Order Adopting Magistrate Judge's Report and Recommendation in part, Overruling Objections, and Denying Motions to Dismiss

[ECF Nos. 25-26, 42, 49]

JENNIFER A. DORSEY, District Judge.

Defendant Lamont Mars Pope stands charged with one count of violating the Sex Offender Registration and Notification Act (SORNA) for failing to register as a sex offender1 based on his 2003 California conviction for lewd or lascivious acts upon a child under 14.2 Pope filed two separate motions to dismiss the indictment, arguing that a provision of SORNA is unconstitutional and that his California conviction doesn't constitute a "sex offense" under SORNA and that he therefore wasn't required to register.3 The motions were referred to the magistrate judge, who recommends that I deny them.4 Because Pope has not objected to the recommendation that his constitutional challenge to SORNA be denied, and because the U.S. Supreme Court has granted certiorari in a case addressing the same issue, I adopt that portion of the report and recommendation in full and deny that motion without prejudice to the issue being re-urged after the High Court renders its decision.5

Pope has objected to the recommendation that I reject his sex-offense argument, so I review that portion of the decision de novo.6 I agree with the magistrate judge that, in line with Ninth Circuit precedent and every circuit court to address this matter, a circumstance-specific analysis (rather than the categorical approach) applies to the portion of the sex-offense definition at issue. Because a jury could find that the conduct that resulted in Pope's California conviction satisfies the catchall provision to SORNA's definition of a sex offense, and because there is no merit to his other arguments, I find that there is no basis to dismiss his indictment. I therefore do not reach the magistrate judge's alternative categorical-approach analysis and do not adopt that portion of the report and recommendation.

Discussion

SORNA "establishes a comprehensive national system for the registration" of "sex offenders and offenders against children . . . ."7 The statutory scheme requires a "sex offender" to "register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student."8 Under section 2250 to Title 18 of the United States Code, a person is guilty of a felony if he (1) is required to register as a sex offender under SORNA, (2) travels in interstate commerce, and (3) knowingly fails to register.9 The government accuses Pope of failing to register in Nevada when he traveled here from California sometime after mid-2017.10 In his objection to the report and recommendation, Pope argues—as he did in his underlying motion to dismiss—that he is not a sex offender within the meaning of the statutory scheme so he wasn't required to register as one.

As discussed below, SORNA provides a multi-faceted definition to the term "sex offender." Pope argues in his objection that, in determining whether a prior conviction satisfies this definition, courts must apply the categorical approach. To buttress this contention, Pope argues that I must afford Chevron deference to the Department of Justice's (DOJ) SORNA guidelines, which he asserts support the application of the categorical approach. Pope also challenges the applicable part of sex-offender definition as void for vagueness. Alternatively, Pope argues that, even if the non-categorical, circumstance-specific approach applies, the government hasn't provided sufficient evidence of how he committed his crime of conviction and therefore hasn't shown that the conviction satisfies SORNA's sex-offender definition. I address each issue in turn.

I. The circumstance-specific approach applies to this analysis.

A. In United States v. Mi Kyung Byun, the Ninth Circuit applied the circumstance-specific approach to the portion of the sex-offense definition at issue.

SORNA defines "[t]he term `sex offender'" under § 20911 as "an individual who has committed a sex offense."11 One of the subparagraphs under that section defines a "sex offense" as, among other things, "(i) a criminal offense that has an element involving a sexual act or sexual contact with another; (ii) a criminal offense that is a specified offense against a minor . . . ."12 A subsequent subsection further elaborates on what constitutes a "specified offense against a minor" under part (ii), enumerating several types of offenses—e.g., those "involving kidnapping," "[s]olicitation to practice prostitution," etc.—and concluding in a catchall provision: "(I) Any conduct that by its nature is a sex offense against a minor."13

Pope argues that, in determining whether his California conviction satisfies this catchall provision, I must apply the categorical approach, which would allow me to examine only the elements of that state-law crime to determine whether it proscribes more conduct—and is thus broader—than the catchall provision.14 By contrast, the circumstance-specific approach that the government advocates for permits looking at the facts of how Pope committed that crime.15 Relying on the Ninth Circuit's decision in United States v. Mi Kyung Byun, the magistrate judge determined that the circumstance-specific approach applies.16

In Byun, a defendant pled guilty to the federal offense of "importation into the United States of any alien for the purpose of prostitution," which the district court determined satisfied the specified-offense-against-a-minor (specified-offense) portion of SORNA's sex-offense definition.17 Because the age of the victim is not an element of the crime the defendant pled to, the court could only determine that she committed the offense against a minor—an integral component of the sex-offense definition—by considering the facts of the case.18 Specifically, the district court relied on the defendant's plea agreement, which revealed that the victim was 17 years old.19 The defendant argued on appeal that the district court should have applied the categorical approach and thus examined only the crime's elements. The Ninth Circuit, however, held that the court properly considered the crime's underlying facts, reasoning that, unlike other parts of the sex-offense definition, the specified-offense portion makes no reference to a crime's elements.20 And pointing to that portion's catchall provision, the court concluded that, "critically, the list of specified offenses against a minor includes `[a]ny conduct that by its nature is a sex offense against a minor.'"21 Other circuits that have reviewed this portion of the sex-offense definition have cited to Byun and similarly held that the circumstance-specific approach applies.22

Pope nonetheless argues that Byun is not fatal to his assertion that the categorical approach should apply in determining whether his California conviction satisfies the specified-offense portion of the sex-offense definition. He contends that Byun approved the use of the circumstance-specific approach only for discovering whether the victim was a minor—not more broadly for determining whether a defendant's conduct in committing a predicate offense satisfies the specified-offense portion.23 But the Ninth Circuit's analysis was not as narrow as Pope asserts. The court focused on the age of the victim because that was the fact critical to determining whether the defendant's offense satisfied the sex-offense definition and that could not be determined by reviewing the elements of that crime alone. Nothing in the court's reasoning indicates that it intended to limit the use of the circumstance-specific approach to this fact. To contrary, as demonstrated by the Byun passages above, the Ninth Circuit relied in large part on the fact that the specified-offense portion's catchall provision addresses whether a defendant's conduct during the commission of the predicate offense is "by its nature . . . a sex offense against a minor." Indeed, the en banc Eleventh Circuit subsequently held that, "[a]lthough the Ninth Circuit [in Byun] focused only on the age of the victim, its approach supports [the] conclusion that SORNA permits examination of the defendant's underlying conduct—and not just the elements of the conviction statute—in determining what constitutes a `specified offense against a minor.'"24 I therefore find that Byun forecloses the use of the categorical approach in this analysis.

B. Subsequent decisions have not undermined or effectively overruled the Ninth Circuit's decision in Byun.

Pope also argues that subsequent decisions by the Supreme Court and Ninth Circuit have "severely limited" the use of the circumstance-specific approach and "clarifie[d] when statutory language describes an offense element, rather than offense circumstances."25 Using the principles he distills from these authorities, Pope contends that the "catchall provision requires a categorical analysis."26 It is evident from these arguments that Pope is implicitly asserting that Byun was wrongly decided and that the Ninth Circuit's reasoning has since been undermined by subsequent decisions. Indeed, he challenges Byun's reliance on the catchall provision's use of the term "conduct,"27 and despite arguing that the case limits the use of the circumstance-specific approach to determining whether the victim was a minor, he asserts that the phrase "against a minor" in the provision "refers to an element rather than a circumstance of the offense."28 But district courts are bound by published Ninth Circuit decisions unless "the reasoning or theory of [a prior decision] is clearly irreconcilable with the reasoning or theory of intervening higher authority," and can thus be deemed as "effectively overruled."29 Neither of the cases that Pope relies upon satisfies this standard.

He first cites to Nijhawan v. Holder, in which the Supreme Court addressed whether the circumstance-specific approach applies to a portion of the "aggravated felony" definition under the Immigration and Nationality Act (INA).30 The Court determined that some of the felonies listed under that definition, such as "murder, rape, or sexual abuse of a minor," describe "generic crimes" that therefore call for the categorical approach.31 But other felonies, the Court held, include "qualifying language that . . . call[s] for [a] circumstance-specific application."32 For instance, the aggravated felony at issue was "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000."33 The Court found that the italicized portion of this aggravated-felony definition was qualifying language that set out the facts of how an offender committed a predicate federal or state-law crime rather than an element that the predicate crime must include.34 But the Court never held that the contrast between the inclusion and absence of qualifying language in a list of generic offenses is the only means of determining whether the circumstance-specific approach applies. And Pope points to no portion of the Court's reasoning in Nijhawan that conflicts with the Ninth Circuit's analysis in Byun.

I am similarly unpersuaded by Pope's citation to the Ninth Circuit's decision in Olivas-Motta v. Holder, which also addressed a provision of the INA rather than SORNA's sex-offense definition.35 The court ruled that determining whether a predicate offense constitutes "a crime involving moral turpitude" requires applying the categorical rather than circumstance-specific approach.36 In reaching this conclusion, the Ninth Circuit rejected the argument that the definition's use of the word "involving" denotes a reliance on facts rather than elements.37 The court further reasoned that, unlike the aggravated felonies in Nijhawan that consisted of a generic offense plus qualifying language, the phrase "involving moral turpitude" does not describe factual circumstances that modify the solitary word "crime."38 But again, nothing in Olivas-Motta's analysis undermines the conclusion that the Ninth Circuit reached several years earlier in Byun. The two decisions addressed different statutes with dissimilar structures and thus naturally relied on different "textual clues"39 to discern which mode of analysis applies. The crime-involving-moral-turpitude definition, for instance, does not present the contrast seen in SORNA between one part of a definition referring to elements and another part referring to conduct.40 Olivas-Motta and Byun are thus not irreconcilable.

C. Chevron deference is inapplicable.

Pope also contends that the DOJ's guidelines on SORNA41 are entitled to administrative deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.42 and that these guidelines support the use of the categorical approach.43 The three circuit courts that have considered the issue have rejected this precise argument, finding that it fails at step one of Chevron because the specified-offense portion of the sex-offense definition is neither "silent [n]or ambiguous with respect to" whether the circumstance-specific approach applies.44 In arguing to the contrary, Pope points to the Ninth Circuit's admission in Byun that SORNA's language "is somewhat more ambiguous [than other parts of the statute] with regard to whether a categorical approach must be applied to all" parts of the specified-offense portion of the sex-offense definition.45 But because the DOJ's guidelines were in effect at the time Byun was issued, Pope's reliance on Chevron deference is another attempt to implicitly argue that the case was wrongly decided. Indeed, one of guidelines cited by Pope suggests that the age of the victim should be treated as an element rather than a circumstance of the predicate offense46—thus conflicting with one of Byun's central holdings. It is the purview of the Ninth Circuit rather than this court to reassess that decision in light of Chevron deference.

* * *

The magistrate judge correctly determined that the Ninth Circuit permits district courts to apply the circumstance-specific approach in determining whether a defendant's prior offense satisfies the specified-offense portion of SORNA's sex-offense definition and may thus examine the facts of how the defendant committed that crime. Accordingly, I need not and do not address whether Pope's California conviction would satisfy the catchall provision if the categorical approach applied, and I therefore do not adopt that portion of the magistrate judge's report and recommendation.47

II. SORNA's catchall provision is not void for vagueness.

Before applying the circumstance-specific approach to Pope's California conviction, I first address his argument that the catchall provision is unconstitutionally vague.48 He relies primarily on Johnson v. United States, in which the Supreme Court declared the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness.49 That clause instructed that a prior felony conviction is a "violent felony" under the ACCA if it "involves conduct that presents a serious potential risk of physical injury to another . . . ."50 Because the categorical approach is used for all portions of the ACCA, the Court prior to Johnson had consistently held that "[d]eciding whether the residual clause covers a crime . . . requires a court to picture the kind of conduct that the crime involves in `the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."51

Pope compares this ordinary-case analysis to SORNA's catchall provision, which assesses whether conduct "by its nature is a sex offense against a minor."52 But in Johnson, the Supreme Court distinguished between the application of the categorical approach to the residual clause and criminal "laws that call for the application of a qualitative standard such as `substantial risk' to real-world conduct . . . ."53 Applying that reasoning here, there is a significant difference between attempting to surmise whether a category of conduct in the abstract presents a serious potential risk of injury and, as SORNA's catchall provision requires, assessing whether the actual, specific facts underlying a prior conviction constitute a sex offense against a minor. I therefore find that the catchall provision is not void for vagueness.54

III. A jury could find that Pope's California conviction was a sex-offense against a minor.

Finally, Pope contends that, even if the circumstance-specific approach applies, there is not enough evidence of how he violated CPC § 288(a) to conclude that his conduct "by its nature is a sex offense against a minor."55 In response, the government provides a copy of the criminal complaint from Pope's California state-court proceedings, which charged him under count two with lewd or lascivious acts upon a child under 14 and accused him of "put[t]ing his mouth on the victim's breasts . . . ."56 As the attached abstract of judgment shows, Pope pled no contest to this charge.57 The government concedes that Pope may challenge whether his conduct satisfies SORNA's sex-offense definition at trial, asserting that it may introduce these documents as evidence of that conduct at trial.58 The government is correct that whether Pope was required to register as a sex offender under SORNA—and incidentally whether his prior conviction constitutes a sex offense—is a jury question.59 Thus, at the motion-to-dismiss stage, I must only determine whether a jury could find that Pope's conduct underlying his California conviction (if proven at trial) satisfies that element. Based on the facts alleged in the count that Pope pled no contest to, a jury could determine that Pope placed his mouth on a minor60 victim's breasts and that this conduct was by its nature a sex offense against a minor. I therefore deny Pope's motion to dismiss the indictment.

Conclusion

Accordingly, IT IS HEREBY ORDERED that the magistrate judge's report and recommendation [ECF No. 42] is ADOPTED in full as to Pope's constitutional challenge to SORNA and ADOPTED in part as to the circumstance-specific-approach analysis. Pope's objections [ECF No. 49] are OVERRULED. His first motion to dismiss the indictment [ECF No. 25] is DENIED without prejudice to Pope re-urging the issue after the Supreme Court renders its decision in Gundy v. United States, 138 S.Ct. 1260 (2018). His second motion to dismiss [ECF No. 26] is DENIED.