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United States v. Escalante

United States Court of Appeals, Fifth Circuit

August 2, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JOHNNY ESCALANTE, also known as Manuel Rojas, Defendant-Appellant.

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

          Before SMITH, WIENER, and ELROD, Circuit Judges.


         Johnny Escalante failed to register as a sex offender when he travelled to Texas. The district court concluded that his prior Utah conviction for unlawful sexual activity with a minor classified him as a tier II sex offender, and he was sentenced based on the corresponding Guidelines range. Because the district court deviated from the categorical approach to classify him as a tier II sex offender, we VACATE and REMAND for resentencing.


         The Sexual Offense Registration and Notification Act of 2006 (SORNA)[1]requires sex offenders to update their registration after a change in residence. See 34 U.S.C. § 20913(c). Failing to do so is a federal crime when the offender travels in interstate commerce. See 18 U.S.C. § 2250. Section 2A3.5 of the Guidelines provides three base offense levels when a sex offender is found guilty of failing to register. Those levels correspond with the sex offender tiers in 34 U.S.C. § 20911.[2] Relevant to this case, a tier II sex offender is someone "whose offense . . . is comparable to or more severe than the following offenses, when committed against a minor[:] . . . abusive sexual contact (as described in section 2244 of title 18)[.]" 34 U.S.C. § 20911(3).

         In 2010, Escalante was convicted in Utah for unlawful sexual activity with a minor.[3] At the time of the offense, Escalante was 35 years old and the victim was 14. After being released from prison, Escalante travelled to Texas and failed to update his registration. He was subsequently identified by law enforcement during an unrelated traffic stop and charged for failing to register as a sex offender. He pleaded guilty. In the factual resume that he signed as part of his plea agreement, he admitted that: (1) he was required to register as a sex offender due to the 2010 Utah conviction; (2) he travelled to Texas; and (3) he knowingly failed to update his registration.

         The Pre-Sentence Report (PSR) concluded that Utah's crime of unlawful sexual activity with a minor was comparable to abusive sexual contact as described in 18 U.S.C. § 2244,[4] and therefore recommended that Escalante be categorized as a tier II offender with a Guidelines imprisonment range of 27– 33 months. However, the PSR also urged the court to consider an upward departure based on Escalante's history of domestic violence, parole violations, and high risk of recidivism.

         Escalante objected to the PSR, arguing, as relevant here, that the Utah statute "sweeps more broadly than the federal statute" and therefore, under the categorical approach, cannot serve as a predicate for classification as a tier II offender. Specifically, Escalante pointed to the facts that: (1) 18 U.S.C. § 2243(c)(1) permits an affirmative defense if the defendant reasonably believed the victim to be over 16, whereas Utah's relevant statute did not; and (2) 18 U.S.C. § 2243(a)(2) requires the government to prove a four-year age differential, whereas Utah's relevant statute did not.[5]

         At sentencing, the district court overruled Escalante's objections, adopted the PSR as its factual findings, and upwardly varied from the Guidelines to sentence Escalante to 48 months' imprisonment. Escalante repeated his objections at sentencing and timely appealed. We have jurisdiction to review Escalante's sentence under 18 U.S.C. § 3742.


         "For properly preserved claims, this court reviews the district court's interpretation and application of the Sentencing Guidelines de novo." United States v. Young, 872 F.3d 742, 745 (5th Cir. 2017) (citation omitted).


         We employ the categorical approach when classifying the SORNA tier of a defendant's state law sex offense. See Young, 872 F.3d at 746 (joining four other circuits in employing the categorical approach in such cases). "Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant's specific conduct." United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc), abrogated on other grounds by Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). If the statute of conviction "sweeps more broadly" than the referenced federal offense, the state offense cannot serve as a proper predicate. See Descamps v. United States, 570 U.S. 254, 261 (2013).

         On appeal, Escalante repeats the objections he made to the PSR, arguing that the district court erred by not considering that the Utah conviction offense and the corresponding federal offense had different possible affirmative defenses. He also argues that the district court erred by considering the specific circumstances of his offender-victim age differential when categorizing his sex offender tier level. In response, the government contends that the district court did not err, but, even if it did, that any such error would be harmless. We address each argument in turn.


         First, we address Escalante's affirmative defenses argument. Escalante observes that 18 U.S.C. § 2243(c)(1) permits an affirmative defense if a defendant can establish, by a preponderance of the evidence, that he reasonably believed that the other person was at least 16 years old. In contrast, the Utah statute that he was convicted under provided no such affirmative defense. See Utah Code Ann. § 76-5-401 (2010).

         Escalante argues that whether that affirmative defense was available "reflects an enormous difference in culpability" because it distinguishes between intentional and unintentional conduct. He argues that because a mental state defense exists for one offense and not for the other, the two offenses reach "significantly different" classes of offenders. Specifically, he argues that § 2243 offenders are more culpable and blameworthy as a class than § 76-5-401 offenders because they all knew, or should have known, that the victim was under 16. Therefore, he asserts, it is immaterial whether the defendant's mental state is an element that needs to be proven by the government or an affirmative defense that needs to be proven by the defendant. Either way, Escalante argues, the class of people who are § 76-5-401 offenders could include people with less culpability than the class of people who are § 2243 offenders, and, therefore, § 76-5-401 cannot serve as a predicate for classifying him as a tier II offender under the categorical approach.

         Escalante cites United States v. Roebuck, 2015 WL 13667427 (D.N.M. Jan. 26, 2015) (unpublished), as supporting case law. In Roebuck, the district court addressed this question when determining the tier level of a Texas statutory rape offense that, like Utah's, did not include an affirmative defense for reasonably believing the victim to be 16. Id. at *5–6. Without offering much analysis, the Roebuck court concluded that because § 2243 permits an affirmative defense that the Texas law did not, the "Texas statute sweeps more broadly than the federal statute" and could not serve as a predicate offense for classification as a tier II sex offender. Id. at *6.

         We reject Escalante's argument. The Supreme Court has repeatedly articulated that the categorical approach looks exclusively to the elements of the offenses to be compared. See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (directing that courts "focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the predicate crime]" (emphasis added)); Descamps, 570 U.S. at 261 (holding that courts "may look only to the statutory definitions-i.e., the elements-of a defendant's prior offenses" (emphasis added, citation and quotation marks omitted)); Taylor v. United States, 495 U.S. 575, 602 (1990) (holding that courts "look only to the fact of conviction and the statutory definition of the prior offense" (emphasis added)).

         The Supreme Court has defined "elements" in this context to be "the 'constituent parts' of a crime's legal definition-the things the 'prosecution must prove to sustain a conviction.'" Mathis, 136 S. Ct. at 2248 (quoting Black's Law Dictionary 634 (10th ed. 2014)). Despite Escalante's assertion to the contrary, it is black letter law that an affirmative defense (or the absence thereof) is not the same thing as an element of the crime. See generally Martin v. Ohio, 480 U.S. 228, 234–35 (1987) (discussing affirmative defenses and the elements of a crime as different things, and holding it constitutional for the defendant to bear the burden of proving the former but not the latter). Moreover, we agree with the government that the unpublished district court opinion in Roebuck fails to offer any appreciable analysis on this point and so we give its holding to the contrary little weight.

         This conclusion aligns with that of at least two of our sister circuits. See United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) ("The availability of an affirmative defense is not relevant to the categorical analysis."); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1282 (11th Cir. 2013) (rejecting a comparison under the categorical approach when the mens rea component was an element of the federal statute, but its absence was an affirmative defense in the state statute because "[a]n affirmative defense generally does not create a separate element of the offense that the government is required to prove in order to obtain a ...

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