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March 7, 2016
  United States v. Berry -- Fourth Circuit
Fourth Circuit Joins Tenth to Announce: No Need for Circumstance-Specific Evaluation when Categorical Evaluation Holds Up

Areas of Law: Criminal Procedure

Issue Presented: Whether the district court erred in using a circumstance-specific approach rather than a categorical approach to conclude that Berry's past convictions justified his Tier III designation.

Brief Summary: Defendant Berry was convicted of a sex offense and, therefore, was required to register under the federal Sex Offender Registration and Notification Act (SORNA). Berry failed to register and pled guilty to a violation of 18 U.S.C. § 2250(a), which is a failure to register statute. At sentencing, the district court calculated Berry's Sentencing Guidelines (Guidelines) range as if Berry were a Tier III sex offender. The United States Court of Appeals for the Fourth Circuit compared Berry's sex offense with what constitutes a Tier III offense and disagreed with the district court, vacating Berry's sentence and remanding the case to the district court to properly determine Berry's tier classification in order to impose a sentence.

Detailed Summary: In 2002, Defendant Brian Keith Berry pled guilty in New Jersey state court to endangering the welfare of a child. Berry was convicted of a sex offense and, therefore, was required to register under SORNA. After release from prison, Berry was told to register with the New Jersey police. He complied with the requirement and provided law enforcement with a New Brunswick address. However, in March 2013, police discovered that Berry no longer resided at the New Brunswick address and subsequently issued a warrant for his arrest for violating the conditions of his parole. Berry was found in North Carolina where he admitted to failing to register. At trial, Berry pled guilty to violating 18 U.S.C. § 2250(a) and the district court found Berry to be a Tier III sex offender with a corresponding base offense level of 16. The district court's finding was based on a description of the conduct underlying Berry's prior sex offense, which was "penetrating the vagina of a five-year-old victim with his hand." The district court found this conduct was comparable to the offense of abusive sexual conduct against a minor who has not yet attained 13 years of age, which falls under the Tier III definition. Based on the analysis and the Tier III designation, the district court sentenced Berry to 33 months in prison and 5 years of supervised release. This timely appeal stems from the district court's sentencing because Berry did not believe he should have been sentenced as a Tier III sex offender.

The Fourth Circuit began its analysis with the requirement for sex offenders to register and the penalties when offenders do not follow through with such requirement. SORNA classifies sex offenders into three tiers based on the sex offender's underlying sex offense. The court then explained that Tier II and Tier III designations are for more serious sex offenses and Tier I is a catch-all provision for all other sex offenses. To determine a defendant's tier classification, courts must compare the defendant's prior sex offense conviction with the offenses listed in the tier definitions. Courts have three analytical frameworks they can use to make this comparison: (1) the categorical approach; (2) the modified categorical approach; and (3) the circumstance-specific approach. The categorical approach focuses solely on the relevant offenses' elements by comparing the elements of the prior offense of conviction with the elements of the federal offense. If the elements of the prior offense are the same as or narrower than the offense listed in the federal statute, there is a categorical match. But, if the elements of the prior conviction sweep more broadly to the point that there is a realistic probability that the statute defining the offense of the prior conviction encompasses conduct outside the offense enumerated in the federal statute, the prior offense is not a match. The modified categorical approach serves as a tool for implementing the categorical approach where the defendant's prior conviction is for violating a statute that sets out one or more elements of the offense in the alternative. This approach allows the court to look through a limited number of documents to determine which alternative formed the basis of the defendant's prior conviction. Once the elements are identified, the court does not look at any other documents and continues with the categorical approach. Finally, the circumstance-specific approach focuses on the circumstances underlying the defendant's prior conviction, not the elements of the offense.

The Fourth Circuit acknowledged that the Tenth Circuit recently considered which approach is best for analyzing the Tier III definition. The Tenth Circuit held that the categorical approach is best and the Fourth Circuit agreed. The Fourth Circuit explained that when a federal statute refers to a generic offense, SORNA's definition demonstrates that Congress' intent is to have the categorical approach apply. On the other hand, when the federal statute refers to specific conduct or factual circumstances, SORNA's definition demonstrates that Congress' intent is to have the circumstance-specific approach apply.

Here, a Tier III sex offender is defined under 42 U.S.C. 16911(4) as "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, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as describe in sections 2241 and 2242 of this 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." The Fourth Circuit applied the Tenth Circuit's analysis and explained that a reference to a specific Criminal Code section suggests a generic offense with a straightforward element test, requiring the categorical approach. In the instant case, the references to "aggravated sexual abuse" or "sexual abuse" are examples of straightforward element tests where the categorical approach applies.

However, the court explained when there is a reference to an act that has a number of alternative elements or a reference to a description rather than an element, the courts need to consider the specific circumstances encompassing the criminal conduct because there is not a straightforward element test or analysis to classify the act. For example, here, the statute referring to "more severe than abusive sexual conduct" and "a minor who has not attained the age of 13 years" are examples where the circumstance-specific approach applies.

The Fourth Circuit agreed with the Tenth Circuit and explained that language in 42 U.S.C. 16911(4) instructs courts to apply the categorical approach when comparing prior convictions with the generic offenses listed. However, the Fourth Circuit and the Tenth Circuit, made an exception to this standard when it comes to the specific circumstance of a victim's age. The Fourth Circuit also held that a similar approach should be taken with Tier II designations.

Next, the Fourth Circuit mentioned the Supreme Court's avoidance of the circumstance-specific approach because it leads to various difficulties and requires examining evidence to discover the specific circumstances of past convictions. This re-evaluation of various pieces of evidence may lead to several "mini-trials" and the United States Supreme Court frowns upon this approach. The Fourth Circuit mentioned that evaluating a victim's age is straightforward and requires inquiry into only one fact. Therefore, the Fourth Circuit explained, the categorical approach is the proper approach to review the SORNA Tier III definition and looking into the victim's age would be an exception.

The Fourth Circuit applied its decision to use the categorical approach in considering whether a defendant's prior conviction is a Tier III sex offense under 42 U.S.C. 16911(4)(A) and to look at the specific circumstances for the victim's age to Berry's particular issues. Here, in 2002, Berry violated the New Jersey Statute § 2C:24 - 4(a). At the time of conviction, the statute held "[a]ny person...who engaged in sexual conduct...or who causes the child harm... is guilty of a crime of the third degree." The New Jersey Supreme Court has ruled, in a multitude of cases, that an offender may violate the New Jersey Statute § 2C:24 - 4(a) by both physical and non-physical means such as deprivation of sufficient food or repeatedly appearing nude in front of a window; whereas, a Tier III designation requires a defendant to have engaged in or attempted physical contact with the victim. Therefore, because the New Jersey statute encompasses a much broader interpretation of sexual conduct than the Tier III definition, the Fourth Circuit believed Berry's Tier III designation was improper. The Fourth Circuit vacated Berry's sentenced and remanded the case for the district court to apply the proper tier classification, calculate the corresponding Guideline, and impose a proper sentence.

To read the full text of this opinion, please click here.

Panel: Judges Wilkinson, King, and Wynn

Argument Date: 12/10/2015

Date of Issued Opinion: 02/19/2016

Docket Number: No. 14-4934

Decided: Vacated and remanded by published opinion.

Case Alert Author:
Chaitra Gowda, Univ. of Maryland Carey School of Law

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

Author of Opinion:
Judge Wynn

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/07/2016 01:01 PM     4th Circuit  

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