In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2385 UNITED STATES OF AMERICA, Plaintiff-Appellant, v.
THOMAS P. THAYER, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 20-cr-88 — James D. Peterson, Chief Judge. ____________________
ARGUED MARCH 29, 2022 — DECIDED JULY 21, 2022 ____________________
Before FLAUM, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges. ST. EVE, Circuit Judge. Appellant Thomas Thayer pled guilty to fourth-degree criminal sexual conduct under Minne- sota law for groping his 14-year-old daughter while she slept. When Thayer later moved to Wisconsin without registering as a sex offender, the government indicted him for failing to comply with the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20901, et seq., in violation of 18 2 No. 21-2385
U.S.C. § 2250(a). The district court dismissed the indictment, finding § 20911(5)(A)(ii), applied through § 20911(7)(I), and § 20911(5)(C) of SORNA were categorically misaligned with Thayer’s Minnesota statute of conviction. The government ap- peals, arguing the district court erred in analyzing these pro- visions of SORNA under the categorical method. We agree with the government and vacate and remand the judgment of the district court. I. A. Before delving into the factual and procedural back- ground, we review a few relevant legal principles. SORNA establishes a comprehensive national system of registration for sex offenders, the purpose of which is to “pro- tect the public from sex offenders and offenders against chil- dren.” Id. § 20901. SORNA defines a “sex offender” as “an in- dividual who was convicted of a sex offense.” Id. § 20911(1). “Sex offense” in turn encompasses both “a criminal offense that has an element involving a sexual act or sexual contact with another” and “a criminal offense that is a specified of- fense against a minor.” Id. § 20911(5)(A)(i)–(ii). As relevant to the latter definition of “sex offense,” a “specified offense against a minor” includes “an offense against a minor that in- volves … [a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I). Certain categories of consensual sexual conduct are exempted from the definition of “sex offense,” specifically “if the victim was an adult, un- less the adult was under the custodial authority of the of- fender 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 No. 21-2385 3
than the victim.” Id. § 20911(5)(C). The clause of § 20911(5)(C) relating to consensual sex between minors is colloquially re- ferred to as the “Romeo and Juliet” exception. SORNA obli- gates sex offenders to register as such in each state in which they reside, work, or are a student. Id. § 20913(a). Although itself a civil regulatory scheme, noncompliance with SORNA is a crime under 18 U.S.C. § 2250. Criminal lia- bility under § 2250 turns upon whether a prior conviction constitutes a “sex offense” within the meaning of SORNA. Answering this question requires courts to examine the un- derlying conviction and determine whether it satisfies SORNA’s statutory definition. The Supreme Court has iden- tified three analytical frameworks to guide the lower courts, and to limit the universe of materials upon which they may rely, in making this determination. The first and the second—the formal categorical approach and the modified categorical approach—require courts to ig- nore the defendant’s actual conduct and “look solely to whether the elements of the crime of conviction match the el- ements of the federal [ ] statute.” Gamboa v. Daniels, 26 F.4th 410, 415 (7th Cir. 2022) (internal quotations omitted); see also Shular v. United States, 140 S. Ct. 779, 783 (2020). Only where “the elements of the state law mirror or are narrower than the federal statute can the prior conviction qualify as a predicate … offense.” Gamboa, 26 F.4th at 415 (internal quotations omit- ted). By contrast, the third method, the circumstance-specific approach, focuses on the facts—not the elements—of a prior conviction. Courts applying the circumstance-specific ap- proach “look[] to ‘the specific way in which an offender com- mitted the crime on a specific occasion’ to determine whether 4 No. 21-2385
the prior conviction qualifies as a predicate offense under the federal statute at issue.” United States v. Elder, 900 F.3d 491, 498 (7th Cir. 2018) (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)). B. Now to the specifics of this appeal. In a November 2003 criminal complaint, minor J.B. accused her father, appellant Thomas Thayer, of molesting her when she was 14 years old. According to J.B., she and Thayer fell asleep after a Christmas party in 2001. J.B. awoke to find her bra unhooked, her pants and underwear pulled aside, and Thayer touching her vagina. Upon noticing J.B. waking up, Thayer rolled over and went to sleep. During a subsequent law enforcement interview, Thayer admitted he was drunk on the night in question, “[found] himself in a bad position” with his daughter, and must have mistaken J.B. for his wife. Thayer ultimately pled guilty to fourth-degree criminal sexual conduct under Minne- sota law. Minn. Stat. § 609.345(1)(b). Thayer was sentenced to 33 months’ imprisonment (stayed for 10 years) and 10 years’ probation and was required by Minnesota law to register as a sex offender for 10 years. Minn. Stat. §§ 243.166(1)(a)(i)(iii), 243.166(6)(a). Thayer moved to Wisconsin sometime between August 2017 and February 2020. Thayer did not register as a sex of- fender in Wisconsin. On July 9, 2020, the government indicted Thayer for failing to register as a sex offender as required by SORNA. Thayer moved to dismiss the indictment, arguing his Minnesota conviction did not qualify as a “sex offense” trig- gering an obligation to register. Applying a categorical analy- sis to the definition of “sex offense” under 34 U.S.C. § 20911(5)(A)(i) and to the Romeo and Juliet exception housed No. 21-2385 5
in 34 U.S.C. § 20911(5)(C), Thayer identified a mismatch be- tween SORNA and the Minnesota statute underlying his con- viction. In a January 4, 2021 report, the magistrate judge recom- mended granting Thayer’s motion to dismiss the indictment. Apparently looking to § 20911(5)(A)(i), the magistrate judge applied a categorical analysis and determined there was a mismatch between the Minnesota statute and SORNA’s defi- nition of “sexual contact.” While the magistrate judge also identified an “elemental distinction” between the Minnesota statue and SORNA’s Romeo and Juliet exception, he ques- tioned whether that distinction satisfied the realistic probabil- ity of application threshold. The government objected to the magistrate judge’s recommendation, reiterating its views that (1) the court should look to § 20911(5)(A)(ii) to define sex of- fense and that (2) § 20911(5)(C) and §§ 20911(5)(A)(ii) and (7)(I) should be analyzed under a circumstance-specific method. The district court overruled the government’s objections and, while it disagreed with the magistrate judge’s analysis, accepted the report’s ultimate conclusion. The district court held § 20911(5)(A)(ii), operating through § 20911(7)(I), pro- vided the relevant definition of “sex offense” under SORNA—not, as Thayer suggested, § 20911(5)(A)(i). None- theless, the district court agreed § 20911(5)(A)(ii), applied through § 20911(7)(I), and the § 20911(5)(C) Romeo and Juliet exception called for a categorical approach and were misa- ligned with the Minnesota statute of conviction. The district court dismissed the indictment against Thayer on June 29, 2021. 6 No. 21-2385
II. The government raises two narrow issues on appeal. First, the government contends the district court erred in analyzing § 20911(5)(A)(ii), as applied through § 20911(7)(I), under a categorical method. Second, the government claims the dis- trict court’s application of a categorical approach to the Ro- meo and Juliet exception in § 20911(5)(C) runs afoul of United States v. Rogers, 804 F.3d 1233 (7th Cir. 2015), which requires a circumstance-specific approach. Determining whether a federal statute calls for a categori- cal or circumstance-specific approach is a question of statu- tory interpretation. United States v. Davis, 139 S. Ct. 2319, 2327 (2019). We review a district court’s interpretation of a federal statute de novo. White v. United Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021). As with any issue of statutory interpretation, we begin with the text, attending also to the structure of the statute as a whole and any relevant legislative history. Nijhawan, 557 U.S. at 36–40; see also Taylor v. United States, 495 U.S. 575, 600–01 (1990). Next, we consider any potential constitutional impli- cations arising from applying a circumstance-specific analy- sis. Descamps v. United States, 570 U.S. 254, 267 (2013). Finally, we examine the “practical difficulties and potential unfair- ness” of the circumstance-specific approach. Taylor, 495 U.S. at 601–02. A. 1. For the purposes of SORNA, a “sex offender” is “an indi- vidual who was convicted of a sex offense.” 34 U.S.C. § 20911(1). “Sex offense” is a defined term meaning: No. 21-2385 7
(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. § 20911(5)(A) (emphasis added). A “specified offense against a minor” is itself defined to mean: [A]n offense against a minor that involves any of the following: (A) An offense (unless committed by a parent or guardian) involving kidnapping. (B) An offense (unless committed by a parent or guard- ian) involving false imprisonment. (C) Solicitation to engage in sexual conduct. (D) Use in a sexual performance. (E) Solicitation to practice prostitution. (F) Video voyeurism as described in section 1801 of Ti- tle 18. (G) Possession, production, or distribution of child pornography. (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct. (I) Any conduct that by its nature is a sex offense against a minor. Id. § 20911(7) (emphasis added). This appeal requires us to evaluate whether the definition of “sex offense” in § 20911(5)(A)(ii), as applied through § 20911(7)(I)—not §20911(5)(A)(ii) broadly—is analyzed 8 No. 21-2385
under a categorical approach or the circumstance-specific ap- proach. This is an issue of first impression in this circuit. Every other court of appeals to consider this question—the Fourth, Eighth, Ninth, and Eleventh Circuits—has concluded the circumstance-specific approach applies. United States v. Dailey, 941 F.3d 1183 (9th Cir. 2019); United States v. Hill, 820 F.3d 1003 (8th Cir. 2016); United States v. Price, 777 F.3d 700 (4th Cir. 2015); United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010). We join our sister circuits and hold that § 20911(5)(A)(ii), as applied through § 20911(7)(I), demands a circumstance-specific analysis. The text of SORNA, with its layered, cascading defini- tions, is not a model of clarity. The word “offense” on its own may refer either to “a generic crime” or to “the specific acts in which an offender engaged on a specific occasion.” Davis, 139 S. Ct. at 2328 (quoting Nijhawan, 557 U.S. at 33–34). The mean- ing of “offense” depends upon its context within the sur- rounding statutory language. See id. The text of §§ 20911(5)(A)(ii) and (7)(I) makes clear “offense” refers to the “specific acts in which an offender engaged on a specific oc- casion.” Id. As noted, § 20911(7)(I) provides that a “specified offense against a minor” means an “offense” against a minor that involves “[a]ny conduct that by its nature is a sex offense against a minor.” Thus, whether a given “offense” constitutes a “sex offense” under §§ 20911(5)(A)(ii) and (7)(I) turns upon the “nature” of the “conduct” that “offense” “involve[d].” 34 U.S.C. § 20911(7)(I). Explicit focus on the “conduct” underly- ing the prior offense, as opposed to the elements of that of- fense, refers to the specific circumstances of how a crime was committed, not to a generic offense. See Nijhawan, 557 U.S. at 37–39; see also Sessions v. Dimaya, 138 S. Ct. 1204, 1218 (2018). The term “by its nature”—which typically denotes No. 21-2385 9
something’s “normal and characteristic quality” or “basic or inherent features”—reinforces this conclusion. Davis, 139 S. Ct. at 2329 (internal quotations omitted). Section 20911(7)(I) directs courts to evaluate the nature of an individual’s conduct, not the nature of an offense or of a conviction. This grammatical structure distinguishes § 20911(7)(I) from 18 U.S.C. § 16(b), the statute at issue in Leocal v. Ashcroft, 543 U.S. 1 (2004) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and from 18 U.S.C. § 924(c)(3)(B), the statute at issue in United States v. Davis, 139 S. Ct. 2319 (2019). See Da- vis, 139 S. Ct. at 2329 (describing “the language of § 924(c)(3)(B) [a]s almost identical to the language of § 16(b)”). Section 16(b) defines a “crime of violence” as, in relevant part, an “offense that … by its nature[] involves a substantial risk” of the application of physical force. 18 U.S.C. § 16(b). The Su- preme Court held a categorical analysis applied, observing the term “by its nature” modified “offense” and concluding the provision “requires us to look to the elements and the na- ture of the offense of conviction, rather than to the particular facts relating to the petitioner’s crime.” Leocal, 543 U.S. at 7; see also Davis, 139 S. Ct. at 2329; Dimaya, 138 S. Ct. at 1217. While SORNA’s highest-level definition of “sex offender” in § 20911(1) refers to a conviction—a term typically signifying a “crime as generally committed” and a categorical analysis— it is furthest in terms of proximity from the language of the specific sections at issue. Dimaya, 138 S. Ct. at 1217 (cleaned up); see also, e.g., Taylor, 495 U.S. at 600–01. Whatever trivial ambiguity created by the use of “convicted” in § 20911(1) is consistently resolved in favor of a circumstance-specific anal- ysis by the plain text of §§ 20911(5)(A)(ii) and (7)(I). Dailey, 941 F.3d at 1193. 10 No. 21-2385
The juxtaposition of § 20911(5)(A)(i) and § 20911(5)(A)(ii) strengthens this conclusion. Section 20911(5)(A)(i) defines sex offense as “a criminal offense that has an element involving a sexual act or sexual contact with another.” 34 U.S.C. § 20911(5)(A)(i) (emphasis added). It refers explicitly to the “elements” of a crime in its definition of a sex offense, point- ing conclusively to a categorical analysis. United States v. Tay- lor, No. 20-1459, slip op. at 4 (U.S. Jun. 21, 2022); Rogers, 804 F.3d at 1237. Section 20911(5)(A)(ii), in contrast, does not men- tion the elements of a crime. Instead, it defines a sex offense as “a criminal offense that is a specified offense against a mi- nor.” 34 U.S.C. § 20911(5)(A)(ii). Congress was clearly capable of tethering the definition of “sex offense” to the elements of a crime but elected not to do so in § 20911(5)(A)(ii). “We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to ap- ply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigr. & Cus- toms Enf’t, 543 U.S. 335, 341 (2005). SORNA’s legislative history and purpose support a cir- cumstance-specific approach to §§ 20911(5)(A)(ii) and (7)(I). SORNA’s predecessor, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071 et seq. (1994 ed.) (the “Wetterling Act”), condi- tioned federal funding to the states upon adoption of sex of- fender registration laws. 1 Id. § 14071(g)(2); Gundy v. United
1 Thayer points to structural and linguistic similarities between the Wet- terling Act’s definition of “criminal offense against a victim who is a mi- nor” and SORNA’s definition of “specified offense against a minor” to suggest both refer to categories of criminal offenses, meaning No. 21-2385 11
States, 139 S. Ct. 2116, 2121 (2019). Congress quickly realized the Wetterling Act did not achieve the desired effect and passed SORNA as a “comprehensive bill to address the grow- ing epidemic of sexual violence against children” to “address loopholes and deficiencies” created by the resultant patch- work of inconsistent and varied state registration laws. H.R. Rep. No. 109-218 at 22 (2005). Of particular concern to Con- gress were “missing” or “lost” sex offenders who evaded reg- istration requirements. Gundy, 139 S. Ct. at 2121. Congress
§§ 20911(5)(A)(ii) and (7)(I) must be analyzed categorically. Compare 34 U.S.C. § 20911(7), with 42 U.S.C. § 14071(a)(3)(A). The dissent, too, points to § 14071(a)(3)(A)’s broad characterization of “criminal offense against a victim who is a minor” as “any criminal offense in a range of offenses specified by State law which is comparable to or exceeds” the subsequent enumerated offenses as evidence the Wetterling Act demanded a categor- ical analysis and §§ 20911(5)(A)(ii) and (7)(I) require the same treatment. Thayer and the dissent disregard the Wetterling Act’s and SORNA’s dis- tinct structure and functions. Unlike SORNA, the Wetterling Act did not itself form the basis of independent criminal liability. Instead, the Wetter- ling Act merely established minimum conditions state registration laws had to meet to receive federal funding. Gundy, 139 S. Ct. at 2121. There was no reason to analyze, categorically or otherwise, whether a prior con- viction constituted a “criminal offense against a victim who is a minor,” so the statutory language upon which the dissent relies does not bear the desired weight. It is entirely unsurprising, then, that Thayer fails to point to any precedent suggesting § 14071(a)(3)(A) itself was analyzed categor- ically. It is true that, as a general matter, “when statutory language ‘‘is obviously transplanted from … other legislation,’’ we have reason to think ‘‘it brings the old soil with it.’’” Davis, 139 S. Ct. at 2331 (quoting Sekhar v. United States, 570 U.S. 729, 733 (2013)). When drafting § 20911(7), however, Congress expressly omitted the portion of § 14071(a)(3)(A) cited by the dissent. Even if we are to understand § 14071(a)(3)(A) amounted to a leg- islative preference for a categorical analysis of the Wetterling Act (and we are not convinced), Congress elected to leave this “soil” in the past when drafting § 20911(7). 12 No. 21-2385
intended, then, to fashion a wide net ensnaring as many child sex offenders as possible. See id. Accordingly, the declared purpose of SORNA is to “protect the public from … offenders against children.” 34 U.S.C. § 20901. Sections 20911(5) and 20911(7) are framed as expansions of the definitions of “sex offense” and “specified offense against a minor,” respec- tively. 34 U.S.C. §§ 20911(5), (7). The legislative record sug- gests Congress intended §§ 20911(5)(A)(ii) and (7)(I) to apply to a broad range of conduct by child predators. Thayer directs our attention to the Department of Justice’s regulations implementing SORNA, which favor a categorical approach to §§ 20911(5)(A)(ii) and (7)(I). See Office of the At- torney General, National Guidelines for Sex Offender Regis- tration and Notification, 73 Fed. Reg. 38,030, 38,052 (Jul. 2, 2008) [the SMART Guidelines]. Chevron deference to agency interpretations of federal statutes is warranted only where the tools of statutory construction fail to reveal a clear meaning, and Thayer concedes that is not the case here. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). Consequently, we decline to accord the SMART Guidelines interpretive weight. Whatever the preference of the Depart- ment of Justice, the text of §§ 20911(5)(A)(ii) and (7)(I) con- trols: a circumstance-specific analysis applies. See, e.g., Dailey, 941 F.3d at 1190–93; Hill, 820 F.3d at 1006; Price, 777 F.3d at 709 n.9. Applying a circumstance-specific analysis to §§ 20911(5)(A)(ii) and (7)(I) does not implicate the same prac- tical and Sixth Amendment concerns present in other con- texts. Where a defendant’s punishment may be increased based on facts not found by a jury, such as when dealing with sentencing enhancements or mandatory minimums, the Sixth No. 21-2385 13
Amendment often compels a categorical approach. See Davis, 139 S. Ct. at 2327; Descamps, 570 U.S. at 269–70. Even applying the circumstance-specific approach, the government bears the burden of proving beyond a reasonable doubt the defendant was previously convicted of a sex offense under SORNA, an essential element of § 2250(a). If Thayer elects to go to trial, he is entitled to put the government to its burden before a jury. Should Thayer decide to plead guilty, he will concede the el- ements of § 2250(a) and waive his Sixth Amendment right to a jury determination of same. Descamps, 570 U.S. at 269–70. Thayer points to various practical difficulties under the circumstance-specific approach in determining whether the factual circumstances underlying his Minnesota conviction constitute a sex offense. Again, the government bears the bur- den of proving, beyond a reasonable doubt, Thayer is a sex offender. Any practical difficulties in meeting this threshold, evidentiary or otherwise, favor Thayer. See Nijhawan, 557 U.S. at 42 (“[S]ince the Government must show the amount of loss by clear and convincing evidence, uncertainties created by the passage of time are likely to count in the alien’s favor.”). The dissent is concerned about the possibility of a defendant ad- mitting to underlying conduct when pleading guilty to a state crime being held to his affirmation under oath in a subsequent SORNA proceeding. Of course, pleading guilty and avoiding the uncertainty of a trial generally presents benefits to both defendants and the government. The chance a defendant may later regret his decision to avail himself of these advantages or realize he misjudged the consequences does not alter our assessment of whether a categorical or circumstance-specific analysis applies to these provisions of SORNA. 14 No. 21-2385
Like the Fourth, Eighth, Ninth, and Eleventh Circuits, we conclude § 20911(5)(A)(ii), as applied through § 20911(7)(I), must be analyzed under the circumstance-specific method. 2. The foregoing analysis is fully consistent with the Su- preme Court’s precedent in Taylor v. United States, 495 U.S. 575 (1990) (and its progeny, Johnson v. United States, 576 U.S. 591 (2015) 2) and our precedent in United States v. Walker, 931 F.3d 576 (7th Cir. 2019). In Taylor, the Supreme Court ana- lyzed § 924(e)(2)(B)(ii) of the Armed Career Criminal Act (“ACCA”), which provides for sentencing enhancements for those with “three previous convictions … for a violent fel- ony.” 18 U.S.C. § 924(e)(1). ACCA defines the term “violent felony” to mean “any crime punishable by imprisonment for a term exceeding one year … that” “is burglary, arson, or ex- tortion, involves use of explosives, or otherwise involves con- duct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This provision of ACCA shares rough parallels with the provisions of SORNA at issue here: § 20901(1) and § 924(e)(1) both refer to convictions and § 20911(7) and § 924(e)(2)(B)(ii) both deal with crimes or of- fenses that involve specific conduct. Despite the superficial similarity between §§ 20911(5)(A)(ii) and (7)(I) and § 924(e)(2)(B)(ii), however, Taylor’s application of a
2 Johnson briefly summarizes and reiterates the Supreme Court’s holding and reasoning in Taylor. 576 U.S. at 596, 604–05. Ultimately, Johnson exam- ines whether § 924(e)(2)(B)(ii)’s residual clause is unconstitutionally vague, holding it is. Id. at 597–606. For our purposes, Johnson presents little additional analytical value. Taylor provides the relevant precedent for in- terpreting § 924(e)(2)(B)(ii). No. 21-2385 15
categorical analysis to the latter does not mandate similar treatment for the former. First, unlike § 20911(7)(I), § 924(e)(2)(B)(ii) includes a list of generic crimes, such as burglary, arson, and extortion. The Supreme Court determined these generic crimes demanded generic treatment. Taylor, 495 U.S. at 589–90, 600–01. By con- trast, while other portions of § 20911(7) refer to generic crimes—such as solicitation in § 20911(7)(E) or voyeurism un- der 18 U.S.C. § 1801 in § 20911(7)(F)—§ 20911(7)(I) addresses specific conduct alone. While the dissent considers this struc- tural distinction (which it omits from its chart comparing the two statutes) insignificant and urges us to disregard it and treat the two statutes similarly, we are limited to considering the statute as drafted by Congress. Unlike § 924(e)(2)(B)(ii), when drafting § 20911(7), Congress separated generic crimes and specific conduct into isolated subsections, and we must interpret § 20911(7)(I) accordingly. Second, ACCA’s legisla- tive history unequivocally demonstrates “the enhancement provision has always embodied a categorical approach to the designation of predicate offenses.” Id. at 588–89, 601. As pre- viously discussed, SORNA’s legislative history points deci- sively in the opposite direction. Third, applying a circum- stance-specific analysis to a sentencing enhancement raises practical difficulties and Sixth Amendment concerns that are not at issue when dealing with SORNA. Id. at 601–02; see also Johnson, 576 U.S. at 605. In Walker, we concluded the Tier II and Tier III provisions in §§ 20911(3)–(4) of SORNA—which determine how long a sex offender must register—require a hybrid categorical and circumstance-specific analysis. 931 F.3d at 580. Tier classifica- tions differ from the definition of “sex offender” in several 16 No. 21-2385
crucial respects that render Walker inapplicable in this case. Unlike §§ 20911(5)(A)(ii) and (7)(I), SORNA’s tiering provi- sions instruct the court to compare a predicate offense to enu- merated federal crimes. 34 U.S.C. §§ 20911(3)–(4). This com- pels a categorical approach. Walker, 931 F.3d at 579–80. More- over, we did not conclude a hybrid approach applies through- out SORNA or preclude an entirely circumstance-specific in- quiry in a different section of the statute. Sections 20911(5)(A)(ii) and 20911(7)(I) are wholly distinct from §§ 20911(3)–(4). Finally, the tiering provisions come into play only after a jury finds beyond a reasonable doubt a defendant committed a sex offense or after a defendant admits as much in a guilty plea. Thayer therefore overreads Walker. B. SORNA’s Romeo and Juliet exception excludes from the definition of “sex offense” consensual sex where “the victim was at least 13 years old and the offender was not more than 4 years older than the victim.” 34 U.S.C. § 20911(5)(C). The Minnesota statute under which Thayer was convicted crimi- nalizes sexual conduct both where (1) “the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant” and where (2) “the ac- tor is … in a current or recent position of authority over the complainant.” Minn. Stat. § 609.345(1)(b). Applying a categor- ical analysis to SORNA’s Romeo and Juliet exception, the dis- trict court held that, because Minnesota criminalizes sex where one actor is in a position of authority over the other irrespective of the age differential between the two, the Ro- meo and Juliet exception and the Minnesota statute are cate- gorically misaligned. No. 21-2385 17
The district court’s analysis runs headlong into our prece- dent in Rogers, which held § 20911(5)(C) requires a circum- stance-specific approach. 804 F.3d at 1237. Indeed, in a subse- quent, unrelated case over which he presided, the district judge appears to have realized his error. See Harder v. United States, No. 21-cv-188-jdp, 2021 WL 3418958, at *6 & n.2 (W.D. Wis. Aug. 5, 2021) (noting “the SORNA carve-out for a close- in-age defendant does not call for categorical analysis” which “is a point that I missed in my decision in Thayer”). On appeal, Thayer asks us to overrule Rogers and find § 20911(5)(C) calls for a categorical analysis. We decline Thayer’s invitation, both because the holding in Rogers is correct and because doing so would compound the error by creating a direct circuit split with the Fifth Circuit. See United States v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014). Section 20911(5)(C) delineates the Romeo and Juliet excep- tion based on “offense[s] involving … conduct.” 34 U.S.C. § 20911(5)(C). As noted above, depending on the context of the statute and the surrounding language, “offense” may re- fer either to “a generic crime” or to “the specific acts in which an offender engaged on a specific occasion.” Davis, 139 S. Ct. at 2328 (quoting Nijhawan, 557 U.S. at 33–34). The Romeo and Juliet exception’s focus on conduct, as opposed to elements, indicates “offense” refers to specific acts instead of to a ge- neric crime. See Dimaya, 138 S. Ct. at 1218; Nijhawan, 557 U.S. at 37–39; see also Rogers, 804 F.3d at 1237. The subsequent string of granular, fact-based qualifiers reinforces this conclu- sion. Section 20911(5)(C) applies only “‘if the victim was an adult,’ ‘unless the adult was under the custodial authority of the offender at the time of the offense,’ ‘if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.’” Rogers, 804 F.3d at 1237 (quoting 18 No. 21-2385
§ 20911(5)(C)) (emphasis in original). These modifiers refer to the specific, individualized facts and circumstances of an of- fense, not the general elements. In United States v. Gonzalez- Medina, which predates Rogers, the Fifth Circuit reached the same conclusion based on much the same reasoning. 757 F.3d at 428–32. Thayer suggests subsequent Supreme Court decisions in Mathis v. United States, 579 U.S. 500 (2016), Dimaya, and Shular v. United States, 140 S. Ct. 779 (2020) compel the opposite re- sult. These cases offer little relevant guidance on determining whether § 20911(5)(C) requires a circumstance-specific ap- proach at the outset and alter neither our analysis nor our ul- timate conclusion. Both Mathis and Shular deal with provi- sions of ACCA already established to operate under a cate- gorical framework and analyze, instead, which of the two po- tential categorical methods (formal or modified) applies. Shu- lar, 140 S. Ct. at 783–84; Mathis, 579 U.S. at 506–07. The text of the ACCA provisions at issue in Mathis and Shular— § 924(e)(2)(B)(ii) and § 924(e)(2)(A)(ii), respectively—differ materially from § 20911(5)(C). Neither includes a list of fac- tual qualifiers to the degree of specificity and nuance seen in § 20911(5)(C). Indeed, § 924(e)(2)(B)(ii)—thoroughly ana- lyzed in Taylor and discussed above—enumerates a series of generic offenses. Similarly, Dimaya analyzes the definition of “crime of violence” in § 16(b), which focuses on the nature of the offense. Dimaya, 138 S. Ct. at 1217; see also Leocal, 543 U.S. at 7. Section 20911(5)(C), on the other hand, places conduct at the forefront of the analysis. We affirm our prior holding in Rogers; the text of § 20911(5)(C) compels a circumstance-specific analysis. No. 21-2385 19
III. For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings con- sistent with this opinion. 20 No. 21-2385
JACKSON-AKIWUMI, Circuit Judge, dissenting. The issue pre- sented in this case is a close one; both sides have good argu- ments. The majority opinion thoroughly lays out the best rea- sons for adopting the government’s position. Ultimately, however, I disagree with my colleagues’ conclusion that 34 U.S.C. § 20911(7)(I) calls for a circumstance-specific approach. As I see it, only when read in isolation does subsection (7)(I)’s reference to “conduct” suggest that courts should look at the underlying facts of a prior conviction. When viewed in con- text with the rest of the statute, the Sex Offender Registration and Notification Act’s definition for “specified offense against a minor” closely mirrors other statutes that the Supreme Court has held require a categorical approach. And although I recognize that my reading of the statute would create a cir- cuit split, I disagree with the opinions of our sister circuits for the same reasons that I disagree with the majority opinion. In particular, I see stronger parallels than the majority opinion does between § 20911(7)(I) and the residual clause of the Armed Career Criminal Act’s definition for “violent fel- ony.” See 18 U.S.C. § 924(e)(2)(B)(ii); Johnson v. United States, 576 U.S. 591, 604 (2015) (holding that residual clause is cate- gorical). Both provisions are part of cascading statutory defi- nitions. Both statutes start with a reference to the defendant’s prior convictions, before laying out different definitions for the qualifying convictions. And in defining the relevant of- fenses, both § 20911(7)(I) and § 924(e)(2)(B)(ii) refer to the of- fender’s “conduct.” Indeed, the relevant sections of each stat- ute are strikingly similar: No. 21-2385 21
34 U.SC. § 20911 18 U.S.C. § 924(e) Reference “The term ‘sex of- Mandatory mini- to prior con- fender’ means an in- mum applies to any victions dividual who was offender who “has convicted of a sex of- three previous con- fense.” 34 U.S.C. victions . . . for a vio- § 20911(1) (emphasis lent felony or a seri- added). ous drug offense.” 18 U.S.C. § 924(e)(1) (emphasis added). Relevant Sex offense includes “[T]he term ‘violent subsection “an offense against a felony’ means any defining minor that involves [felony] crime . . . that those prior . . . [a]ny conduct that . . . involves conduct convictions by its nature is a sex that presents a seri- offense against a mi- ous potential risk of nor.” 34 U.S.C. physical injury to an- § 20911(5)(A)(ii) and other.” 18 U.S.C. (7)(I) (emphasis § 924(e)(2)(B)(ii) (em- added). phasis added).
Beyond the provisions at issue here and in Johnson, the statutes have additional similarities. Just as a categorical in- terpretation of § 924(e)(2)(B)(ii) is consistent with the categor- ical approach used elsewhere in the ACCA, see Taylor v. United States, 495 U.S. 575, 600–01 (1990), a categorical inter- pretation of § 20911(7)(I) is consistent with the categorical ap- proach used by other parts of SORNA. We have said that the definition of “sex offense” used in § 20911(5)(A)(i) is categor- ical, United States v. Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015), 22 No. 21-2385
as are the definitions for “Tier II” and “Tier III” sex offender used in § 20911(3) and (4), United States v. Walker, 931 F.3d 576, 581 (7th Cir. 2019) (adopting hybrid approach that starts with categorical method). Sections 20911(5)(A)(iii) and (iv) likewise use a categorical approach because they instruct courts to compare a predicate offense to enumerated federal and military crimes. The only outlier is § 20911(5)(C)’s “Ro- meo and Juliet” provision, which I agree with the majority opinion refers to underlying conduct. But that provision re- fers to an exception that applies only after a court has already concluded that a prior conviction qualifies as a sex offense. See Rogers, 804 F.3d at 1237. It would be odd for Congress to require the categorical approach for all definitions of “sex of- fense” found in § 20911 except for “specified offense against a minor” under § 20911(5)(A)(ii). See United States v. Davis, 139 S. Ct. 2319, 2328 (2019) (assuming that the word “offense” in § 924(c)(3) carries the same meaning throughout that subsec- tion). Other textual markers that the majority opinion insists are evidence of a circumstance-specific approach for § 20911(7)(I) are also present in § 924(e)(2)(B). The majority opinion em- phasizes that a different subsection of SORNA, § 20911(5)(A)(i), explicitly defines “sex offenses” to include offenses with an “element” involving a sexual act. Thus, my colleagues believe, Congress’s exclusion of similar language in § 20911(5)(A)(ii) and (7)(I) should be seen as a conscious decision to eschew the categorical method. But the same ar- gument could be made about § 924(e)(2)(B)(ii). Compare 18 U.S.C. § 924(e)(2)(B)(i) (defining violent felony to include of- fenses with an “element” of force) with id. § 924(e)(2)(B)(ii) (lacking any reference to “elements”). Yet the Supreme Court still concluded that the latter provision required a categorical No. 21-2385 23
approach, despite the absence of elemental language Con- gress put elsewhere in the statute. Johnson, 576 U.S. at 604; Taylor, 495 U.S. at 600. The majority opinion also notes that, unlike § 20911(7)(I), section 924(e)(2)(B)(ii) includes several generic crimes that re- quire a categorical approach. (In full, the statute defines vio- lent felony to include any conviction that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical in- jury to another.”) But again, no meaningful distinction be- tween the two statutes exists. Subsection (7)(I) is only one clause of § 20911(7), which like § 924(e)(2)(B)(ii) enumerates several generic offenses like solicitation and voyeurism. The only difference is that Congress chose to enumerate the of- fenses in § 20911(7) with the letters (A) through (I) instead of separating them with commas. I do not see this difference as significant, mainly because the Supreme Court already re- jected the explanation that § 924(e)(2)(B)(ii) requires a cate- gorical approach only because of the presence of generic of- fenses. Johnson, 576 U.S. at 604. Although Johnson was primarily about whether the resid- ual clause was unconstitutionally vague, Justice Alito’s dis- sent urged the Court to save the provision by jettisoning the categorical method and adopting a circumstance-specific ap- proach. In response, the Court carefully explained why the residual clause required a categorical approach apart from the clause’s proximity to the enumerated generic offenses: Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the re- sidual clause than to the enumerated crimes. Taylor explained that the relevant part of the 24 No. 21-2385
Armed Career Criminal Act “refers to ‘a person who … has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U.S., at 600. This emphasis on convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been con- victed of crimes falling within certain catego- ries, and not to the facts underlying the prior convictions.” Ibid. Taylor also pointed out the ut- ter impracticability of requiring a sentencing court to reconstruct, long after the original con- viction, the conduct underlying that conviction. For example, if the original conviction rested on a guilty plea, no record of the underlying facts may be available. “[T]he only plausible inter- pretation” of the law, therefore, requires use of the categorical approach. Id., at 602. Id. at 604. My colleagues believe that on the topic of the categorical method, Johnson provides little analytical value beyond what the Court already said in Taylor. But I do not read the passage quoted above as superfluous. The Court’s rejection of the cir- cumstance-specific approach was necessary to its holding be- cause it had to explain why it refused to abandon the categor- ical method even when doing so would have allowed the Court to avoid an unconstitutional interpretation. See id. at 631–32 (Alito, J., dissenting) (collecting authorities describing canon of constitutional avoidance); United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (defining dictum as state- ments that are “unnecessary to the decision” or “could have No. 21-2385 25
been deleted without seriously impairing the analytical foun- dations of the holding”). Because Johnson holds that the resid- ual clause requires a categorical approach, we should assume that the Supreme Court would say the same about the text in § 20911(7)(I). In addition to the text of the statute, the majority opinion reasons that a circumstance-specific approach is supported by (1) SORNA’s legislative history and (2) the lack of practical and Sixth Amendment concerns present in other contexts. I disagree with the majority opinion’s analysis on both grounds. First, the legislative history is, at best, ambiguous. True, Congress intended SORNA to cast a “wide net.” Ante at 11. But even the most expansive interpretation of a statute must have clear delineations; a criminal law that “fails to give ordi- nary people fair notice of the conduct it punishes” is “stand- ardless.” Johnson, 576 U.S. at 595. And here, Congress lifted § 20911(7)(I) from a list of enumerated offenses that previ- ously existed under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. Compare 34 U.S.C. § 20911(7)(I) and 42 U.S.C. § 14071(3)(A)(vii) (2002). “[W]hen statutory language is obvi- ously transplanted from other legislation, we have reason to think it brings the old soil with it.” United States v. Davis, 139 S. Ct. 2319, 2331 (2019) (cleaned up). The old soil in this case is prefatory text that appeared with the list of qualifying of- fenses in the Wetterling Act, and which specified that a cate- gorical approach applied. See 42 U.S.C. § 14071(3)(A) (2002) (explaining that a qualifying offense was “any criminal of- fense in a range of offenses specified by State law which is comparable to or which exceeds the following range of 26 No. 21-2385
offenses”). The majority opinion dismisses this part of the leg- islative history by citing a lack of precedent confirming that the Wetterling Act was analyzed categorically. But as the ma- jority opinion recognizes, litigants lacked cause to test the Wetterling Act’s definitions in court because that act did not include a criminal-liability component. Nonetheless, the Wet- terling Act was not dead letter; states needed to construe the act’s definitions to determine which offenses they must make registrable to receive federal funding. See Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 61 Fed. Reg. 15110-02, 15113 (Apr. 4, 1996) (instructing states on how to construe the Wetterling Act). Accordingly, I do not see why a dearth of ju- dicial opinions on the subject should lead us to ignore the Wetterling Act’s clear text—an important part of SORNA’s legislative history that supports Thayer’s position. 1 Second, a circumstance-specific approach to § 20911(7)(I) is more impractical than the majority opinion suggests. Un- less prior victims are forced to come back and testify—per- haps decades after the fact—any evidence the government would rely on to prove the underlying circumstances of a prior conviction could raise evidentiary or constitutional con- cerns. For example, the Eighth Circuit has adopted a circum- stance-specific test for § 20911(7)(I), and in at least one case
1 The majority opinion also points out that when Congress enacted SORNA, it omitted the prefatory text from the Wetterling Act. But the ex- clusion of this text in SORNA does not change the fact that when Congress drafted the phrase “any conduct that by its nature is a sexual offense against a minor” as a definition in the Wetterling Act, it did so knowing the phrase would be construed categorically. It then copied this categori- cal definition essentially unchanged into SORNA. No. 21-2385 27
the government satisfied its burden by admitting at trial an old video of the victim’s police interview. United States v. KT Burgee, 988 F.3d 1054, 1057 (8th Cir. 2021). That strategy worked only because the defendant failed to challenge the video’s admissibility. Id. at 1060. But upon proper objection, this type of evidence could raise concerns about hearsay and a defendant’s right to cross examine witnesses under the Con- frontation Clause. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The majority opinion insists that any practical difficulties under a circumstance-specific approach will benefit Thayer because the government has the burden to prove the facts un- derlying his prior conviction. Other defendants, however, will be unfairly punished under this approach. In many cases, the government is likely to rely on plea agreements to estab- lish the underlying conduct of a conviction. But the facts put in the record at a plea hearing may not accurately reflect the strength of the government’s case as to conduct outside the elements of conviction, especially since a defendant “may not wish to irk the prosecutor or court by squabbling about su- perfluous factual allegations.” Descamps v. United States, 570 U.S. 254, 270 (2013). And for defendants who negotiated a plea deal, it would “seem unfair” to sandbag them with a duty to register after they thought they had pled down to a conviction that did not carry a registration requirement. Tay- lor, 495 U.S. at 602. Additional impracticalities stem from how SORNA’s “sex offender” definition creates registration requirements as part of a civil regulatory scheme. As amicus points out, a circum- stance-specific approach will create confusion about who is required under federal law to register. Will a pre-registration 28 No. 21-2385
hearing be necessary to determine whether the state could have proven additional facts not included in the plea? These administrative headaches are not present under a categorical approach because, when the only issue is the existence of a prior conviction, adequate notice and an opportunity to chal- lenge the registration requirement has typically already been provided through the prior criminal prosecution. See Connect- icut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003). Finally, although I agree with the majority opinion that § 20911 does not invoke the same Sixth Amendment concerns as the ACCA, see Davis, 139 S. Ct. at 2327, I do not see that as a reason to choose a circumstance-specific approach. Not every statute requiring a categorial approach has a Sixth Amendment component; the Supreme Court has adopted a categorical approach for appropriate statutes even when no constitutional concerns are present. See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 200 (2013) (adopting categorical ap- proach to promote “judicial and administrative efficiency” for removal proceedings in which an immigration judge must de- termine whether a prior conviction is an “aggravated fel- ony”). Indeed, the Court cited practical considerations rather than constitutional concerns when it reaffirmed the categori- cal approach in Johnson, 576 U.S. at 604. After considering the text of § 20911(7)(I), the legislative history, and the other prac- tical difficulties associated with a circumstance-specific ap- proach, I would adopt the categorical method for § 20911(7)(I). On that basis, I respectfully dissent.