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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                 No. 13-40927                            FILED
                                                                      July 2, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                           Plaintiff – Appellee
v.

NAZARIO GONZALEZ-MEDINA,

                                           Defendant – Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Nazario Gonzalez-Medina appeals his conviction for failure to register as
a sex offender in violation of 18 U.S.C. § 2250(a). On appeal, Gonzalez-Medina
contends that he was not required to register as a sex offender because his
Wisconsin conviction under Wisc. Stat. § 948.09 for having sexual intercourse
with a child age sixteen or older does not qualify as a “sex offense” within the
meaning of the Sex Offender Registration and Notification Act (“SORNA”), 42
U.S.C. §§ 16901 et seq. Gonzalez-Medina further contends that SORNA’s
registration requirement and criminal penalty exceed Congress’s authority
under the Commerce Clause. For the reasons articulated below, we AFFIRM
Gonzalez-Medina’s conviction.
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                                  No. 13-40927
                                        I.
      Gonzalez-Medina was born in Mexico in 1979 or 1980 and is a Mexican
citizen. On June 24, 2005, he was charged in Wisconsin state court with having
sexual intercourse with a child age sixteen or older in violation of Wisc. Stat. §
948.09. He pleaded no contest to the charge and was sentenced to sixty days
in jail.   Two years later, on November 28, 2007, Gonzalez-Medina was
convicted in Texas state court of aggravated assault and sentenced to two years
imprisonment.     Prior to his release from state prison, Texas authorities
informed Gonzalez-Medina of his duty to register as a sex offender for the
duration of his lifetime based on his Wisconsin conviction. He signed a sex
offender registration form and was later deported to Mexico. Three years later,
on September 7, 2012, federal authorities found Gonzalez-Medina in a city jail
in San Benito, Texas. A subsequent investigation revealed that he had been
living in Texas for over a year and had not updated his sex offender registration
after returning to the United States.
      On September 25, 2012, a federal grand jury indicted Gonzalez-Medina
for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), and
illegal reentry in violation of 8 U.S.C. § 1326(a). Gonzalez-Medina pleaded
guilty to the illegal-reentry charge. He then moved to dismiss the failure-to-
register charge on the ground that his prior Wisconsin conviction does not
qualify as a “sex offense.” SORNA defines a “sex offense” as, inter alia, “a
criminal offense that has an element involving a sexual act or sexual contact
with another.” See 42 U.S.C. § 16911(5)(A)(i). SORNA includes an exception
to its definition of “sex offense” for “[a]n offense involving consensual sexual
conduct . . . if the victim was at least 13 years old and the offender was not
more than 4 years older than the victim.” 42 U.S.C. § 16911(5)(C). In his
motion, Gonzalez-Medina argued that the court should apply the categorical
approach to the age-differential determination in the § 16911(5)(C) exception.
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He further argued that Wisc. Stat. § 948.09 is not a “sex offense” under the
categorical approach because it does not include a four-year age differential as
an element.
      The district court denied the motion, and Gonzalez-Medina waived his
right to a jury trial. After a bench trial, the district court found Gonzalez-
Medina guilty of failure to register as a sex offender. The court first found that
Gonzalez-Medina knowingly failed to register as a sex offender upon his return
to the United States in May 2011. The court next found that Gonzalez-Medina
had a duty to register because his Wisconsin conviction falls under SORNA’s
definition of “sex offense” as “a criminal offense that has an element involving
a sexual act or sexual contact with another.” See 42 U.S.C. §16911(5)(A)(i).
Finally, the court found that the age-differential exception in § 16911(5)(C)
does not apply because the Wisconsin judgment listed Gonzalez-Medina as 24
years old at the time of his Wisconsin offense. The district court rejected
application of the categorical approach to analyzing the age-differential
language in the § 16911(5)(C) exception as inconsistent with the statutory
language and intent of Congress. The court later sentenced Gonzalez-Medina
to fifty-one months imprisonment and three years of supervised release on both
his illegal-reentry and failure-to-register counts, to run concurrently.
Gonzalez-Medina timely appealed. We review a district court’s finding of guilt
after a bench trial for substantial evidence and its legal conclusions de novo.
United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002).
                                       II.
                                       A.
      Gonzalez-Medina was convicted for violating 18 U.S.C. § 2250(a), which
provides a criminal penalty for whoever (1) “is required to register under
[SORNA]”; (2) “travels in interstate or foreign commerce . . .”; and (3)
“knowingly fails to register or update a registration as required by [SORNA].”
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                                  No. 13-40927
      Gonzalez-Medina disputes the first element—that he was required to
register under SORNA. SORNA requires an individual to register if he or she
is a “sex offender,” 42 U.S.C. § 16913(a), and defines “sex offender” as “an
individual who was convicted of a sex offense,” id. at § 16911(1). SORNA
defines “sex offense” expansively as, inter alia:
      (i)    a criminal offense that has an element involving a sexual act or
             sexual contact with another; [or]
      (ii)   a criminal offense that is a specified offense against a minor[.]
Id. at § 16911(5)(A). SORNA provides exceptions to this definition of “sex
offense,” including the exception at issue in this case:
      (C)    An offense involving consensual sexual conduct is not a sex offense
             for the purposes of this subchapter if the victim was an adult,
             unless the adult was under the custodial authority of the offender
             at the time of the offense, or if the victim was at least 13 years old
             and the offender was not more than 4 years older than the victim.
Id. at § 16911(5)(C) (emphasis added).
      On appeal, Gonzalez-Medina contends that the categorical approach
applies to the age-differential determination in the § 16911(5)(C) exception,
and that his Wisconsin conviction does not qualify as a “sex offense” under the
categorical approach because the statute that formed the basis of his conviction
does not include a four-year age differential as an element. See Wisc. Stat. §
948.09 (“Whoever has sexual intercourse with a child who is not the
defendant’s spouse and who has attained the age of 16 years is guilty of a Class
A misdemeanor.”). He further contends that, as a result, his Wisconsin offense
is broader than SORNA’s definition of “sex offense” and he hypothetically could
have been convicted despite being less than four years older than the victim.
Under the categorical approach, a court would be limited to comparing the
elements of the Wisconsin statute to SORNA’s definition of “sex offense,” and
could not consider the facts underlying the conviction. See, e.g., Descamps v.
United States, —U.S.—, 133 S. Ct. 2276, 2281 (2013).              The government
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                                        No. 13-40927
responds that the text and purpose of SORNA indicate that Congress intended
courts to be able to look at the factual circumstances of the conviction, rather
than just the statutory elements, in determining the age differential between
the victim and offender for the § 16911(5)(C) exception.
       Gonzalez-Medina does not dispute the district court’s finding that his
Wisconsin conviction falls within SORNA’s definition of “sex offense” as “a
criminal offense that has an element involving a sexual act or sexual contact
with another.” See 42 U.S.C. § 16911(5)(A)(i). Nor does he dispute the district
court’s finding that he was in fact more than four years older than the victim
at the time of his Wisconsin offense. Additionally, the parties appear to agree
that if the categorical approach applies to the age differential in § 16911(5)(C),
Gonzalez-Medina’s Wisconsin conviction does not qualify as a “sex offense”
because the Wisconsin statute does not include a four-year age differential as
an element. Accordingly, the sole issue on appeal is whether the categorical
approach applies to the four-year age differential in the § 16911(5)(C)
exception. 1 For the following reasons—based on the language, structure, and
broad purpose of SORNA—we conclude that Congress contemplated a non-
categorical approach to the age-differential determination in the § 16911(5)(C)
exception.
                                               B.
       We start with the language of the statute. At the outset, SORNA defines
a “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C.
§ 16911(1) (emphasis added). Courts have held, particularly in the context of
criminal sentencing and immigration law, that the use of the term “convicted”


       1Contrary to the dissent’s implication, this court need not decide the applicability of
the categorical approach to the phrase “involving consensual sexual conduct” in the (5)(C)
exception, as the parties do not raise this issue on appeal. For the same reason, this court
need not decide the applicability of the categorical approach to the definitions of “sex offense”
in 42 U.S.C. § 16911(5)(A).
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can signal a categorical analysis. See Taylor v. United States, 495 U.S. 575,
600-01 (1990) (noting that the term “conviction,” rather than “committed,” in
the Armed Career Criminal Act (“ACCA”) requires an examination of the
statute of conviction rather than any underlying facts); James v. United States,
550 U.S. 192 (2007) (applying the categorical approach to the residual clause
of the definition of “violent felony” in the ACCA); see also Moncrieffe v. Holder,
—U.S.—, 133 S. Ct. 1678, 1685 (2013) (“‘Conviction’ is ‘the relevant statutory
hook.’”); Silva-Trevino v. Holder, 742 F.3d 197, 201-02 (5th Cir. 2014).
Accordingly, SORNA’s use of the term “convicted” might trigger the categorical
approach, at least to some extent, in determining if a defendant has been
“convicted of” a sex offense.
        The use of the term “convicted,” however, is not always determinative.
For instance, in Nijhawan v. Holder, 557 U.S. 29, 32 (2009), the Supreme Court
interpreted an immigration statute that rendered deportable any alien
“convicted of an aggravated felony at any time after admission.” (quoting 8
U.S.C. § 1227(a)(2)(A)(iii)) (emphasis added). The statute defined “aggravated
felony” as, inter alia, “an offense that . . . involves fraud or deceit in which the
loss to the victim or victims exceeds $10,000.” Id. (quoting 8 U.S.C. §
1101(a)(43)(M)(i)) (emphasis added). The Court held that, despite the use of
the term “convicted,” the italicized language relating to victim loss could be
determined based on the particular facts of the case, rather than the
categorical approach. Id. The Court found a number of factors persuasive,
including: (1) the words “in which” modifying “offense” “can refer to the conduct
involved ‘in’ the commission of the offense of conviction, rather than to the
elements of the offense”; (2) the “aggravated felony” definition lists certain
other    offenses   that   “almost    certainly”    call   for   circumstance-specific
determinations; and (3) a categorical approach would leave the definition with


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                                 No. 13-40927
“little, if any, meaningful application” as most fraud statutes do not include
the relevant $10,000 monetary loss threshold as an element. Id. at 37-40.
      Similarly, in United States v. Hayes, 555 U.S. 415, 418 (2009), the Court
interpreted a criminal law prohibiting the possession of a firearm by any
person “convicted of ‘a misdemeanor crime of domestic violence.’” (quoting 18
U.S.C. § 922(g)(9)) (emphasis added). The statute defined “misdemeanor crime
of domestic violence” as a misdemeanor that “has, as an element, the use or
attempted use of physical force, or the threatened use of a deadly weapon,
committed by a current or former spouse . . . .” Id. at 420 (quoting 8 U.S.C.
921(a)(33)(A)) (emphasis added).        The Court held that the domestic-
relationship requirement need not be an element of the predicate statute of
conviction and could be determined under the circumstance-specific approach.
Id. at 418. The Court looked to the statutory language (“committed by”), the
broad Congressional purpose, and the fact that only one-third of states had
criminal statutes that specifically proscribed domestic violence when the
provision was enacted. Id. at 421-29.
      Accordingly, here, as in Nijhawan and Hayes, the use of the term
“convicted” is not determinative. We must look to the language, structure, and
purpose of the statutory provision. See, e.g., Silva-Trevino, 742 F.3d at 200-05
(analyzing statutory language, structure, and purpose to determine whether
the categorical approach applies to the “crime involving moral turpitude”
determination in 8 U.S.C. § 1182(a)(2)(A)(i)). As described below, a number of
considerations, including some of the same considerations present in Nijhawan
and Hayes, weigh against application of the categorical approach to the age-
differential determination in the § 16911(5)(C) exception.
      First, a comparison of the definition of “sex offense” in § 16911(5)(A)(i)
and the exception in § 16911(5)(C) lends support for a non-categorical approach
to the age-differential determination in the exception. Subsection (5)(A)(i)
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                                   No. 13-40927
defines a “sex offense” as “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). The definition’s focus on the “element[s]” of the predicate
offense strongly suggests that a categorical approach applies to (5)(A)(i). In
contrast, the (5)(C) exception excludes from the definition of “sex offense” an
offense “involving consensual sexual conduct . . . if the victim was at least 13
years old and the offender was not more than 4 years older than the victim.”
Id. at § 16911(5)(C) (emphasis added). The exception contains no reference to
the “elements” of the offense. Instead, Congress defined the exception in terms
of the “conduct” “involv[ed]” in the “offense.” The exception’s reference to
conduct, rather than elements, is consistent with a circumstance-specific
analysis.    See United States v. Byun, 539 F.3d 982, 992 (9th Cir. 2008)
(reasoning that § 16911(7)(I)’s reference to “conduct” suggests that “it is the
underlying ‘conduct,’ not the elements of the crime of conviction, that matter”).
        Second, the other exception to the definition of “sex offense,” located in §
16911(5)(B), calls for a non-categorical analysis. The (5)(B) exception provides
that:
        (B) A foreign conviction is not a sex offense for purposes of this
        subchapter if it was not obtained with sufficient safeguards for
        fundamental fairness and due process for the accused . . . .
42 U.S.C. § 16911(5)(B). This exception requires an inquiry into facts outside
of the statute of conviction and into the circumstances of the country in which
the conviction took place. In Nijhawan, the Supreme Court found it significant
that the statute in question featured other provisions that “almost certainly”
called for a non-categorical analysis.        557 U.S. at 37 (“More importantly,
however, the ‘aggravated felony’ statute differs from the ACCA in that it lists
certain other ‘offenses’ using language that almost certainly does not refer to
generic crimes but refers to specific circumstances.”). Similarly here, that

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                                  No. 13-40927
Congress intended courts to look beyond the statute of conviction for the (5)(B)
exception is evidence that Congress may have intended courts to look beyond
the statute of conviction for the (5)(C) age-differential exception as well.
      Third, other age-specific SORNA provisions similarly appear to call for a
circumstance-specific,   rather    than       categorical,   approach   as   to   age
determinations. See, e.g., 42 U.S.C. § 16911(8); see also Byun, 539 F.3d at 993-
94 (holding that a non-categorical approach applies as to the victim’s age in the
§ 16911(7) definition of “specified offense against a minor”); National
Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030,
38,052-53 (July 2, 2008) (interpreting the victim’s age to be a circumstance-
specific determination in a number of SORNA provisions).
      Finally, application of a non-categorical approach to the age differential
in the § 16911(5)(C) exception is most consistent with SORNA’s broad purpose.
Congress enacted SORNA to “protect the public from sex offenders and
offenders against children” and to “establish[] a comprehensive national
system for the registration of those offenders.” 42 U.S.C. § 16901. SORNA’s
language confirms “that Congress cast a wide net to ensnare as many offenses
against children as possible.” United States v. Dodge, 597 F.3d 1347, 1355
(11th Cir. 2010) (en banc).
      Application of the categorical approach to the (5)(C) age-differential
determination would frustrate SORNA’s broad purpose and restrict SORNA’s
reach. Gonzalez-Medina contends that a predicate statute of conviction can
qualify as a sex offense only if it includes a four-year (or more) age differential
as a statutory element. Yet, a significant number of federal and state statutes
that fall into SORNA’s definition of “sex offense” in § 16911(5)(A) do not include
an age differential as an element.        See, e.g., 18 U.S.C. § 2251(a) (child
pornography); Tex. Penal Code §§ 43.02, 22.011 (statutory rape and child


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                                        No. 13-40927
prostitution). 2    Of the statutes that do include an age differential as an
element, only a fraction include an age differential of four or more years. See,
e.g., Miss. Code Ann. § 97-3-65 (three-year age differential). Application of the
categorical approach in this context would cause statutes without such an age
differential as an element to fall outside of SORNA’s definition of “sex offense.”
We do not believe that Congress intended the age-differential language in the
(5)(C) exception to restrict the reach of SORNA in this manner. See Nijhawan,
557 U.S. at 40; Hayes, 555 U.S. at 427.
       In sum, all of the above considerations support application of a non-
categorical approach to the age-differential determination in the (5)(C)
exception.
                                               C.
       Gonzalez-Medina contends that the Sixth Amendment concerns present
in the sentencing context require a categorical approach to the § 16911(5)(C)
age-differential exception.         Gonzalez-Medina asserts that the categorical
approach is necessary in order to protect a defendant’s right to a jury
determination of the four-year age differential.                   Gonzalez-Medina cites
Apprendi v. Jersey for the proposition 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 submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. 466, 490 (2000). The government represented
in its brief and at oral argument that the prosecutor in a failure-to-register
prosecution under 18 U.S.C. § 2250(a) is required to prove beyond a reasonable
doubt to the jury (or to the court in the case of a jury-waived trial) that the
criteria for the (5)(C) exception are not met, including the four-year age


       2 Although the dissent focuses on the fact that over half of states have statutory rape
laws that include an age differential, the language of the (5)(C) exception does not restrict its
application to statutory rape offenses.
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                                       No. 13-40927
differential, thus eliminating any Sixth Amendment concerns. See Nijhawan,
557 U.S. at 40; Hayes, 555 U.S. at 426. 3
       Gonzalez-Medina further contends that the age-differential exception is
ambiguous as to whether the categorical approach applies and the rule of lenity
requires that the ambiguity be resolved in his favor. “[T]he rule of lenity only
applies if, after considering the text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute, such that the
Court must simply guess as to what Congress intended.” United States v.
Castleman, —U.S.—, 134 S. Ct. 1405, 1416 (2014) (quoting Barber v. Thomas,
560 U.S. 474, 488 (2010)). For the reasons above, the (5)(C) exception does not
rise to the level of a “grievous ambiguity,” requiring this court to “simply guess
as to what Congress intended.” Instead, the language, structure, and broad
purpose of SORNA all indicate that Congress intended a non-categorical
approach to the age-differential determination in (5)(C).
       We therefore hold that a non-categorical approach applies for purposes
of determining the age differential in the § 16911(5)(C) exception. A four-year
age differential need not be an element of the predicate offense. In this case,
the government presented evidence, and Gonzalez-Medina did not dispute,
that he was in fact more than four years older than the victim at the time of
his Wisconsin offense. Accordingly, the district court properly found that the
(5)(C) exception does not apply and that Gonzalez-Medina was required to
register as a sex offender.




       3 Gonzalez-Medina also contends that application of the categorical approach avoids
the “practical difficulties and potential unfairness” of relitigating facts related to a prior
conviction years later in a subsequent criminal proceeding. See Taylor, 495 U.S. at 601. This
concern, however, is less pressing where the disputed fact in the subsequent criminal
proceeding is limited to the age of the victim and offender at the time of the prior offense.
Ordinarily, age can be ascertained from documentary evidence or brief witness testimony.
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                                             III.
       In his second issue on appeal, Gonzalez-Medina contends that SORNA’s
criminal penalty and civil registration requirement exceed Congress’s power
under the Commerce Clause.                Gonzalez-Medina acknowledges that his
challenge is foreclosed by United States v. Whaley, 577 F.3d 254 (5th Cir. 2009).
In Whaley, this court held that SORNA’s criminal penalty under 18 U.S.C. §
2250(a)(2)(B) falls within Congress’s power to regulate the channels of
interstate commerce. Id. at 258. This court further held that SORNA’s civil
registration requirement falls within Congress’s power under the Commerce
Clause and the Necessary and Proper Clause as a means of “furthering the
goal of preventing offenders from ‘slipping through the cracks’ by changing
jurisdictions.” Id. at 260. We may not overturn the prior decision of another
panel of our court absent an intervening change in law, such as a statutory
amendment or a contrary or superseding decision by either the Supreme Court
or this court en banc. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375,
378 (5th Cir. 2008). Gonzalez-Medina does not assert that there has been an
intervening change in law after the Whaley decision. Accordingly, we have no
occasion to revisit Whaley in this case. 4
                                             IV.
       For the foregoing reasons, we AFFIRM the district court’s judgment and
Gonzalez-Medina’s conviction for failure to register as a sex offender under 18
U.S.C. § 2250(a).


       4  Gonzalez-Medina also states that if the court vacates his SORNA conviction, the
court should vacate his sentence for his illegal-reentry charge to allow the government and
district court to consider an additional one-level reduction for acceptance of responsibility
under U.S. Sentencing Guidelines Manual § 3E1.1(b). Because we affirm Gonzalez-Medina’s
SORNA conviction, we need not reach this request. Furthermore, we perceive no error in the
district court’s award of a two-level, rather than three-level, reduction for acceptance of
responsibility under § 3E1.1. See United States v. Kleinebreil, 966 F.2d 945, 952-53 (5th Cir.
1992).
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                                        No. 13-40927
EMILIO M. GARZA, Circuit Judge, dissenting:
       The majority holds that when determining whether an individual’s prior
sex offense conviction falls within the Sex Offender Registration and
Notification Act (“SORNA”)’s consensual-sex exception, courts may undertake
an independent factual inquiry into the ages of the offender and victim at the
time of the offense. Respectfully, I disagree. I would instead hold that the
consensual-sex exception requires courts to apply the categorical approach,
which does not permit examination of the facts underlying a defendant’s prior
conviction.     Because the categorical approach compels the conclusion that
Gonzalez-Medina was not convicted of a SORNA “sex offense,” I would vacate
his conviction for failure to register.
                                               I
       When we are asked to determine whether an individual’s prior state
conviction constitutes a generic offense provided in a federal statute, we
generally apply the categorical approach. See United States v. Espinoza, 733
F.3d 568, 571 (5th Cir. 2013). Under this approach, courts ask only whether
the elements of the prior state offense correspond to the elements of the generic
federal offense—that is, whether the prior conviction “necessarily implies” that
the individual is “guilty of all the elements of [the generic offense].” 1 See Taylor
v. United States, 495 U.S. 575, 599 (1990) (applying categorical approach in
determining whether prior offense triggers sentencing enhancement under
Armed Career Criminal Act (“ACCA”)). Even when state offenses are broader
than the generic federal offense, courts still must look only to “the statutory




       1For simplicity’s sake, I use “categorical approach” here to refer to both the categorical
and modified categorical approaches, since the latter “merely helps implement the categorical
approach when a [petitioner] was convicted of violating a divisible statute.” See Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013). As the Government recognizes, the Wisconsin
statute at issue here is not divisible, so the modified categorical approach is inapplicable.
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                                       No. 13-40927
definitions of the prior offenses, and not to the particular facts underlying those
convictions.” Id. at 600.
      At the outset, it is important to grasp the specific distinctions between
SORNA and the Wisconsin statute. SORNA imposes federal criminal liability
on any person who, having been “convicted of a sex offense,” fails to register in
his jurisdiction of residency. See 42 U.S.C. § 16911(1); id. § 16913(a); 18 U.S.C.
§ 2250(a). The statute excludes from its “sex offense” definition any “offense
involving consensual sexual conduct” in which the victim was “at least 13 years
old and the offender was not more than 4 years older than the victim.” 42
U.S.C. § 16911(5)(C).       By contrast, the Wisconsin statute under which
Gonzalez-Medina was convicted in 2005 imposes misdemeanor criminal
liability on an individual who has “sexual intercourse with a child . . . who has
attained the age of 16 years . . . .” Wisc. Stat. § 948.09. 2 Unlike SORNA, the
Wisconsin statute contains no non-consent element or age differential; that is,
it does not exempt offenses involving “consensual sexual conduct” in which the
victim was “at least 13 years old and the offender was not more than 4 years
older than the victim.” 42 U.S.C. § 16911(5)(C).
      Because of these distinctions, the majority recognizes and the parties
agree that if SORNA’s consensual-sex exception is evaluated under the
categorical approach, then Gonzalez-Medina had no obligation to register
under SORNA. Ante at 5. Because the Wisconsin statute lacks a consensual-
sex exception, it criminalizes a different range of conduct than does SORNA.
Thus, Gonzalez-Medina’s Wisconsin conviction does not “necessarily impl[y]”
that he is “guilty of all the elements” of a SORNA sex offense. Taylor, 495 U.S.
at 599. Accordingly, the Government can neither prove that Gonzalez-Medina



      2 A “child” is “a person who has not attained the age of 18 years.” Wisc. Stat. §
948.01(1).
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                                           No. 13-40927
is “an individual who was convicted of a sex offense” under SORNA, 42 U.S.C.
§ 16911(1), nor penalize him for failing to register, 18 U.S.C. § 2250(a).
       Under the categorical approach, because Gonzalez-Medina was not
convicted of a sex offense under SORNA, he cannot be criminally liable for
failing to register as a sex offender. This should be the end of our inquiry.
                                              II
       The majority, however, does not apply the categorical approach. Rather,
today’s opinion relies on cases in which the Supreme Court concluded that a
strictly categorical approach would not be faithful to the statutory text and
Congressional intent. 3 However, the majority misapplies these precedents and
thus erroneously departs from the categorical approach.
       The majority first emphasizes that the text of the consensual-sex
exception refers to “an offense involving consensual sexual conduct,” rather
than to general statutory elements. 42 U.S.C. § 16911(5)(C) (emphasis added);
see ante at 8. To be sure, the Supreme Court has explained that a statute’s
focus on specific factual circumstances “in which” an offense occurred can
counsel against the categorical approach.                Nijhawan, 557 U.S. at 38–39
(quoting 8 U.S.C. § 1101(a)(43)(M)(i)). But the majority overlooks the Court’s
reasoning in James v. United States, 550 U.S. 192 (2007), which involved
statutory language substantially more similar to SORNA’s consensual-sex
exception. In James, the Court applied the categorical approach to the ACCA’s


       3 See Nijhawan v. Holder, 557 U.S. 29, 38–40 (2009) (applying “circumstance-specific”
approach when text of federal statute focuses on facts underlying a prior conviction, rather
than merely elements of that offense, and when practical consequences of applying the
categorical approach would undermine legislative purpose); United States v. Hayes, 555 U.S.
415, 426 (2009) (holding that Government can prove that prior offense was “misdemeanor
crime of domestic violence” by establishing victim’s relationship to offender as factual matter,
without relying solely on elements of statute). I further observe that aside from Hayes, the
Supreme Court has not deployed the circumstance-specific approach in applying a criminal
statute such as SORNA; Nijhawan involved a noncitizen’s removability. See Nijhawan, 557
U.S. at 33.
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                                     No. 13-40927
residual clause defining a “violent felony” as including an offense that
“otherwise involves conduct that presents a serious potential risk of physical
injury to another.” James, 550 U.S. at 196 (emphasis added). Given the
similarity between the ACCA’s language in James and the consensual-sex
exception’s reference to offenses “involving consensual sexual conduct,” I would
follow James and apply the categorical approach. 42 U.S.C. § 16911(5)(C)
(emphasis added).
      The majority next reasons that the consensual-sex exception requires a
circumstance-specific approach because such an approach almost certainly
applies to an adjacent exception concerning whether a “foreign conviction . . .
was not obtained with sufficient safeguards for fundamental fairness and due
process.” 42 U.S.C. § 16911(5)(B), see ante at 8. Even assuming that the
majority’s reading of the (5)(B) foreign conviction exception is correct, I would
not conclude that the two exceptions’ proximity mandates a circumstance-
specific approach.
      The Nijhawan Court explained that “[w]here . . . Congress uses similar
statutory language and similar statutory structure in two adjoining provisions,
it normally intends similar interpretations.” Nijhawan v. Holder, 557 U.S. 29,
39 (2009). In that case, the Court considered a provision of the Immigration
and Nationality Act (“INA”) that defined an “aggravated felony” to include:
            an offense that—
            (i) involves fraud or deceit in which the loss to the
            victim or victims exceeds $10,000; or
            (ii) is described in section 7201 of Title 26 (relating to
            tax evasion) in which the revenue loss to the
            Government exceeds $10,000 . . . .

8 U.S.C. § 1101(a)(43)(M). The Court first determined that subparagraph
(M)(ii) must require a circumstance-specific approach: Because no offense
“described in section 7201 of title 26” has a loss amount as an element, the

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                                           No. 13-40927
categorical approach would render the tax-evasion provision “pointless.”
Nijhawan, 557 U.S. at 38. Turning to subparagraph M(i), the Court then
explained that “it is identical in structure to [M(ii)],” and uses “similar
statutory language.” Id. at 38–39.            Although the Court did not expressly
enumerate these “similar” features, it likely found salient the parallel phrases
“in which” and the express specifications of an amount of loss. 4
       By contrast, the SORNA exceptions here do not share substantially
similar “statutory language” or “structure.” Id. at 39. The consensual-sex
exception at issue here and its preceding provision appear as follows:
              (B) Foreign convictions
              A foreign conviction is not a sex offense for the
              purposes of this subchapter if it was not obtained with
              sufficient safeguards for fundamental fairness and
              due process for the accused under guidelines or
              regulations established under section 16912 of this
              title.
              (C) Offenses involving consensual sexual conduct
              An offense involving consensual sexual conduct is not
              a sex offense for the purposes of this subchapter if the
              victim was an adult, unless the adult was under the
              custodial authority of the offender at the time of the
              offense, or if the victim was at least 13 years old and
              the offender was not more than 4 years older than the
              victim.

42 U.S.C. § 16911(5). Here, the two exceptions do not employ any similar
language beyond the phrase “is not a sex offense.” Likewise, the structure of


       4 Additionally, the majority misunderstands Nijhawan’s reasoning: The Nijhawan
Court did not simply conclude that “other provisions” in the statute called for a circumstance-
specific approach. Ante at 8. This principle would require courts to scour a statute to
determine whether categorical or circumstance-specific approaches should be applied
anywhere else, and when different provisions require different approaches, courts would be
left wondering “to which category [the provision at issue] belongs.” Nijhawan, 557 U.S. at
38. Rather, the Court ultimately relied on an immediately “adjoining provisio[n]” that called
for a circumstance-specific approach and—crucially—that shared similar language and
structure. Id. at 39.
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                                          No. 13-40927
the two exceptions is similar only insofar as both employ a conditional clause
beginning with “if . . . .” In short, I see no similarities in these provisions’ text
and structure so compelling as to warrant importing the circumstance-specific
approach from subparagraph (5)(B) to (5)(C). Cf. Sebelius v. Auburn Reg’l Med.
Ctr., 133 S. Ct. 817, 825 (2013) (rejecting argument that statutory provision is
jurisdictional by virtue of proximity to other jurisdictional requirements).
       Third, the majority looks to two persuasive authorities—the Ninth
Circuit decision in United States v. Byun, 539 F.3d 982 (9th Cir. 2008), and
Department of Justice Guidelines. See ante at 9. But these authorities do not
bind this Court and, in any event, concern entirely different statutory
provisions and language. Thus, they do not determine the outcome in this case.
See, e.g., Byun, 539 F.3d at 991 (reasoning that the word “committed,” in
contrast to “convicted,” counsels in favor of circumstance-specific approach
under 42 U.S.C. § 16911(3)(A)).
       Fourth, the majority asserts that SORNA’s broad purpose of creating a
“comprehensive national system for the registration of [sex] offenders” requires
a circumstance-specific approach. See ante at 9 (quoting 42 U.S.C. § 16901).
This purpose, the majority claims, would be dramatically undermined by the
categorical approach, since many state sex offense statutes do not contain a
four-year age-differential exception consistent with SORNA’s. To be sure, both
the Nijhawan and Hayes Courts surveyed state laws and concluded that
because the categorical approach would render the federal law inapplicable in
a substantial majority of states, Congress must have intended courts to take a
circumstance-specific approach. 5 However, over half of the states have age-


       5 In Nijhawan, the Court opted for a circumstance-specific approach when only eight
states had fraud statutes with a monetary threshold consistent with that of the federal
offense. See Nijhawan, 557 U.S. at 40 (“We do not believe Congress would have intended
(M)(i) to apply in so limited and so haphazard a manner.”). Similarly, in Hayes, the Court
concluded that because only about one-third of states had statutes specifically criminalizing
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                                           No. 13-40927
differential exceptions in their statutory rape laws. 6 Thus, SORNA’s purpose
would not be eviscerated by our applying the categorical approach.
       The majority further submits that both parties understate the
categorical approach’s potential impact on SORNA because “the language of
the (5)(C) exception does not restrict its application to statutory rape offenses.”
Ante at 10 n.2. To be sure, general sexual assault offenses (involving non-
minors) do not require that the offender and victim be of any particular age.
But even under the categorical approach, so long as the lack of consent is an
element of the state sex offense, the offender will not fall within SORNA’s
consensual-sex exception. Although the parties have not briefed the issue,
according to one treatise, “slightly less than half of the states” require the lack
of consent as an element of rape, while others require “force” or “compulsion.”
See 2 Subst. Crim. L. § 17.4 (2d ed. 2013). While the categorical approach
would exclude convictions in these “force” jurisdictions from SORNA’s
registration requirement, in light of the many states that do require non-
consent, SORNA would, again, not be rendered “pointless.” Nijhawan, 557
U.S. at 38; see also Tex. Penal Code § 22.011(a)(1) (criminalizing sex acts



domestic violence, a provision of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(9),
prohibiting firearm possession by a person convicted of a “misdemeanor crime of domestic
violence” would have been a “dead letter” in the remaining two-thirds of the states. Hayes,
555 U.S. at 427.
        6 The Government recognizes that at least in 2004, twenty-seven states defined sex

offenses against minors with reference, in part, to age differentials. See generally The Lewin
Group, Statutory Rape: A Guide to State Laws and Reporting Requirements 8 (2004).
Additionally, I note that in adopting a circumstance-specific approach, this Court has
previously reasoned that the “categorical approach would render the crime of domestic
violence as a basis for removal [of a noncitizen] under [8 U.S.C. §] 1227(a)(2)(E)(i)
inapplicable in about one-half of the States.” Bianco v. Holder, 624 F.3d 265, 272 (5th Cir.
2010). In Bianco, however, the panel relied substantially on the Supreme Court’s
circumstance-specific approach in Hayes, which happened also to apply a circumstance-
specific approach in evaluating the generic federal crime of domestic violence. See id. at 271–
73 (applying Hayes). I therefore do not understand Bianco (or the Supreme Court’s
precedents) to establish a rigid bright-line rule on the number of states whose laws would not
fit the elements of a federal statute, thus triggering the circumstance-specific approach.
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                                        No. 13-40927
committed with “another person . . . without that person’s consent”); N.Y. Penal
Law § 130.20 (defining sexual misconduct as a sexual act committed “with
another person without such person’s consent”); Cal. Penal Code § 261(a)
(defining rape as sexual intercourse “against a person’s will” or committed
when other cannot consent).
      Absent clearer statutory language or legislative intent mandating
otherwise, the categorical approach must govern. Congress, by choosing to
base SORNA’s registration requirement on prior state convictions, acted with
full awareness of the potential effects of disparate state sex offense regimes. 7
If Congress wishes to broaden SORNA’s scope and remedy inconsistencies
across states, it may certainly choose to do so.
                                          III
      While the majority makes much of the Supreme Court’s circumstance-
specific approach in Nijhawan, scant attention is paid to our subsequent
decision in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014), which
clarified our application of Nijhawan. In Silva-Trevino, the BIA permitted
consideration of evidence beyond the record of conviction in determining
whether a noncitizen had been convicted of a “crime involving moral turpitude”
under the INA, 8 U.S.C. § 1182(a)(2)(A)(i). We rejected this approach, instead
applying the categorical approach.         We concluded that Nijhawan did not
govern since the aggravated felony fraud provision in that case defined “a
subset of a category of convictions”—fraud and deceit resulting in a loss of at
least $10,000. Id. at 204. By contrast, because the broad category of “crime
involving moral turpitude” contained “no such subset,” we had “no . . .
permission to abandon the categorical approach.” Id.


      7  Further, as Gonzalez-Medina notes, in most states, where the age of consent is
sixteen, he would not even have been convicted for engaging in consensual sexual activity
with a sixteen year-old.
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                                       No. 13-40927
      Here, like the statute in Silva-Trevino, SORNA establishes a broad
category of “sex offenses” that trigger the registration requirement.         The
consensual-sex exception does not establish a “subset” of offenses, id. at 204;
rather, it merely carves out an exclusion from this broad category. In light of
our reasoning in Silva-Trevino, the majority’s reliance on Nijhawan is
misguided.
      Additionally,   the   majority    understates   the   circumstance-specific
approach’s potential to spawn unwieldy re-litigation of past convictions under
the consensual-sex exception. This practical concern is one of the primary
rationales animating the categorical approach, which strictly limits the means
by which federal courts may determine whether prior convictions fit within
generic federal offenses. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1690–91
(2013).
      The majority claims that the concern for resource-consuming re-
litigation is “less pressing where the disputed fact . . . is limited to the age of
the victim and offender at the time of the prior offense,” because “age can be
ascertained from documentary evidence or brief witness testimony.” Ante at
11 n.3. Indeed, the ages of the offender and victim are at the center of this
particular dispute, and if the Government would need to prove only these
additional facts to establish that a SORNA defendant is a federal sex offender,
then there would be somewhat less reason to fear the specter of mini-trials.
      Yet proof of the age differential aside, the majority overlooks the first
component of the exception, which refers to “offense[s] involving consensual
sexual conduct.” 42 U.S.C. § 16911(5)(C). While the parties have not briefed
at length the issue of consent, it is cause for concern under the circumstance-
specific approach. As the Government recognizes, lack of consent is neither an
element of nor a defense to liability under statutory rape laws, to which the
consensual-sex exception applies.         The text of the exception plainly
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                                           No. 13-40927
contemplates that a victim who is “at least 13 years old” could be capable of
engaging in “consensual sexual conduct,” if the offender is “not more than 4
years older than the victim.” 42 U.S.C. § 16911(5)(C). Thus, there is a real
possibility that federal courts, applying a circumstance-specific approach, will
need to grapple with the difficult question of consent—years (or decades) after
the events giving rise to the original state conviction. 8 Rather than forcing
district courts down this uncertain path, adopting the categorical approach
would minimize “the practical difficulties and potential unfairness of a factual
approach.” Taylor, 495 U.S. at 601. In the interim, Congress could develop a
longer-term solution, for ultimately, it is the task of that elected body, and not
the courts, to effect and refine the aims of SORNA. 9


       8 For instance, under the majority’s circumstance-specific approach, a seventeen-year-
old offender convicted of sexually assaulting a thirteen-year-old victim would satisfy the
exception’s age-differential requirement. But the Government, as it concedes, would still
need to prove beyond a reasonable doubt that the offense did not involve “consensual sexual
conduct.” Consent is a potential problem for Gonzalez-Medina as well, since under the
categorical approach, the lack of consent as an element of statutory rape might undermine
SORNA’s applicability to statutory rapists. See, e.g., Miss. Code Ann. § 97-3-65 (statutory
rape). In response, he essentially submits that lack of consent is an implied element of
statutory rape because state laws presume minor victims of statutory rape to be incapable of
giving consent. See, e.g., United States v. Rodriguez, 711 F.3d 541, 561 (5th Cir. 2013) (“For
these reasons, we conclude that the ‘generic, contemporary meaning’ of ‘statutory rape’ sets
the age of consent as a person under the age of majority as defined by statute.”). Thus, by
Gonzalez-Medina’s logic, the categorical approach would not exclude a statutory rapist from
SORNA’s registration requirement unless he comes within the age-differential exception (as
determined by examining only the elements of the state sex offense law). While today’s case
does not require us to resolve the complex issue of consent, adopting the circumstance-specific
approach could require future courts to take on a difficult task.
        9 The majority professes not to reach the question of “the applicability of the

categorical approach to the phrase ‘involving consensual sexual conduct’ in the (5)(C)
exception.” Ante at 5 n.1. This claim is belied by the majority’s relying on this very phrase
to conclude that “[t]he exception’s reference to conduct, rather than elements, is consistent
with a circumstance-specific analysis.” Ante at 8. In any event, the majority fails to explain
how a future court could ever conclude in a principled manner that while, under today’s
decision, a circumstance-specific approach governs the age differential, a categorical
approach applies to the “consensual sexual conduct” phrase in the very same statutory
provision. See 42 U.S.C. 16911(5)(C). As explained above, supra note 8, this case does not
require us to discuss exhaustively the implications of either a categorical or circumstance-
specific approach for the phrase “consensual sexual conduct.” However, the majority is
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                                        No. 13-40927
                                           IV
      The SORNA consensual-sex exception is governed by the categorical
approach. Under that approach, because the Wisconsin statute did not contain
a comparable exception, the Government failed to prove beyond a reasonable
doubt that Gonzalez-Medina was convicted of a “sex offense” as defined in
SORNA. Accordingly, Gonzalez-Medina’s SORNA conviction must be vacated.
      Respectfully, I dissent.




mistaken in implying that its opinion leaves open the question of whether a categorical or
circumstance-specific approach applies to this phrase at all. After today’s decision, a
circumstance-specific approach governs the consensual-sex exception in its entirety—
including both the phrase “consensual sexual conduct” and the age differential.
                                                23
