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Sixth Circuit: Tennessee Aggravated Sexual Battery Is Not a SORNA Tier III Offense

by Christopher Zoukis

The U.S. Court of Appeals for the Sixth Circuit ruled that a defendant previously convicted of aggravated sexual battery in Tennessee should not have been classified as a Tier III sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The June 8, 2018, opinion vacated the defendant’s sentence and remanded to the district court for resentencing.

At the age of 19, Trevon Barcus had sex with a 12-year-old girl. He pleaded guilty to attempted aggravated sexual battery in Tennessee state court. Following completion of a three-year prison term, Barcus cut off his ankle monitor and left the area. He was arrested in Kentucky and charged with failure to register in violation of SORNA.

Barcus pleaded guilty to the SORNA violation. The Presentence Investigation Report classified him as a Tier III sex offender, which corresponds to a U.S. Sentencing Guidelines base level of 16 (higher than Tier I or Tier II). Barcus did not object to this classification and was sentenced to 30 months in prison. He appealed, arguing that he should not have been classified as a Tier III sex offender.

In order to determine whether the Tennessee crime of aggravated sexual battery qualifies as a SORNA Tier III offense, the Court applied the categorical approach. Under this approach, the Court compared the elements of the state law offense with the Tier III requirements. If the elements of the state crime were the same or more narrow than the Tier III requirements, then the classification was correct.

Tennessee aggravated sexual battery is defined as “unlawful sexual contact with a victim by the defendant or the defendant by a victim” if (as relevant to Barcus’ case) the victim is less than 13 years of age. “Sexual contact” is defined in Tennessee as “intentional touching . . . if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”

The Court compared this to two different federal definitions. Under federal law, a sexual act is the “intentional touching, not through the clothing, of the genitalia of another person, who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(D) Sexual contact is the “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)

As the emphasized text indicates, the Court found that the Tennessee statute “sweep[s] more broadly” than the Tier III offenses. The federal statutes clearly include a specific intent element; the Tennessee statute does not. The “reasonably construed” element in the Tennessee crime, said the Court, “does not ask the jury to determine the defendant’s actual intent.” Because the Tennessee crime sweeps up more conduct than the federal offense, it cannot be classified as a Tier III offense.

“In short, Tennessee aggravated sexual battery does not require that the sexual contact be for arousal or gratification,” wrote the Court. “The federal statute does. The state statute thus sweeps more broadly than the Tier III requirements.

Barcus’ Tier III status subjected him to a higher adjusted offense level, a higher sentencing range, and thus, more time in prison. Because Tennessee aggravated sexual battery is not comparable to the Tier III requirements, the district court committed plain error when it erroneously classified Barcus as a Tier III sex offender.”

Accordingly, the Court vacated Barcus’ sentence and remanded for resentencing consistent with this opinion. See: United States v. Barcus, 892 F.3d 228 (6th Cir. 2018). 

 

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