966 F.3d 335
5th Cir.2020Background
- In 1992 Montgomery was convicted in New Jersey of second‑degree sexual assault and released on parole in 1995.
- In April 2018 he moved to Texas but did not register as a sex offender; the government charged him under SORNA, 18 U.S.C. § 2250(a), in November 2018.
- At trial Montgomery was convicted; the PSR treated his New Jersey offense as SORNA Tier III and recommended a base offense level of 16.
- Montgomery objected, arguing his New Jersey conviction is not comparable to federal aggravated sexual abuse/sexual abuse and thus should be Tier I (15‑year registration), not Tier III (lifetime).
- The district court overruled the objection and sentenced Montgomery to 41 months; on appeal the Fifth Circuit reviewed for plain error because Montgomery did not move to dismiss on sufficiency grounds below.
- The Fifth Circuit held New Jersey law criminalizes nonconsensual penetration without the additional force/fear required by federal §§ 2241–2242, so Montgomery cannot be Tier III and his conviction was vacated; a concurrence criticized the categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Montgomery's NJ second‑degree sexual assault conviction qualifies as SORNA Tier III | Montgomery: NJ statute is broader than federal aggravated sexual abuse/sexual abuse, so he is Tier I | Government: NJ conviction fits federal §§ 2241/2242 and supports Tier III classification | Court: NJ law (as interpreted by NJ courts) is broader than federal definitions; Montgomery is Tier I; conviction vacated |
| Standard of review for appellate challenge raised in PSR objections | Montgomery: plain‑error review applies but clear error exists affecting substantial rights | Government: defendant forfeited some arguments by not moving to dismiss; plain‑error standard controls | Court: Plain‑error review applies; error was clear and affected substantial rights, warranting correction |
| Proper method to determine SORNA tier | Montgomery: use categorical approach comparing statutory elements, with state case law showing mismatch | Government: the statutory elements suffice to support Tier III | Court: use categorical approach; require realistic‑probability showing via state court decisions; here state law interpretations show broader scope than federal statutes |
| Effect of SORNA tier classification on registration obligation | Montgomery: Tier I requires 15‑year registration, so no duty in 2018 | Government: Tier III lifetime duty applied | Court: Tier I applies; registration period expired long before 2018 |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach: compare statutory elements, not underlying facts)
- Taylor v. United States, 495 U.S. 575 (1990) (original articulation of the categorical approach)
- United States v. Escalante, 933 F.3d 395 (5th Cir. 2019) (applying categorical approach to SORNA tiering)
- State in the Interest of M.T.S., 129 N.J. 422 (1992) (NJ Supreme Court: nonconsensual penetration alone can satisfy NJ "force or coercion")
- Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (plain‑error review framework)
- United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (requires realistic probability, supported by state court decisions, that state statute reaches conduct outside the federal definition)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (realistic‑probability standard for categorical mismatch)
- United States v. Lucas, 157 F.3d 998 (5th Cir. 1998) (federal "force" requires restraint sufficient to prevent escape)