By Daniel Stratton

On February 19, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Berry, vacating a sex offender’s thirty-three month sentence for failing to register on the grounds that it was procedurally unreasonable. The Fourth Circuit found that the defendant, Brian Berry, had been incorrectly categorized as a tier III offender under the U.S. Sentencing Guidelines and remanded the case to the U.S. District Court for the Eastern District of North Carolina for resentencing under the appropriate standard.

Berry is Released From Prison, Fails to Register as a Sex Offender

In 2002, Berry pleaded guilty in New Jersey to endangering the welfare of a child in violation of New Jersey state law, after engaging in inappropriate sexual conduct with a five-year-old victim. Upon his release from prison, Berry was required to register under the federal Sex Offender Registration and Notification Act (SORNA).

After initially registering, law enforcement discovered in 2013 that Berry no longer lived at his listed address in New Brunswick, New Jersey. SORNA requires a sex offender to update their registration upon every change of residence. Subsequently, New Jersey issued a warrant for Berry’s arrest for violating parole. He was found in North Carolina, where he pleaded guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250.

SORNA classifies sex offenders into three tiers depending on the nature of the underlying sex offense.  More serious sex offenses are classified under the second and third tiers, while tier I is a catch-all for all others. The U.S. Sentencing Guidelines assign a base sentence depending on the tier. Under SORNA’s definition, an offender who engages in abusive sexual contact against a minor who is under thirteen years old falls under tier III. The district court determined that Berry was a tier III sex offender under SORNA and used that determination to calculate a sentencing range of thirty-three to forty-one months. He was ultimately sentenced to thirty-three months in prison, followed by five years of probation. Berry appealed his sentence, arguing that the district court classified him in the incorrect tier.

How SORNA’s Tier Classification System Works

To determine a sex offender’s tier classification, a court will compare the underlying sex offense with those listed in each of the tiers’ definitions. Generally, courts have adopted two frameworks for analyzing which tier an offender should be placed in. The first is the categorical approach, which compares the elements of the prior offense with the elements of the “generic” offense of that tier as defined in SORNA. If the elements of the prior offense “are the same as, or narrower than” the elements of the generic offense, then the offender is classified in that tier. If the statute encompasses broader conduct, which could fall outside of the offense enumerated in the federal statute, then the prior offense is not a match. Some jurisdictions also apply a modified categorical approach, which allows the categorical approach to be used where the prior conviction is for violating a “divisible statute.” A divisible statute is one that sets out one or more elements in the alternative. This approach allows courts to consult a limited number of court documents to determine which alternative formed the basis of the prior conviction.

The second approach is known as the circumstance-specific approach. It focuses on the circumstances underlying the prior offense. Under that approach, the court does not focus on the elements of the prior offense, and instead looks at whether it involved conduct or circumstances required by SORNA.

The Fourth Circuit Adopts the Tenth Circuit’s Hybrid Approach to Applying Tier III When Involving Minors

Noting that the Tenth Circuit recently concluded that “Congress intended courts to look to the actual age of the defendant’s victim, but to otherwise employ a [categorical] approach,” the Fourth Circuit adopted a similar view. The Fourth Circuit explained that when a statute makes reference to a generic offense, it is evidence that Congress intended a categorical approach to applying the statute. It also noted that when a statute refers to specific conduct or circumstances, it was evidence of Congress’s intent to apply a circumstance-specific approach.

The Fourth Circuit explained that SORNA’s use of generic offenses in its text indicated that a categorical approach should be used when analyzing a prior offense.  However, the element specifying a victim be under the age of thirteen indicated that the court should consider the specific circumstances of a victim’s age, rather than mechanically apply the categorical approach. Based on this, the Fourth Circuit concluded that it should apply a categorical approach to sex offender tier classification, with a limited-purpose circumstance-specific comparison for determining the victim’s age.

The Fourth Circuit Applies the Categorical Approach to Berry; Holds that He Was Improperly Classified

Applying the categorical approach to Berry’s case, the court looked at the New Jersey statute under which Berry was convicted.  The New Jersey Supreme Court interpreted the statute as to not require actual or attempted physical contact in order to be convicted of child endangerment. As a result, the statute could encompass conduct much broader than what fell within the generic elements of tier III. The Fourth Circuit found this to mean that the elements of the underlying statute were not “comparable to or more severe than” the elements of the generic tier III offense. This, the court concluded, meant that Berry could not be properly classified as a tier III offender. As a result, Berry’s sentence was improperly calculated using a higher base offense level, making Berry’s sentence procedurally unreasonable.

Berry’s Case is Sent Back to the District Court for Resentencing

After finding Berry’s sentence procedurally unreasonable, the court vacated the sentence and remanded the case back to district court. On remand, the Fourth Circuit instructed the district court to determine the appropriate tier level, calculate the new sentencing range, and impose a new sentence.