Case Information
*1 Before STEWART, Chief Judge, and GARZA, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Chief Judge:
Defendant-Appellant Angel Segura (“Segura”) appeals his sentence on the grounds that the district court’s imposition of a 120-month term of incarceration was unreasonable. He also appeals the district court’s imposition of a life-term of supervised release on the grounds that the district court erroneously treated his conviction for failure to register as a sex offender as a “sex offense.” For the reasons explained below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND In August 2012, Segura pleaded guilty to failure to register as a sex offender (“failure to register”) under the Sex Offender Registration and Notification Act (“SORNA”). See 18 U.S.C. § 2250(a). In preparation for Segura’s sentencing, the United States Probation Office (“Probation”) completed a Presentence Investigation Report (“PSR”) that detailed Segura’s protracted criminal history that started in 1986 and concluded with the instant offense that was committed in 2012. Segura’s criminal history includes, inter alia , convictions for drug possession, sexual offenses against minors, illegal weapon possession, and failure to register as a sex offender.
Probation used the 2011 version of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) to determine Segura’s Guidelines range. According to Probation’s calculations, Segura’s total offense level was 13 with a criminal history category of IV, yielding a Guidelines range of 33 to 41 months’ imprisonment followed by a term of supervised release of five years to life. The PSR recommended a life term of supervised release based upon the conclusion that failure to register is a “sex offense” pursuant to U.S.S.G. § 5D1.2(b)(2). [1] The district court adopted the PSR without objection from either party. The district court made an upward variance from the recommended Guidelines range and sentenced Segura to 120 months’ imprisonment. Further, the district court adopted the PSR’s supervised release recommendation and sentenced Segura to a life-term.
II. DISCUSSION
A. On appeal, Segura argues the district court’s upward variance from the guidelines range of 33 to 41 months to a sentence of 10 years’ imprisonment was substantively unreasonable. According to Segura, the district court failed to properly balance the 18 U.S.C. § 3553(a) sentencing factors and relied too heavily upon Segura’s history of “contact offenses” and prior convictions for failure to register. Segura claims that the district court ignored the twenty- three-year distance between the “contact offenses” and the instant offense. According to Segura, the district court’s finding that Segura is a “clear and present danger” to children is not supported by the record. Although Segura makes these very specific challenges to his sentence on appeal, he only lodged a general reasonableness objection at sentencing before the district court.
To properly preserve a challenge to the reasonableness of a sentence for
appeal, a defendant is required to inform the district court of the specific
grounds for the challenge.
See United States v. Warren
,
We disagree with Segura’s assertion that the district court failed to
properly balance the § 3553(a) factors. During sentencing, the district court
provided a sufficient explanation for why it believed a 120-month sentence was
appropriate. In addition to considering each of the § 3553(a) factors, the
district court explained that it took particular note of the nature and
circumstances of the instant offense and Segura’s lengthy history of
criminality. Specifically, the district court noted that Segura has three prior
convictions for contact sex offenses and that the instant conviction was his
third for failure to register. These comments demonstrate that the district
court engaged in a well-guided deliberative process that included balancing the
§ 3553(a) factors. An upward variance is unreasonable only if it “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.”
United States v. Smith
,
B.
Segura also argues that the district court committed error by imposing a life term of supervised release based upon an erroneous conclusion that failure to register is a sex offense. Segura asserts that because the Guidelines’ definition of sex offense requires that the offense be perpetrated against a minor, failure to register cannot be a sex offense. The government agrees and concedes that an error was committed on this issue. Nevertheless, because Segura failed to present this argument to the district court, we are bound to review the district court’s decision only for plain error. See Warren , 720 F.3d at 332.
18 U.S.C. § 3583 sets forth general standards for imposing terms of supervised release as part of a defendant’s sentence. The statutory penalties for violating § 2250(a)—Segura’s offense of conviction—include a term of supervised release of five years to life. See 18 U.S.C. § 3583(k). In addition to the statutory sentencing scheme, the Guidelines provide recommendations for imposing supervised release as part of a defendant’s sentence. See U.S.S.G. § 5D1.2. Section 5D1.2(b)(2) is a policy statement recommending that sentencing courts impose the statutory maximum term of supervised release if the offense of conviction is a sex offense. The commentary to § 5D1.2 states that a “sex offense,” for the purposes of that Guideline, is an offense perpetrated against a minor under, inter alia , 18 U.S.C. Chapter 109B. U.S.S.G. § 5D1.2 cmt. n.1. The only offense listed in Chapter 109B is failure to register under 18 U.S.C. § 2250—Segura’s offense of conviction. As a result of the interplay between 18 U.S.C. § 3583 and U.S.S.G. § 5D1.2, the district court concluded that failure to register qualifies as a sex offense.
As the parties noted in their briefs and at oral argument, this court
previously commented on the implications of the commentary to § 5D1.2.
United States v. Tang
,
A statement is dictum if it could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it. A statement is not dictum if it is necessary to the result or constitutes an explication of the governing rules of law.
Int’l Truck & Engine Corp. v. Bray
,
The
Tang
panel considered whether conditions attached to terms of
supervised release were reasonably related to the nature of the underlying
offense—failure to register.
Tang
, 718 F.3d at 482–83. Tang’s primary
argument was that a ban on internet use without prior approval from
probation services was inappropriate, as he never used the internet in the
commission of a crime.
Id.
at 483. The panel agreed, holding that, “the ban
d[id] not relate to the nature and circumstances of Tang’s offense; [t]here, the
failure to register as a sex offender.”
Id.
at 484 (citations and internal
quotation marks omitted). The panel’s central focus in
Tang
was whether an
Internet ban is reasonably related to failure to register as a sex offender. The
panel did not meaningfully consider whether failure to register qualifies as a
sex offense. Moreover, whether a conviction for failure to register constitutes
a sex offense was not “necessary to the result” reached in
Tang
.
See Int’l Truck
& Engine Corp.
,
Therefore, we hold that footnote 3 in Tang is dictum and does not bind the court under the prior-panel rule. Accordingly, we are free to examine the question of whether failure to register qualifies as a sex offense without regard to the statement in the Tang opinion. For the reasons explained below, we hold that failure to register does not qualify as a sex offense for the purposes of § 5D1.2(b)(2).
The Seventh Circuit’s reasoning in
United States v. Goodwin
is
instructive.
U.S.S.G. § 5D1.2(b)(2) is inapplicable to his offense, that the [PSR] erroneously relied on this Guideline in recommending a life term of supervised release, and that the district court’s sentencing him to a life term of supervised release under the incorrect assumption that this sentence was within the advisory Guidelines constitutes plain error.
Id. at 518. The Seventh Circuit agreed with Goodwin. In reaching its conclusion, the Seventh Circuit first considered whether failure to register should be classified as a sex offense. Id. at 518–19. The court disagreed with the Application Note’s apparent suggestion that any failure to register under SORNA could be considered an offense perpetrated against a minor. [4] See id at 519. The court noted that “[i]n Goodwin’s case, there was no specific victim of his failure to register” and accordingly, “it seems incorrect to claim that Goodwin committed his failure to register ‘against a minor.’” Id. The court explained that applying the term ‘“perpetrated against a minor’ to any failure to register stretches this term past its breaking point.’” Id. We agree. In Segura’s case, there was no specific victim attributed to his failure to register. Therefore, the crime was not perpetrated against a minor and should not qualify as a sex offense.
C.
Having concluded that the district court erred in finding that failure to
register is a sex offense, we now discuss whether that error was plain—that is,
whether the error was clear or obvious. To determine whether the district
court’s error was plain, we examine the state of the law at the time of appeal.
Escalante-Reyes
,
Moreover, several Fifth Circuit cases declined to reach this issue and,
until now, the question remained unresolved.
See United States v. Cuneo
, No.
12-60537, 2014 WL 545435, at *2 (5th Cir. Feb. 12, 2014) (per curiam)
(unpublished) (explaining that no Fifth Circuit case “resolved the question of
whether failure to register is a ‘sex offense,’ but rather, they determined that
‘treating failure to register as a sex offense is not plain error’” (citation
omitted));
see also United States v. Byrd
, No. 12-60659,
Alternatively, even if the error was clear or obvious, Segura failed to
demonstrate that it affected his substantial rights. “In the sentencing context,
[this] requires that the defendant demonstrate a ‘reasonable probability’ that,
but for the district court’s error, he would have received a lesser sentence.”
United States v. Culbertson,
D.
Finally, we note that even if we were to conclude that the district court
committed plain error—which we do not—this is a not a case that merits the
exercise of our discretion to reverse the district court’s ruling. We may exercise
our discretion to reverse under plain error review only where “the error
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.”
Escalante-Reyes
,
For the foregoing reasons, we hold that the district court erred in finding that failure to register is a sex offense for the purposes of § 5D1.2(b)(2). However, we conclude that the error was not plain and reversal is not warranted. Accordingly, we affirm.
Notes
[1] Section 5D1.2(b)(2) is a “policy statement” explaining that “[i]f the instant offense of conviction is a sex offense . . . the statutory maximum term of supervised release is recommended.”
[2] These arguments have more direct implications on our plain error analysis infra . We discuss Tang in this section to explain why it does not guide our analysis with respect to whether failure to register qualifies as a sex offense.
[3] We adopt the Seventh Circuit’s reasoning only to the extent that it concluded that an error was committed. Unlike the Seventh Circuit and for reasons explained infra , we do not conclude that the error committed in this case was plain.
[4] The Application Note defines a “sex offense” as “an offense, perpetrated against a minor, under . . . (ii) Chapter 109B of [Title 18, United States Code].” The only offense listed in Chapter 109B is failure to register. Therefore, the Application Note suggests that failure to register can be perpetrated against a minor.