UNITED STATES OF AMERICA, Plaintiff-Appellant, v. THOMAS P. THAYER, Defendant-Appellee.
No. 21-2385
United States Court of Appeals For the Seventh Circuit
Decided July 21, 2022
Appeal from the United States District Court for the Western District of Wisconsin. No. 20-cr-88 — James D. Peterson, Chief Judge. ARGUED MARCH 29, 2022
Before FLAUM, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.
I.
A.
Before delving into the factual and procedural background, we review a few relevant legal principles.
SORNA establishes a comprehensive national system of registration for sex offenders, the purpose of which is to “protect the public from sex offenders and
Although itself a civil regulatory scheme, noncompliance with SORNA is a crime under
The first and the second—the formal categorical approach and the modified categorical approach—require courts to ignore the defendant‘s actual conduct and “look solely to whether the elements of the crime of conviction match the elements of the federal [ ] statute.” Gamboa v. Daniels, 26 F.4th 410, 415 (7th Cir. 2022) (internal quotations omitted); see also Shular v. United States, 140 S. Ct. 779, 783 (2020). Only where “the elements of the state law mirror or are narrower than the federal statute can the prior conviction qualify as a predicate ... offense.” Gamboa, 26 F.4th at 415 (internal quotations omitted).
By contrast, the third method, the circumstance-specific approach, focuses on the facts—not the elements—of a prior conviction. Courts applying the circumstance-specific approach “look[] to ‘the specific way in which an offender committed the crime on a specific occasion’ to determine whether the prior conviction qualifies as a predicate offense under the federal statute at issue.” United States v. Elder, 900 F.3d 491, 498 (7th Cir. 2018) (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)).
B.
Now to the specifics of this appeal. In a November 2003 criminal complaint, minor J.B. accused her father, appellant Thomas Thayer, of molesting her when she was 14 years old. According to J.B., she and Thayer fell asleep after a Christmas party in 2001. J.B. awoke to find her bra unhooked, her pants and underwear pulled aside, and Thayer touching her vagina. Upon noticing J.B. waking up, Thayer rolled over and went to sleep. During a subsequent law enforcement interview, Thayer admitted he was drunk on the night in question, “[found] himself in a bad position” with his daughter, and must have mistaken J.B. for his wife. Thayer ultimately pled guilty to
Thayer moved to Wisconsin sometime between August 2017 and February 2020. Thayer did not register as a sex offender in Wisconsin. On July 9, 2020, the government indicted Thayer for failing to register as a sex offender as required by SORNA. Thayer moved to dismiss the indictmеnt, arguing his Minnesota conviction did not qualify as a “sex offense” triggering an obligation to register. Applying a categorical analysis to the definition of “sex offense” under
In a January 4, 2021 report, the magistrate judge recommended granting Thayer‘s motion to dismiss the indictment. Apparently looking to
The district court overruled the government‘s objections and, while it disagreed with the magistrate judge‘s analysis, accepted the report‘s ultimate conclusion. The district court held
II.
The government raises two narrow issues on appeal. First, the government contends the district court erred in analyzing
Determining whether a federal statute calls for a categorical or circumstance-specific approach is a question of statutory interpretation. United States v. Davis, 139 S. Ct. 2319, 2327 (2019). We review a district court‘s interpretation of a federal statute de novo. White v. United Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021).
As with any issue of statutory interpretation, we begin with the text, attending also to the structure of the statute as a whole and any relevant legislative history. Nijhawan, 557 U.S. at 36–40;
A.
1.
For the purposes of SORNA, a “sex offender” is “an individual who was convicted of a sex offense.”
(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[.]
[A]n offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(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.
This appeal requires us to evaluate whether the definition of “sex offense” in
The text of SORNA, with its layered, cascading definitions, is not a model of clarity. The word “offense” on its own may refer either to “a generic crime” or to “the specific acts in which an offender engaged on а specific occasion.” Davis, 139 S. Ct. at 2328 (quoting Nijhawan, 557 U.S. at 33–34). The meaning of “offense” depends upon its context within the surrounding statutory language. See id. The text of
Section 20911(7)(I) directs courts to evaluate the nature of an individual‘s conduct, not the nature of an offense or of a conviction. This grammatical structure distinguishes
The juxtaposition of
SORNA‘s legislative history and purpose support a circumstance-specific approach to
139 S. Ct. 2116, 2121 (2019). Congress quickly realized the Wetterling Act did not achieve the desired effect and passed SORNA as a “comprehensive bill to address the growing epidemic of sexual violence against children” to “address loopholes and deficiencies” created by the resultant patchwork of inconsistent and varied state registration laws. H.R. Rep. No. 109-218 at 22 (2005). Of particular concern to Congress were “missing” or “lost” sex offenders who evaded registration requirements. Gundy, 139 S. Ct. at 2121. Congress intended, then, to fashion a wide net ensnaring as many child sex offenders as possible. See id. Accordingly, the declared purpose of SORNA is to “protect the public from ... offenders against children.”
Thayer directs our attention to the Department of Justice‘s regulations implementing SORNA, which favor a categorical approach to
Applying a circumstance-specific analysis to
Thayer points to various practical difficulties under the circumstance-specific approach in determining whether the factual circumstances underlying his Minnesota conviction constitute a sex offense. Again, the government bears the burden of proving, beyond a reasonable doubt, Thayer is a sex offender. Any practical difficulties in meeting this threshold, evidentiary or otherwise, favor Thayer. See Nijhawan, 557 U.S. at 42 (“[S]ince the Government must show the amount of loss by clear and сonvincing evidence, uncertainties created by the passage of time are likely to count in the alien‘s favor.“). The dissent is concerned about the possibility of a defendant admitting to underlying conduct when pleading guilty to a state crime being held to his affirmation under oath in a subsequent SORNA proceeding. Of course, pleading guilty and avoiding the uncertainty of a trial generally presents benefits to both defendants and the government. The chance a defendant may later regret his decision to avail himself of these advantages or realize he misjudged the consequences does not alter our assessment of whether a categorical or circumstance-specific analysis applies to these provisions of SORNA.
Like the Fourth, Eighth, Ninth, and Eleventh Circuits, we conclude
2.
The foregoing analysis is fully consistent with the Supreme Court‘s precedent in Taylor v. United States, 495 U.S. 575 (1990) (and its progeny, Johnson v. United States, 576 U.S. 591 (2015)2) and our precedent in United States v. Walker, 931 F.3d 576 (7th Cir. 2019). In Taylor, the Supreme Court analyzed
categorical аnalysis to the latter does not mandate similar treatment for the former.
First, unlike
In Walker, we concluded the Tier II and Tier III provisions in
B.
SORNA‘s Romeo and Juliet exception excludes from the definition of “sex offense”
The district court‘s analysis runs headlong into our precedent in Rogers, which held
Section 20911(5)(C) delineates the Romeo and Juliet exception based on “offense[s] involving ... conduct.”
Thayer suggests subsequent Supreme Court decisions in Mathis v. United States, 579 U.S. 500 (2016), Dimaya, and Shular v. United States, 140 S. Ct. 779 (2020) compel the opposite result. These cases offer little relevant guidance on determining whether
We affirm our prior holding in Rogers; the text of
III.
For the foregoing reasons, we VACATE thе judgment of the district court and REMAND for further proceedings consistent with this opinion.
JACKSON-AKIWUMI, Circuit Judge, dissenting. The issue presented in this case is a close one; both sides have good arguments. The majority opinion thoroughly lays out the best reasons for adopting the government‘s position. Ultimately, however, I disagree with my colleagues’ conclusion that
In particular, I see stronger parallels than the majority opinion does between
| | 18 U.S.C. § 924(e) | |
|---|---|---|
| Reference to prior convictions | “The term ‘sex offender’ means an individual who was convicted of a sex offense.” 34 U.S.C. § 20911(1) (emphasis added). | Mandatory minimum applies to any offender who “has three previous convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1) (emphasis added). |
| Relevant subsection defining those prior convictions | Sex offense includes “an offense against a minor that involves . . . [a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(5)(A)(ii) and (7)(I) (emphasis added). | “[T]he term ‘violent felony’ means any [felony] crime . . . that . . . involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). |
Beyond the provisions at issue here and in Johnson, the statutes have additional similarities. Just as a categorical interpretation of
as are the definitions for “Tier II” and “Tier III” sex offender used in
Other textual markers that the majority opinion insists are evidence of a circumstance-specific approach for
The majority opinion also notes that, unlike
Although Johnson was primarily about whether the residual clause was unconstitutionally vague, Justice Alito‘s dissent urged the Court to save the provision by jettisoning the categorical method and adopting a circumstance-specific approach. In response, the Court carefully explained why the residual clause required a categorical approach apart from the clause‘s proximity to the enumerated generic offenses:
Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylor explained that the relevant part of the Armed Career Criminal Act “refers to ‘a person who ... has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U.S., at 600. This emphasis on convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Ibid. Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long aftеr the original conviction, the conduct underlying that conviction. For example, if the original conviction rested on a guilty plea, no record of the underlying facts may be available. “[T]he only plausible interpretation” of the law,
therefore, requires use of the categorical approach. Id., at 602.
My colleagues believe that on the topic of the categorical method, Johnson provides little analytical value beyond what the Court already said in Taylor. But I do not read the passage quoted above as superfluous. The Court‘s rejection of the circumstance-specific approach was necessary to its holding because it had to explain why it refused to abandon the categorical method even when doing so would have allowed the Court to avoid an unconstitutional intеrpretation. See id. at 631–32 (Alito, J., dissenting) (collecting authorities describing canon of constitutional avoidance); United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (defining dictum as statements that are “unnecessary to the decision” or “could have been deleted without seriously impairing the analytical foundations of the holding“). Because Johnson holds that the residual clause requires a categorical approach, we should assume that the Supreme Court would say the same about the text in
In addition to the text of the statute, the majority opinion reasons that a circumstance-specific approach is supported by (1) SORNA‘s legislative history and (2) the lack of practical and Sixth Amendment concerns present in other contexts. I disagree with the majority opinion‘s analysis on both grounds.
First, the legislative history is, at best, ambiguous. True, Congress intended SORNA to cast a “wide net.” Ante at 11. But even the most expansive interpretation of a statute must have clear delineations; a criminal law that “fails to give ordinary people fair notice of the conduct it punishes” is “standardless.” Johnson, 576 U.S. at 595. And here, Congress lifted
Second, a circumstance-specific approach to
the government satisfied its burden by admitting at trial an old video of the victim‘s police interview. United States v. Burgee, 988 F.3d 1054, 1057 (8th Cir. 2021). That strategy worked only because the defendant failed to challenge the video‘s admissibility. Id. at 1060. But upon proper objection, this type of evidence could raise concerns about hearsay and a defendant‘s right to cross examine witnesses under the Confrontation Clause. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
The majority opinion insists that any practical difficulties under a circumstance-specific approach will benefit Thayer because the government has the burden to prove the facts underlying his prior conviction. Other defendants, however, will be unfairly punished under this approach. In many cases, the government is likely to rely on plea agreemеnts to establish the underlying conduct of a conviction. But the facts put in the record at a plea hearing may not accurately reflect the strength of the government‘s case as to conduct outside the elements of conviction, especially since a defendant “may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.” Descamps v. United States, 570 U.S. 254, 270 (2013). And for defendants who negotiated a plea deal, it would “seem unfair” to sandbag them with a duty to register after they thought they had pled down to a conviction that did not carry a registration requirement. Taylor, 495 U.S. at 602.
Additional impracticalities stem from how SORNA‘s “sex offender” definition creates registration requirements as part of a civil regulatory scheme. As amicus points out, a circumstance-specific approach will create confusion about who is required under federal law to register. Will a pre-registration hearing be necessary to determine whether the state could have proven additional facts not included in the plea? These administrative headaches are not present under a categorical approach because, when the only issue is the existence of a prior conviction, adequate notice and an opportunity to challenge the registration requirement has typically already been provided through the prior criminal prosecution. See Connecticut Dep‘t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003).
Finally, although I agree with the majority opinion that
On that basis, I respectfully dissent.