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United States v. Gonzalez-Medina

United States Court of Appeals, Fifth Circuit

July 2, 2014

UNITED STATES OF AMERICA, Plaintiff -- Appellee
v.
NAZARIO GONZALEZ-MEDINA, Defendant -- Appellant

Appeal from the United States District Court for the Southern District of Texas.

For United States of America, Plaintiff - Appellee: Scott A. C. Meisler, Esq., U.S. Department of Justice, Washington, DC; Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For Nazario Gonzalez-Medina, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges. EMILIO M. GARZA, Circuit Judge, dissenting.

OPINION

Page 426

HIGGINSON, Circuit Judge:

Nazario Gonzalez-Medina appeals his conviction for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). On appeal, Gonzalez-Medina contends that he was not required to register as a sex offender because his Wisconsin conviction under Wisc. Stat. § 948.09 for having sexual intercourse with a child age sixteen or older does not qualify as a " sex offense" within the meaning of the Sex Offender Registration and Notification Act (" SORNA" ), 42 U.S.C. § § 16901 et seq . Gonzalez-Medina further contends that SORNA's registration requirement and criminal penalty exceed Congress's authority under the Commerce Clause. For the

Page 427

reasons articulated below, we AFFIRM Gonzalez-Medina's conviction.

I.

Gonzalez-Medina was born in Mexico in 1979 or 1980 and is a Mexican citizen. On June 24, 2005, he was charged in Wisconsin state court with having sexual intercourse with a child age sixteen or older in violation of Wisc. Stat. § 948.09. He pleaded no contest to the charge and was sentenced to sixty days in jail. Two years later, on November 28, 2007, Gonzalez-Medina was convicted in Texas state court of aggravated assault and sentenced to two years imprisonment. Prior to his release from state prison, Texas authorities informed Gonzalez-Medina of his duty to register as a sex offender for the duration of his lifetime based on his Wisconsin conviction. He signed a sex offender registration form and was later deported to Mexico. Three years later, on September 7, 2012, federal authorities found Gonzalez-Medina in a city jail in San Benito, Texas. A subsequent investigation revealed that he had been living in Texas for over a year and had not updated his sex offender registration after returning to the United States.

On September 25, 2012, a federal grand jury indicted Gonzalez-Medina for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), and illegal reentry in violation of 8 U.S.C. § 1326(a). Gonzalez-Medina pleaded guilty to the illegal-reentry charge. He then moved to dismiss the failure-to-register charge on the ground that his prior Wisconsin conviction does not qualify as a " sex offense." SORNA defines a " sex offense" as, inter alia, " a criminal offense that has an element involving a sexual act or sexual contact with another." See 42 U.S.C. § 16911(5)(A)(i). SORNA includes an exception to its definition of " sex offense" for " [a]n offense involving consensual sexual conduct . . . if the victim was at least 13 years old and the offender was not more than 4 years older than the victim." 42 U.S.C. § 16911(5)(C). In his motion, Gonzalez-Medina argued that the court should apply the categorical approach to the age-differential determination in the § 16911(5)(C) exception. He further argued that Wisc. Stat. § 948.09 is not a " sex offense" under the categorical approach because it does not include a four-year age differential as an element.

The district court denied the motion, and Gonzalez-Medina waived his right to a jury trial. After a bench trial, the district court found Gonzalez-Medina guilty of failure to register as a sex offender. The court first found that Gonzalez-Medina knowingly failed to register as a sex offender upon his return to the United States in May 2011. The court next found that Gonzalez-Medina had a duty to register because his Wisconsin conviction falls under SORNA's definition of " sex offense" as " a criminal offense that has an element involving a sexual act or sexual contact with another." See 42 U.S.C. § 16911(5)(A)(i). Finally, the court found that the age-differential exception in § 16911(5)(C) does not apply because the Wisconsin judgment listed Gonzalez-Medina as 24 years old at the time of his Wisconsin offense. The district court rejected application of the categorical approach to analyzing the age-differential language in the § 16911(5)(C) exception as inconsistent with the statutory language and intent of Congress. The court later sentenced Gonzalez-Medina to fifty-one months imprisonment and three years of supervised release on both his illegal-reentry and failure-to-register counts, to run concurrently. Gonzalez-Medina timely appealed. We review a district court's finding of guilt after a bench trial for substantial evidence and its legal conclusions de novo. United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002).

Page 428

II.

A.

Gonzalez-Medina was convicted for violating 18 U.S.C. § 2250(a), which provides a criminal penalty for whoever (1) " is required to register under [SORNA]" ; (2) " travels in interstate or foreign commerce . . ." ; and (3) " knowingly fails to register or update a registration as required by [SORNA]." 3

Gonzalez-Medina disputes the first element--that he was required to register under SORNA. SORNA requires an individual to register if he or she is a " sex offender," 42 U.S.C. § 16913(a), and defines " sex offender" as " an individual who was convicted of a sex offense," id. at § 16911(1). SORNA defines " sex offense" expansively as, inter alia :

(i) a criminal offense that has an element involving a sexual act or sexual contact with another; [or]
(ii) a criminal offense that is a specified offense against a minor[.]

Id . at § 16911(5)(A). SORNA provides exceptions to this definition of " sex offense," including the exception at issue in this case:

(C) An offense involving consensual sexual conduct 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 offender was not more than 4 years older than the victim .

Id . at § 16911(5)(C) (emphasis added).

On appeal, Gonzalez-Medina contends that the categorical approach applies to the age-differential determination in the § 16911(5)(C) exception, and that his Wisconsin conviction does not qualify as a " sex offense" under the categorical approach because the statute that formed the basis of his conviction does not include a four-year age differential as an element. See Wisc. Stat. § 948.09 ( " Whoever has sexual intercourse with a child who is not the defendant's spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor." ). He further contends that, as a result, his Wisconsin offense is broader than SORNA's definition of " sex offense" and he hypothetically could have been convicted despite being less than four years older than the victim. Under the categorical approach, a court would be limited to comparing the elements of the Wisconsin statute to SORNA's definition of " sex offense," and could not consider the facts underlying the conviction. See, e.g., Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The government responds that the text and purpose of SORNA indicate that Congress intended courts to be able to look at the factual circumstances of the conviction, rather than just the statutory elements, in determining the age differential between the victim and offender for the § 16911(5)(C) exception.

Gonzalez-Medina does not dispute the district court's finding that his Wisconsin conviction falls within SORNA's definition of " sex offense" as " a criminal offense that has an element involving a sexual act or sexual contact with another." See 42 U.S.C. § 16911(5)(A)(i). Nor does he dispute the district court's finding that he was in fact more than four years older than the victim at the time of his Wisconsin offense. Additionally, the parties appear to agree that if the categorical approach applies to the age differential in § 16911(5)(C), Gonzalez-Medina's Wisconsin conviction does not qualify as a " sex offense" because the Wisconsin statute does not include a four-year age differential as an element. Accordingly, the sole issue on appeal is whether the categorical

Page 429

approach applies to the four-year age differential in the § 16911(5)(C) exception.[1] For the following reasons--based on the language, structure, and broad purpose of SORNA--we conclude that Congress contemplated a non-categorical approach to the age-differential determination in the § 16911(5)(C) exception.

B.

We start with the language of the statute. At the outset, SORNA defines a " sex offender" as " an individual who was convicted of a sex offense." 42 U.S.C. § 16911(1) (emphasis added). Courts have held, particularly in the context of criminal sentencing and immigration law, that the use of the term " convicted" can signal a categorical analysis. See Taylor v. United States, 495 U.S. 575, 600-01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (noting that the term " conviction," rather than " committed," in the Armed Career Criminal Act (" ACCA" ) requires an examination of the statute of conviction rather than any underlying facts); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (applying the categorical approach to the residual clause of the definition of " violent felony" in the ACCA); see also Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013) (" 'Conviction' is 'the relevant statutory hook.'" ); Silva-Trevino v. Holder, 742 F.3d 197, 201-02 (5th Cir. 2014). Accordingly, SORNA's use of the term " convicted" might trigger the categorical approach, at least to some extent, in determining if a defendant has been " convicted of" a sex offense.

The use of the term " convicted," however, is not always determinative. For instance, in Nijhawan v. Holder, 557 U.S. 29, 32, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), the Supreme Court interpreted an immigration statute that rendered deportable any alien " convicted of an aggravated felony at any time after admission." (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)) (emphasis added). The statute defined " aggravated felony" as, inter alia, " an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 ." Id. (quoting 8 U.S.C. § 1101(a)(43)(M)(i)) (emphasis added). The Court held that, despite the use of the term " convicted," the italicized language relating to victim loss could be determined based on the particular facts of the case, rather than the categorical approach. Id. The Court found a number of factors persuasive, including: (1) the words " in which" modifying " offense" " can refer to the conduct involved ' in ' the commission of the offense of conviction, rather than to the elements of the offense" ; (2) the " aggravated felony" definition lists certain other offenses that " almost certainly" call for circumstance-specific determinations; and (3) a ...


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