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United States v. Flint

United States District Court, W.D. Louisiana, Shreveport Division

January 18, 2018

UNITED STATES OF AMERICA
v.
KENNETH JAMES FLINT

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Before 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 GRANTED.

         I. Background

         On 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).

         The 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.

         II. Law and Analysis

         Rule 12 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.

         A. Classifying Offenses by Tier

         To 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)).

         Once 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)).

         B. Classifying Defendant's Illinois Conviction

         The 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 alone.

         However, 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. ...


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