United States v. Coulson

86 F.4th 1189

UNITED STATES of America, Plaintiff - Appellee v. Michael Ryan COULSON, Defendant - Appellant

No. 23-1690

United States Court of Appeals, Eighth Circuit

Submitted: October 26, 2023

Filed: November 20, 2023

Appeal from United States District Court for the Northern District of Iowa - Central.

Counsel who presented argument on behalf of the appellant and appeared on the brief was Bradley Ryan Hansen, AFPD, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Ron Timmons, AUSA, of Sioux City, IA.

Before LOKEN, MELLOY, and KELLY, Circuit Judges.

LOKEN, Circuit Judge, dissenting without opinion.

MELLOY, Circuit Judge.

Michael Ryan Coulson was convicted at a court martial for "forcible pandering" in violation of Article 120c(b) of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. § 920c(b) (2012). He later failed to register as a sex offender in Iowa and pleaded guilty to violating the Sex Offender Registration and Notification Act (SORNA). See 18 U.S.C. § 2250(a); see also, generally, 34 U.S.C. § 20901 et seq.

The sentence for a SORNA conviction depends in part on the severity of the defendant's underlying sex offense as categorized by tier. Tier III is the most severe category and Tier I is the least severe, serving as a catchall when Tiers II or III do not apply. Tiers II or III apply when the SORNA defendant's underlying offense is "comparable to or more severe than" a listed offense. See 34 U.S.C. § 20911(2)-(4) (defining Tiers I-III); see also U.S.S.G. § 2A3.5(a) (setting base offense levels). Coulson argued below that he was a Tier I offender. The district court concluded he was a Tier III offender and sentenced him accordingly.

On appeal, Coulson argues the "categorical approach" applies to his SORNA tier analysis. He also argues that, pursuant to this approach, his prior statute of conviction is "overbroad" in relation to SORNA's Tier III listed comparator offenses.¹ We now hold for the first time, in line with a consensus of authority from other circuits, that the categorical approach applies to SORNA's tier analysis. Further, we agree with Coulson that application of the categorical approach results in his classification as a Tier I offender. Accordingly, we reverse and remand for resentencing.

I.

Under the UCMJ, Coulson's underlying offense of forcible pandering amounts to forced prostitution defined in material part as compelling another person to engage in "sexual abuse" or "sexual contact" for which anyone is paid. 10 U.S.C. § 920c(b) (defining pandering through reference to prostitution); 10 U.S.C. § 920c(d)(1) (defining prostitution through reference to "sexual abuse" or "sexual contact" as further defined in 10 U.S.C. § 920(g)). For the present analysis, the critical distinction between these two statutory terms boils down to the fact that sexual contact may occur outside or over a victim's clothing, whereas sexual abuse may not.²

At sentencing for the present SORNA conviction, the district court faced the question of whether the circumstance-specific approach, modified-categorical approach, categorical approach, or some other approach applied to determine if Coulson's prior conviction was "comparable to or more severe than . . . aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18)." 34 U.S.C. § 20911(4)(A)(i). The United States argued in its district court briefing and at the sentencing hearing that the term "comparable" as used in § 20911 provided an expansive degree of flexibility and allowed the court to move away from the rigid structure of the categorical or modified-categorical approach. In support, the United States relied on dicta from an unpublished Tenth Circuit opinion and argued, "[R]egardless of which approach applies . . . even if the prior conviction statute is slightly broader, this wider protective sweep is allowable under SORNA's tier regime." In the alternative, the United States argued that even if the word "comparable" did not provide an additional degree of flexibility, the modified-categorical approach should apply. And in advocating for the modified-categorical approach, the United States argued that permissibly viewable Shepard materials showed Coulson's underlying pandering conviction had involved sexual abuse—compelled intercourse involving an adult woman with money paid to Coulson—rather than mere "sexual contact."³

The district court appears to have partially adopted the United States's arguments. The district court stated that the categorical approach applied but held that the possibility of a pandering (prostitution) conviction arising from mere sexual contact over the clothing was so unlikely as to be speculative or hypothetical. As a result, the district court found the pandering conviction comparable to sexual abuse, 18 U.S.C. § 2242, resulting in a Tier III classification.

We interpret the district court's conclusion, articulated generally as the categorical approach but applied with some degree of flexibility, to reflect either: (1) the partial adoption of the United States's argument that the term "comparable" broadens SORNA's tier inquiry away from a traditional categorical or modified-categorical approach; or (2) an application of the "realistic probability" qualifier that courts sometimes apply to reject "fanciful" interpretations of unclear statutes under the categorical approach when analyzing prior convictions. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ("[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime."); but see Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021) (refusing to apply the realistic probability test where the statute at issue was "clear on its face").

On appeal, Coulson renews his arguments, but the United States's position is somewhat unclear. The United States does not argue clearly against the categorical approach but continues to urge the adoption of some degree of flexibility based on the statutory term "comparable." 34 U.S.C. § 20911(4)(A)(i). However, in briefing and at oral argument, the government was unable to articulate standards or any guiding principles as to how this "categorical light" approach would work in practice.

II.

In general, we review de novo the classification of prior offenses or convictions for sentencing purposes. See United States v. Bragg, 44 F.4th 1067, 1075 (8th Cir. 2022). De novo review applies to the questions before us because determination of the proper framework for SORNA's tier analysis, and application of that framework, are questions of law. This remains true even if classification of a prior conviction requires the court to review limited materials under the modified-categorical approach, as urged by the United States. United States v. Myers, 928 F.3d 763, 765-67 (8th Cir. 2019). Such an exercise involves interpretation of the legal consequences flowing from prior judicial records. It does not involve fact finding in a traditional sense that might merit deference.

Several years ago, a panel of our court identified, but was not required to resolve, the outstanding question of how to conduct SORNA's tier analysis. See United States v. Mulverhill, 833 F.3d 925, 930 (8th Cir. 2016) (applying plain error review and finding it unnecessary to "wade into the quagmire of which approach applies to the three tier classifications"). At that time, a few circuits had applied the categorical approach. See, e.g., United States v. Berry, 814 F.3d 192, 197 (4th Cir. 2016); United States v. Morales, 801 F.3d 1, 5-6 (1st Cir. 2015); United States v. White, 782 F.3d 1118, 1134-36 (10th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2014). Since then, a broad consensus has grown, with no circuits holding to the contrary. See United States v. Walker, 931 F.3d 576, 579 (7th Cir. 2019); United States v. Barcus, 892 F.3d 228, 231-32 (6th Cir. 2018); United States v. Young, 872 F.3d 742, 746 (5th Cir. 2017).⁴ We now join these other circuits.

In general, as applied in several different criminal- and immigration-law contexts, the categorical approach does not permit a court to consider a defendant's actual underlying conduct. See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (directing courts to consider "not . . . the facts of the particular prior case, but instead . . . whether the . . . statute defining the crime of conviction categorically fits within the generic federal definition" (internal citations omitted)). This approach permits only an elements-to-elements comparison between a defendant's prior offense and either: (1) a general or traditional common law definition of a referenced offense, e.g., "burglary" as referenced in 18 U.S.C. § 924(e); or (2) the elements of an offense as identified with express reference to a particular statutory provision. SORNA's tier provisions involve the latter in that 34 U.S.C. § 20911(4)(A)(i) expressly references the definitions of "aggravated sexual abuse" and "sexual abuse" from 18 U.S.C. §§ 2241 and 2242.

Like the circuits cited above, we find that textual support points almost exclusively toward the categorical approach. Reference to a generic comparator "offense," to a specific statute, or to a "conviction"—all as contrasted with references to conduct or to specific acts that a defendant previously committed—strongly suggests courts must apply the categorical approach. See Nijhawan v. Holder, 557 U.S. 29, 36-37, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (distinguishing a Congressional directive to review specific facts...