FILED
NOT FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30154
Plaintiff - Appellee, D.C. No. 3:09-cr-05597-RJB-1
v.
MEMORANDUM *
CHRISTOPHER CORTLAND KENT,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted May 5, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Christopher Kent was sentenced and put on supervised release after pleading
guilty to possession of a destructive device and possession of lewd and lascivious
materials, in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 1462, respectively.
He then violated his supervised release conditions, and the district court imposed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an additional special supervised release condition requiring Kent to register
pursuant to the Sexual Offender Registration and Notification Act (“SORNA”).
Kent challenges the imposition of the SORNA condition. We affirm.
SORNA mandates registration for “sex offenders and offenders against
children.” 42 U.S.C. § 16901. Under SORNA, a “sex offender” is “an individual
who was convicted of a sex offense.” Id. at § 16911(1). A “sex offense,” in turn,
includes:
(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 . . .
§ 16911(5)(A). “[S]pecified offense against a minor” is then defined in a separate
subpart to cover “an[y] offense against a minor that involves . . . [a]ny conduct that
by its nature is a sex offense against a minor.” § 16911(7)(I).
Here, the threshold dispute is whether Kent’s conviction for possession of
lewd and lascivious materials falls into the catchall category of “conduct that by its
nature is a sex offense against a minor.” We determine that Kent’s conviction for
possession of lewd and lascivious materials, on the basis of the underlying record
in this case, was a sex offense against a minor and therefore the district court
properly required his registration under SORNA. Our caselaw defines lascivious
as covering an offense that has a sexual component. See United States v. Banks,
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556 F.3d 967, 980 (9th Cir. 2009) (explaining that the “definition of lascivious . . .
criminalizes images so presented by the photographer as to arouse or satisfy the
sexual cravings of a voyeur”) (internal quotation marks omitted); United States v.
Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (“[A]pplied to the conduct of
children, lasciviousness is not a characteristic of the child photographed but of the
exhibition which the photographer sets up for an audience that consists of himself
or likeminded pedophiles.”); see also United States v. Hill, 459 F.3d 966, 972 (9th
Cir. 2006) (discussing the definition of lascivious images).
Here, the facts in the record show that Kent’s sex offense was against
minors. The Ninth Circuit takes a “non-categorical” approach to determining the
age of the victim and examines the underlying facts of an offense, rather than just
the elements of the crime of conviction, when determining whether the offense
involved “conduct that by its nature is a sex offense against a minor.” United
States v. Byun, 539 F.3d 982, 992 (9th Cir. 2008). At the sentencing hearing, Kent
agreed that the lewd and lascivious photos depicted “very young girls in sexually
provocative poses.” This and other evidence, such as a graphic letter found on
Kent’s computer and Kent’s acceptance of responsibility for “explicit images of
young girls,” showed that he harbored disturbing views on young girls, sex and
violence. The evidence is sufficient to establish that Kent’s crime was a sex
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offense against minors. See United States v. Dodge, 597 F.3d 1347, 1355 (11th
Cir. 2010) (“Congress left courts with broad discretion to determine what conduct
is ‘by its nature’ a sex offense . . . . The key is conduct that contains a ‘sexual
component’ toward a minor.”).
AFFIRMED.
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