United States v. Walker

UNITED STATES OF AMERICA, Plaintiff, v. RICHARD WALKER, Defendant.

Case No. 17-CR-184-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

July 6, 2018

ORDER ADOPTING RECOMMENDATION (DKT. NO. 19) AND DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT (DKT. NO. 11)

On December 22, 2017, the defendant filed a motion to dismiss the indictment on the ground it fails to state a crime. Dkt. No. 11. The grand jury charged the defendant with failing to register under 18 U.S.C. §2250(a) of the Sex Offender Registration and Notification Act (SORNA) from June 2016 through July 2017; the defendant argues that he was not required to register during this time. Id. Judge Duffin recommended that this court deny the motion to dismiss. Dkt. No. 19. The defendant objected, dkt. no. 24; the court reviews the motion de novo.

I. Background

In 1997, the state of Colorado charged the defendant with aggravated incest of a person under ten years old; sexual assault on a child—pattern of abuse; sexual assault on a child by a person in a position of trust; and sexual assault onf a child. Dkt. No. 14-1 at 7-12. On November 10, 1998, the defendant pled guilty to sexual assault of a child under Colorado Statute §18-3-405(1). Dkt. Nos. 14 at 3; 14-1 at 1. The state court sentenced him to serve four years' probation; the court revoked his probation in January of 2000, and the defendant served four years in prison. Dkt. No. 14-1 at 1.

Between 2006 and 2013, after moving to Illinois, the defendant was convicted of being a sex offender residing within 500 feet of a school; of aggravated battery; of obstruction; and of failure to register as a sex offender. Dkt. No. 3.

On October 24, 2017, the federal grand jury in this district returned a single-count indictment, alleging that beginning on or about June 19, 2016 and continuing to July 31, 2017, the defendant failed to register as a sex offender under §2250(a). Dkt. No. 1. The defendant made his initial appearance in the District of Minnesota, dkt. no. 2, and appeared before Judge Duffin on November 27, 2017 for arraignment and plea hearing, dkt. no. 4.

The defendant filed a motion to dismiss, arguing that he could not have violated §2250(a), because during the period alleged in the indictment, he was not required to register as a sex offender. Dkt. No. 11. Specifically, the defendant noted that for a person to know how long he must continue to register as a sex offender, he needs to know whether he is classified as a Tier I, Tier II or Tier III offender under SORNA; to answer that question, a court in this circuit must use what is known as the "categorical approach"—comparing the elements of the defendant's original offense of conviction with the elementsof a "generic" federal statute governing similar behavior. Id. at 2. The defendant argued that if the court were to apply the categorical approach in his case, it would conclude that he was a Tier I offender, subject to only a fifteen-year registration period. Id. at 5. The defendant argued that because the failure to register that gave rise to his federal indictment occurred some twenty years after his conviction, he no longer was required to register. Id.

On January 5, 2018, Magistrate Judge Duffin issued a report, recommending that this court grant the defendant's motion because the government had not opposed it. Dkt. No. 13. That same day, the government filed a response (with no explanation as to why the response was a day late). Dkt. No. 14. This court referred the motion back to Judge Duffin so that he could consider whether to accept the government's late response. Dkt. No. 15.

Judge Duffin accepted the response, and on January 29, 2018, issued a recommendation on the merits. Dkt. No. 19. Relying on authority from the Fourth and Tenth Circuits, Judge Duffin concluded that there is a limited exception to the categorical approach that allows courts to look at a particular fact outside of the elements of the offenses—specifically, the age of the victim—to determine the defendant's tier classification under SORNA. Id. at 4-5. Based on the affidavit and application for an arrest warrant filed in the Colorado prosecution, Judge Duffin concluded the government had established that the victims of the state offense were four and six years old. Id. at 5. Consequently, Judge Duffin concluded that the defendant is a Tier III offender, required to register for life. Id. at 6.

II. Federal Procedural Background

A. Standard of Review for Magistrate Judge's Recommendation

Federal Rule of Criminal Procedure 59(b) governs dispositive motion practice initiated before magistrate judgments. Parties have fourteen days to file "specific written objections" to a magistrate judge's report and recommendation on a dispositive motion. Fed. R. Crim. P. 59(b)(2). When reviewing a magistrate's recommendation, the district judge reviews de novo the recommendations of the magistrate judge to which a party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). The court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1).

B. Defendant's Motion to Dismiss

The defendant moved to dismiss the indictment on the ground that, as a Tier I offender, his registry requirement expired in March 2013—three years before the alleged failure to register began. Dkt. No. 24 at 1. He argued that the court must classify him as a Tier I offender, because his prior Colorado conviction was neither comparable to, nor more serious than, the "generic" offenses listed in Tiers II and III. Dkt. No. 11 at 2. The government respondedthat the defendant is "at least" a Tier II offender,¹ required to register for twenty-five years after the date of his conviction. Dkt. No. 14 at 6.

C. Recommendation

Judge Duffin began by agreeing that courts typically use a categorical approach for determining a defendant's SORNA tier status. Dkt. No. 19 at 2 (citing United States v. Taylor, 644 F.3d 573, 576 (7th Cir. 2011)). Following that approach, Judge Duffin compared the Colorado statute under which the defendant had been convicted (Colo. Rev. Stat. §18-3-405(1)) to the federal statute referenced in Tier III—18 U.S.C. §2244. Id. at 3. Judge Duffin found that the two offenses were not categorically identical:

Walker was convicted of violating a Colorado statute that provided: "Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim." Colo. Rev. Stat. § 18-3-405(1). Obviously, the statute Walker was convicted of violating differs from 18 U.S.C. §§ 2241(c) and 2244(a)(5) with respect to the age of the victim. Sexual contact with a person who is at least 12 years old is not prohibited under 18 U.S.C. § 2244(a)(5) but a person could be convicted under the Colorado law for sexual contact with a person who is 12, 13, or 14. Thus, because the Colorado statute proscribes sexual contact with children older than those protected under 18 U.S.C. § 2244(a)(5), the offenses are not categorically identical.

Id.

Although noting that the government had not explained why the court should look to guidelines promulgated by the Attorney General (as it hadurged him to do), nor cited any cases supporting its position that the court should look beyond the statutory elements to consider the victim's age, he nevertheless did so. In taking this approach, Judge Duffin followed the lead of the Fourth and Tenth Circuits. Id. at 4. Each of these circuits applied the categorical approach, but allowed the lower court to consider the specific circumstances of the underlying conviction for the limited purpose of determining the victim's age. Id. at 4 (citing United States v. White, 782 F.3d 1118, 1133, 1134-35 (10th Cir. 2015) and United States v. Berry, 814 F.3d 192, 197 (4th Cir. 2016)). Judge Duffin discussed the rationale of this limited exception to the categorical approach over the circumstance-specific approach—the fact that determining age (unlike comparing the evidence underlying past convictions) is a "'straightforward and objective' inquiry that 'involves the inspection of a single threshold fact.'" Id. at 5.

In recommending that this court deny the motion to dismiss, Judge Duffin looked to the age of the defendant's victims, found in the underlying affidavit and application for arrest warrant supporting the Colorado conviction. Id. Because the victims were four and six years old, Judge Duffin determined that the defendant is a Tier III sex offender who committed abusive sexual contact against a minor who has not attained the age of thirteen years, 34 U.S.C. §20911(4)(A)(ii), and who thus was required to register for life, 34 U.S.C. §20915(a)(3). Id. at 6. He vacated his prior recommendation, and recommended to this court that it deny the motion to dismiss. Id.

D. Defendant's Objection

In his objection, the defendant argued that Judge Duffin had "supplement[ed]" the categorical approach by making a factual inquiry into the victims' ages. Dkt. No. 24 at 1-2. He argued that in doing so, Judge Duffin had violated Supreme Court and Seventh Circuit precedent, both of which require lower courts to conduct a purely categorical analysis. Id. (citing Taylor, 644 F.3d at 576; Descamps v. United States, 570 U.S. 254 (2013)). The defendant also argued that the recommendation's factual findings were based on nothing more than the arrest warrant affidavit submitted by the government. Id. at 5.

III. Analysis

Section 2250 makes it a federal crime for any "sex offender" who is required to register under SORNA, and who travels in interstate or foreign commerce, to knowingly fail to register or update his registration. 18 U.S.C. §2250(a). Sex offenders must register in the jurisdictions in which they live, work and go to school no later than three days after changing their name,...