United States v. Morales , 801 F.3d 1 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1999
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN J. MORALES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Chief Judge
Kayatta and Barron, Circuit Judges.
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.
August 27, 2015
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.
I.
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
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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.
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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.1
II.
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
1
We have considered Morales's additional contentions, and
find them to be wholly unpersuasive.
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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. § 2242.2
2
These crimes include: causing another to engage in a sexual
act "by using force . . . or by threatening that other person" with
force, § 2241(a); knowingly rendering a person unconscious or
drugging that individual and then engaging in a sexual act with him
or her, § 2241(b); or, engaging or attempting to engage in abuse
defined in § 2241(a)&(b) with a person between the ages of 12 and
15 if the perpetrator is four years older than the victim, § 2241©.
§ 16911(4)(A)(i). This category also includes forcing "another
person to engage in a sexual act by threatening or placing that
other person in fear" or engaging in a sexual act with a victim if
such an individual is "incapable of appraising the nature of the
conduct; or physically incapable of declining participation in, or
communicating unwillingness to engage in, that sexual act." §
16911(4)(A)(i) (incorporating 18 U.S.C. § 2242).
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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) years of age or under." R.I. Gen. Laws. § 11-37-8.1.
III.
Given the lack of an objection below, the parties agree
that our review is for plain error only. This requires Morales to
show that "(1) an error occurred which was (2) clear or obvious and
which not only (3) affected his substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
the judicial proceedings." United States v. Tavares, 705 F.3d 4,
16 (1st Cir. 2013) (citation omitted). We begin by asking whether
any error occurred.
i.
Morales contends that it was error for the district court
to enhance his offense level based on a Tier III designation, since
his Rhode Island conviction was not "comparable to or more severe
than" any offense listed in that section of SORNA. Our analysis of
this argument proceeds in two steps. First, we must ask what
analytical approach applies to this comparative inquiry. Second,
under that framework, we must then determine whether the specific
Rhode Island law that Morales was convicted under is, in fact,
"comparable to or more severe than" any offense in Tier III.
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a.
The threshold question in this case is whether our
comparison of the statutes is limited to the elements of each crime
or whether we can account for Morales's specific conduct when
determining whether he is a Tier III offender. At its core, this
requires us to give some meaning to the term "offense" as it is
utilized in Tier III of the SORNA statute. The Supreme Court has
provided significant guidance on how to answer this question.
In Descamps v. United States, 133 S. Ct. 2276 (2013), the
Court described the analytical framework for comparing a state
predicate offense with the generic crimes listed in the Armed
Career Criminal Act ("ACCA"). Key to its decision was a
distinction between indivisible statutes (those not containing
alternative elements) and divisible statutes (those providing
alternative elements). For the latter set of statutes, limited
factual consideration is appropriate to determine under which
portion of the statute the offense lies.
However, for indivisible predicate statutes, like the
Rhode Island law at issue here, the comparison must be limited
solely to the elements of the crimes. The Court emphasized three
main justifications for this. Descamps, 133 S. Ct. at 2287-89,
citing Taylor v. United States, 496 U.S. 575 (1990). First, the
text of the ACCA, using the term "convictions" rather than a phrase
such as "has committed," implied that Congress was focused on a
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defendant's convictions irrespective of the underlying facts.
Descamps, 133. S.Ct. at 2287-88; contra Nijhawan v. Holder, 557
U.S. 29 (2009) (where the statute's requirement of a loss exceeding
$10,000 called for an inquiry into the specific circumstances
leading to the offense). Second, the Court was concerned that
fact-finding on the predicate offense could run afoul of the Sixth
Amendment right to a jury trial. Descamps, 133 S. Ct. at 2288-89.
Finally, such a categorical approach eschewed the possibility of
any mini- or collateral-trial at sentencing to probe the predicate
offense. Id. at 2289.
At least two of these considerations strongly militate
towards adopting the same method in this context. First, the text
yields the same result. Certainly, the word "offense" itself does
not provide us the same clarity as the use of the word "conviction"
in the ACCA, see Nijhawan, 557 U.S. at 33-34; see also Black's Law
Dictionary (9th ed. 2009) (defining offense as "violation of the
law; a crime"), but we have recently ascribed meaning to that word
in the context of the sexual abuse statutory scheme. In United
States v. Jones, 748 F.3d 64 (1st Cir. 2014), a defendant
challenged his life sentence, imposed under 18 U.S.C. § 2241©
(providing the definition of aggravated sexual assault incorporated
into the Tier III statute). To determine whether an enhanced
sentence under that statute was appropriate as a result of a
predicate sexual offense, we asked whether a state law penalizing
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sexual penetration with a victim under 13 (Jones's predicate crime)
"would have been an offense" under federal law (§ 2241©). Id. at
73-74. After citing Descamps, we determined that "offense" in this
context was limited to the "state court judgment and the statute of
conviction -- not at what [the defendant] did to trigger the
statute's application." Id. at 73. In other words, we adopted a
categorical approach.
We see no reason to depart from that understanding of
"offense." It is axiomatic that when considering two statutes on
the same subject "courts construe words or phrases from a prior act
on the same subject in the same sense," Sutherland Statutory
Construction § 51:2 (7th ed.), and that "identical words used in
different parts of the same act are intended to have the same
meaning," Dep't of Revenue of Or. v. ACF Indus., Inc., 510 U.S.
332, 342 (1994) (citation omitted). Here, the SORNA statute
explicitly incorporates § 2241(c) and both sections use the term
"offense" in precisely the same way; they each mandate a comparison
of a predicate state offense with the federal law. The government,
perhaps recognizing this, does not provide any reason to avoid this
consistent reading. Instead, it merely adds a footnote in its
brief saying that "some courts have expressed doubt about whether
the so-called 'categorical approach' even applies in this setting."
Absent any justification to find otherwise, Jones answers this
textual question. Since it limits "offense" to the elements of the
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crime, this Descamps consideration implores us to follow the
categorical approach.
The third Descamps consideration, the need to avoid
collateral trials about the factual grounding of the predicate
offense, is also directly relevant. There, relying on its previous
explanation in Taylor, the Court maintained that requiring a
district court to delve into the facts of a predicate offense could
turn into a daunting task. Indeed,
In some cases, the indictment or other
charging paper might reveal the theory or
theories of the case presented to the jury.
In other cases, however, only the Government's
actual proof at trial would indicate whether
the defendant's conduct constituted [the
offense]. Would the Government be permitted
to introduce the trial transcript before the
sentencing court, or if no transcript is
available, present the testimony of witnesses?
Could the defense present witnesses of its own
and argue that the jury might have returned a
guilty verdict on some theory that did not
require a finding that the defendant committed
the [generic offense]?
Taylor, 495 U.S. at 601. Relatedly, the Court observed that where
a defendant pleads to a lesser included offense of one listed in
the ACCA, this fact-intensive approach could subject a defendant to
a mini-trial on, and an enhanced punishment from, that broader
crime. Id. In effect, this could deprive him or her of the
benefit of the plea bargain.
Not much more need be said here, as a similar concern
also points to the answer in this case. Under a fact-centric
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analysis, an equally intensive investigation could be required to
determine whether a defendant's predicate actions fall within the
Tier III category. Although it is plausible that the issue could
be resolved from the plea agreement, plea colloquy, or judgment
alone, it is also conceivable that the court would need to review
the entire record. As the Court in Taylor noted, it could even
require further factual development outside of the initial trial
record. This is particularly concerning in this context where
requiring the victim to testify again could increase the likelihood
of secondary trauma. See, e.g., L. Christine Brannon, The Trauma
of Testifying in Court for Child Victims of Sexual Assault v. the
Accused's Right to Confrontation, 18 Law & Psychol. Rev. 439
(1994). Finally, depending on the nature of the defendant's plea
to the underlying offense, the approach could also render his or
her bargain meaningless.
Ultimately, limiting our analysis to the elements of
indivisible state predicate offenses, along with the generic crimes
referenced in SORNA, best comports with the Supreme Court's
considerations in Descamps. Indeed, we are not alone in reaching
this conclusion. See United States v. Backus, 550 Fed. App'x 260
(6th Cir. 2014) (applying the categorical approach to the SORNA
context); United States v. Cabrera-Gutierrez, 756 F.3d 1125 (9th
Cir. 2013) (same); see also United States v. Forster, 549 Fed.
App'x 757 (10th Cir. 2013) (casting some doubt on the approach but
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applying it nonetheless); contra United States v. Gonzalez-Medina,
757 F.3d 425 (5th Cir. 2014) (applying a fact-based approach when
comparing an "age differential" distinction between a state and
federal statute). Therefore, our analysis will be limited solely
to the elements of the relevant statutes.3
b.
The heart of this case turns on whether the Rhode Island
law is "comparable to or more severe than" any of the SORNA Tier
III offenses. At its core, Tier III breaks down into two
categories: (1) offenses that apply irrespective of the victim's
age -- i.e., if the offense either includes some additional conduct
or harm, or is committed against a particularly vulnerable
individual, § 16911(4)(A)(i); and, (2) any sexual crime against a
victim 12 or under, § 16911(4)(A)(i)-(ii). We address each
category in turn.
Initially, Tier III applies in a number of situations
irrespective of the victim's age. Specifically, it applies to
3
Despite its tepid argument against the categorical
approach, the government vigorously insists that the phrase
"comparable to" should have broad meaning. Morales, meanwhile,
argues for a narrower construction of the term, similar to that
given by two other circuits. See Backus, 550 Fed. App'x at 263
(defining "comparable" as "prohibit[ing] the same activity);
Cabrera-Guiterrez, 756 F.3d at 1133-34 (stating that a statute that
covers more activity than the federal statute is not comparable to
the federal law). We need not decide this issue. Instead, we
conclude that, no matter what the precise meaning of the term, the
Rhode Island offense in question is not "comparable to" the federal
offenses listed in Tier III.
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offenders who engage in certain, additional conduct (other than the
sexual act alone) in the course of committing the crime; who
inflict some additional harm during the offense; or who abuse a
specified victim. § 16911(4)(A)(i) (enumerating these offenses and
including: offenders who commit the crime utilizing force or the
threats of force, offenders who commit the crime against an
unconscious victim, or offenders who commit the crime against a
victim who is incapable of appraising the nature of the conduct).
The Rhode Island statute lacks analogous characteristics.
Instead, it contains only two elements: the sexual act and the age
of the victim. It does not include additional elements such as
threats or force, nor does it narrowly protect specific classes of
victims in a comparable fashion. Quite simply, the Rhode Island
law in this case penalizes significantly broader behavior than this
category of Tier III offenses.4
Our examination continues, however, since Tier III also
encompasses any sexual act against a victim aged 12 or under.
Specifically, section (ii) of Tier III includes offenses where the
victim is 12 years old or under and the perpetrator is at least
four years older, § 16911(4)(A)(ii), and section (i) (in addition
to the crimes previously discussed) includes offenses where the
4
We also note that other sections of Rhode Island law do
proscribe force or additional harm in this context. See, e.g.,
R.I. Gen. Laws § 11-37-2. This evidences the legislature's
capacity to target such activity when it so intends.
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perpetrator crosses state lines with the intent to engage in sexual
conduct, or actually does engage in such conduct, if the individual
is under the age of 12, § 16911(4)(A)(i). Such crimes are
considered so severe that, without anything more, they warrant Tier
III designation.
The government anchors its argument in the latter,
section (i) crime. It emphasizes that section (i) of the statute
penalizes the mere intent to sexually abuse an individual under 12
(together with the actus reus of crossing state lines), while Rhode
Island penalizes more severe conduct: an actual sexual act. The
government simply views the difference in the age cut-offs as
inconsequential.
The government's position runs head first into a
congressional judgment that lies at the core of the tiered
framework. The structure of the law makes clear that while
"comparable to" may, as the government argues, provide us some
flexibility in examining the offenses, the question of age is so
essential to the framework that the congressional cut-off must be
strictly construed. See Saysana v. Gillen, 590 F.3d 7, 13 (1st
Cir. 2009) (stating that the meaning "of a statutory provision is
often made clear not only by the words of the statute but by its
structure as well"). This is manifested by the distinctions within
section (i) of Tier III, by the interplay of section (i) and (ii),
and by the differences between Tier II and Tier III.
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First, the structure of section (i) of Tier III implies
that this congressional line-drawing was critical. At the risk of
repetition, Congress determined that the intent to abuse a victim
under 12 (or actually doing so) warrants Tier III classification.
But, where a victim is any other age, Congress made a different
statement; although the conduct may be severe, without additional
evidence of other conduct or harm (such as threats or force), or
some other particularly vulnerable attribute about the victim (such
as being unable to comprehend what was happening), only Tier II
applies. Thus, for crimes against victims over 12, only additional
conduct, or a more vulnerable victim, renders the crime
commensurate with an offense against a victim under that age.
Comparing the different sub-sections in Tier III yields
the same conclusion. Section (i) of Tier III already covers all
conduct where the victim is under 12. § 16911(4)(A)(i)
(incorporating 18 U.S.C. § 2241(c) ("intent to engage in . . . [or]
knowingly engages in a sexual act with another person who has not
attained the age of 12.")). Section (ii) adds only one additional
class of offenses: specified sexual abuse against 12 year old
children. § 16911(4)(A)(ii). If the age limit in section (i)
could be disregarded, as the government suggests, then a state
crime penalizing a sexual act against a 12 year old would already
be captured by section (i) of Tier III. This would leave the
second sub-section of Tier III without any purpose. See Duncan v.
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Walker, 533 U.S. 167, 174 (2001) (noting the importance of giving
every word or section in a statute meaning when possible).
The differences across the tier hierarchy further
underscore the age distinction's importance.
compare § 16911(3)(A)(iv) with § 16911(4)(A). If a person engages
in sexual conduct against a victim 16 or under and is convicted
under a state's general statutory rape law, Tier II status is
imposed. § 16911(3)(A)(iv). If the victim is 12 or under,
however, then the same exact conduct warrants Tier III
classification. In crafting this law, Congress plainly did not
envision placing every offender who violated any statutory rape law
under the Tier III umbrella. But, here, too, the government's
position would likely do just that. Indeed, it would raise the
question of whether Tier III applied to a violation of any state's
statutory rape law. By moving a significant number of Tier II
offenders into Tier III in this way, an entire section of Tier II
could thus be left without any purpose.
Nor is the tier system the only place that Congress
emphasized this age distinction in the sexual abuse statutory
regime. See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442
(2014) (noting that a provision in a statute must be read in the
broader context of the law); Robinson v. Shell Oil Co., 519 U.S.
337, 342-45 (1997) (trying to decipher the meaning of a term by
examining its usage in other provisions in the statute). For
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example, Congress specifically enhanced the penalty for "offenses
involving young children." 18 U.S.C. § 2244(c). In that law,
Congress said that if a victim had not attained the age of 12 "the
maximum term of imprisonment that may be imposed for the offense
shall be twice that otherwise provided in this section." Id. The
purpose of that enhancement, Congress specifically noted, was its
concern over an increase in abuse (roughly one-third of all sexual
offenses) against children 11 and under. H.R. Rep. No. 105-557
(1998). This suggests that Congress was not setting an arbitrary
age limit, but was intentionally drawing a line at that specific
age.
Ultimately, the age of the victim is a critical component
of the tier system. Although it now sings a different tune, even
the government has acknowledged this fact. As the Department of
Justice ("DOJ") noted in its own guidelines implementing the law,
the tier designation increases requirements corresponding to a
number of factors, most prominently, "the nature and seriousness of
the offense, the age of the victim, and the extent of the
offender's recidivism." National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008)
(emphasis added). The DOJ seems to accept the idea, which we also
adopt, that the victim's age is one of the core elements
distinguishing the tiers in SORNA. Given that, a state law simply
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does not target comparatively grave conduct when it fails to
include the same age cut-off.
The Rhode Island law at issue here is significantly
broader than a Tier III offense, since the state law penalizes
sexual conduct alone -- without anything more -- against victims
over the congressionally-designated age of 12. Although Rhode
Island can certainly draw the line at 14 when crafting its own laws
and setting its own registration requirements, it does not
necessarily follow that specific federal requirements are
automatically triggered. Where a distinction exists on such a
foundational issue, we cannot consider the two laws comparable.
Admittedly, this would be a different case if the Rhode Island
statute required proof of some additional harm (even if it defined
the harm differently than the federal statute) to victims over 12,
since it would then mirror Congress's judgment on this crucial
point. See, e.g., N.H. Rev. Stat. Ann. § 632-A:2(I); M.G.L. ch.
265 § 23A. It would also be a different case if Rhode Island
changed its laws to penalize sexual conduct against any individual
12 or under, as there would then be overlap with the federal
scheme. See, e.g., Me. Rev. Stat. Ann. tit. 17 § 253(1)(c); N.H.
Rev. Stat. Ann § 632-A:2(I)(l)&(II). It might even be a different
case if the Rhode Island law under which Morales was convicted
specifically sanctioned abuse against victims with a mental
capacity equivalent to a child 12 or under, as that might indicate
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an attempt to regulate equivalent harm. But, in penalizing sexual
conduct alone against older victims, the law sweeps far too broadly
in terms of the severity of the offenses it covers to be a Tier III
congener.5
Accordingly, the Rhode Island law cannot be read to be
"comparable to or more severe than" any SORNA Tier III offense.
Thus, the district court erred when it characterized Morales as a
Tier III sex offender.
ii.
Although we find error, our analysis does not end there.
Instead, Morales must still establish the other prongs of plain
error. First, he must show that the error was "plain." In other
words, it must be "clear" or "obvious." See United States v.
5
Although the government focuses on the section (i) intent
crime, the importance of the age distinction would apply equally
when comparing the Rhode Island statute to the offenses barred in
section (ii) of Tier III (sexual conduct against a 12 year old
child). However, we could potentially resolve that section (ii)
comparison in another way. Unlike the offenses listed in sub-
section (i), sub-section (ii) could either be read as a single unit
(i.e. finding that "is comparable to or more severe than" applies
to the entire section), or it could be read as two separate clauses
("is comparable to or more severe than . . . abusive sexual
contact" and is "against a minor who has not attained the age of 13
years.") Under the latter approach, the "comparable to" language
might not apply to the age limit and thus that clause could be read
as a stand-alone requirement. Courts could then engage in a
factual inquiry into the victim's actual age when considering
whether an offense matched sub-section (ii) of Tier III. Because
the victim of the underlying crimes for which Morales was convicted
was 13, we need not make that determination, since we would reach
the same result regardless of which analytical framework applied to
that one specific clause of Tier III.
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Olano, 507 U.S. 725, 734 (1993). The government contends that we
have never interpreted the SORNA tier regime in this context and
that the conclusion we reach today is far from self-evident.
The plainness of an error is considered at the time of an
appeal, and we thus account for developments in the law even if the
district court did not have the benefit of those changes. See
Henderson v. United States, 133 S. Ct. 1121, 1124-25 (2013); United
States v. Farrell, 672 F.3d 27, 36 (1st Cir. 2012). Despite the
implication of the government's argument, the absence of a decision
directly on point does not remove the potential for a finding of
plain error. Instead, the inquiry is always whether the error is
open to doubt or question. See Henderson, 133 S. Ct. at 1130
("'[P]lain' means that lower court decisions that are questionable
but not plainly wrong . . . fall outside the Rule's scope.");
Puckett v. United States, 556 U.S. 129, 143 (2009).
Two interwoven aspects of the error here make it "plain."
First, although the district court in this case should have
conducted some analysis given Descamps, it was our recent decision
in Jones that settled the matter definitively. With that case, one
the district court did not have the benefit of reviewing, it became
sufficiently clear that the Descamps analytical framework applied
to the tier structure at issue.
Second, with the Jones decision in place (and assuming,
arguendo, that the government's broader conception of "comparable
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to" applies) all this case then required was a comparison of the
federal and state law. Although we have engaged in a thorough
examination, even a cursory review of the statutes illustrates the
importance of the age issue in the federal law and the breadth of
the Rhode Island statute in comparison. See United States v.
Dávila-Félix, 667 F.3d 47, 54-57 (1st Cir. 2011) (finding plain
error despite undertaking a significant legal analysis asking
whether a prior conviction qualified as a predicate offense for
sentencing enhancement purposes). Simply put, no faithful reading
of the elements of the statutes, as our analysis shows, could lead
one to conclude that Morales was a Tier III offender. Thus, given
the framework mandated by Jones, and the clarity with which
Congress spoke in SORNA, it was sufficiently obvious that Morales
was incorrectly classified as a Tier III offender.
Morales must next show that the error affected his
substantial rights. In other words, it "must have been
prejudicial." Olano, 507 U.S. at 734. Here, it is important to
distinguish Morales's incarcerative sentence from his supervised
release term. As to the former, this case is somewhat analogous to
others where much is at stake (for example, when an armed career
criminal designation plays a role) and plain error is found because
the district court erroneously considered a prior conviction to be
a predicate offense. See United States v. Torres-Rosario, 658 F.3d
110, 116 (1st Cir. 2011). As we noted in Torres-Rosario, "district
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courts have regained considerable discretion in sentencing but the
guidelines are still highly influential." Id. Thus, where the
guidelines are augmented because the court improperly considers a
prior conviction to be a predicate offense, we must, at a minimum,
be on alert to the presence of prejudice.
In this case, the district court seemingly followed the
guidelines, and imposed an incarcerative sentence directly in the
middle of the range. Given the district court's focus on the
supervised release term rather than on the incarcerative sentence,
we are unable to say with sufficient confidence that the erroneous
guidelines range did not single-handedly drive the district court's
incarcerative sentencing decision. ("Now, the enhancement puts you
in a guideline range of 57 to 71 months. If you are truly a child
abuser, then the difference between 57, 60, 65, 71 months just
keeps you off the street for a few more months, and eventually
you're going to return to society. So just as important as the
prison term, it seems to me, are the terms of your release.")
Given the apparent role that the incorrect guideline range played,
and the reasonable probability that a different sentence will be
imposed, remand is appropriate. See, e.g., United States v.
Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005) (noting with
respect to a Booker error that "[e]ven in cases where the judge was
silent, there may be cases in which the appellate panel is
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convinced by the defendant based on the facts of the case that the
sentence would, with reasonable probability, have been different").
Although Morales has shown that his substantial rights
were affected as to his prison term, he cannot show prejudice with
respect to his supervised release sentence. At the initial
sentencing, the district court noted that a lifetime of supervised
release was required because Morales was a recidivist and the
public needed to be protected. After the initial sentencing, the
government informed the court that it had changed it position. It
believed that the guidelines called for a maximum of five years of
supervised release even though the statute permitted the court to
vary upwards to a lifetime sentence. At a subsequent hearing, the
court again emphasized that public safety concerns mandated the
lifetime order and it thus reaffirmed that part of its decision.
Nothing from either proceeding indicates that the tier designation
played any role in this part of the sentence, and we see no reason
to disrupt it.6
Morales must finally show that the error seriously
impaired the fairness, integrity, or reputation of the judicial
proceedings. In other words, he must show that there is "a threat
6
Although we do not find that the plain error standard has
been met with respect to supervised release, determining the
appropriate balance of an incarcerative term and supervised release
is an exercise committed to the sound discretion of the district
court. The district judge should therefore be permitted, but not
required, to revisit the supervised release aspect of the sentence
on remand.
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of injustice if we affirm." United States v. Rodriguez, 630 F.3d
39, 42-43 (1st Cir. 2010). Given the significant possibility that
Morales will receive a reduced sentence upon remand with a
different base-offense level, and since SORNA imposes enhanced,
lifelong requirements for Tier III offenders, such a threat does
exist without correcting this error. Nor, we note, is there any
injustice to the government from a remand. See United States v.
Ramos-Gonzales, 775 F.3d 483, 507-08 (1st Cir. 2015) ("To the
extent relevant to the plain error inquiry, the government asserts
no offsetting circumstances.") Since the error was one purely of
law, the government faced no undue prejudice in responding to the
argument for the first time on appeal. Moreover, the government
faces no significant harm moving forward, as it can still argue for
an upward variance upon remand.
Ultimately, this is one of the rare cases in which the
plain error review standards have been satisfied and a remand to
correct the mistake of law is required.
IV.
As the district court committed plain error when it
characterized Morales as a Tier III sex offender and when it then
utilized that designation in its guidelines calculation, we vacate
the sentence with respect to Morales's prison term and remand for
proceedings consistent with this opinion.
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