United States District Court, M.D. Tennessee, Nashville Division
H. SHARP UNITED STATES DISTRICT JUDGE.
Lemar Greene has filed objections to the Presentence Report
(“PSR”), arguing that he should be deemed a Tier
I offender under the Sex Offender Registration and
Notification Act (“SORNA”). In response, the
Government asserts that the PSR is correct, and that
Defendant's prior convictions in Oregon properly qualify
him as a Tier III offender. Having considered the arguments
raised by the parties (Docket Nos. 34-38 & 40), the Court
finds that Defendant is a Tier I offender and he will be
sentenced as such.
April 6, 2016, a federal grand jury returned an Indictment
against Defendant charging him with failing to update his sex
offender registration upon moving to Tennessee. The basis for
the Indictment stems from the fact that, on September 9,
2008, Defendant pled guilty in Washington County, Oregon to
two counts of Attempted Sexual Abuse in the First Degree in
violation of Oregon Revised Statute (“ORS”)
underlying state court Indictment, defendant was charged with
six crimes, including touching the vaginal area and buttocks
of a female victim under the age of 14. He was also charged
with causing a female victim under the age of 14 to touch his
acceptance of his pleas of guilt, Defendant was sentenced to
36 months of imprisonment to be followed by 5 years of
supervision. Additionally, Defendant was required by the
state court judgment to register in Oregon as a sex offender
for the rest of his life.
to the PSR, Defendant last registered in Oregon on July 30,
2014. In December 2014, he moved to Nashville, Tennessee, but
did not register as a sex offender in this state at that
time. In fact, Defendant did not register as a sex offender
in Tennessee until February 16, 2016, and only after being
instructed to do so by law enforcement authorities.
makes it a federal crime for a sex offender who meets certain
requirements to “knowingly fai[l] to register or update
a registration as required[.]” 18 U.S.C. §
2250(a)(3). Among those requirements is that a sex offender
register “in each jurisdiction where the offender
resides, where the offender is an employee, and where the
offender is a student.” 42 U.S.C. § 16913(a). It
also requires that an offender keep his registration current
by reporting any change in residence within 3 days.
Id. § 16913 (c).
sweeps broadly, but its broad sweep discriminates among three
sex offender tiers ‘depending on the seriousness of
[the defendant's] underlying sex offense.'”
United States v. Gudger, 624 F. App'x 394, 397
(6th Cir. 2015) (quoting United States v.
White, 782 F.3d 1118, 1129 (10th Cir. 2015)).
The three offender tiers are specified by statute.
high end is a Tier III offender, and, so far as relevant,
“means a sex offender whose offense is punishable by
imprisonment for more than 1 year” and is
“comparable to or more severe than . . . aggravated
sexual abuse or sexual abuse (as described in Sections 2241
and 2242 of Title 18)” or an attempt to commit such an
act. 42 U.S.C. § 19611(4). In the middle is a Tier II
offender, which includes “a sex offender other than a
tier III sex offender whose offense is punishable by
imprisonment of more than 1 year” where the offense (or
attempt) is “comparable to or more severe” than
“coercion and enticement (as described in section
2422(b) of Title 18)”; or “abusive sexual contact
as described in section 2244 of Title 18).”
Id. § 16911(2). At the low end is a Tier I
offender and “means a sex offender other than at tier
II or tier III sex offender.”“ Id.
§ 16911(2). A Tier I sex offender is required to keep
his registration current for 15 years; a Tier II for 25
years; and a Tier III for life. Id. §
three different categories of offenders are incorporated into
the United States Sentencing Guidelines
(“U.S.S.G.”) for determination of a
defendant's base offense level. A Tier III offender has a
base offense level of 16, the level for a Tier II offender is
14, and the level for a Tier I offender is 12. U.S.S.G.
both Tier II and Tier III statuses require that a sex offense
be “comparable to or more severe” than specified
federal offenses and Tier I only applies by default, the
critical issue in this case is how to make the comparison
given Defendant's convictions for crimes under state law.
“Courts have embraced two analytical frameworks for
such inquiries: 1) the ‘categorical approach' and
its derivative, the ‘modified categorical approach,
' and 2) the ‘circumstance-specific approach'
(also known as the ‘noncategorical
approach').” United States v. Berry, 814
F.3d192, 195 (8th Cir. 2016).
Descamps v. United States, 133 S.Ct. 2276 (2013) the
Supreme Court addressed the categorical approach, albeit in
the context of the Armed Career Criminal Act. The Court
explained that this approach “compare[s] the elements
of the statute forming the basis of the defendant's
conviction with the elements of the ‘generic' crime
- i.e., the offense as commonly understood, ” with
“[t]he key” being “elements, not
facts.” Id. at 2281, 83. “[A] variant of
this method-labeled (not very inventively) the
‘modified categorical approach'” is used for
divisible statutes and “permits sentencing courts to
consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the
basis of the defendant's prior conviction.”
Id. at 2283. The circumstance-specific approach
“is a different species of analysis altogether, ”
and “focuses on the facts - not the elements - relating
to the prior ...