United States v. Thomas Faulls, Sr. , 821 F.3d 502 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4595
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS EARL FAULLS, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:13-cr-00001-GEC-1)
Argued: October 28, 2015 Decided: May 5, 2016
Before SHEDD, DIAZ, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Shedd and Judge Harris joined. Judge Shedd wrote a
separate concurring opinion.
ARGUED: Timothy Anderson, ANDERSON & ASSOCIATES, PC, Virginia
Beach, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: Anthony P. Giorno, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
DIAZ, Circuit Judge:
Thomas Faulls was convicted of kidnapping in violation of
18 U.S.C. § 1201(a)(1), interstate domestic violence in
violation of 18 U.S.C. § 2261(a)(2) and (b)(4), and possession
of a firearm in furtherance of a crime of violence in violation
of 18 U.S.C. § 924(c). The district court sentenced Faulls to
295 months’ imprisonment and also required him to register as a
sex offender under the Sex Offender Registration and
Notification Act (SORNA), 42 U.S.C. § 16911 et seq.
On appeal, Faulls contends that his counsel was ineffective
in opening the door to testimony by a government expert, and in
failing to object to the district court’s decision to keep the
jury late one evening. He also contends that the district court
erred in admitting prior acts evidence and in requiring him to
register as a sex-offender. For the reasons that follow, we
affirm.
I.
We recite the relevant evidence in the light most favorable
to the government. United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).
2
A.
Thomas and Lori Faulls were married for about twenty-five
years; they had two children. Their marriage was volatile, and
they separated in June 2012.
Following their separation, the couple’s interactions were
marked by a series of violent episodes, three of which are
relevant here. On June 28, 2012, Lori returned to the marital
home in Mineral, Virginia, to gather some of her belongings (the
“Mineral incident”). There, Faulls confronted her about the
separation and expressed frustration that their children never
answered his calls. He approached Lori with a gun and laughed
when she asked if he was going to kill her. When Lori told
Faulls that she was staying with a friend, Faulls called the
friend to say that she ruined his marriage by allowing Lori to
stay with her and that it would be her fault if Lori died.
Faulls then began yelling at Lori, telling her that the marital
home was her home and demanding to know why she was leaving.
Instead of leaving immediately, Lori stayed with Faulls to calm
him down. When she did leave, Faulls followed her and, at some
point, hit her car with his truck. 1
1 Lori told police that she wasn’t sure if it was an
accident or if Faulls acted intentionally because she “was
scared to death.” J.A. 198–99.
3
Shortly after this incident, Lori moved to Williamsburg,
Virginia, to live with her daughter Britnee. In mid-August
2012, Faulls came to Britnee’s apartment and confronted her for
not answering his calls (the “Williamsburg incident”). When
Britnee tried to call 911, Faulls attacked the women and took
their cell phones and car keys. Faulls allowed Britnee to
leave, but he repeatedly demanded that Lori return home.
Eventually, Lori was able to convince Faulls to leave the
apartment. 2
The third incident resulted in Faulls’s convictions. On
August 22, 2012, Lori drove Faulls to a repair shop, purportedly
to pick up his truck. In fact, the truck was parked behind the
marital home. On the way, Faulls pretended to call the shop to
see if his truck was ready, but he actually called one of the
couple’s children, knowing that no one would answer. Faulls
told Lori that the truck was not ready and they returned to the
house, where Lori declined his invitation to come inside.
Faulls became angry and revealed that his truck had been parked
behind the house the whole time. He took Lori’s cell phone and
car keys, then showed her a pair of zip ties that had been
fashioned into handcuffs. He asked Lori whether she “wanted to
do this the easy way or the hard way.” J.A. 215. Faulls then
2 Lori did not report this incident to the police.
4
ordered her into the truck, where Lori saw his shotgun in the
backseat. Faulls locked the passenger door, and before driving
away, threw Lori’s cell phone out the window. That night,
Faulls and Lori stayed at a hotel in Elkins, West Virginia,
nearly 200 miles from Mineral.
The next morning, Faulls sought to have sex with Lori.
Lori told him that she was uncomfortable but eventually
acquiesced out of fear. That day, Faulls and Lori went to
several stores, where Lori bought clothes and hygiene products.
They also stopped at a liquor store and purchased a bottle of
vodka.
That evening, Faulls and Lori went to a restaurant and bar.
Faulls got drunk and told patrons sitting nearby that Lori was
his wife and that he had kidnapped her. The pair left shortly
thereafter and, after discovering that there were no rooms
available at a nearby hotel, began walking back toward the
truck. At that point, Lori fled. She saw two women getting
into a car and asked them to take her to the police. The women
drove her to the sheriff’s office, where Lori reported what had
happened to her.
B.
Prior to trial, the district court preliminarily denied the
government’s motion to allow a domestic violence expert to
testify in the government’s case-in-chief, stating that
5
admission would depend on the scope of defense counsel’s
examination of the witnesses. At trial, the government called
the bartender at the restaurant where Faulls and Lori stopped
for the evening. On cross-examination, Faulls’s counsel asked
the bartender whether Lori was free to leave and whether he
believed Lori was being held against her will. The bartender
answered that Lori was free to leave and that, from what he
observed, she was not being held against her will. Although
Faulls’s counsel insisted that he merely asked the questions to
help the jury understand how close Lori was to the bar’s exit,
the court concluded that counsel had opened the door to the
government’s expert because the issue of whether Lori could have
fled had “both a physical and a psychological component.” J.A.
392.
The expert’s testimony focused on her research regarding
intimate partner violence, risk factors involved with this type
of violence, and the psychological components of abuse. She did
not testify that Lori had been a victim of domestic violence,
and the court addressed the jury before the testimony to
emphasize that the expert had never interviewed or examined
Lori.
The district court also allowed the government to introduce
evidence of the Mineral and Williamsburg incidents under Federal
Rule of Evidence 404(b). The court twice gave the jury a
6
limiting instruction regarding this evidence, stating that it
could be considered only to prove “the defendant’s motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident in connection with” Faulls’s
charges, but not as evidence of Faulls’s character or propensity
to commit the offenses. J.A. 200, 402.
At the end of the first day of trial, weather reports
forecast a snowstorm that threatened a delay in the proceedings.
The lawyers did not want Lori to testify over two days, so the
court asked the jurors if they would be willing to stay late to
complete her testimony. Faulls’s counsel did not object, and
though at least one juror did not want to stay late, the court
chose to complete the testimony that evening. The court
adjourned at 7:40 PM.
The jury convicted Faulls of kidnapping, interstate
domestic violence, and possessing a firearm in furtherance of a
crime of violence. The jury also determined that Faulls
committed aggravated sexual abuse in violation of 18 U.S.C.
§ 2241(a)(2), which served as the predicate crime of violence
for the interstate domestic violence charge and also enhanced
Faulls’s sentencing range. The district court further enhanced
Faulls’s sentencing range after it determined that Faulls
obstructed justice when he called his mother from jail and asked
her to convince Lori not to testify.
7
II.
A.
We first consider Faulls’s argument that he was denied
effective assistance of counsel, an issue we review de novo.
United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).
Faulls contends that his counsel was ineffective during his
cross-examination of the bartender, thereby opening the door to
allow the government to call its domestic violence expert.
Faulls also contends that his counsel was ineffective when he
failed to object to the court’s decision to keep the jury late
to complete Lori’s testimony.
We decline to reach Faulls’s claim. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
such claims are not addressed on direct appeal. United States
v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because there is
no conclusive evidence of ineffective assistance on the face of
this record, we conclude that Faulls’s claim should be raised,
if at all, in a 28 U.S.C. § 2255 motion. See United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
B.
Next, we consider whether the district court correctly
admitted prior acts evidence under Rule 404(b). We review
evidentiary rulings for abuse of discretion, United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997), and will not reverse a
8
district court’s decision to admit prior acts evidence unless it
was “arbitrary or irrational,” United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988) (citing United States v. Greenwood,
796 F.2d 49, 53 (4th Cir. 1986)).
Faulls asserts that the district court should not have
admitted testimony regarding the Mineral and Williamsburg
incidents because the evidence was neither relevant nor
necessary to the charges. Alternatively, Faulls argues that the
probative value of the evidence was substantially outweighed by
its prejudicial effect because the evidence (if believed)
demonstrated a pattern of domestic violence.
Evidence of prior wrongs is not admissible “to prove a
person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). However, such evidence may be
admissible for other purposes, including to show motive,
opportunity, intent, preparation, or plan. Id. 404(b)(2).
Prior act evidence is also admissible under Rule 404(b) to show
the victim’s state of mind. E.g., United States v. Powers, 59
F.3d 1460, 1464 (4th Cir. 1995).
To be admissible under any theory, the prior act evidence
must be “(1) relevant to an issue other than character;
(2) necessary; and (3) reliable.” United States v. Siegel, 536
F.3d 306, 317 (4th Cir. 2008) (quoting United States v. Wells,
9
163 F.3d 889, 895 (4th Cir. 1998)). Evidence is necessary when
it is “probative of an essential claim or an element of the
offense,” Queen, 132 F.3d at 997, or when it “furnishes part of
the context of the crime,” United States v. McBride, 676 F.3d
385, 398 (4th Cir. 2012) (quoting Rawle, 845 F.2d at 1247 n.4).
Even so, a district court may exclude the proffered evidence “if
its probative value is substantially outweighed by a danger
of . . . unfair prejudice.” Fed. R. Evid. 403. The danger of
prejudicial effect subsides when the district court gives proper
limiting instructions, particularly in the face of overwhelming
evidence of guilt. See Powers, 59 F.3d at 1468; see also United
States v. Briley, 770 F.3d 267, 275 (4th Cir. 2014) (“Rule
404(b) is a rule of inclusion.”).
We discern no error in the district court’s evidentiary
rulings. First, the evidence was relevant to issues other than
character or propensity. A jury could reasonably conclude that
Faulls’s motive with respect to the Mineral and Williamsburg
incidents was to stop Lori from leaving the marital home or,
generally, the marriage. That same jury could conclude that
Faulls committed the charged offenses because he was again upset
that Lori wanted to leave the marital home and rejected his
invitation to come inside.
A jury could also reasonably conclude that the evidence
demonstrated Faulls’s control and domination over Lori, which
10
was necessary to explain Lori’s state of mind and her apparent
willingness to remain with Faulls during the events leading to
the charged offenses, even though Lori and Faulls were out in
public, surrounded by others. See Powers, 59 F.3d at 1467(concluding that evidence of previous physical abuse by a father
accused of sexually assaulting his daughter was necessary to
show the power and control he had over his victim and his
victim’s fear of retribution for standing up to or reporting
him).
Finally, we conclude that the probative value of the
evidence was not substantially outweighed by the danger of
unfair prejudice to Faulls. The evidence was highly probative,
as it demonstrated Faulls’s domination over Lori, his motive for
committing the offenses, and Lori’s state of mind throughout the
ordeal. Additionally, the district court gave the jury clear
limiting instructions—reminding the jury that it should not
consider the evidence to prove Faulls’s character or his
propensity to commit the charged offenses—which obviated the
danger of prejudice.
C.
Last, we consider whether the district court correctly
required Faulls to register as a sex offender based on his
conviction for interstate domestic violence.
11
The parties dispute whether Faulls preserved this claim for
appeal, and the resolution of this preliminary question directs
our standard of review. Usually, we review a district court’s
imposition of special conditions of supervised release for abuse
of discretion. United States v. Holman, 532 F.3d 284, 288 (4th
Cir. 2008). The government argues, however, that Faulls failed
to object at sentencing, thus cabining our review to plain
error. Although Faulls did not formally object when the
district court asked for Faulls’s thoughts on this issue—
responding merely, “[W]e denied from the beginning this is a sex
offense, but I would obviously leave it to the discretion of the
Court,” J.A. 510—we conclude that Faulls preserved the issue for
review. See United States v. Lynn, 592 F.3d 572, 577–79 (4th
Cir. 2010) (abandoning a “formulaic” objection standard and
providing, with examples, that the goal of the contemporaneous-
objection rule is to preserve the record and alert the district
court to its responsibility to address the issue).
1.
Faulls contends that the district court should not have
reached the question of whether his conviction for interstate
domestic violence was a sex offense because the government gave
“no clear indication that this should be a sex offender case
based on the [Department of Justice]’s own guidelines.”
Appellant’s Br. at 24. If by this Faulls means that the
12
government did not urge the district court to impose SORNA
registration as a condition of supervised release, he is
mistaken. If, on the other hand, Faulls means that the
Department of Justice Guidelines require the government to give
notice, he has not pointed this court to such a requirement, and
we have not found one. In any event, Faulls cannot credibly
claim to have been surprised by the issue, given that the
district court’s local standing order directs the probation
officer to determine whether sex offender registration is
appropriate, and gives the court discretion to impose the
condition of supervised release at sentencing.
2.
Turning to the merits of the imposed condition, sex
offenders are required to register in every jurisdiction in
which the offender resides, works, and attends school. 42
U.S.C. § 16913(a). A sex offender is someone who is convicted
of a sex offense, which in relevant part is defined as a
criminal offense that “has an element involving a sexual act or
sexual contact with another,” or a “Federal offense . . . under
chapter 109(A) [Sexual Abuse offenses under 18 U.S.C. § 2241 et
seq.].” 42 U.S.C. § 16911(1), (5)(A)(i), (iii).
Faulls contends that because interstate domestic violence
is not one of the enumerated crimes that qualifies as a sex
offense under SORNA, see § 16911(5)(A)(iii), the inquiry ends
13
there, and the district court erred. Faulls is incorrect,
however, because the statute also provides other definitions of
a sex offense, including an offense with an element “involving a
sexual act or sexual contact with another.” § 16911(5)(A)(i).
The government says that Faulls’s interstate domestic
violence conviction satisfies this definition. The government’s
argument begins with the offense elements of interstate domestic
violence, which are (1) the defendant and victim are spouses or
intimate partners; (2) the defendant caused the victim to travel
in interstate commerce by force, coercion, duress, or fraud;
(3) the defendant, in the course of or to facilitate such
travel, committed a crime of violence against the victim; and
(4) the defendant committed such acts knowingly and willfully.
18 U.S.C. § 2261(a)(2). Here, the government alleged kidnapping
under § 1201(a)(1) and aggravated sexual abuse under
§ 2241(a)(2) as the underlying crimes of violence. The jury
convicted Faulls of kidnapping and also found beyond a
reasonable doubt that Faulls had committed aggravated sexual
abuse.
Interstate domestic violence also contains a penalty
enhancement for offenders whose qualifying violent conduct
constitutes sexual abuse under chapter 109A, including
aggravated sexual abuse. See §§ 2241, 2261(b)(4). Because the
jury found that Faulls committed aggravated sexual abuse, he
14
faced an increased statutory maximum penalty ranging from five
years’ imprisonment to “any term of years or life” imprisonment.
§§ 2241(a), 2261(b)(4)–(5).
The government contends that the statutory enhancement is
an “element” of the interstate domestic violence offense under
Apprendi v. New Jersey, 530 U.S. 466 (2000), which in turn means
that it is also an element of the offense for purposes of
determining whether Faulls was convicted of a sex offense under
SORNA. Because aggravated sexual abuse “requires engaging in a
sexual act, [which] . . . necessarily requires physical contact”
with another, United States v. White, 782 F.3d 1118, 1137 (10th
Cir. 2015), the government contends that Faulls was convicted of
“a criminal offense that has an element involving a sexual act
or sexual contact with another,” 42 U.S.C. § 16911(5)(A)(i), and
accordingly, was subject to sex offender registration under
SORNA. We agree with the government’s conclusion but not its
reasoning.
3.
The Constitution requires a jury to find, beyond a
reasonable doubt, the elements of the criminal offense charged.
In Apprendi, the Supreme Court held that this bedrock principle
also applies to sentencing, declaring that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
15
submitted to a jury, and proved beyond a reasonable doubt.” 530
U.S. at 490. Thus, the distinction between a substantive
offense element and a sentencing (or penalty) enhancement is
meaningless when the enhancement requires facts or
circumstances—separate from those composing the base offense—to
have taken place in order to trigger a greater punishment than
the base offense statutorily carries. Id. at 476–78 & n.4.
In Alleyne v. United States, the Court extended this rule
to facts that increase the prescribed statutory minimum penalty—
i.e., facts that establish a new or higher mandatory minimum
sentence. 133 S. Ct. 2151, 2162–63 (2013). The Court reasoned
that the “impossib[ility] [of] disput[ing] that facts increasing
the legally prescribed floor aggravate the punishment” leads to
the logical conclusion that “the core crime and the fact
triggering the mandatory minimum sentence together constitute a
new, aggravated crime, each element of which must be submitted
to the jury.” Id. at 2161 (emphasis omitted).
Here, the jury found Faulls guilty of interstate domestic
violence. For purposes of enhancing Faulls’s sentence, the jury
also found beyond a reasonable doubt that Faulls had committed
aggravated sexual abuse. Relying on Apprendi and Alleyne, the
government contends that the jury’s finding also necessarily
means that aggravated sexual abuse is an element of the charged
interstate domestic violence offense for purposes of SORNA. We
16
do not agree. The fact that a jury made the finding necessary
for the sentencing enhancement certainly cures any Apprendi
issue, but it does not answer the statutory question of whether
that same finding is an “element” of Faulls’s “offense” under
§ 16911(5)(A)(i).
The government directs us to United States v. Campbell, 259
F.3d 293 (4th Cir. 2001), as support for its view, but that case
is inapposite. In Campbell, we held that the penalty
enhancements in 18 U.S.C. § 111(b) were substantive elements of
the offense that needed to be proved to the jury beyond a
reasonable doubt, not sentencing enhancements the court could
deem satisfied despite the jury’s opposite finding. 259 F.3d at298–300. But there we were conducting a constitutional inquiry.
See also, e.g., United States v. Brown, 757 F.3d 183, 188 (4th
Cir. 2014) (observing that the drug quantity attributable to the
conspiracy, as provided in the penalty subsection of 21 U.S.C.
§ 841, was a question for the jury under Alleyne because of the
mandatory minimum sentences each quantity category carried),
cert. denied, 135 S. Ct. 229 (2014); United States v. Promise,
255 F.3d 150, 156–57 (4th Cir. 2001) (en banc) (holding the same
under Apprendi). The statutory question here is substantially
different.
Accordingly, we must look elsewhere for guidance. Recall
that for SORNA’s sex-offender registration requirements to
17
properly apply to Faulls, he must have been convicted of a
“criminal offense that has an element involving a sexual act or
sexual contact with another.” 42 U.S.C. § 16911(5)(A)(i)
(emphasis added). Recently, in United States v. Price, 777 F.3d
700 (4th Cir.), cert. denied 135 S. Ct. 2911 (2015), we
confronted the question of whether the defendant was convicted
of a sex offense in order to determine whether SORNA’s sex-
offender registration requirements should apply. Although we
were analyzing SORNA’s definition of a sex offense in
§ 16911(5)(A)(ii) (“specified [criminal] offense against a
minor”) and its extension at § 16911(7) (expanding subsection
(5)(A)(ii)’s definition), we nonetheless examined the statutory
language of § 16911(5)(A)(i). Id. at 707–08. In holding that
the facts-based “circumstance-specific” approach applies to a
sex offense determination under § 16911(5)(A)(ii), (7), we noted
in dicta that Congress’s use of “elements” in § 16911(5)(A)(i)
(the subsection before us now) “implicat[es] the categorical and
modified categorical frameworks.” Id. at 708. 3
Other courts of appeals have also found these frameworks
relevant to the determination of what constitutes a sex-offense
3
Cf. United States v. Berry, 814 F.3d 192, 195 (4th Cir.
2016) (providing that courts have “embraced” the categorical and
modified categorical approaches in determining a sex offender’s
tier classification).
18
under SORNA, although none has squarely applied them in the
precise context before us. See United States v. Rogers, 804
F.3d 1233, 1234–38 (7th Cir. 2015) (affirming the district
court’s decision to enhance defendant’s sentence under Guideline
§ 2A3.5(b)(1)(A) for committing a sex offense while in failure-
to-register status, and finding that the categorical approach
applies to the threshold definition of a sex offense under
§ 16911(5)(A)(i)); United States v. Gonzalez-Medina, 757 F.3d
425, 430 (5th Cir. 2014) (distinguishing § 16911(5)(A)(i) from
§ 16911(5)(C), and applying the circumstance-specific approach
to the defendant’s prior state conviction for having sexual
intercourse with a child age sixteen or older), cert. denied,
135 S. Ct. 1529 (2015); United States v. Mi Kyung Byun, 539 F.3d
982, 991-92 (9th Cir. 2008) (comparing § 16911(5)(A)(i) to
§ 16911(7)(I), and applying the circumstance-specific approach
to the defendant’s federal conviction for importation of an
alien for purposes of prostitution). Following the lead of
Price and our sister circuits, we proceed here to apply the
categorical and modified categorical approaches.
Thus, we “focus[] solely on the elements” of interstate
domestic violence, rather than on “the specific way in which
[Faulls] committed the crime,” to determine whether interstate
domestic violence qualifies as a criminal offense with an
element involving a sexual act or contact. Price, 777 F.3d at
19
704-05 (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)). 4 In
applying the traditional categorical approach, we compare the
elements of the defendant’s offense of conviction to the
elements of the federal offense (also called the “generic”
offense). There is a categorical match if “[t]he elements
comprising the statute of conviction [are] the same as, or
narrower than, those of the generic offense.” Id. at 704; e.g.,
United States v. Torres-Miguel, 701 F.3d 165, 168–69 (4th Cir.
2012) (finding no categorical match between defendant’s
California felony threat conviction and a “crime of violence”
under the U.S. Sentencing Guidelines because threatening to
commit a crime against another that will result in death or
serious injury (crime of conviction) does not necessarily
require “the use, attempted use, or threatened use of physical
force against [another]” (generic offense)).
4 The district court did not have the benefit of our
decision in Price, and neither party on appeal has urged that we
apply the elements-based approach to determine whether Faulls
was convicted of a sex offense. Although we generally do not
consider issues not passed upon below, the question before us is
purely one of law, and we perceive no injustice or unfair
surprise in doing so here. See Singleton v. Wulff, 428 U.S.
106, 120–21 (1976) (“The matter of what questions may be taken
up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.”). Nor are we are
bound by the district court’s reasoning—or the arguments
advanced by the parties—in exercising our plenary review.
United States v. Segers, 271 F.3d 181, 183 (4th Cir. 2001);
United States v. Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).
20
The modified categorical approach is almost identical, but
it applies only to divisible statutes—those containing
alternative elements—and it entails a brief “detour.” Price,
777 F.3d at 705. Before looking for a categorical match, we
consider a limited number of trial documents, including the
indictment and jury instructions, to determine which alternative
element formed the basis of the conviction. Descamps v. United
States, 133 S. Ct. 2276, 2284–85 (2013). Then the traditional
elements-based approach resumes. Id.; e.g., United States v.
Castleman, 134 S. Ct. 1405, 1414 (2014) (applying the modified
categorical approach to a Tennessee statute that defined assault
in three distinct ways, and finding that the defendant’s
conviction for “intentionally or knowingly caus[ing] bodily
injury to the mother of his child” qualified as a misdemeanor
crime of domestic violence under 18 U.S.C. § 922(g)(9) because
it “necessarily involve[d] the use of physical force” (internal
quotation marks omitted)).
Under either approach, we compare the elements of
interstate domestic violence with the generic offense—here,
SORNA’s definition of a sex offense: “a criminal offense that
has as an element involving a sexual act or sexual contact with
another.” 42 U.S.C. § 16911(5)(A)(i). As relevant, to be
convicted of interstate domestic violence, the defendant must
commit an underlying crime of violence against a spouse or
21
intimate-partner victim. See 18 U.S.C. § 2261(a)(2). A crime
of violence is defined as
[A]n offense that has an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or any other offense
that is a felony and that, by its nature, involves a
substantial risk that physical force against the
person or property of another may be used in the
course of committing the offense.
§ 16.
It is well established that some sex offenses qualify as
crimes of violence. See U.S. Sentencing Guidelines Manual
§ 4B1.2, comment. (n.1) (U.S. Sentencing Comm’n 2012)
[hereinafter U.S.S.G. § 4B1.2] (including “forcible sex
offenses” in the enumerated list of established crimes of
violence); United States v. Peterson, 629 F.3d 432, 435 (4th
Cir. 2011) (calling the Guidelines commentary “authoritative and
binding”). But a crime of violence is not necessarily a sex
offense, which means that interstate domestic violence
necessarily “‘sweeps more broadly’ and criminalizes more conduct
than the generic federal” sex offense, precluding a categorical
match. Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)
(quoting Descamps, 133 S. Ct. at 2283).
As a result, we consider whether interstate domestic
violence is divisible for purposes of the modified categorical
approach, meaning it must “set[] out one or more elements of the
offense in the alternative.” Descamps, 133 S. Ct. at 2281. In
22
Descamps v. United States, the Supreme Court found that
California’s burglary statute “d[id] not concern any list of
alternative elements” but rather “involve[d] a simple
discrepancy” between generic burglary, which requires unlawful
entry, and California’s statute, which does not. Id. at 2285.
So although California’s statute was defined using disjunctive
elements, see Cal. Penal Code Ann. § 459 (West 2010) (defining
burglary as the entering of certain locations “with intent to
commit grand or petit larceny or any felony” (emphasis added)),
and therefore “refer[red] to several different crimes,”
Descamps, 133 S. Ct. at 2284 (quoting Nijhawan, 557 U.S. at 35),
none of those crimes required breaking and entering. Because
California’s burglary statute did not match the generic version
of burglary envisioned by the federal statute, applying the
modified categorical approach was improper.
We grappled with the reach of Descamps in United States v.
Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013). There, we
announced that “[w]here the statute defines the offense broadly
rather than alternatively, the statute is not divisible, and the
modified categorical approach simply ‘has no role to play.’”
Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct.
at 2285). Although we did not explain the broad–alternative
distinction, we found that the divisibility determination turns
23
on the availability of a categorical fit, and not on the strict
statutory inclusion of textual alternatives.
In deciding whether a Maryland child abuse conviction
constituted a crime of violence for sentencing purposes, we said
that the disjunctive state statute was “generally divisible”
because the offender could be either a family member or an
individual with responsibility for the child’s supervision,
either physical abuse or sexual abuse constituted the abuse
element of the statute, and sexual abuse could be alternatively
defined as sexual molestation or sexual exploitation. Id. at
352 (defining the elements of Md. Code Ann., Crim. Law § 35C).
But general divisibility, we said, was not enough: “[O]nly if at
least one of the categories into which the statute may be
divided constitutes, by its elements, [the generic federal
offense]” is the statute divisible “for purposes of applying the
modified categorical approach.” Id. Because no arrangement of
the state child-abuse statute’s alternative elements lined up
with the elements of a crime of violence, we found the statute
indivisible. Id.
Applying these cases to the particular statute before us,
we hold that Faulls’s crime of conviction encompasses, by its
crime of violence element, additional, alternative offense
elements, “effectively creat[ing] several different crimes.”
Descamps, 133 S. Ct. at 2285. This is so because a defendant
24
convicted of interstate domestic violence may have committed,
for example, assault with a deadly weapon, murder, or sexual
assault as the underlying crime of violence. See, e.g., United
States v. Barnette, 644 F.3d 192, 197–98 (4th Cir. 2011)
(murder); United States v. Brown, 295 F.3d 152, 153–54 (1st Cir.
2002) (sexual assault); United States v. Bowe, 309 F.3d 234, 236
(4th Cir. 2002) (assault with a deadly weapon).
Admittedly, the offense of interstate domestic violence
presents an unusual set of circumstances for the divisibility
analysis. To begin with, the offense does not set out on its
face, in the disjunctive or otherwise, a list of alternative
crimes that constitute the offense, but rather requires the
defendant to commit an underlying “crime of violence.” This
case also requires that we compare a contemporaneous federal
conviction—rather than (as is more typical) a prior, state
conviction—to the generic federal offense.
But these anomalies have no bearing on the modified
categorical approach’s application here. See United States v.
Ortiz-Gomez, 562 F.3d 683, 684–85 (5th Cir. 2009) (applying the
modified categorical approach to a state statute criminalizing
the communication of a threat to “commit any crime of violence”
to determine what underlying crime of violence supported the
25
defendant’s conviction). 5 Importantly, in a prosecution for
interstate domestic violence, the jury is charged with finding,
unanimously and beyond a reasonable doubt, the commission of a
specific underlying crime of violence, as well as the elements
of that offense. See Omargharib, 775 F.3d at 198–99 (looking to
how the Virginia courts instruct juries with respect to larceny
to determine whether the offense is defined to include multiple
alternative elements); United States v. Royal, 731 F.3d 333, 341
(4th Cir. 2013) (same, with Maryland assault statute).
Interstate domestic violence therefore consists of multiple
alternative elements, as we define them for modified categorical
approach purposes: “Elements, as distinguished from means, are
factual circumstances of the offense the jury must find
‘unanimously and beyond a reasonable doubt.’” Omargharib, 775
F.3d at 198 (quoting Royal, 731 F.3d at 341).
Treating interstate domestic violence as divisible for
purposes of the modified categorical approach dovetails with the
inquiry’s function and harmonizes its purpose. “The point of
the categorical inquiry [after all] is not to determine whether
5
And as Judge Shedd’s concurrence notes, we have applied
the categorical approach to instant offenses when determining
whether the defendant should be sentenced as a “career offender”
under the Sentencing Guidelines for having committed a “crime of
violence.” See United States v. Johnson, 953 F.2d 110, 114 (4th
Cir. 1991); accord United States v. Martin, 215 F.3d 470, 474
(4th Cir. 2000).
26
the defendant’s conduct could support a conviction for a [sex
offense], but to determine whether the defendant was in fact
convicted of a crime that qualifies as a [sex offense].”
Cabrera-Umanzor, 728 F.3d at 350.
Here, without looking to the relevant documents in the
record, we would have no way of knowing whether Faulls’s
conviction constitutes a sex offense because we do not know from
the facial elements of § 2261(a)(2) what underlying offense
substantiated the finding of domestic violence. But when we
look to the jury instructions and the indictment, we see that
the underlying crime of violence—aggravated sexual abuse—and its
elements were put to the jury and found unanimously beyond a
reasonable doubt. See Supp’l J.A. 615, 650–55; J.A. 11. This
analysis thus furthers the categorical framework’s purpose
without frustrating its goal of “avoid[ing] conducting ‘mini-
trials’ for each prior offense.” United States v. Gomez, 690
F.3d 194, 200 (quoting United States v. Spence, 661 F.3d 194,
198 (4th Cir. 2011)).
Our interpretation also comports with our past practice.
See, e.g., United States v. Rivers, 595 F.3d 558, 563 (4th Cir.
2010) (“[O]nly when a statute prohibits different types of
behavior such that it can be construed to enumerate separate
crimes can a court modify the categorical approach . . . .”);
Gomez, 690 F.3d at 198 (applying the modified approach when
27
“different types of behavior satisfy an element of the offense
and the proscribed behaviors constitute at least two separate
crimes”). And it is consistent with the practice of our sister
circuits. See, e.g., United States v. Mahone, 662 F.3d 651, 654
(3d Cir. 2011) (calling for the modified approach “[w]hen the
enumerating statute invites inquiry”), abrogated on other
grounds by Descamps, 133 S. Ct. 2276; United States v. Williams,
627 F.3d 324, 327–28 (8th Cir. 2010) (providing that the
modified categorical approach is used when “the conviction
criminalizes both conduct that does and does not qualify as [the
generic federal offense]”).
Our holding also aligns with SORNA’s legislative goal of
“strengthen[ing] and increas[ing] the effectiveness of . . . sex
offender registration and notification [for the protection of
the public]”. United States v. Gould, 568 F.3d 459, 464 (4th
Cir. 2009) (quoting The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38030, 38030 (July
2, 2008)); see also Taylor v. United States, 495 U.S. 575, 581–
90 (1990) (looking to the statutory background and purpose of
the ACCA to determine how to apply the categorical approach to
the state offense at issue).
Congress passed SORNA to fill the “gaps” and “loopholes”
left by its predecessor act’s “patchwork” standards, which
“allowed for numerous heinous crimes” to be unaffected by
28
registration requirements. Gould, 568 F.3d at 473–74. It would
make little sense, then, in the context of a law that was
designed to bolster public protection through comprehensive sex-
offender registration, to bar courts from peering behind the
statutory curtain to determine what offense the defendant
actually committed when the offense of conviction contains as an
element another generic federal crime acting as a placeholder
for the substantive offense.
In sum, because aggravated sexual abuse “involv[es] a
sexual act or sexual contact with another,” Faulls was convicted
of a criminal offense that “has an element involving a sexual
act or sexual contact with another”—a sex offense. 42 U.S.C.
§ 16911(5)(A)(i). Accordingly, the district court did not err
in requiring Faulls to register as a sex offender under SORNA.
III.
For the reasons given, we affirm the district court’s
judgment.
AFFIRMED
29
SHEDD, Circuit Judge, concurring:
The majority applies the categorical approach to determine
if Faulls’s conviction for interstate domestic violence is a
“sex offense” under 18 U.S.C. § 16911(5)(A)(i). Regardless of
whether the categorical approach should apply to past
convictions under this section, if I were deciding this issue on
a clean slate, I would not apply it in the context of this case,
which involves an instant offense. As the Tenth Circuit has
explained, “the practical difficulties of conducting an ad hoc
mini-trial” that drive us to apply the categorical approach to a
past conviction “do not apply when the court is examining the
conduct of the defendant in the instant offense.” United States
v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (quotation
marks and alterations omitted); see also United States v.
Williams, 690 F.3d 1056, 1069 (8th Cir. 2012) (same).
The categorical approach does not save judicial resources
because we are continuously called upon to determine whether
past convictions—on a state-by-state basis—qualify as predicate
offenses in multiple contexts, including sentencing. This
situation has left “[t]he dockets of our court . . . clogged
with these cases.” United States v. Vann, 660 F.3d 771, 787 (4th
Cir. 2011) (Agee, J., concurring). Further, the categorical
approach is the antithesis of individualized sentencing; we do
not consider what the individual to be sentenced has actually
30
done, but the most lenient conduct punished by his statute of
conviction. This flaw is even more apparent in cases like this
one, involving instant offenses: the district judge sat through
Faulls’s trial, heard the evidence against him, and witnessed
the jury’s finding that Faulls committed aggravated sexual abuse
against his wife. The categorical approach then requires the
“counter-intuitive procedure” whereby that same judge “must
ignore the actual trial record and the facts and inferences
drawn from the testimony” to determine if Faulls’s conviction
was for a “sex offense.” United States v. Stoker, 706 F.3d 643,
651 (5th Cir. 2013) (Jones, J., concurring).
Notwithstanding my view, however, circuit precedent rejects
this distinction between past convictions and instant offenses.
See United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1991)
(noting the “substantial intuitive appeal” of applying a
circumstance-specific approach to instant offenses but
nonetheless concluding that the approach “must . . . be
rejected”); United States v. Martin, 215 F.3d 470, 474 (4th Cir.
2000) (applying categorical approach to instant conviction “no
matter how clear it may be from the record” that the defendant
committed a crime of violence). I therefore concur in Judge
Diaz’s thoughtful opinion for the court.
31