United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss Indictment by Defendant
Kenneth James Flint. [Record Document 20]. The Government has
filed an opposition. [Record Document 28]. Because
Defendant's prior conviction is properly classified as a
Tier I conviction requiring registration as a sex offender
for a period of fifteen years, the motion is
August 13, 1991, Defendant pleaded guilty in the Tenth
Judicial Circuit Court of Illinois to Aggravated Criminal
Sexual Abuse, 720 Ill. Comp. Stat. Ann. 5/11-1.60 (West
2017). [Record Document 20-2]. He was sentenced to four years
probation. [Record Document 20-3]. The Sex Offender
Registration and Notification Act (“SORNA”)
requires that a sex offender register in every jurisdiction
where he or she resides, is employed, or is a student. 34
U.S.C. § 20913(a) (formerly 42 U.S.C. § 16913(a)
(2012)). Sex offenses are classified into tiers. Id.
§ 20911(2)-(4). A Tier III sex offender is one whose
predicate offense is “comparable to or more severe
than” the federal offenses of Aggravated Sexual Abuse,
Sexual Abuse, or Abusive Sexual Contact against a minor under
thirteen or whose predicate offense involved child
kidnapping. Id. § 20911(4). The predicate
convictions for Tier II offenders must either be
“comparable to or more severe than” the federal
offenses of Sex Trafficking, Coercion and Enticement,
Transportation with Intent to Engage in Criminal Sexual
Activity, or Abusive Sexual Contact, or involve the use of a
minor in a sexual performance, solicitation of a minor to
practice prostitution, or production or distribution of child
pornography. Id. § 20911(3). Any other sex
offender is a Tier I offender. Id. § 20911(2).
Tier I sex offenders must register for fifteen years, Tier II
offenders for twenty-five years, and Tier III offenders for
life. Id. § 20915(a). Failure to register or to
update a registration is a federal offense. 18 U.S.C.A.
§ 2250(a) (2017).
indictment alleges that on unknown dates between June 2016
and November 2, 2016, Defendant knowingly failed to register
as a sex offender. [Record Document 1]. Defendant argues that
the indictment fails as a matter of law because his Illinois
conviction is properly classified as a Tier I conviction
rather than a Tier III conviction. [Record Document 20 at 1].
Because more than fifteen years have elapsed since his
sentencing, Defendant argues that he did not commit a crime
by failing to register. [Id.]. The Government
maintains that the Illinois offense of Aggravated Criminal
Sexual Abuse is a Tier III offense because it is comparable
to the federal offense of Abusive Sexual Contact against a
minor under thirteen. [Record Document 28 at 5-12]. Thus, the
propriety of the indictment turns on the proper
classification of Defendant's predicate conviction.
Law and Analysis
of the Federal Rules of Criminal Procedure authorizes a
motion to dismiss an indictment. Although a pretrial motion
should not be used to resolve factual disputes, “[i]f a
question of law is involved, then consideration of the motion
is generally proper.” United States v. Flores,
404 F.3d 320, 324 (5th Cir. 2005) (quoting United States
v. Korn, 557 F.2d 1089, 1090 (5th Cir. 1977)),
abrogated on other grounds by United States v.
Garcia, No. 16-40475, 2017 WL 3978448 (5th Cir. Sept. 8,
2017). Because Defendant attacks the applicability of the
crime of indictment based on a purely legal question-the
appropriate tier classification of his predicate state
offense-the Court may consider his motion to dismiss.
Classifying Offenses by Tier
determine into which SORNA tier a particular state conviction
falls, the Fifth Circuit has instructed courts to employ the
categorical approach. United States v. Young, 872
F.3d 742, 746 (5th Cir. 2017). Under this approach, a court
must “refer only to the statutory definition of the
crime for which the [defendant] was convicted” and not
to the specific circumstances underlying the conviction.
United States v. Castillo-Rivera, 853 F.3d 218,
221-22 (5th Cir. 2017) (en banc) (quoting Larin-Ulloa v.
Gonzales, 462 F.3d 456, 463 (5th Cir. 2006)), cert.
denied, No. 17-5054, 2017 WL 2855255 (U.S. Dec. 4,
2017). However, if a state statute is divisible, that is,
consists of alternative ways to commit the offense only some
of which fall within a particular tier, then a modified
categorical approach is appropriate. See Descamps v.
United States, 133 S.Ct. 2276, 2281 (2013). The modified
categorical approach allows courts to “consult the
trial record-including charging documents, plea agreements,
transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury instructions
and verdict forms” in order to determine which
particular statutory provision was used to convict the
defendant. Johnson v. United States, 559 U.S. 122,
144 (2010) (citing Chambers v. United States, 555
U.S. 122, 126 (2009), abrogated on other grounds by
Johnson v. United States, 135 S.Ct. 2551 (2015);
Shepard v. United States, 544 U.S. 13, 26 (2005)
(plurality opinion); Taylor v. United States, 495
U.S. 575, 602 (1990)).
the relevant federal and state statutory provisions have been
identified, a court must determine whether the offense of
conviction as defined by the state legislature is
“comparable to or more severe than” the federal
offense. 34 U.S.C. § 20911(3)-(4); see Young,
872 F.3d at 745-47. To meet this test under the categorical
approach, the elements of a state offense must be such that a
conviction for the state offense would necessarily satisfy
the elements of the federal offense. See Descamps,
133 S.Ct. at 2283 (citing Taylor, 495 U.S. at 599);
Castillo-Rivera, 853 F.3d at 221-22 (noting that the
categorical approach inquiry “ask[s] whether th[e]
legislatively-defined offense necessarily fits within”
the offense as defined by Congress). Although the comparison
focuses only on the elements of each offense, for SORNA
purposes “it is not necessary that the two crimes be
identical, ” and the state offense may be
“slightly broader” than the federal offense.
United States v. Coleman, 681 F. App'x 413, 416
(5th Cir. 2017) (per curiam) (quoting United States v.
Forster, 549 F. App'x 757, 769 (10th Cir. 2013)). A
defendant challenging the comparability of the two statutes
must “show a realistic probability, not a theoretical
possibility, that the State would apply its statute to
conduct that falls outside the generic definition of the
crime.” Young, 872 F.3d at 746 (quoting
Castillo-Rivera, 853 F.3d at 222). To do so, a
defendant must demonstrate that the state courts, either in
his own case or in other cases, have applied the state
statute to criminalize conduct that would not satisfy the
elements of the federal statute. Castillo-Rivera,
853 F.3d at 222 (citing Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)).
Classifying Defendant's Illinois Conviction
Illinois offense of Aggravated Criminal Sexual Abuse can be
committed in several distinct ways. 720 Ill. Comp. Stat. Ann.
5/11-1.60. Because the statute “sets out one or more
elements of the offense in the alternative, ”
Descamps, 133 S.Ct. at 2281, the statute is
divisible. As one district court has noted when interpreting
this statute, “[s]ome of the proscribed conduct may
qualify the offender as a Tier III offender . . . but not all
of it.” Cary v. United States, No. 12-CV-1469,
2013 WL 530575, at *4 (C.D. Ill. Feb. 12, 2013). As a result,
the Court must employ the modified categorical approach to
determine under which statutory provision Defendant was
convicted. See Descamps, 133 S.Ct. at 2285. To do
so, the Court may look to a limited selection of state court
documents. See Johnson, 559 U.S. at 144. At present,
only two state court documents are before the Court: the
order accepting the plea agreement and the sentencing order.
[Record Documents 20-2 and 20-3]. Although both documents
indicate that Defendant pleaded guilty to Aggravated Criminal
Sexual Abuse, neither indicate which of the divisible
subsections of the statute Defendant actually violated.
[Id.]. Under these circumstances, the Court lacks
sufficient information to apply the modified categorical
approach. Because the statute can be violated in ways that do
not require a Tier III classification, Cary, 2013 WL
530575, at *4, the Court cannot conclude that Defendant is a
Tier III offender based on the fact of his prior conviction
acceptable state court documents may exist that provide facts
sufficient to determine which provision Defendant violated.
In fact, the parties appear to agree that Defendant violated
section 5/11-1.60(c)(1)(i): “A person commits
aggravated criminal sexual abuse if . . . that person is 17
years of age or over and . . . commits an act of sexual
conduct with a victim who is under 13 years of age . . .
.” [Record Documents 20-1 at 1 and 28 at 11].
Therefore, the Court will proceed with an analysis applying
the categorical approach to this subsection. Under Illinois
law, “sexual conduct” is “any knowing
touching or fondling by the victim or the accused, either
directly or through clothing, of . . . any part of the body
of a child under 13 years of age . . . for the purpose of
sexual gratification or arousal of the victim or the
accused.” 720 Ill. Comp. Stat. ...