As Amended September 1, 2015. October 1, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. William E. Smith, U.S. District Judge.
K. Hayne Barnwell for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.
Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
HOWARD, Chief Judge.
This appeal presents the question of whether a state Rhode Island conviction for first degree child molestation, R.I. Gen. Laws § 11-37-8.1, is " comparable to or more severe than" one of the offenses listed in Tier III of the federal Sex Offender Registration and Notification Act (" SORNA" ), 42 U.S.C. § 16911(4). Appellant-Defendant Christian Morales, who had previously been convicted under that Rhode Island law, was sentenced in federal court to 65 months in prison and a lifetime of supervised release for failing to register as a sex offender under SORNA, 18 U.S.C. § 2250(a). At sentencing, the district court utilized the prior Rhode Island conviction to deem Morales a Tier III offender, resulting in a base offense level two levels higher than if he had been deemed a Tier II offender. Finding the Tier III designation to be plain error, we vacate Morales's prison term and remand for re-sentencing.
In December 2006, Morales entered a plea of nolo contendere to two counts of first degree child molestation in the state of Rhode Island. R.I. Gen. Laws. § 11-37-8.1. At the time that he committed the sexual assault, he was 18 and the victim was 13. The state of Rhode Island sentenced Morales to a 30-year incarcerative term, with all but seven years suspended.
As a result of that sentence, Morales was required to register as a sex offender
under SORNA. That law classifies offenders into three tiers based on the severity of the sex offense. Those categories, in turn, detail the frequency and longevity of an individual's registration requirements. For instance, a Tier III offender must register for the remainder of his or her life, while a Tier II offender must register for 25 years. 42 U.S.C. § 16915.
In 2010, a federal grand jury indicted Morales in the District of Rhode Island for failing to register, and Morales subsequently pled guilty. Prior to sentencing, the probation officer prepared a pre-sentence report classifying Morales as a Tier III sex offender. U.S.S.G. § 2A3.5(a) (setting the base-offense level at 16 for a Tier III offender, as defined in SORNA, rather than 14 for a Tier II offender). The district court accepted this designation, which increased Morales's Guidelines sentence range from 46-57 months in prison to 57-71 months.
At sentencing, the court imposed a mid-guidelines incarcerative sentence of 65 months. With respect to supervised release, however, the district court emphasized Morales's behavior since the time of the predicate conviction (including an alleged sexual assault on a minor during his unregistered period) and concluded that a lifetime of supervised release was necessary. At a subsequent hearing, the court reaffirmed its view on supervised release and made clear that public safety demanded an upward variance to the statutory maximum.
Morales timely appealed, asserting a litany of challenges. Finding the Tier III contention to be the only arguably meritorious claim, we requested further briefing and oral argument solely on that issue.
We begin by setting forth the statutes at issue before delving into the merits. SORNA classifies sex offenders into three tiers with each category corresponding to specific, enumerated crimes or to offenses incorporated from other federal sexual abuse laws. The most egregious offenders are grouped into Tier III. 42 U.S.C. § 16911(4)(A). Meanwhile, Tier II of the statute captures, inter alia, sexual offenses against victims aged 13 through 16 if the perpetrator is four or more years older than the victim. § 16911(3)(A)(iv). The final category, Tier I, serves as a catch-all provision for convicted sex offenders not otherwise grouped into Tier II or Tier III. § 16911(2).
Most relevant for our purposes is Tier III. This tier covers individuals who have committed crimes " comparable to or more severe than" a number of enumerated offenses. § 16911(4)(A). Those offenses essentially break down into two categories.
First, Tier III includes sexual offenses against a child aged 12 or under. Part of section (i) in Tier III adopts the definition of " aggravated sexual abuse" from 18 U.S.C. § 2241, which penalizes crossing state lines " with intent to engage in a sexual act with a person who has not attained the age of 12 years," or actually engaging in such conduct. § 16911(4)(A)(i) (incorporating § 2241). Also included in this category, from section (ii) of Tier III, is " abusive sexual contact . . . against a minor who has not attained the age of 13 years." § 16911(4)(A)(ii) (incorporating 18 U.S.C. § 2243(a)). " Abusive sexual contact" is defined as any sexual offense against a 12 year old if the perpetrator is 16 years or older. Id.
Second, Tier III encompasses sex offenses that are committed with force, result in additional harm, or are perpetrated against particularly vulnerable victims. These offenses, also found in section (i), incorporate other aspects of " abusive sexual contact" from 18 U.S.C. § 2241, along with " sexual abuse" as defined in 18 U.S.C. § 2242.
The final statute of interest is the source of Morales's predicate conviction. That Rhode Island law merely states, " A person is guilty of first degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) ...