by Doug Ankney

The United States Court of Appeals for the Fifth Circuit vacated a defendant’s sentence for failing to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”), holding that the U.S. District Court for the Southern District of Texas committed plain error by classifying him as a tier III offender. Applying the categorical approach, the Court determined that the Texas statute under which the defendant was convicted, sexual assault of a child, criminalizes broader conduct than both the federal offenses defining tier III status and those defining tier II status. Because the Texas offense encompasses consensual sexual activity with minors without requiring proof of force, threats, or coercion, it cannot serve as a predicate for either tier III or tier II classification. Thus, the defendant must be classified as a tier I offender.

Background

Sergio Yovani Quintanilla-Matamoros, a Honduran citizen, was convicted in Texas state court in May 2021 for sexually assaulting a 13-year-old child in violation of Texas Penal Code § 22.011(a)(2). He was sentenced to two years of imprisonment, but because he lacked lawful immigration status, he was deported to Honduras in July 2021. He illegally returned to the U.S. soon after, and in July 2024, he was detained for immigration violations. Quintanilla-Matamoros acknowledged his prior conviction and admitted he did not register as a sex offender because he did not want to alert Immigration and Customs Enforcement that he had returned.

Quintanilla-Matamoros subsequently pleaded guilty to a one-count federal indictment charging him with failure to register under SORNA in violation of 18 U.S.C. § 2250(a). The presentence investigation report recommended a base offense level of 16, corresponding to tier III offender status, which produced an advisory Guidelines range of 18 to 24 months of imprisonment. Quintanilla-Matamoros did not object to this recommendation. The District Court adopted the report’s findings and imposed a 24-month sentence followed by five years of supervised release. Quintanilla-Matamoros timely appealed, arguing for the first time that he should not have been classified as a tier III offender.

Analysis

Because Quintanilla-Matamoros raised his classification argument for the first time on appeal, the Court reviewed for plain error under Federal Rule of Criminal Procedure 52(b). The Court explained that under this standard, a defendant must identify an error that is clear or obvious and that affected his substantial rights. Rosales-Mireles v. United States, 585 U.S. 129 (2018). If these elements are satisfied, the Court should correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Molina-Martinez v. United States, 578 U.S. 189 (2016).

The Court began by outlining SORNA’s tiered classification system. Under SORNA, sex offenders are categorized into three tiers based on the severity of their underlying offenses, with each tier corresponding to different registration requirements and sentencing guidelines. A tier III classification applies when the offense of conviction “is comparable to or more severe than … aggravated sexual abuse or sexual abuse,” as defined in 18 U.S.C. §§ 2241 and 2242. A tier II classification applies when the offense is “comparable to or more severe than … abusive sexual contact” under 18 U.S.C. § 2244. Offenders who do not qualify for either tier II or tier III are classified as tier I offenders. 34 U.S.C. § 20911(2).

The Court stated that tier classification must be determined using the categorical approach, which compares the elements of the defendant’s state conviction with the elements of the corresponding federal offenses. United States v. Escalante, 933 F.3d 395 (5th Cir. 2019). Quoting Descamps v. United States, 570 U.S. 254 (2013), the Court noted: “The key … is elements, not facts.” Under this methodology, if a state statute “sweeps more broadly” than the federal offense, meaning it criminalizes conduct that the federal statute would not reach, the state offense cannot qualify as a predicate for that tier classification regardless of how the defendant actually committed the crime. United States v. Montgomery, 966 F.3d 335 (5th Cir. 2020).

Turning to tier III classification, the Court examined the federal offenses of aggravated sexual abuse and sexual abuse under §§ 2241 and 2242. Both federal statutes require proof that the defendant employed force, threats, fear, compulsion, or coercion. Neither criminalizes consensual sexual acts. The Texas statute, by contrast, contains no such requirement. Texas Penal Code § 22.011(a)(2) prohibits sexual penetration of a child, defined as anyone younger than 17, regardless of consent. As Texas courts have interpreted the statute, minors under 17 are “capable of consent,” but such consent is “irrelevant to the offense.” Delarosa v. State, 677 S.W.3d 668 (Tex. Crim. App. 2023). Because a person can violate the Texas statute through consensual intercourse with a minor, conduct that would not necessarily violate the federal statutes, the Court concluded that the Texas offense sweeps more broadly than the tier III federal offenses. The Government conceded this error.

The Court then addressed whether Quintanilla-Matamoros qualified as a tier II offender. For tier II status, the offense must be comparable to abusive sexual contact under § 2244, which incorporates by reference several federal statutes including 18 U.S.C. § 2243(a) and § 2241(c). Section 2243(a) criminalizes sexual acts with victims between 12 and 15 years old when the perpetrator is at least four years older than the victim. Section 2241(c) criminalizes sexual acts with victims under 12 years old.

The Court determined that the Texas statute is broader than both provisions. The Texas offense covers victims up to age 16, while § 2243(a) reaches only victims between 12 and 15. Additionally, § 2243(a) requires proof of a four-year age differential between perpetrator and victim, but the Texas statute contains no such element. As the Court noted, citing United States v. Escalante, 933 F.3d 395 (5th Cir. 2019): “Looking solely at the elements” of the two statutes, the Texas offense “criminalizes consensual sexual contact between an 18-year-old and a 15-year-old, whereas the federal statute does not.” As for § 2241(c), the Texas statute covers victims between 12 and 16, but the federal provision “stops before age twelve.” United States v. Navarro, 54 F.4th 268 (5th Cir. 2022). The Court observed that these applications are not merely theoretical possibilities, citing Texas cases prosecuting 19-year-olds for sexual assault of 16-year-olds. See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

Having determined that Quintanilla-Matamoros is neither a tier III nor tier II offender, the Court concluded he must be classified as a tier I offender. § 20911(2). The Court ruled that the error satisfied plain error review. It was clear under existing circuit precedent, it affected substantial rights because the correct Guidelines range would have been lower, and correcting it was necessary to preserve the fairness and integrity of the proceedings.

Conclusion

Accordingly, the Court vacated Quintanilla-Matamoros’s sentence and remanded for resentencing as a tier I offender. See: United States v. Quintanilla-Matamoros, 164 F.4th 366 (5th Cir. 2026).  

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