UNITED STATES оf America, Plaintiff-Appellee v. Nicholas W. SCHOFIELD, Defendant-Appellant.
No. 14-11293.
United States Court of Appeals, Fifth Circuit.
Sept. 23, 2015.
IV.
For the reasons above, I respectfully dissent.
Frank Alton Granger, Charles, LA, for Defendant-Appellant.
PER CURIAM:
Nicholas W. Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the district court required him, as part of his sentence, to register as a sex offender after his release from prison. Schofield appeals the registration requirement. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2013, Nicholas W. Schofield, who was twenty-four at the time, began sending text messages to a fifteen-year-old girl in San Angelo, Texas. Schofield identified himself as an eighteen-year-old mechanic named “Nick,” and he continued to converse with the girl via text messages through February 2014. At that time, an undercover federal agent assumed the girl’s side of the conversation, and Schofield continued the conversation with the agent through April 2014. Believing he was still communicating with the girl, Sсhofield sent the agent images of his erect penis, videos of himself and others masturbating, links to pornographic websites, and text messages describing himself masturbating. Schofield later admitted to sending eight pictures of his penis, three videos of himself masturbating, and messages describing himself masturbating and instructing the girl how to masturbate. Schofield also admitted to soliciting and receiving nude images of the girl.
On May 14, 2014, a grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, in violation of
Prior to and at sentencing, Schofield objected to the district court’s requirement that he register as a sex offender under SORNA, arguing that the crime of attempted transfer of obscene material to a minor was not a sex offense within the meaning of SORNA and therefore did not require registration. Schofield contended that, because his offense is neither an enumerated federal offense nor a “specified offense against a minor” under
The Government argues that this court’s review is limited to plain error because Schofield did not object after the district court pronounced his sentence. Schofield apparently concedes that plain error is the proper standard of review. However, the court, not the parties, must determine the appropriate standard of review. United States v. Torres-Perez, 777 F.3d 764, 766 (5th Cir. 2015); see also United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (“[N]o party has the power to control our standard of review.“). Schofield objected both to the presentence report and at his sentencing, raising the same arguments in the district court as he now raises on appeаl. Although Schofield did not renew his objection to SORNA registration after the district court imposed his sentence, his earlier objections sufficiently preserved the issues he now raises in this court. Based on Schofield’s earlier objections, the district court was aware of his arguments concerning why SORNA registration was not required. Therefore, “the purposes of the preservation requirement were met in th[is] case[ ]—namely, the [defendant] ‘raise[d] a claim of error with the district court in such a manner so that the district court may [have] cоrrect[ed] itself and thus, obviate[d] the need for [this court’s] review.’” Torres-Perez, 777 F.3d at 767 (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009)). Because Schofield preserved the issues he now raises in this court and because he only challenges the district court’s legal conclusions (not its factual findings), we review whether he is required to register under SORNA de novo. United States v. Gonzalez-Medina, 757 F.3d 425, 427 (5th Cir. 2014), cert. denied, --- U.S. ----, 135 S.Ct. 1529, 191 L.Ed.2d 562 (2015); United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002) (“We review the district court’s legal conclusions, however, de novo.“).
III. DISCUSSION
SORNA,
- (i) a criminal offense that has an element involving a sexual act or sexual contact with another;
- (ii) a criminal offense that is a specified offense against a minor;
- (iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;
- (iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
- (v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
SORNA defines “criminal offense” as “a State, local, tribal, foreign, or military offense ... or other criminal offense.”
- (A) An offense (unless committed by a parent or guardian) involving kidnapping.
- (B) An offense (unless committed by a parent or guardian) involving false imprisоnment.
- (C) Solicitation to engage in sexual conduct.
- (D) Use in a sexual performance.
- (E) Solicitation to practice prostitution.
- (F) Video voyeurism as described in section 1801 of Title 18.
- (G) Possession, production, or distribution of child pornography.
- (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
- (I) Any conduct that by its nature is a sex offense against a minor.
A. Schofield’s Offense Can Qualify as a Sex Offense Under SORNA
Although SORNA lists a number of federal offenses that qualify as sex offenses, Schofield’s offense—a violation of
In Dodge, the defendant violated the same federal statute as Schofield and ar-
B. Schofield’s Offense Falls Within the SORNA Residual Clause
We now consider whether Schofield’s attempted transfer of obscene material to а minor constitutes a “specified offense against a minor” under subsection (ii). To do so, we look to
First, when applying the categorical approach, courts “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood” that triggers the sentencing enhancement. Descamps v. United States, --- U.S. ----, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). “If the [offense of conviction] has the same elements as the ‘generic’ ... crime [in the sentencing enhancement], then the prior conviction can serve as [the] predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily ... guilty of all the [generic crime’s] elements.’” Id. at 2283 (last alternation in original) (quoting Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Second, courts applying the non-categorical approach focus “on the facts—not the elements—relating to the prior conviction.” Price, 777 F.3d at 705. “In utilizing the [non-categorical] approach, the reviewing court may consider reliable evidence concerning whether the prior offense involved conduct or circumstances that are required by the [sentencing] statute.” Id.
Schofield urges this court to apply the categorical approach to determine whether his сonduct falls within the SORNA residual clause and thus within
The Government contends that the non-categorical approach applies here because the SORNA residual clause makes the conduct of the defendant, not the elements of his offense, the focus of the inquiry. This is reinforced by the fact that the residual clause requires an inquiry into the “nature” of the conduct. Because the focus of the residual clause inquiry is conduct, and not whether the defendant was convicted of a particular crime, the Government argues that the non-categorical approach applies. Price, 777 F.3d at 705. The Government points to three separate cases where courts applied the non-categorical approach to interpret the SORNA residual clause. Price, 777 F.3d at 709-10 (applying the non-categorical approach to the SORNA residual clause when the defendant was convicted of assault and battery of a high and aggravated nature); Dodge, 597 F.3d at 1353-56 (applying the non-categorical apрroach to the SORNA residual clause when the defendant was convicted of a violation of
While circuit precedent and this court’s prior decision in Gonzalez-Medina tend to favor the application of the non-categorical approach, we need not decide which approach applies hеre because Schofield’s offense is a sex offense under both the non-categorical and categorical approaches. We begin with the non-categorical approach. Consistent with the “broad discretion [of courts] to determine what conduct is ‘by its nature’ a sex offense [under SORNA],” Dodge, 597 F.3d at 1355, we find that Schofield’s conduct in attempting to send a video of an adult male masturbating to a fifteen-year-old girl falls within the SORNA residual clause. As the court in Dodge noted, “[t]he key is conduct that contains a ‘sexual componеnt’ toward a minor,” and “judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id. Schofield’s sending a video of an adult male masturbating clearly involves engaging with a fifteen-year-old girl on a sexual level, so his conduct includes a sufficiently “sexual component toward a minor” to fall within the SORNA residual clause. Id.
When applying the non-categorical approach to the SORNA residual clause, previous courts have considered the similarity between the conduct underlying the defendant’s offense and conduct that clearly requires registration under SORNA. Dodge, 597 F.3d at 1356; Mi Kyung Byun, 539 F.3d at 989-90. We observe that there is little difference between Schofield’s conduct as charged under
As with the non-categorical approach, Schofield’s offense also falls within the SORNA residual clause under the categorical approach, which requires us to compare the elements of Schofield’s offense of conviction and the elements of the offense requiring SORNA registration. Under a categorical approach to “[a]ny conduct that by its nature is a sex offense against a minor,”
C. The SORNA Residual Clause Is Neither Ambiguous, Nor Vague
Because Congress enacted SORNA with the intent to “ensnare as many offenses against children as possible” as sexual offenses, Gonzalez-Medina, 757 F.3d at 431 (quoting Dodge, 597 F.3d at 1355), the statute necessarily includes multiple parts to the definition of “sex offense.” Schofield argues that defining a sex offense through the residual clause results in an ambiguous and unconstitutionally vague definition because reading (5)(A)(ii) and (7)(I) together defines a “sex offense” as “an offense against a minor that involves ... [a]ny conduct that by its nature is a sex offense against a minor.”
In claiming that the residual clause is circular or ambiguous, Schofield misreads the statute. As the Government points out, “sex offense” as used in subsections 16911(1) and (5) is a term of art, to be defined later in the statute. Subsection 16911(7)(I) provides part of that definition and in doing so uses the term “sex offense” in its ordinary way, as a catch-all, to expand the universe of crimes encompassed by the statute, and its meaning is refined by the examples that surround it in the statute. The term “sex offense,” when used in its ordinary way, is not ambiguous or vague even if used as a catch-all. The “key” according to the Dodge court is whether the offense involves a “sexual component,” Dodge, 597 F.3d at 1355, and requiring courts and defendants to determine whether an offense involves a “sexual component” does not render the definition of “sex offense” ambiguous or vague. Indeed, Congress intended to expand thе universe of offenses constituting sex offenses, and including an ordinary term to capture offenses not otherwise specified is consistent with that intent. See id. (“Congress’s stated purpose was to capture a wider range of conduct in its definition of a ‘sex offense.’“).
Because we do not find the SORNA residual clause circular or ambiguous, we take none of the actions Schofield requests. First given the absence of ambiguity in the statute, we need not address whether deference to the SMART Guidelines under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is required. See Price, 777 F.3d at 709 n.9 (“We need not accord Chevron deference to [the SMART] Guidelines.“). Sеcond, Schofield’s offense constitutes a sex offense under both the categorical and non-categorical approaches, so we need not consider which approach is more appropriate. Third, given that the residual clause is not ambiguous, it certainly does not rise to the level of unconstitutional vagueness, and we turn to recent Supreme Court guidance to confirm this.
The Supreme Court recently held that the residual clause in the Armed Career Criminals Act (ACCA) was unconstitutionally vague because it essentially required potential defendants to guess what “ordinary” instances of several crimes involved and “how much risk it takes for a crime to qualify as a violent felony.” Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551, 2557-58, 192 L.Ed.2d 569 (2015). The Court explained that instead of deciding whether a defendant’s conduct fell within the ACCA residual clause, courts were required, under the ACCA, to imagine the kind of conduct that a crime involves in the “ordinary case” and judge whether that abstraction involved a serious potential risk of physical injury. Id. Based on the Court’s reasoning in Johnson, we conclude that the SORNA residual clause is not unconstitutionаlly vague whether applied non-categorically or categorically. Under the non-categorical approach to the residual clause, we apply a qualitative standard—“[a]ny conduct that by its nature is a sex offense against a minor“—to the facts of an individual defendant’s case. The Court in Johnson noted that “laws [which] require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion,” like the SORNA residual clause, were distinguishable from the law it declared unconstitutionally vague. Id. at 2561. Similarly, the application of the categorical approach to the SORNA residual clause does not suffer from the same problems as the application of this approach to the ACCA residual clause. First, while the Court in Johnson found that the crimes listed prior to the ACCA residual clause were dissimilar, Id. at 2558, the crimes preceding the SORNA residual clause, which provide examples of “specified offense[s] against minor[s],” are much less divergent. For example, video voyeurism and child pornography are much more similar than burglary, arson, and extortion. Compare
Because the SORNA residual clause is neither ambiguous nor vague, we may аpply its plain language to Schofield’s offense. A violation of
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.