United States v. Booker Rogers
804 F.3d 1233
7th Cir.2015Background
- Booker Rogers, a convicted sex offender from West Virginia, failed to register after moving to Indiana in 2011 and was later reported by his then-18-year-old daughter for sexual abuse.
- Rogers pleaded guilty to traveling in interstate commerce and failing to register as a sex offender under 18 U.S.C. § 2250.
- At sentencing the probation office recommended a six-level enhancement under U.S.S.G. § 2A3.5(b)(1)(A) for committing a sex offense (Indiana incest) while in failure-to-register status.
- The district court found Rogers committed incest with his daughter, credited her testimony as credible, and concluded the acts were nonconsensual (alternatively that she was under his custodial authority).
- The court applied the six-level enhancement and denied a three-level § 3E1.1 acceptance-of-responsibility reduction because Rogers falsely denied the relevant conduct.
- Rogers was sentenced to 105 months’ imprisonment and 20 years’ supervised release; he appealed the guideline enhancement and the denial of acceptance credit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 16911(5) requires a categorical or fact-based inquiry to decide if a prior offense is a "sex offense" for § 2A3.5 enhancement | Rogers: apply categorical (elements-only) approach to the § 16911(5)(C) exception; Indiana incest remains a sex offense because nonconsent is not an element | Government: threshold definition (5)(A)(i) is categorical but the (5)(C) exception is fact-based and requires examination of the offense facts (consent, custodial authority, age differential) | Court: threshold definition (5)(A)(i) is categorical; exception (5)(C) is fact-specific and permits inquiry into conduct and circumstances |
| Whether Rogers’s incest fell within the (5)(C) consensual-adult exception (i.e., whether the court may look to facts to determine consent) | Rogers: categorical approach would treat the statute as qualifying regardless because nonconsent is not an element of Indiana incest | Rogers: factual finding of consent is challenged on appeal | Court: factual finding that daughter did not consent is not clearly erroneous; exception does not apply |
| Whether application of the § 2A3.5(b)(1)(A) six-level enhancement was proper | Rogers: enhancement improperly applied if the court may not consider factual nonconsent under § 16911(5)(C) | Government: enhancement proper because exception’s fact-based inquiry shows nonconsent here | Court: enhancement properly applied because the offense met § 16911(5)(A)(i) and the (5)(C) exception was inapplicable on the facts |
| Whether denial of § 3E1.1 acceptance credit for false denial was appropriate | Rogers: challenges denial tied to his denial of the incest conduct | Government: denial appropriate because Rogers falsely denied relevant conduct already found by the judge | Court: denial proper because it rested on the same credible factual finding of incest/nonconsent |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (explaining and applying the categorical approach to predicate-offense inquiries)
- Nijhawan v. Holder, 557 U.S. 29 (discussing circumstance-specific statutory language vs. element-focused language)
- Taylor v. United States, 495 U.S. 575 (adopting categorical approach for enhancement statutes)
- United States v. Gonzalez-Medina, 757 F.3d 425 (5th Cir.) (interpreting § 16911(5)(C) as allowing a fact-specific inquiry)
- United States v. Byun, 539 F.3d 982 (9th Cir.) (supporting circumstance-specific analysis for certain statutory exceptions)
- United States v. Pulley, 601 F.3d 660 (7th Cir.) (standard of review for sentencing factual findings and credibility)
- United States v. Martinez-Carillo, 250 F.3d 1101 (7th Cir.) (observing dynamics of incest and victim compliance due to fear)