United States v. Brian Berry

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4934

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN KEITH BERRY,

Defendant - Appellant.

--------------------------

FEDERAL PUBLIC DEFENDER OFFICE,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00329-FL-1)

Argued: December 10, 2015 Decided: February 19, 2016

Before WILKINSON, KING, and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Wilkinson and Judge King joined.

ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus
Curiae.

2
WYNN, Circuit Judge:

Defendant Brian Keith Berry was convicted of a sex offense

in state court and obligated to register under the federal Sex

Offender Registration and Notification Act, also known as SORNA.

Defendant failed to register as required and pled guilty to

violating 18 U.S.C. § 2250(a).

At sentencing, the district court calculated Defendant’s

United States Sentencing Guidelines (“Guidelines”) range as if

he were a tier III sex offender. Defendant challenges that tier

designation. Using the categorical approach, which we hold

applicable here, and comparing his state court conviction for

endangering the welfare of a child to the generic offenses

enumerated in 42 U.S.C. § 16911(4)(A), we must agree: the

district court erred in deeming Defendant a tier III offender.

Accordingly, we vacate Defendant’s sentence and remand for

resentencing.

I.

In 2002, Defendant pled guilty in New Jersey state court to

endangering the welfare of a child in violation of N.J. Stat.

Ann. § 2C:24-4(a) (2002). Upon Defendant’s release from prison,

he was advised that he must register as a sex offender with the

New Jersey police. He initially registered with a New

Brunswick, New Jersey, address; but, in March 2013, law

enforcement agents found that he no longer lived at that listed

3
address. Thereafter, the State of New Jersey thus issued a

warrant to arrest Defendant for violating the conditions of his

parole. Ultimately, Defendant was found in North Carolina where

he admitted to law enforcement officials that he had not

registered as a sex offender in the State of North Carolina.

Defendant pled guilty to one count of failing to register

as a sex offender in violation of 18 U.S.C. § 2250. At

sentencing, the district court found Defendant to be a tier III

sex offender under SORNA, with a corresponding base offense

level of sixteen. In a memorandum opinion, the court explained

that its tier III determination was “based upon description of

the conduct underlying defendant’s prior sex offense as set

forth in the presentence report.” United States v. Berry, No.

5:13-CR-329-FL-1, 2014 WL 7149736, at *1 (E.D.N.C. Dec. 15,

2014). The court found that the conduct underlying the offense,

penetrating the vagina of a five-year-old victim with his hand,

was comparable to the offense of “abusive sexual contact . . .

against a minor who has not attained the age of 13 years” listed

in the definition of a tier III sex offender in 42 U.S.C.

§ 16911(4)(A). Id. at *3.

Based on his tier III designation and other factors, the

district court determined Defendant’s Guidelines range to be

thirty-three to forty-one months. The district court sentenced

Defendant to thirty-three months in prison and five years of

4
supervised release. Defendant appeals, arguing that the

district court erred in its determination that he qualified as a

tier III sex offender.

II.

A.

On appeal, we must determine whether the district court

imposed an unreasonable sentence by calculating Defendant’s

Guidelines range as if he were a tier III sex offender under

SORNA. We review sentences under an abuse of discretion

standard. 1 Gall v. United States, 552 U.S. 38, 51 (2007). Such

a review includes procedural and substantive reasonableness

components. Id.; United States v. Dimache, 665 F.3d 603, 606

(4th Cir. 2011). Relevant here, a sentence is procedurally

unreasonable if the district court “fail[ed] to calculate (or

improperly calculat[ed]) the Guidelines range.” Gall, 552 U.S.

at 51; United States v. Avila, 770 F.3d 1100, 1103 (4th Cir.

2014). Further, “[w]hen considering a sentence’s

reasonableness, we ‘review the district court’s legal

1
We reject out of hand the government’s suggestion that
Defendant failed to preserve this issue and that we should thus
review only for plain error. The record clearly shows that
Defendant’s counsel objected to the district court’s tier
classification and the court’s consideration of the facts and
circumstances surrounding Defendant’s prior sex offense
conviction. Not surprisingly, the district court thus addressed
the preserved argument in its memorandum opinion. Berry, 2014
WL 7149736, at *2. We do the same.

5
conclusions de novo and its factual findings for clear error.’”

United States v. Thornton, 554 F.3d 443, 445 (4th Cir. 2009)

(quoting United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.

2008)).

B.

SORNA requires sex offenders to register “in each

jurisdiction where the offender resides, where the offender is

an employee, and where the offender is a student.” 42 U.S.C.

§ 16913(a). Further, sex offenders must update their

registration upon a change in residence. Id. § 16913(c). And

18 U.S.C. § 2250 imposes criminal penalties on persons who are

required, but knowingly fail, to register.

SORNA classifies sex offenders into three tiers depending

on the nature of their underlying sex offense. 42 U.S.C.

§ 16911(2)–(4). Sex offenders who have committed more serious

sex offenses are classified under tiers II and III. Id.

§ 16911(3)–(4). Tier I is a catch-all provision for all other

sex offenders. Id. § 16911(2). A defendant’s tier designation

plays into his sentencing, as the Guidelines assign base offense

levels of sixteen, fourteen, and twelve for tier III, tier II,

and tier I sex offenders, respectively. U.S.S.G. § 2A3.5(a).

To determine a defendant’s tier classification, courts

compare the defendant’s prior sex offense conviction with the

offenses listed in SORNA’s tier definitions. See 42 U.S.C.

6
§ 16911(2)–(4). Courts have embraced two analytical frameworks

for such inquiries: 1) the “categorical approach” and its

derivative, the “modified categorical approach,” and 2) the

“circumstance-specific approach” (also known as the

“noncategorical approach”). See Descamps v. United States, 133

S. Ct. 2276, 2281 (2013); Nijhawan v. Holder, 557 U.S. 29, 34

(2009).

The categorical approach focuses solely on the relevant

offenses’ elements, comparing the elements of the prior offense

of conviction with the elements of the pertinent federal

offense, also referred to as the “generic” offense. United

States v. Price, 777 F.3d 700, 704 (4th Cir.), cert. denied, 135

S. Ct. 2911 (2015). If the elements of the prior offense “are

the same as, or narrower than,” the offense listed in the

federal statute, there is a categorical match. Descamps, 133 S.

Ct. at 2281. But if the elements of the prior conviction

“sweep[] more broadly,” id. at 2283, such that there is a

“realistic probability” that the statute of the offense of prior

conviction encompasses conduct outside of the offense enumerated

in the federal statute, the prior offense is not a match, Price,

777 F.3d at 704 (quoting Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007)).

The modified categorical approach serves as a “tool for

implementing the categorical approach” where the defendant’s

7
prior conviction is for violating a “divisible” statute—that is,

a statute that “sets out one or more elements of the offense in

the alternative.” Descamps, 133 S. Ct. at 2281, 2284–85. The

modified categorical approach permits the court to consult a

limited menu of so-called Shepard documents, such as the

indictment, the plea agreement, and jury instructions, to

“determine which alternative formed the basis of the defendant’s

prior conviction.” Id. at 2281; see also id. at 2283–85 (citing

Shepard v. United States, 544 U.S. 13 (2005)). Once the

elements of the offense of conviction have been identified, the

examination of any Shepard documents ends, and the court

proceeds with employing the categorical approach, comparing the

elements of the offense of conviction with the elements of the

offense identified in the federal statute. Id. at 2281.

In contrast to the categorical and modified categorical

approaches, the circumstance-specific approach focuses on the

circumstances underlying the defendant’s prior conviction, not

the offense’s elements. Price, 777 F.3d at 705. “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

federal statute.” Id.

8
 C.

The Tenth Circuit recently considered which approach best

fits the portion of the tier III definition found in Section

16911(4)(A)—the precise question before us here—and held that

“Congress intended courts to look to the actual age of the

defendant’s victim, but to otherwise employ a [categorical]

approach.” United States v. White, 782 F.3d 1118, 1133, 1135

(10th Cir. 2015). We agree.

Like the Tenth Circuit, and as with any statutory

interpretation, we begin by analyzing SORNA’s text. Generally,

when a federal statute refers to a generic offense, the text

evidences Congress’s intent that the categorical approach be

applied. See Nijhawan, 557 U.S. at 34–35; see also Moncrieffe

v. Holder, 133 S. Ct. 1678, 1685 (2013). However, when the

statute refers to specific conduct or a factual circumstance,

its text suggests Congress’s intent to allow for the

circumstance-specific approach. Nijhawan, 557 U.S. at 34, 37–

38; Price 777 F.3d at 705.

Here, Section 16911(4) defines a “tier III sex offender,”

in relevant part, as:

[an] offender whose offense is punishable by imprisonment

for more than 1 year and—

(A) is comparable to or more severe than the
following offenses, or an attempt or conspiracy to
commit such an offense:

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 (i) aggravated sexual abuse or sexual abuse (as
described in sections 2241 and 2242 of Title 18); or

(ii) abusive sexual contact (as described in section
2244 of Title 18) against a minor who has not
attained the age of 13 years.

42 U.S.C. § 16911(4)(A). Thus, a defendant cannot be classified

as a tier III sex offender under Section 16911(4)(A) unless the

prior sex offense conviction is “comparable to or more severe

than” aggravated sexual abuse, sexual abuse, or abusive sexual

contact as the offenses are “described in” Sections 2241, 2242,

and 2244 of the Criminal Code. Id. § 16911(4)(A)(i)–(ii).

As the Tenth Circuit recently noted in White, “a reference

to a corresponding section of the [C]riminal [C]ode” like here

“strongly suggests a generic intent.” 782 F.3d at 1132. In

Nijhawan v. Holder, for example, the Supreme Court analyzed

subsections of an “aggravated felony” provision, 8 U.S.C.

§ 1101(a)(43), which similarly cross-references “‘offense[s]

described in’ a particular section of the Federal Criminal

Code.” 557 U.S. at 37 (citation omitted). According to the

Supreme Court, such language “must refer to generic crimes.”

Id. (emphasis added). SORNA’s text therefore suggests that the

categorical approach should be used to determine whether a prior

conviction is comparable to or more severe than the generic

crimes listed in Section 16911(4)(A).

10
 Nonetheless, we must also consider the language in Section

16911(4)(A)(ii) stating that a defendant is a tier III sex

offender if his prior conviction is comparable to or more severe

than abusive sexual contact “against a minor who has not

attained the age of 13 years.” 42 U.S.C. § 16911(4)(A)(ii)

(emphasis added). The definition of abusive sexual contact

encompasses a number of alternative elements. See 18 U.S.C.

§ 2244. However, it does not include an element specifying a

victim “who has not attained the age of 13 years.” 42 U.S.C.

§ 16911(4)(A)(ii); see 18 U.S.C. § 2244. Congress’s decision to

reference in SORNA a victim “who has not attained the age of 13

years,” 42 U.S.C. § 16911(4)(A)(ii), must therefore be read as

an instruction to courts to consider the specific circumstance

of a victim’s age, rather than simply applying the categorical

approach.

The language used to define a tier II sex offender also

supports the conclusion that Congress intended courts to use a

categorical approach when the sex offender tier definition

references a generic offense, with the exception of the specific

circumstance regarding the victim’s age. White, 782 F.3d at

1133−34. Section 16911(3)(A) indicates that a defendant is a

tier II sex offender if he has committed an offense that is

“comparable to or more severe than” a list of generic crimes

cross-referenced in the Criminal Code. See 42 U.S.C.

11
§ 16911(3)(A)(i)−(iv) (listing the offenses of sex trafficking,

coercion and enticement, transportation with intent to engage in

criminal sexual activity, and abusive sexual contact “as

described in” Sections 1591, 2422(b), 2423(a), and 2244

respectively). However, Section 16911(3)(A) qualifies that such

a generic offense reaches tier II status only when committed

“against a minor,” i.e., “an individual who has not attained the

age of 18 years.” Id. § 16911(3)(A), (14) (emphasis added).

Thus, the language of Section 16911(3)(A), like the language of

Section 16911(4)(A), instructs courts to apply the categorical

approach when comparing prior convictions with the generic

offenses listed except when it comes to the specific

circumstance of the victims’ ages. White, 782 F.3d at 1134; see

also United States v. Mi Kyung Byun, 539 F.3d 982, 991 (9th Cir.

2008).

In sum, an examination of 42 U.S.C. § 16911(4)(A)’s text

and structure leads us to the same conclusion the Tenth Circuit

reached in White: “Congress intended courts to apply a

categorical approach to sex offender tier classifications

designated by reference to a specific federal criminal statute,

12
but to employ a circumstance-specific comparison for the limited

purpose of determining the victim’s age.” 782 F.3d at 1135. 2

Our approach to Section 16911(4)(A) also accords with the

Supreme Court’s instructions that courts account for practical

considerations when determining whether to employ the

categorical or circumstance-specific approach. 3 The Supreme

Court has noted that the circumstance-specific approach can

create “daunting difficulties” for sentencing courts, tasking

them with examining evidence to understand the specific

circumstances of past convictions. Descamps, 133 S. Ct. at 2289

2
The portions of the tier III definition found in 42 U.S.C.
§ 16911(4)(B) and (C) are irrelevant to this case. We therefore
do not address them here.
3The Supreme Court has identified additional factors,
including legislative history, equitable considerations, and
Sixth Amendment implications, relevant to the determination of
whether to apply the categorical or circumstance-specific
approach. See Descamps, 133 S. Ct. at 2287–89. Because the
text and structure of Section 16911(4)(A) clearly evidence
Congress’s intent, we need not address these additional factors
in our analysis, as none would change the result here. We note,
however, that two of these factors—legislative history and
equitable considerations—lend particularly strong additional
support to our conclusion that the categorical approach should
apply with the exception that we look to the specific
circumstance of a victim’s age. See White, 782 F.3d at 1134–35
(discussing SORNA’s legislative history); see also Descamps, 133
S. Ct. at 2289 (explaining the potential unfairness of the
circumstance-specific approach in the context of prior
conviction sentencing enhancements, as it may allow for
consideration of factual allegations from past convictions that
the defendant had little incentive to challenge at trial or
deprive the defendant of the benefits of a negotiated plea
deal).

13
(internal quotation marks omitted). Such examinations could

require the review of aged documents, “[t]he meaning of [which]

will often be uncertain,” and “statements of fact . . . [that

are] downright wrong.” Id. A defendant may contest much of

this, raising the possibility of “minitrials” wherein past

convictions are re-litigated. Moncrieffe, 133 S. Ct. at 1690;

see Taylor v. United States, 495 U.S. 575, 601–02 (1990).

Applying the categorical approach to the generic crimes

listed in SORNA’s tier III definition will avoid such practical

difficulties. And looking to the circumstances of prior

convictions for the limited purpose of identifying the age of

the victim raises less concern. Determining age is a

“straightforward and objective” inquiry that “involves the

inspection of a single threshold fact.” Hernandez-Zavala v.

Lynch, 806 F.3d 259, 267 (4th Cir. 2015).

The government nevertheless contends that we should employ

the circumstance-specific approach wholesale, relying primarily

on our recent United States v. Price decision. True, we there

employed the circumstance-specific approach—but to a different,

and differently-worded, SORNA subsection. 777 F.3d 700. In

Price, we had to decide which approach to employ in assessing

whether a defendant’s prior conviction qualified as a “sex

offense” under Section 16911(7)(I). Id. at 707–09. That term

includes “[a]ny conduct that by its nature is a sex offense

14
against a minor.” 42 U.S.C. § 16911(7)(I) (emphasis added).

Examining this language, we found that the “explicit reference

to the ‘conduct’ underlying a prior offense, as well as the

‘nature’ of that conduct, refers to how an offense was

committed—not a generic offense.” Price, 777 F.3d at 709. As

explained above, the relevant statutory language—and the

conclusions we must draw from it—differ markedly here.

We also reject the government’s contention that practical

considerations weigh in favor of adopting a circumstance-

specific approach wholesale. According to the government,

considering the specific circumstances to determine tier

classifications should be unproblematic after Price, since the

factfinder must already consider the specific circumstances to

determine whether a defendant has committed a “sex offense.”

While perhaps true in some cases, that assertion may well be

untrue in many others, like here, where it is uncontested that

Defendant’s prior conviction constitutes a sex offense.

Moreover, Price held only that the circumstance-specific

approach is applicable to determinations with respect to 42

U.S.C. § 16911(7)(I). 777 F.3d at 709. Subsection (7)(I) is

but one of several subsections comprising SORNA’s definition of

the term “sex offense.” See 42 U.S.C. § 16911(5)(A)–(C),

(7)(A)–(I). The Court acknowledged in Price that the language

of at least one other subsection included in the sex offense

15
definition calls for an elements-based, categorical approach.

See 777 F.3d at 708. Thus, in some cases, one can and should

determine whether a defendant was convicted of a sex offense

without looking at the factual circumstances of the prior

offense.

D.

Having determined that we apply the categorical approach in

assessing whether a defendant’s prior conviction constitutes a

tier III sex offense under Section 16911(4)(A), with the

exception that we look to the specific circumstance of the

victim’s age, we now apply this approach to Defendant’s case.

And, doing so, we conclude that the district court erred in

deeming Defendant a tier III sex offender.

As we already noted, in 2002 Defendant pled guilty to

endangering the welfare of a child in violation of N.J. Stat.

Ann. § 2C:24-4(a). At that time, the statute stated:

Any person having a legal duty for the care of a child
or who has assumed responsibility for the care of a
child who engages in sexual conduct which would impair
or debauch the morals of the child, or who causes the
child harm that would make the child an abused or
neglected child as defined in R.S.9:6-1, R.S.9:6-3 and
P.L.1974, c. 119, s.1 (C.9:6-8.21) is guilty of a
crime of the second degree. Any other person who
engages in conduct or who causes harm as described in
this subsection to a child under the age of 16 is
guilty of a crime of the third degree.

N.J. Stat. Ann. § 2C:24-4(a) (2002) (emphasis added).

16
 Because the statute provided alternative elements that

could constitute child endangerment—“engag[ing] in sexual

conduct” or “caus[ing] . . . harm”—the statute is divisible.

Id.; see Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014)

(“[C]rimes are divisible . . . if they set out elements in the

alternative and thus create multiple versions of the crime.”

(internal quotation marks omitted)). Generally, therefore, we

would use the modified categorical approach to determine the

elements of Defendant’s child endangerment conviction. See

Descamps, 133 S. Ct. at 2281.

Here, however, there is no need to do so—because regardless

of whether Defendant’s New Jersey conviction was based on

“sexual conduct which would impair or debauch the morals of [a]

child” or “harm that would make [a] child . . . abused or

neglected,” N.J. Stat. Ann. § 2C:24-4(a) (2002), neither

alternative would qualify as a tier III sex offense.

The only subsection of relevance to Defendant’s potential

tier III classification is subsection (4)(A), which identifies

the generic crimes of aggravated sexual abuse, sexual abuse, and

abusive sexual contact defined in the Criminal Code. 42 U.S.C.

§ 16911(4)(A). And all three—aggravated sexual abuse, sexual

abuse, and abusive sexual contact—require a defendant to have

engaged in or attempted physical contact.

17
 Specifically, aggravated sexual abuse and sexual abuse

require an actual or attempted sexual act, 18 U.S.C. §§ 2241,

2242, which, in turn, involves physical contact, see id.

§ 2246(2) (defining sexual act to include contact between

genitals, contact between the mouth and genitals, penetration of

genitals with a hand or object with a specific intent, or

intentional touching of a person under the age of sixteen with a

specific intent). Similarly, the offense of abusive sexual

contact requires physical contact. See id. § 2244 (defining

“abusive sexual contact”); id. § 2246(3) (defining “sexual

contact” as “intentional touching” with a specific intent).

The New Jersey Supreme Court has, however, made clear that

actual or even attempted physical contact is not necessary for

conviction under the child endangerment statute at issue here.

For example, the New Jersey Supreme Court held in 2001 that

“mere nudity repeatedly presented at a window can constitute

endangering the welfare of children if the other elements of the

endangering crime are met.” State v. Hackett, 764 A.2d 421, 428

(N.J. 2001). The statute’s first alternative, “sexual conduct

which would impair or debauch the morals of [a] child,” N.J.

Stat. Ann. § 2C:24-4(a) (2002), thus does not qualify for tier

III classification, see United States v. Aparicio-Soria, 740

F.3d 152, 154 (4th Cir. 2014) (en banc) (“To the extent that the

statutory definition of the prior offense has been interpreted

18
by the state’s highest court, that interpretation constrains our

analysis of the elements of state law.”).

Nor is physical contact necessary to “cause[] [a] child

harm that would make the child an abused or neglected child”—the

statute’s second alternative. N.J. Stat. Ann. § 2C:24-4(a)

(2002). For example, one could cause such harm by “willfully

failing to provide proper and sufficient food.” See id. § 9:6-

1.

In sum, the New Jersey child endangerment statute under

which Defendant was convicted, N.J. Stat. Ann. § 2C:24-4(a)

(2002), can encompass conduct, such as repeated nudity and

willing failure to provide proper food, that clearly falls

outside of the generic crimes of aggravated sexual abuse, sexual

abuse, and abusive sexual contact, all of which require actual

or attempted physical contact. And because the New Jersey

statute sweeps more broadly than the generic crimes listed in 42

U.S.C. § 16911(4)(A), Defendant’s New Jersey conviction is not

“comparable to or more severe than” those crimes. 42 U.S.C.

§ 16911(4)(A); see Descamps, 133 S. Ct. at 2283. Accordingly,

Defendant cannot properly be classified as a tier III offender,

and the district court thus erred in so classifying him.

Because that error led to an improper calculation of Defendant’s

base offense level under the Sentencing Guidelines, Defendant’s

sentence is procedurally unreasonable and must be vacated. See,

19
e.g., United States v. Clay, 627 F.3d 959, 964, 970 (4th Cir.

2010). 4

III.

For the reasons above, the district court erred in

classifying Defendant as a tier III sex offender. We therefore

vacate Defendant’s sentence and remand for the district court to

determine Defendant’s proper tier classification (i.e., I or

II), calculate the corresponding Sentencing Guidelines range,

and impose a sentence.

VACATED AND REMANDED

4 We summarily reject Defendant’s argument that the Court
should defer to New Jersey’s classification of him as a tier II
offender. The Guidelines make clear that a defendant’s base
offense level for violation of 18 U.S.C. § 2250 is determined by
the defendant’s tier classification under SORNA. U.S.S.G.
§ 2A3.5 cmt. And even a cursory review of New Jersey’s sex
offender tier system reveals that it is grounded in criteria
distinct from SORNA’s tier definitions. See, e.g., N.J. Stat.
Ann. § 2C:7-8.

20