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Fifth Circuit Announces that Categorical Approach Applied to SORNA Doesn’t Permit Circustance-Specific Inquiry Into Offender/Victim Age Differential

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit held that the text of the Sexual Offense Registration and Notification Act (“SORNA”) does not permit a court, when applying the categorical approach to determine sex offender tier levels, to conduct a circumstance-specific inquiry into an offender-victim age differential when the differential is an element of a corresponding cross-referenced offense. However, the circumstance-specific inquiry is permitted for the limited purpose of determining the victim’s age.

Johnny Escalante, 35, was convicted in Utah of sexual activity with a 14-year-old girl that did not include rape or aggravated sexual assault. Utah Code Ann. § 76-5-401.

After being released from prison, Escalante moved to Texas where he was arrested for failing to register as a sex offender under 34 U.S.C. § 20913(c). After Escalante pleaded guilty, a presentence report (“PSR”) was prepared that concluded his Utah conviction was comparable to abusive sexual contact of a minor as described in 18 U.S.C. § 2244. And § 2244 in turn cross-references 18 U.S.C § 2243(a), which criminalizes sexual acts with someone who is (1) 12 to 15 years old and (2) is at least four years younger than the offender. Based on this, the PSR recommended Escalante be categorized as a Tier II offender with a Guidelines imprisonment range of 27 to 33 months. But the PSR also urged the court to consider an upward departure based on Escalante’s history of domestic violence, parole violations, and high risk of recidivism.

Escalante objected, arguing, inter alia, that 18 U.S.C. § 2243(a) requires the Government to prove a four-year age differential whereas the Utah statute does not. Thus, the Utah statute “swe[pt] more broadly than the federal statute” and could not serve as a predicate for the Tier II classification. This means Escalante’s sentencing Guidelines call for less severe punishment as a Tier I offender. The district court rejected Escalante’s objections, adopted the PSR as its factual findings, and upwardly varied from the Guidelines to sentence him to 48 months in prison. Escalante appealed.

The Fifth Circuit observed that the categorical approach is employed when classifying the SORNA tier of a defendant’s state law sex offenses. United States v. Young, 872 F.3d 742 (5th Cir. 2017). However, Young left open the question of whether a circumstance-specific inquiry is required to determine the victim’s age. Id.

“Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than the defendant’s specific conduct.” United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013).

If the state statute of conviction “sweeps more broadly” than the referenced federal offense, the state offense cannot serve as a proper predicate. Descamps v. United States, 570 U.S. 254 (2013).

However, circumstance-specific inquiries may be required to determine whether conditional or modifying requirements of a qualifying state predicate offense are met. Nijhawan v. Holder, 557 U.S. 29 (2009). While courts are to apply a categorical approach to sex-offender tier classifications designated by reference to a specific federal criminal statute, the courts are to employ a circumstance-specific comparison for the limited purpose of determining the victim’s age. United States v. White, 782 F.3d 1118 (10th Cir. 2015).

A state sex offense is a Tier II offense for SORNA sentencing purposes when, among other things, it “is comparable to or more severe than [abusive sexual contact as described in § 2244] when committed against a minor.” 34 U.S.C. § 20911(3). Abusive sexual contact under 18 U.S.C. § 2244 includes, inter alia, sexual abuse of a minor under 18 U.S.C. § 2243(a) which requires the victim to be 12 to 15 years old and that the offender be older by four years or more.

The Fifth Circuit, in agreement with the Fourth, Ninth, and Tenth Circuits, concluded that the district court properly made a circumstance-specific inquiry when determining the age of Escalante’s victim was 14. But the district court erred when it used the circumstance-specific inquiry to determine Escalante was more than four years older than the victim.

The categorical approach limits the court’s inquiry to the elements of the relevant statute. Since the Utah statute under which Escalante was convicted did not require the offender to be at least four years older than the victim, it prohibited conduct that 18 U.S.C. 2253(a) does not prohibit. For example, under the Utah statute, an 18-year-old offender could be convicted of sexual conduct with a 15-year-old victim, but this conduct could not be punished under the federal statute. Since the state statute “sweeps more broadly” than the corresponding federal statute, a conviction under the state statute cannot qualify as a predicate offense. Thus, the district court improperly classified Escalante as Tier II sex offender.

Accordingly, the Court vacated and remanded to the district court for resentencing. See: United States v. Escalante, 2019 U.S. App. LEXIS 23234 (5th Cir. 2019).

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Note: This decision also explains why the Court considered but rejected Escalante’s argument that the federal statute permits an affirmative defense that the state statute does not permit. 

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