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7th Circuit Announces SORNA Requires Hybrid Approach in Comparing Underlying Conviction to Determine Tier Classification

by Anthony Accurso

The U.S. Court of Appeals for the Seventh Circuit joined the Fourth and Tenth Circuits in holding that tier classification under the Sex Offender Registration and Notification Act (“SORNA”) compels a hybrid approach to classifying a defendant’s crime, which underlies a charge of failing to register.

In 1998, Richard Walker pleaded guilty to sexually assaulting his 4- and 6-year-old nephews in violation of Colo. Rev. Stat. § 18-3-405(1). He was sentenced to four years’ probation, which was later revoked, and he served a term in prison. In 2017, he was indicted for failing to register between June 2016 and July 2017. Walker entered a conditional guilty plea preserving his right to appeal the district court’s finding that he was required to register.

The Seventh Circuit first determined how it should compare Walker’s conviction to the requirements of each tier under SORNA. The Court found the language of 34 U.S.C. § 20911 requiring a comparison between Walker’s state offense and the federal “offenses” listed in 18 U.S.C. § 2244 compelled the Court to adopt the categorical approach as outlined in cases such as Descamps v. United States, 570 U.S. 254 (2013). The categorical approach disregards the actual facts involved in the defendant’s case; instead, the court must compare the elements of the state offense with the corresponding federal offense. Id. If the elements of the state offense are the same or narrower than the federal offense, then there’s a “categorical match.” Id.

However, relying on Nijhawan v. Holder, 557 U.S. 29 (2009), the Court adopted the analysis of the Fourth Circuit in United States v. Berry, 814 F.3d 192 (4th Cir. 2016), and the Tenth Circuit in United States v. White, 782 F.3d 1118 (10th Cir. 2015), in concluding that the statutory distinction for Tier II and III classification the offense be “against a minor who had not attained the age of 13 years” requires a circumstance-specific approach for only that portion of the analysis. That is, first courts must apply a categorical approach with respect to the elements of the offense, and then, that determination is followed by a case-specific approach that examines the actual age of the victim, which results in a so-called hybrid approach.

The Government argued that, because Walker’s victims were both under 13, his offense necessarily entailed “abusive sexual contact” under § 2244, which would make him a Tier II offender. The Court declined to collapse both halves of the hybrid analysis under this kind of exception. That is, knowing the age of the victim doesn’t resolve both the categorical elements inquiry as well as the case-specific age inquiry.

Categorically comparing Walker’s crime of offense against the generic federal offenses listed in § 2244 show that Colo. Rev. Stat. § 18-3-405(1) is broader (criminalizes more conduct) compared to § 2244(2)(A) because many 14 year-olds understand the nature of sexual conduct, but the Colorado statute criminalizes such contact. It is overbroad compared to § 2243(a) (victim between the ages of 12 and 16) and § 224l(c) (victim younger than 12) because the Colorado statute criminalizes conduct with minors younger than 15 years old, thus the age range of the Colorado statute is too broad to match either federal statute.

Because Walker’s offense is not a categorical match for any Tier II offense, the Court was not required to engage in the second inquiry of the hybrid approach. It instead found Walker to be a Tier I offender whose obligation to register expired 15 years after he began registering, i.e., before June 2016. Thus, Walker was not required to register during the time period specified in the complaint.

Accordingly, the Court vacated Walker’s conviction and sentence. See: United States v. Walker, 931 F.3d 576 (7th Cir. 2019). 

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