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United States v. Greene

United States District Court, M.D. Tennessee, Nashville Division

January 30, 2017

UNITED STATES OF AMERICA
v.
LEMAR JORDAN GREENE

          MEMORANDUM

          KEVIN H. SHARP UNITED STATES DISTRICT JUDGE.

         Defendant 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.

         I. Background

         On 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”) § 163.427.

         In the 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 penis.

         Upon 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.

         According 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.

         II. Legal Discussion

         SORNA 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).

         “SORNA 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.

         At the 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. § 16915(b)(2).

         The 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. § 2A3.5(a).

         Because 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).

         In 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.[1] The circumstance-specific approach “is a different species of analysis altogether, ” and “focuses on the facts - not the elements - relating to the prior ...


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