United States v. Karsten

1

UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER LEE KARSTEN, Defendant.

No. 4:23-CR-3063

United States District Court, D. Nebraska

April 19, 2024

MEMORANDUM AND ORDER

JOHN M. GERRARD, SENIOR UNITED STATES DISTRICT JUDGE.

The defendant is charged with one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a), for failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq. Filing 1. His federal obligation to register, as charged in the indictment, was allegedly premised on an underlying 2001 Nebraska conviction for first degree sexual assault. Filing 1. The defendant pled guilty to the federal charge in this case pursuant to a plea agreement. Filing 20; filing 21; filing 25.

Now however, he moves to withdraw his plea, after his counsel discovered while preparing for sentencing that the defendant is factually innocent of the crime charged. Filing 32. Specifically, he alleges that contrary to what the parties had believed, his Nebraska conviction for first degree sexual assault only required him, under federal law, to register for 15 years, not 25-meaning that his obligation to register ended before the current offense was allegedly committed. See filing 32. The Court agrees and will grant the defendant's motion to withdraw his plea.

DISCUSSION

WITHDRAWAL OF GUILTY PLEA

A defendant may withdraw a plea after the Court accepts it, but before imposing sentence, if the defendant can show a fair and just reason for requesting the withdrawal. Fed. R. Crim P. 11(d)(2)(B); see United States v. Osei, 679 F.3d 742, 746 (8th Cir. 2012). The defendant bears the burden of showing a fair and just reason for withdrawal. Id.

And even if the defendant shows a fair and just reason for withdrawal, the Court must consider other factors before granting the motion, such as whether the defendant asserts his innocence of the charge, the length of time between the plea and the motion to withdraw it, and whether the government will be prejudiced if the Court grants the motion. United States v. McHenry, 849 F.3d 699, 705 (8th Cir. 2017). But there is no absolute right to withdraw a plea before sentencing. United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997); see Osei, 679 F.3d at 746. Rule 11 proceedings are not an exercise in futility, and a plea is a solemn act not to be disregarded because of belated misgivings. See Osei, 679 F.3d at 746-47.

The defendant contends that while preparing for sentencing, his counsel discovered that as a matter of law, he's not guilty of the crime charged-which, the defendant says, goes both to the factual basis for the plea and calls into question the effectiveness of counsel. Filing 33 at 2-4. The Court agrees that the lack of a factual basis for the plea (which will be discussed below) is a fair and just reason to permit its withdrawal. See United States v. Heid 651 F.3d 850, 856 (8th Cir. 2011).^[1] Considering the other factors, the defendant also asserts his actual innocence, which weighs strongly in favor of his motion. See United States v. Barnett, 426 F.Supp.2d 898, 913-14 (N.D. Iowa 2006). The Court credits the defendant's claim that the motion was promptly filed because its basis was only discovered while preparing for sentencing-which makes sense, given how the base offense level for this charge is determined. See U.S.S.G. § 2A3.5(a). And while the government is undoubtedly prejudiced, the Court finds that being unable to prosecute a factually innocent defendant isn't the sort of prejudice that weighs against granting the motion. See Barnett, 426 F.Supp.2d at 914.

SORNA

Turning to the merits of the defendant's argument: Under SORNA, the length of a sex offender's registration requirement is determined by the severity of the underlying sex offense, categorized by "tiers." See 34 U.S.C. § 20915(a). 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. United States v. Coulson, 86 F.4th 1189, 1191 (8th Cir. 2023)

As relevant here a "Tier I" sex offender is required to register for 15 years, while a "Tier II" sex offender must register for 25 years. § 20915(a). That period runs from the date the offender is released from any imprisonment, see id., which the Court understands for the defendant was May 10, 2005. So, if the defendant's underlying conviction was for a Tier I offense, his registration obligation ended in 2020. But if it was a Tier II offense, his registration obligation runs until 2030. And he's charged with knowingly failing to register between October 10 and November 1, 2022. Filing 1.

Tier II applies when the SORNA defendant's underlying state offense is "comparable to or more severe than" one of the listed federal Tier II offenses. See 34 U.S.C. § 20911; see also Coulson, 86 F.4th at 1191. The relevant federal offense here is at the end of a winding stream of citations. One of the listed Tier II offenses is "abusive sexual contact," which is defined "as described in Section 2244 of Title 18." § 20911(3)(A)(iv). That section, in turn, contains a cross-reference to "subsection (a) of section 2243 of this title." 18 U.S.C. § 2244(a)(3). And that section, finally, proscribes knowingly engaging in a sexual act, or attempting to do so, with a person who is between the ages of 12 and 16 and is at least four years younger than the person so engaging. 18 U.S.C. § 2243(a). That federal offense is, according to the government, comparable to the defendant's Nebraska state conviction for attempted first degree sexual assault in violation of Neb. Rev. Stat. § 28-319(1). Filing 45 at 3-4.

THE CATEGORICAL APPROACH

SORNA's tier analysis requires the Court to engage in the so-called "categorical approach" to comparing state and federal offenses. Coulson, 86 F.4th at 1193. Under that approach, the Court compares the elements of the prior state offense with the federal definition of a Tier II offense, to determine whether the state offense sweeps more broadly. See United States v. Brown, 73 F.4th 1011, 1014 (8th Cir. 2023). But if the state statute covers more conduct than the federal definition of a Tier II offense, and lists alternative methods of committing the crime, then the Court must determine whether the listed alternatives are elements or means. See Brown, 73 F.4th at 1014.

If the statutory alternatives are multiple means of committing a single offense, the statute is indivisible, and the pure categorical approach applies. Id. If, however, the statute sets forth alternative elements that define multiple offenses, the statute is divisible, and the Court must apply the "modified categorical approach" to determine which alternative was the offense of conviction. Id.

In this case, the version of the statute in effect at the time,^[2] § 28-319(1) (Reissue 1995), provided:

Any person who subjects another person to sexual penetration (a) without consent of the victim, (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is less than sixteen years of age is guilty of sexual assault in the first degree.

The question, in other words, is whether the Court should regard the defendant as having been convicted of "sexual assault in the first degree" in violation of the entirety of § 28-319(1), or whether the Court should regard the defendant as having been convicted of "first degree sexual assault of a child," solely in violation of § 28-319(1)(c).

As the Court understands the parties' arguments, that question is dispositive. The defendant argues that all of those alternatives-(a), (b), and (c)-are different ways of committing the crime of first degree sexual assault. Filing 33 at 5-7 (citing United States v. Church, 461 F.Supp.3d 875, 882 (S.D. Iowa, 2020)). And, as a result, the defendant concludes that the statute sweeps more broadly than Tier II. Filing 33 at 6. The government, on the other hand, wants the Court to focus on subsection (c), arguing that it's functionally a separate crime-and, as a result, squarely comparable to a Tier II offense. Filing 45 at 7-9. But the defendant doesn't argue that § 28-319(1)(c), if allowed to stand alone, isn't a Tier II offense. See filing 33. And the government doesn't dispute that § 28-319(1), if considered in its entirety, is overinclusive. See filing 45. In other words, the question of divisibility determines the outcome here.

DIVISIBILITY

The Supreme Court explained in Mathis v. United States 579 U.S. 500, 517 (2016), that:

The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.

(Citation omitted). In that instance, "the court may ask only whether the elements of the state crime and generic offense make the requisite match." Id.

To make this means-or-elements determination, the Court must look to the statute's text and structure, authoritative state court decisions, and the record of the defendant's prior conviction, to determine which words or phrases in the statute are elements of the crime, as opposed to the means or specific facts, of satisfying these elements. United States v....