United States v. Antwain PriceUnited States v. Antwain Price
Before MOTZ and KING, Circuit Judges, and ARENDA L. WRIGHT ALLEN, United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge ALLEN joined.
KING, Circuit Judge:
Antwain Guanterio Price was charged in the District of South Carolina in May 2012 with knowingly failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (“SOR-
Price filed a timely notice of appeal, and we possess jurisdiction pursuant to
As explained below, wе are satisfied that the Denial Order properly applied the “circumstance-specific approach” (sometimes called the “noncategorical approach“) in deciding that Price was subject to SORNA‘s registration requirement. The court erred, however, in ruling that Price‘s
I.
A.
We first address Price‘s contention that his indictment should have been dismissed. Before delving into the relevant factual and procedural background, we review certain legal principles that are important to this issue.
1.
SORNA establishes a comprehensive regulatory scheme to track and provide community notification regarding convicted sex offenders. Pursuant thereto, a person convicted of a sex offense must register in each state in which he resides, is employed, or is a student. See
Although SORNA “is a non-punitive, civil regulatory scheme, both in purpose and effect,” noncompliance with thе statute can result in criminal prosecution under
(i) a criminal offense that has an element involving a sexual act or sexual contact with another; [or]
(ii) a criminal offense that is a specified offense against a minor.
2.
A person who fails to properly register violates
First, the categorical approach focuses solely on the elements of the offense of conviction, comparing those to the commonly understood elements of the generic offense identified in the federal statute. See Taylor v. United States, 495 U.S. 575, 602 (1990) (requiring court to “look only to the fact of conviction and the statutory definition of the prior offense“). The elements comprising the statute of conviction must be the same as, or nаrrower than, those of the generic offense in order to find a categorical match. Id. at 599. If, however, the court finds “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime,” there is no categorical match and the prior conviction cannot be for an offense under the federal statute. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Because the categorical approach looks squarely at the elements of the offense of conviction, a reviewing court is precluded from examining the circum-
Second, the modified categоrical approach is an off-shoot of the traditional categorical approach, and similarly focuses on elements rather than facts. The modified approach comes into play if the defendant was previously convicted under a divisible statute, meaning that the offense contains a set of alternative elements. See Descamps, 133 S. Ct. at 2281. In such circumstances, the reviewing court conducts an analysis identical to the categorical approach, but with a detour. That is, the court is entitled to refer to certain documents from the underlying case to discern which alternative element formed the basis of conviction. See Shepard v. United States, 544 U.S. 13, 19-20 (2005). The documents that may be referenced are limited, but include: the indictment or information; the plea agreement or transcript of the plea colloquy; the court‘s formal legal rulings and factual findings of a bench trial; and jury instructions. See id. at 20, 26. The focus of the modified categorical approach remains squarely on the elements of the prior conviction, however, and the reviewing court is not entitled to assess whether the defendant‘s actual conduct matches the federal statute.
Finally, the circumstance-specific approach (or, noncategorical approach) is a different species of analysis altogether. The circumstance-specific approach focuses on the facts—not the elements—relating to the prior conviction. That broader framework applies when the federal statute refers “to the specific way in which an offender committed the crime on a specific occasion,” rather than to the generic crime. Nijhawan v. Holder, 557 U.S. 29, 34 (2009). In utilizing the circumstance-specific approach, the reviewing court may consider reliable evidence concerning whether the prior offense involved conduct or circumstances that are required by the fеderal statute.5
B.
Having identified and discussed the foregoing legal principles, we turn to the specifics of Price‘s motion to dismiss. The relevant facts are not in dispute.
1.
On May 13, 2010, a grand jury in York County, South Carolina, returned an indictment charging Price with a single count of criminal sexual conduct with a minor. See
Pursuant to those negotiations, on July 15, 2010, Price pleaded no contеst to an ABHAN offense in the Court of General Sessions of York County. In the plea proceedings, the prosecutor represented that ABHAN was a lesser-included offense
use of a deadly weapon, infliction of serious bodily injury, intent to commit a felony, disparity in age, physical condition or sex, indecent liberties, purposeful infliction of shame, resistance of law authority, and others.
During Price‘s plea colloquy in the state court in 2010, the prosecutor—apparently pursuant to an oral plea agreement—summarized the factual basis for the ABHAN offense as follows:
These events occurred—reported to have occurred back between 2007 and 2008. Initially a report was made to the Akron Ohio Police Department that the step-father of the minor who was ... eleven at the time in Ohio had been abused by Mr. Price, her step-father. This continued when the family moved to ... Rock Hill, York County, South Carolina. The allеgations were alleged to have happened at that house as well as another jurisdiction in South Carolina, and the victim would‘ve been twelve years old at the time and she reported in 2009 that she had been abused and been required to perform oral sex on this defendant.
J.A. 52. Price responded in the affirmative when the state court asked, “Do you agree if you went to trial those facts would be what the State would present to the jury?” Id. The court then accepted his no-contest plea to the ABHAN offense. The court also accepted Price‘s negotiated sentence, which was for time served, but required that Price be placed on South Carolina‘s central registry of child abuse and sex offender registry.
Following his release from state custody after his ABHAN conviction and sentencing, Price moved to Georgia. He registered there as a sex offender on July 27, 2010. Around November 1, 2010, Price moved to Ohio but failed to register as a sex offender there. As a result, the City of Akron issued a warrant for his arrest on February 1, 2011. Price, then a fugitive, resided in Arizona from September 2011 until February 2012. He moved back to South Carolina in February 2012, where he again failed to register as a sex offender. On March 17, 2012, Price was arrested on the basis of the Ohio warrant in Rock Hill, South Carolina.
2.
On April 2, 2012, a criminаl complaint was filed in the District of South Carolina, alleging that Price had knowingly failed to register as a sex offender, in contravention of
By motion of June 21, 2012, Price sought dismissal of the indictment. He therein argued that his ABHAN conviction was not for a sex offense under SORNA, and therefore that he was not subject to SORNA‘s registration requirement. The district court denied Price‘s dismissal motion on August 2, 2012, dеeming the record “sufficient to indicate that [Price] was convicted of a sex offense as defined by SORNA.” See Denial Order 3. The court reasoned that it could review the record of Price‘s ABHAN conviction under the noncategorical approach—which we call the circumstance-specific approach—relying on decisions of the Ninth and Eleventh Circuits. Id. at 4 (citing United States v. Dodge, 597 F.3d 1347, 1354 (11th Cir. 2010) (en banc); United States v. Mi Kyung Byun, 539 F.3d 982, 992 (9th Cir. 2008)). Employing that approach, the court reviewed the facts underlying Price‘s ABHAN conviction, as reflected in the plea colloquy in the York County proceedings. That colloquy revealed that the prosecutor had “recounted the facts of the offense: defendant forced his twelve year old step-daughter to perform oral sex on him.” Id. at 3. Price “affirmatively answered that he knew those facts would be presented to the jury if he went to trial,” evidencing that he understood the ABHAN charge. Id. The court observed that Price had agreed to register on the state sex offender registry. The court thus discerned “ample evidence to indicate that the ABHAN plea in this case rested on indecent liberties with a female as the aggravating circumstance, and therefore constituted a sex offense.” Id. As a result, the court concluded that Price was required to register under SORNA and denied his mоtion to dismiss.
On August 27, 2012, Price pleaded guilty in the district court to violating
C.
The issue with respect to the dismissal motion is purely legal and one that we review de novo: Did the district court err in applying the circumstance-specific approach to its assessment of whether Price‘s ABHAN offense satisfied the statutory definition of a “sex offense” under SORNA? See United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (“This Court reviews de novo the district court‘s denial of a motion to dismiss an indictment where the denial depends solely on questions of law.“). At the outset, that question is circumscribed in certain respects. As the government now concedes, our decision in United States v. Hemingway, 734 F.3d 323, 333-34 (4th Cir. 2013), determined that the common law offense of ABHAN—on which Price was convicted in York County—is indivisible, rendering the modified categorical approach inapplicable. Additionally, because our review is de novo and we “may affirm on any grounds apparent from the record,” United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005), we are entitled to focus on the definition of a “sex offense” provided by
We must assess, then, whether thе categorical approach or the circumstance-specific approach applies to our analysis. At least two of our sister circuits have grappled with that very question, and each has concluded that what we call the circumstance-specific approach—which they refer to as the noncategorical approach—is applicable to an analysis under
a.
First, the text, structure, and purpose of the relevant SORNA provisions show that Congress intended for the circumstance-specific approach to apply to an analysis of subsection (7)(I). The Supreme Court has repeatedly analyzed the specific terms in federal statutes to determinе whether Congress intended for an element- or fact-based approach to apply. For example, the Court has interpreted the words “conviction” and “element” to indicate that Congress meant for the statutory definition to cover a generic offense, implicating the categorical and modified categorical frameworks. See, e.g., Taylor, 495 U.S. at 600-01 (reasoning that Congress‘s use of words “conviction” and “element” in Armed Career Criminal Act,
The language and structure of
The purpose of SORNA also supports the use of a circumstance-specific approach and our interpretation of subsection (7)(I). Although subsection (5)(A)(i) includes certain prior offenses without regard to whether the victim was a child or an adult, subsections (5)(A)(ii) and (7) are applicable only where the victim was a minor. Through SORNA, Congress sought “to protect the public from sex offenders and offenders against children,” and was responding “to the vicious attacks by violent predators.”
b.
Second, Sixth Amendment concerns that compel the judicial use of the categorical approach in other contexts are simply not present here. In other situations—such as where a prior conviction may trigger a sentencing enhancement, increasing a defendant‘s punishment—the
Price argues, however, that the Sixth Amendment also requires use of the categorical approach in an analysis of a
Here, even applying the circumstance-specific approach, Price was entitled to go to trial and have a jury determine beyond a reasonable doubt whether his York County conviction was for a sex offense under SORNA. Price gave up that Sixth Amendment right, however, when he pleaded guilty to the
2.
In sum, we conclude that Congress intended for reviewing courts to utilize the circumstance-specific approach to determine whether a prior conviction was for a sex offense under SORNA, within the meaning of
II.
Price additionally assigned error to the district court‘s сalculation of his advisory Sentencing Guidelines range with respect to supervised release. Guidelines section 5D1.2 contains the applicable supervised-release provisions. As relevant here, subsection (a)(2) provides for an advisory range of one to three years for a defendant convicted of a Class C felony (such as a violation of
The facts relating to Price‘s sentence are straightforward. Price‘s presentence report (the “PSR“), which was accepted by the district court at the sentencing hearing on March 14, 2013, concluded that the applicable statutory provision required imposition of a term of supervised release of five years to life. See
Price now argues that the district court erred in applying Guidelines section 5D1.2(b)(2) to increase the upper-limit of his advisory Guidelines range to a life term. He maintains that the offense at issue—failing to register as a sex offender in violation of
was plain, and (3) the error affected the defendant‘s substantial rights.” United States v. Ford, 88 F.3d 1350, 1355 (4th Cir. 1996). If those “threshold requirements are satisfied, we must also decide whether the error ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.‘” Id. at 1355-56 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
Our Court decided the precise issue raised by Price only a few weеks ago in United States v. Collins, 773 F.3d 25 (4th Cir. 2014). Judge Floyd‘s decision recognized that a clarifying amendment to the Guidelines, effective November 1, 2014, makes clear that “failing to register as a sex offender under SORNA is not a ‘sex offense’ for the purposes of the Guidelines.” Id. at 32. Thus, Price was not subject to the enhanced advisory Guidelines range for supervised release under section 5D1.2(b)(2). Moreover, a second clarifying amendment, also effective November 1, 2014, establishes that, where the statutory minimum term of supervised release is greater than the advisory Guidelines range, section 5D1.2(c) operates to create an advisory term of a “single point” at the statutory minimum. Id. The phrаse “single point” refers to a Guidelines recommendation of a specific sentence, rather than a range. See United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013) (“[T]he properly calculated advisory Guidelines ‘range’ for [defendant‘s] offense appears to actually be a point: five years.“). As a result, the Guidelines recommend that Price receive a five-year term of supervised release, rather than a term within a range of five years to life.
In light of our Collins decision, Price has shown plain error that entitles him to relief. First, Collins establishes that the district court‘s calculation of Price‘s advisory Guidelines range as to
We thus conclude that the district court‘s calculation of Price‘s advisory Guidelines range concerning supervised release was plainly erroneous and that the error should be recognized and corrected. We therefore vacate and remand for resentencing on the supervised release question.
III.
Pursuant to the foregoing, we affirm Price‘s conviction for failing to register under SORNA, vacate the supervised release sentence, and remand for such further sentencing proceedings as may be appropriate.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Notes
Additionally, a “specified offense against a minor” is defined at subsection (7)(I) to include “[a]ny conduct that by its nature is a sex offense against a minor.”(i) a criminal offense that has an element involving a sexual act or sexual cоntact with another; [or]
(ii) a criminal offense that is a specified offense against a minor.