In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-1553
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                               v.

BOOKER T. ROGERS,
                                            Defendant-Appellant.
                    ____________________

       Appeal from the United States District Court for the
        Northern District of Indiana, Hammond Division.
      No. 2:12-cr-00107-JTM-APR-1 — James T. Moody, Judge.
                    ____________________

 ARGUED NOVEMBER 12, 2014 — DECIDED NOVEMBER 5, 2015
                    ____________________

   Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Booker Rogers has a long criminal
record that includes two West Virginia convictions for
sexually abusing his daughter and stepdaughter. As a sex
offender, he is required by the Sex Offender Registration and
Notification Act (“SORNA”) to register in each state in
which he resides, is employed, or is a student. 42 U.S.C.
§§ 16911(1), 16913. In 2011 he moved from West Virginia to
Indiana and failed to register there. A few months later his
2                                                   No. 14-1553

18-year-old daughter, Jane Doe, reported to police in West
Lafayette, Indiana, that Rogers was sexually abusing her.
    Rogers pleaded guilty to traveling in interstate commerce
and failing to register as a sex offender in violation of
18 U.S.C. § 2250. The district judge applied a six-level sen-
tencing enhancement under U.S.S.G. § 2A3.5(b)(1)(A) for
committing a sex offense—incest against Jane Doe—while in
failure-to-register status. The judge also refused to award
credit for acceptance of responsibility under § 3E1.1 because
Rogers falsely denied this relevant conduct. Rogers chal-
lenges these sentencing decisions.
    The failure-to-register guideline incorporates by refer-
ence the definition of the term “sex offense” found in
42 U.S.C. § 16911(5). This case requires us to decide whether
a categorical or fact-based approach applies to classifying
sex offenses under this statute. We conclude that the thresh-
old definition of “sex offense” found in § 16911(5)(A)(i)
requires a categorical approach—an inquiry limited to the
elements of the offense—but the exception in subsec-
tion (5)(C) calls for an examination of the specific facts of the
offense conduct. The district court conducted just this sort of
analysis. Because the court properly applied the § 2A3.5
enhancement and properly declined to award § 3E1.1 credit,
we affirm.


                          I. Background
   In 2000 Rogers was convicted in West Virginia of second-
degree sexual abuse of his 14-year-old stepdaughter. In 2008
he was convicted of third-degree sexual assault of his 6-year-
old daughter. (Rogers has two biological daughters, Jane
No. 14-1553                                                   3

Doe and the victim of the 2008 offense.) The convictions
triggered sex-offender registration duties under SORNA and
state law. Rogers failed to register twice while living in West
Virginia; he was fined and placed on community supervi-
sion for these violations.
   In November 2011 Rogers moved to Indiana and failed to
register in his new state of residence. Indiana authorities
were alerted to his presence in February 2012, when his
oldest daughter, Jane Doe, then age 18, reported to West
Lafayette police that Rogers was sexually abusing her.
    Rogers was indicted for traveling in interstate commerce
and failing to register as a sex offender. See § 2250. He plead-
ed guilty without a plea agreement. To calculate the guide-
lines sentencing range, the probation department recom-
mended that the court apply a six-level enhancement under
§ 2A3.5(b)(1)(A) for committing a sex offense while in fail-
ure-to-register status; namely, the Indiana crime of incest
against Jane Doe. Rogers objected and denied ever having
any sexual contact with his 18-year-old daughter.
    At the sentencing hearing, Jane Doe testified that Rogers
is her biological father, but his parental rights were termi-
nated when she was very young. He lived with the family
for only about a year and a half, when she was between the
ages of 11 and 12 years old and the family was living in West
Virginia. During this time, Rogers sexually abused her. She
testified that the abuse began with various forms of sexual
contact (he told her it was a game called “boyfriend and
girlfriend”), but escalated to oral and anal penetration,
which he forced on her by threatening to whip her with a
belt. Because these whippings were “very, very painful,” she
did not resist.
4                                                   No. 14-1553

    Jane Doe and her mother and siblings eventually moved
away from West Virginia, first to Kansas and then to Indi-
ana. In November 2011 Rogers moved to Indiana and briefly
lived with the family again. By this time Jane Doe was 18.
The sexual abuse soon resumed and included oral and
vaginal intercourse. Jane Doe testified that she did not want
to engage in this sexual activity with Rogers, nor did she
consent to it. Although Rogers never used force and she
never explicitly told her father “no,” she said she felt like she
had no choice because “the consequences of trying to fight
back were going to be worse.” She remembered the belt
whippings, and she also feared that if she reported the
abuse, she would not have a place to live or a relationship
with her mother.
    The judge found Jane Doe “very credible” and concluded
that Rogers had committed the Indiana offense of incest. He
also found that the incestuous relationship was “not consen-
sual at all,” or alternatively, if it was consensual, Jane Doe
was under Rogers’s custodial authority at the time. (We’ll
explain the relevance of these two findings later.) According-
ly, the judge accepted the probation department’s recom-
mendation and applied the six-level enhancement under
§ 2A3.5(b)(1)(A) for committing a sex offense while in fail-
ure-to-register status. The judge also denied the three-level
reduction for acceptance of responsibility under § 3E1.1
because Rogers had falsely denied relevant conduct—the
incestuous relationship with Jane Doe.
   Rogers’s total offense level was 22, which when combined
with his criminal history category VI yielded a guidelines
sentencing range of 84 to 105 months’ incarceration. The
No. 14-1553                                                  5

judge imposed a sentence at the top of the range—
105 months—followed by 20 years of supervised release.


                         II. Discussion
    Rogers challenges the district court’s application of the
guidelines enhancement under § 2A3.5(b)(1)(A) for commit-
ting a sex offense while in failure-to-report status. This
guideline directs the sentencing court to increase the base
offense level by six levels “[i]f, while in failure to register
status, the defendant committed … a sex offense against
someone other than a minor.” § 2A3.5(b)(1)(A). Application
note 1 to § 2A3.5 states that “‘[s]ex offense’ has the meaning
given that term in 42 U.S.C. § 16911(5).”
    Under the cross-referenced statutory definition, the term
“sex offense” is broadly defined as “a criminal offense that
has an element involving a sexual act or sexual contact with
another.” § 16911(5)(A)(i). As relevant here, the definition
also contains an exception:
      An offense involving consensual sexual con-
      duct 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 offend-
      er was not more than 4 years older than the
      victim.
§ 16911(5)(C).
6                                                   No. 14-1553

   The judge found that Rogers committed the Indiana of-
fense of incest while in failure-to-report status. Indiana’s
incest statute reads in relevant part:
       A person eighteen (18) years of age or older
       who engages in sexual intercourse or other
       sexual conduct … with another person, when
       the person knows that the other person is re-
       lated to the person biologically as a parent,
       child, grandparent, grandchild, sibling, aunt,
       uncle, niece, or nephew, commits incest, a
       Level 5 felony.
IND. CODE § 35-46-1-3(a). The judge easily concluded that
this crime falls within the broad definition of sex offense in
§ 16911(5)(A)(i): It’s a “criminal offense” (a “Level 5 felony”),
and it has as an “element” a “sexual act or sexual contact
with another” (the Indiana statute requires an act of sexual
intercourse or other sexual conduct with another person).
    Rogers zeroes in on the exception found in § 16911(5)(C).
As we’ve noted, the exception provides that “[a]n offense
involving consensual conduct is not a sex offense … if the victim
was an adult, unless the adult was under the custodial au-
thority of the offender at the time of the offense,” or the
victim was at least 13 years old and the offender was not
more than four years older. § 16911(5)(C) (emphasis added).
Rogers urges us to apply a categorical approach to the
exception and limit our inquiry to the elements of the
Indiana incest statute rather than the facts of his conduct.
Because the exception excludes offenses involving consensu-
al sexual conduct between adults (unless the victim was
under the offender’s custodial control or the age differential
was present), the Indiana incest offense doesn’t qualify
No. 14-1553                                                    7

because nonconsent is not an element. Or so his argument
goes.
    The “elements-centric” categorical approach is an estab-
lished method of evaluating whether prior convictions count
for purposes of some sentence-enhancement statutes, most
notably the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
924(e). See Descamps v. United States, 

, 2287
(2013) (explaining the rationale for the categorical approach
in the context of the ACCA). This approach applies when the
statute in question speaks in categorical or elements-based
terms rather than “circumstance specific” terms. Nijhawan v.
Holder, 

, 36 (2009); see also Taylor v. United States,

, 588 (1990) (adopting the categorical approach
to the ACCA because “Congress intended that the enhance-
ment provision be triggered by crimes having certain speci-
fied elements”).
    For example, as the Supreme Court has “long recog-
nized,” the “ACCA increases the sentence of a defendant
who has three ‘previous convictions’ for a violent felony—
not a defendant who has thrice committed such a crime.”

(quoting § 924(e)(1)). “That
language shows … that ‘Congress intended the sentencing
court to look only to the fact that the defendant had been
convicted of crimes falling within certain categories, and not
to the facts underlying the prior convictions.’” 

, 495 U.S. at 600).
    Based on the statutory language, it’s clear that a categori-
cal approach applies to the threshold definition of the term
“sex offense” in § 16911(5)(A)(i); the use of the word “ele-
ment” suggests as much. (Recall that under the threshold
definition, a “sex offense” is “a criminal offense that has an
8                                                    No. 14-1553

element involving a sexual act or sexual contact with anoth-
er.” § 16911(5)(A)(i).)
    The exception in § 16911(5)(C) is phrased much different-
ly. The exception uses fact-specific language, strongly sug-
gesting that a conduct-based inquiry applies. First, the
exception applies to an “offense involving consensual sexual
conduct.” § 16911(5)(C) (emphasis added). The word “in-
volving” implies a noncategorical, fact-based inquiry. Sec-
ond, and even more tellingly, the exception contains a string
of fact-based qualifiers: “if the victim was an adult,” “unless
the adult was under the custodial authority of the offender at
the time of the offense,” “if the victim was at least 13 years old
and the offender was not more than 4 years older than the
victim.” 

This language doesn’t refer to
elements of the offense; it refers to specific facts of the of-
fense. The categorical approach does not apply to the excep-
tion.
    The Fifth Circuit reads § 16911(5)(C) the same way we
do. See United States v. Gonzalez-Medina, 

(5th Cir.
2014), cert. denied, 

(2015). Gonzalez-Medina
raised the question whether a categorical or fact-based
approach applies to the age-differential determination in
§ 16911(5)(C). 

The Fifth Circuit began by con-
trasting the language of § 16911(5)(A)(i), the broad threshold
definition of the term “sex offense,” with the language of the
exception in § 16911(5)(C). The “focus on the ‘element[s]’ of
the predicate offense [in § 16911(5)(A)(i)] strongly suggests
that a categorical approach applies” to the threshold defini-
tion. 

“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
No. 14-1553                                                  9

13 years old and the offender was not more than 4 years
older than the victim.’” 

16911(5)(C)). The court
concluded that “[t]he exception’s reference to conduct, rather
than elements, is consistent with a circumstance-specific
analysis.” 

States v. Byun, 

, 992
(9th Cir. 2008)).
    In short, although the basic definition of “sex offense” in
§ 16911(5)(A)(i) requires a categorical, elements-based
inquiry, the exception in § 16911(5)(C) is not similarly lim-
ited. Whether the exception applies depends on several fact-
based inquiries: Was the victim an adult? If so, was the
sexual conduct consensual? Was the victim under the custo-
dial authority of the offender at the time? Was the specified
age differential present?
    Here, there’s no dispute that the Indiana incest offense
meets the threshold definition of sex offense in
§ 16911(5)(A)(i) as a categorical matter. Whether the excep-
tion applies depends on the underlying facts and circum-
stances—most prominently, whether Jane Doe consented to
the sexual conduct. The judge found that she did not.
    Rogers’s fallback argument is to challenge the judge’s fac-
tual finding on consent. This is a nonstarter. We review the
sentencing court’s factual findings for clear error, giving
special deference to the court’s determination of witness
credibility, “which can virtually never be clear error.” United
States v. Pulley, 

, 664 (7th Cir. 2010). Jane Doe
testified that she did not consent to any sexual acts with her
father. Though Rogers did not use force, he had done so in
the past. And even without this history, we’ve observed that
an incest victim is “likely to comply with the sexual request
by or action of her father out of fear stemming from the
10                                                          No. 14-1553

belief that physical consequences will flow from noncompli-
ance.” United States v. Martinez-Carillo, 

, 1106
(7th Cir. 2001). Jane Doe also testified that she was afraid of
jeopardizing her familial and financial situation. The judge
credited her testimony and found that the incestuous rela-
tionship was “not consensual at all.” That finding was not
clear error. 1
    Finally, Rogers challenges the judge’s refusal to award
acceptance-of-responsibility credit under § 3E1.1. The judge
withheld credit because Rogers falsely denied the incestuous
relationship with Jane Doe. Rogers recognizes that the
court’s rulings on the § 2A3.5 enhancement and the § 3E1.1
reduction are linked. Because the first was sound, so was the
second.
                                                              AFFIRMED.




1 Rogers also contests the judge’s factual finding that he had custodial
authority over Jane Doe at the time of the incestuous relationship. We do
not need to address this argument. The judge found that Jane Doe did
not consent to the sexual acts; because that finding is not clearly errone-
ous, the exception in § 16911(5)(C) for consensual sexual conduct
between adults does not apply.