By Katharine Yale
Today, in the published, criminal opinion U.S. v. Price, the Fourth Circuit held that the circumstance-specific approach is the appropriate approach for analysis of whether an offense qualifies as a sex offense under the Sex Offender Registration and Notification Act (“SORNA”). The court also reinforced its previous holding in U.S. v. Collins that failure to register as a sex offender under SORNA does not qualify as a sex offense for use with the advisory Sentencing Guidelines.
Defendant’s Prior Conviction and Background of the Case
Antwain Guanterio Price (“Price”) was charged on May 13, 2010 with a single count of criminal sexual conduct with a minor. The indictment alleged that he had committed a sexual battery on a victim who was 12 years old. After plea negotiations, Price was convicted in South Carolina for the common law offense, and lesser charge, of assault and battery of a high and aggravated nature (“ABHAN”). As a result of this conviction, Price was required to register as a sex offender under SORNA. Upon failure to re-register after moving, Price was charged in May 2012 for knowingly failing to register under SORNA.
Price made a motion to dismiss the indictment on the ground that the ABHAN offense is not a “sex offense” under SORNA. The district court denied his motion. After the denial, Price pleaded guilty to the failure to register charge and was sentenced to two years in prison, followed by a life term of supervised release.
SORNA’s Registration Requirement and Determination of Whether an Offense Satisfies the Statutory Definition of “Sex Offense”
In order for a defendant to be required to register under SORNA, the individual must be convicted of a sex offense. After conviction, if that person fails to properly register, then that individual has violated the act. In such a case, courts must first determine whether a defendant’s underlying conviction is for a sex offense as defined by SORNA.
The Supreme Court uses three analytical frameworks in determining the nature of an underlying offense. Those frameworks are the categorical approach, the modified categorical approach, and the circumstance-specific approach. The first two approaches focus on the elements of the offense, rather than specific facts. The circumstance-specific approach, conversely, focuses on the facts relating to the prior conviction.
The District Court did not Err in Applying the Circumstance-Specific Approach to its Assessment of Whether Price’s ABHAN Offense is a Sex Offense Under SORNA
The denial of Price’s motion to dismiss turned on whether his ABHAN offense was a sex offense as defined by SORNA. Because that question is a matter of law, the Fourth Circuit reviewed, de novo, the appropriateness of the circumstance-specific approach employed by the district court. The applicable sections of SORNA, 42 U.S.C. § 16911(5)(a) and § 16911(7)(I), define a “sex offense” as a criminal offense that involves “[a]ny conduct that by its nature is a sex offense against a minor.”
Using statutory construction principles, the Fourth Circuit determined that Congress intended for the circumstance-specific approach to be applied to an analysis of whether an offense is a sex offense under SORNA. The Supreme Court in Nijhawan v. Holder determined that when a statute contains “language . . . that refers to specific circumstances” or conduct, Congress intended to allow the circumstance-specific approach that entails a more searching factual inquiry.
Here, the SORNA statute, in some subsections, specifically references the elements of the requisite offense, including one element that must involve “a sexual act or sexual conduct with another.” However, language regarding the elements of the offense do not appear in the subsections that define “sex offense.” The omission of any reference to “elements” suggests that Congress intended the “sex offense” defining subsections to cover a broader range of prior offenses. The sex offense defining subsection also refers to “conduct” and to how the crime was committed. For that reason, the text of the statute suggests that Congress intended the circumstance-specific approach for use in analyzing whether an offense is a sex offense.
The purpose of the statute further indicates Congress’ intent that the circumstance-specific approach apply. Through SORNA, Congress sought “to protect the public from sex offenders and offenders against children.” The focus on children, coupled with the broad language used in defining “sex offense” for minor victims, illustrates Congress’ intent that the circumstance-specific approach apply.
Last, the Fourth Circuit dismissed Price’s argument that the sixth amendment requires the use of the categorical approach in determining whether an offense is a sex offense under SORNA. The court found that the sixth amendment did not require the categorical approach because had Price gone to trial, a jury would have had to find, beyond a reasonable doubt, that his prior offense was a sex offense. When Price pled guilty, he relinquished not only a fair trial, but also his right to a jury trial. Therefore, the categorical approach is not required in an analysis of 42 U.S.C. § 16911(7)(I).
The District Court Erred in Calculation of Price’s Supervised Release Sentence
Price also argued that the district court erred in its calculation of his advisory sentence guidelines sentence range as applied to his supervised release. A term of supervised release may be up to life, if the offense is a sex offense. Additionally, the “term of supervised release imposed shall not be less than any statutorily required term of supervised release.” In this case, the supervised release required by the applicable statute was a term of five years to life. Thus, the minimum advisory Guidelines term was set by the statute at five years. Next, the court determined that Price’s offense was a sex offense and calculated the maximum term of the advisory range to be life. Price made no objections to this range, which was set forth in the presentence report. If he complied with the conditions of release, he could seek to terminate the supervision after five years.
Price argued that failing to register as a sex offender is not a “sex offense” under the advisory Guidelines provision used in his sentencing. In United States v. Collins, the Fourth Circuit held that effective November 1, 2014, failing to register as a sex offender is not a sex offense for the purposes of the advisory Guidelines. Thus, under a plain error review, the district court did err in considering Price’s offense as a sex offense and Price was not subject to the enhanced Guidelines range.
Further, the court pointed out that a clarifying amendment to the Guidelines established that the Guidelines “range” is actually only a single point in instances when the statutory minimum term of supervised release is greater than the Guidelines minimum. In other words, the advisory term of supervised release is really a single point fixed at the statutory minimum. Therefore, Price’s Guidelines range of supervised release should only have been five years.
The Fourth Circuit Affirmed Price’s Conviction for Failing to Register Under SORNA, Vacated Price’s Supervised Release Sentence, and Remanded For Resentencing on the Supervised Release Question
