United States v. Brian Berry
2016 U.S. App. LEXIS 2873
| 4th Cir. | 2016Background
- Brian Keith Berry pleaded guilty in 2002 in New Jersey to endangering the welfare of a child (N.J. Stat. Ann. § 2C:24-4(a)) and later failed to register as a sex offender in North Carolina, pleading guilty to violating 18 U.S.C. § 2250.
- At sentencing the district court treated Berry as a SORNA tier III sex offender, relying on presentence-report descriptions of underlying conduct (penetration of a five-year-old victim with a hand).
- The tier III classification produced a Guidelines base offense level of 16 and a resulting Guidelines range of 33–41 months; the court sentenced Berry to 33 months.
- Berry appealed, arguing the district court erred in classifying his New Jersey conviction as comparable to the federal offenses listed in 42 U.S.C. § 16911(4)(A) and therefore erred in treating him as a tier III offender.
- The Fourth Circuit held that SORNA tier comparisons are governed by the categorical approach (with the limited exception that the victim’s age may be examined as a circumstance) and concluded New Jersey’s endangerment statute sweeps more broadly than the federal offenses requiring physical contact, so Berry is not a tier III offender.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORNA tier comparisons under 42 U.S.C. § 16911(4)(A) require a categorical or circumstance-specific approach | Gov: court may examine underlying conduct (circumstance-specific) as in Price | Berry: categorical approach should govern; district court erred by relying on factual circumstances | Court: Apply categorical approach to the generic federal offenses referenced, but may consider victim age as a circumstance-specific fact; wholesale circumstance-specific approach rejected |
| Whether Berry’s NJ conviction is "comparable to or more severe than" aggravated sexual abuse/sexual abuse/abusive sexual contact (tier III) | Gov: underlying conduct (penetration of a 5-year-old) supports tier III classification | Berry: NJ statute is divisible and can criminalize non-contact conduct that does not match federal elements | Court: NJ §2C:24-4(a) sweeps more broadly (includes non-contact conduct like repeated nudity or failure to provide food) and therefore does not categorically match the federal contact offenses; district court erred — sentence vacated and remanded |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (Sup. Ct.) (categorical/modified categorical framework for prior-conviction comparisons)
- Nijhawan v. Holder, 557 U.S. 29 (Sup. Ct.) (textual indicators distinguishing generic-offense reference from circumstance-specific inquiry)
- White v. United States, 782 F.3d 1118 (10th Cir.) (applying categorical approach but allowing victim-age inquiry)
- United States v. Price, 777 F.3d 700 (4th Cir.) (circumstance-specific approach for certain SORNA provisions referencing conduct)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (limitations on circumstance-specific inquiry; concerns about relitigating past convictions)
- Omargharib v. Holder, 775 F.3d 192 (4th Cir.) (divisibility analysis for state statutes)
- United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir.) (state-court interpretations constraining elements analysis)
- Gall v. United States, 552 U.S. 38 (Sup. Ct.) (abuse-of-discretion standard for reviewing sentences)