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Media Alerts - United States v. White-- Tenth Circuit
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April 10, 2015
  United States v. White-- Tenth Circuit
Case Name: United States v. White

Headline: Tenth Circuit Holds Categorical Approach Applies to Tier Classification under the Sex Offender Registration and Notification Act ("SORNA").

Areas of Law: Criminal Procedure, Sentencing

Issues Presented:

1. Does the North Carolina offense of taking indecent liberties with a child qualify the defendant for classification as a tier III sex offender?

2. Does the categorical approach apply to tier classification of sex offenders under the SORNA?

3. Does the SORNA violate the Commerce Clause, Tenth Amendment, or Ex Post Facto Clause?

4. Were the defendant's special conditions of release improper for delegating authority to the probation office to approve contact with defendant's grandchildren and nieces?

Brief Summary:

Defendant was convicted of failing to register as a sex offender under the SORNA after moving from Oklahoma to Texas. Defendant unsuccessfully argued that his conviction under the SORNA violated the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Defendant then challenged his sentence because the district court classified him as a tier III sex offender as opposed to a tier I sex offender. The Tenth Circuit reversed the district court's finding that defendant was a tier III sex offender after determining that the categorical approach applied to tier classification under the SORNA, and that defendant's crime did not satisfy the elements of the federal crimes necessary for tier III classification. The Tenth Circuit then vacated defendant's special conditions of release and provided guidance for the district court in the event that defendant challenged the conditions of release on remand.


Extended Summary:

Defendant White is a convicted sex offender who was charged with failing to update his sex offender registration after moving from Oklahoma to Texas. Although he pleaded guilty to the offense, he reserved five issues for appeal - constitutional challenges to the Sex Offender Registration and Notification Act (SORNA) under the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause, and two challenges to his sentence for calculating his sentence as a tier III sex offender and for imposing conditions of supervised release that limited his contact with his grandchildren and nieces. The Tenth Circuit affirmed the conviction, but held that the district court erred in classifying White as a tier III sex offender and thus remanded for resentencing.

Mr. White was convicted of being a sex offender in North Carolina in 2007. In 2013, he moved to Texas from Oklahoma without registering in Texas or updating his Oklahoma registration. Thus, he was indicted in Oklahoma for failing to register as a sex offender.

Mr. White's Presentence Investigation Report (PSR) treated Mr. White as a tier III sex offender, but then gave him credit for acceptance of personal responsibility and determined a three-level reduction in sentence for a total offense level of 13. Due to Mr. White's prior criminal history and the offense level, the PSR determined that Mr. White's Sentencing Guidelines range was 18-24 months of imprisonment. Although Mr. White argued that he was a tier I sex offender, the district court relied on documents from Mr. White's initial conviction that the victim was the seven-year-old daughter of his girlfriend and that the incident involved contact with her. The district court then compared the offense to the federal crime of abusive sexual contact of a minor under thirteen, which would make him a tier III sex offender. As a result, Mr. White received an 18-month sentence with special conditions of supervised release that prevented Mr. White from being at a residence where children under the age of 18 reside without prior written permission from the U.S. Probation Office. Further, Mr. White was prohibited from associating with children under age 18 without the presence of a "responsible adult" who was aware of the defendant's background and current offense and had been approved by probation.

After dismissing Mr. White's constitutional claims and affirming his sentence, the Tenth Circuit addressed Mr. White's sentencing challenges. The court noted an abuse of discretion standard was the appropriate standard of review for a sentence imposed by the district court. The court explained that it is necessary to address procedural and substantive reasonableness when determining if the sentence is reasonable. It began by explaining the importance of the tier that Mr. White qualifies under as a sex offender. If Mr. White should actually have been considered a tier I sex offender, his base level for sentencing under the Guidelines should have been only 10 to 16 months' imprisonment.

The court then explained the way that tier classification works under the SORNA. Tier III sex offenders are offenders who have committed a crime that is comparable to the federal crime of aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age 13. A tier II offender is an offender who has committed a crime comparable to the crime of abusive sexual contact. All other offenders are classified as tier I offenders.

Next the court noted that the use of the word "offense" in 42 U.S.C. § 16911 -- the statute that lays out tier classifications-- is ambiguous. As a result, the court stated that there are two approaches that may be taken when comparing a conviction with a federal statute - the categorical approach and the circumstance-specific approach.

The court explained that when a statute refers to a generic crime, the categorical approach should be used. This compares the elements of the statute that the individual was convicted of, and the elements of the predicate crime. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If a statute is divisible, the court will look beyond the elements of the offense to the actual conduct of the defendant. A statute is divisible when several types of activity can satisfy the elements of the statute in the alternative. See id. When a statute is divisible, under the modified categorical approach the court may look at documents such as plea colloquies, indictments, and jury instructions to determine which type of conduct the defendant's conviction was based on.

The court then noted that where Congress uses the terms "offense," "crime," or "felony" in reference to specific prior acts, the circumstance-specific approach applies. This allows the court to look beyond the elements and examine the underlying facts of the defendant's conviction.

The court then explained that when the elements of statutory construction are used, it is apparent that Congress intended for a categorical approach because of Congress' reference to a general intent section of the criminal code. However, because subsection (4)(A)(ii) refers to the abusive sexual contact of a minor under age 13, the court must use a circumstance-specific approach to consider the age of the victim. In all other respects, the traditional categorical approach will apply.

The court also found the legislative history of § 16911 informative because a House report on the Act stated that one of the primary purposes of the bill was to protect children. Congress intended sex offenses against children to be punished more severely than sex offenses against others.

With that analysis in mind, the court reviewed the actions of the district court in determining that Mr. White was a tier III sex offender. It looked at his North Carolina indictment, which specified that the victim was less than sixteen years old, and that Mr. White was at least five years older than the victim, and older than sixteen. It also stated that he took "immoral, improper, and indecent liberties with the victim for the purpose of arousing and gratifying his sexual desire." The district court also reviewed police reports which listed the victim's age and stated that physical contact was involved. The court held that it was proper for the district court to review the documents in reference to the victim's age, but not for comparing the offense with the federal crime.

The court then engaged in a categorical approach analysis for Mr. White's state crime. It noted that the statute is divisible, so it then reviewed the North Carolina indictment to determine under which section of the North Carolina statute Mr. White was indicted. It determined that he was indicted for the first alternative listed in the statute - "willfully taking and attempting to take immoral, improper, and indecent liberties with a victim under the age of sixteen for the purpose of arousing and gratifying sexual desire."

Next, it compared the crime with the elements of the federal crime, listed in
§ 16911(4)(A) AND (3)(A). It noted that the elements necessary to commit the North Carolina crime involved that Mr. White (1) willfully, (2) took or attempted to take indecent liberties, (3) with a minor, (4) for the purpose of arousing and gratifying sexual desire. Physical contact is not listed as an element of the North Carolina crime.

The court determined that when the crime is compared with comparable federal statutes, he cannot be considered a tier II or tier III sex offender. Tier III classifications are reserved only for convictions similar to aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age thirteen. The only one that potentially applies in this case is abusive sexual contact against a minor under age thirteen. The court explained that aggravated sexual abuse and sexual abuse require a sexual act, which in turn requires a physical act. Further, abusive sexual contact also requires physical contact, though it is broader than the sexual act required to satisfy the elements of aggravated sexual abuse or sexual abuse. As a result, Mr. White had to be considered a tier I sex offender because his state crime did not require physical contact as an element of the statute.
The court determined that the sentence was procedurally unreasonable and remanded Mr. White's case for resentencing.

Finally, the court addressed Mr. White's conditions of supervised release, and vacated the conditions of supervised release because it vacated Mr. White's sentence. It briefly engaged in a discussion of Mr. White's claims to provide guidance to the district court, addressing the right to familial association and the delegation of judicial authority to a probation officer. It instructed the district court to consider the nature of Mr. White's relationship with his grandchildren to determine if a parent-like right is impacted, and if there is, then the conditions of release must be supported by compelling circumstances. The court also noted that the district court did not improperly delegate authority to the probation office to preapprove Mr. White's contact with his grandchildren and nieces.


To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-7031.pdf

Panel: Kelly, Lucero, McHugh

Date of Issued Opinion: April 6, 2015

Docket Numbers: 14-7031

Decided: Conviction was affirmed but sentence and conditions of supervised release were vacated and remanded.

Counsel:

Carl Folsom, III, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the brief), Muskogee, Oklahoma, for Appellant.

Edward Snow, Assistant United States Attorney (Mark F. Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, for Appellee.

Author: McHugh

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 04/10/2015 05:58 PM     10th Circuit  

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