judge was rightly concerned by this,
especially in light of the fact that SORNA requires Taylor
to register for the rest of his life. Given these facts, we
cannot say that Taylor has overcome the presumptive
reasonableness of his sentence.
3
The government argues that we should review the sentence
for plain error because Taylor failed to object to his sentence
as unreasonable in the district court. We have repeatedly
rejected this argument. See United States v. Dale, 498 F.3d 604,
610 & n.5 (7th Cir. 2007).
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III. CONCLUSION
For the foregoing reasons, we A FFIRM the defendant’s
sentence.
7-7-11
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