from the United States District Court for the Northern
District of Texas
SMITH, WIENER, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE.
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.
Sexual Offense Registration and Notification Act of 2006
(SORNA)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. 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).
2010, Escalante was convicted in Utah for unlawful sexual
activity with a minor. 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.
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, 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.
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.
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.
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
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).
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.
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. §
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
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.
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)).
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.
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 ...