                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3241
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                           Charles Kenneth Mulverhill

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                             Submitted: June 17, 2016
                              Filed: August 16, 2016
                                  ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

SMITH, Circuit Judge.

      Charles Mulverhill pleaded guilty to one count of failure to register as a sex
offender, in violation of 18 U.S.C. § 2250(a) and was sentenced to 57 months'
imprisonment. On appeal, Mulverhill argues that the district court plainly erred1 in

      1
       Mulverhill concedes that he failed to object in the district court to the
purported errors that he now raises.
(1) accepting his guilty plea based on an erroneous classification of him as a Tier III
sex offender under the Sex Offender Registration and Notification Act (SORNA), and
(2) calculating his total offense level based on an inadvertent error in the presentence
investigation report (PSR). We affirm the district court's acceptance of Mulverhill's
guilty plea. However, we vacate Mulverhill's sentence and remand for resentencing
based on our conclusion that Mulverhill was "sentenced under an incorrect
Guidelines range" due to the PSR error and that such error is "sufficient to show a
reasonable probability of a different outcome absent the error." Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016).

                                   I. Background
       On December 26, 1989, Mulverhill was convicted of two counts of lewd and
lascivious acts with a child under 14 years old, in violation of § 288(a) of the
California Penal Code, and sentenced to 272 days in custody and 6 years of probation.
On March 14, 1990, Mulverhill registered as a sex offender upon his release from jail
in California. On May 14, 2001, he moved to Arizona and continually maintained his
registration status until September 4, 2012. In June 2014, Mulverhill moved to
Springfield, Missouri, but he never registered as a sex offender in Missouri.

       On April 2, 2015, Mulverhill was charged with failure to register as a sex
offender "[b]etween June 19, 2014, and January 30, 2015," in violation of 18 U.S.C.
§ 2250(a). The indictment provided notice to Mulverhill that upon conviction he
would receive no more than ten years in prison. Mulverhill subsequently pleaded
guilty to the charge. During the change-of-plea hearing, the district court advised
Mulverhill that "[t]he authorized punishment for th[e] offense as established by the
Congress is not more than ten years' imprisonment," and Mulverhill confirmed that
he was "aware that's the authorized punishment for the offense." The district court
also asked the government to "recite the evidence that the government thinks [it]
could present if [Mulverhill] chose to go to trial" and advised Mulverhill to "listen
carefully" to the evidence. The government stated that, as a result of his prior

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California sex-offense conviction, Mulverhill was required to register under SORNA;
but, as of January 29, 2015, neither the Greene County, Missouri Sheriff's Office nor
the Missouri State Highway Patrol had any record of Mulverhill ever having
registered as a sex offender. The government further stated that "[u]pon his arrest in
this case, Mr. Mulverhill admitted to law enforcement officers that he had had a
qualifying conviction in his background, acknowledged his obligation to register and
that he had lived in Missouri since at least March of 2014 but had failed to register
as required." After the government completed its recitation of the factual basis for the
plea, Mulverhill confirmed to the district court that nothing said was "inaccurate" and
that he was guilty of the described conduct.

       Following the entry of Mulverhill's guilty plea, the district court ordered the
preparation of the PSR. The PSR recommended a base offense level of 16 pursuant
to U.S.S.G. § 2A3.5(a)(1) because the offense involved "failure to register as a [Tier
III] sex offender." (Alteration in original.) The PSR recommended an eight-level
enhancement under U.S.S.G. § 2A3.5(b)(1)(C) for committing a sex offense against
a minor (S.L.M) while in a failure-to-register status. The PSR additionally
recommended that Mulverhill receive a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense level of
21. Mulverhill did not have any criminal history points, resulting in a criminal history
category of I. The PSR, however, mistakenly stated later in the document that
Mulverhill's "total offense level" was "23" and that based on that offense level and
a criminal history category of I, his Guidelines range was 46 to 57 months'
imprisonment. Mulverhill did not object to this portion of the PSR prior to
sentencing.

       At sentencing, the district court stated, "The [PSR] concludes an offense level
of 23 and a criminal history category of one." Mulverhill objected only to the PSR's
recommended eight-level enhancement for committing a sex offense against a minor.
The government then put on evidence in support of the enhancement. Deputy United

                                          -3-
States Marshal Anthony Cable testified that a flash drive contained text messages
between S.L.M., a 14-year-old girl, and Mulverhill. Several text messages from
S.L.M. stated that she wanted to have sex with Mulverhill. In response to one of her
texts, Mulverhill wrote, "I know, luh [sic] you." In other messages, S.L.M. expressed
her hope that she was not pregnant, and Mulverhill replied that he also hoped that she
was not pregnant. Mulverhill directed S.L.M. to erase all of her e-mails. Deputy Cable
also reviewed photographs of S.L.M. on Mulverhill's cell phone, which showed
S.L.M. clothed and sleeping on a bed. Deputy Cable testified that a report from the
Missouri Department of Social Services, Children's Division, contained an interview
of Mulverhill in which he said that S.L.M. sometimes slept in his bed and that he
knew it was inappropriate. Deputy Cable read excerpts from S.L.M.'s statement in
which she described how Mulverhill had intercourse with her and sexually abused her
in other ways.

       At the conclusion of the evidence, the district court overruled Mulverhill's
objection to the eight-level enhancement. The court concluded that the total offense
level was 23, applied a criminal history category of I, and calculated an advisory
Guidelines range of 46 to 57 months. Mulverhill did not object to this calculation.
The government argued that the sentence should be at least 57 months' imprisonment
and stated that an upward variance would be appropriate. Mulverhill asked the court
to grant a downward variance from the Guidelines range or, alternatively, for a
sentence on the low end of the Guidelines range.

      In rendering Mulverhill's sentence, the court commented that

      [h]ad [S.L.M.'s] mother not known and had S.L.M. not known of your
      situation as someone required to register, I think I would have exceeded
      the guidelines. I would have gone above the guidelines. But since they
      knew and the mother allowed you to live there anyw[ay] and shut her
      eyes as to what was going on, I can't really blame the failure to register
      for what occurred.

                                         -4-
The court ultimately imposed a sentence of 57 months' imprisonment, the high end
of the advisory range, and supervised release for life.

                                    II. Discussion
      On appeal, Mulverhill argues that the district court plainly erred in (1)
accepting his guilty plea based on an erroneous classification of him as a Tier III sex
offender under SORNA, and (2) calculating his total offense level based on an
inadvertent error in the PSR.

        To prevail under plain-error review, Mulverhill "must show: (1) an error; (2)
that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings." United States v. Brave Bull,
No. 15-2143, 2016 WL 3671702, at *2 (8th Cir. July 11, 2016) (citation omitted).
"[I]t is enough that an error be 'plain' at the time of appellate consideration." United
States v. Fast Horse, 747 F.3d 1040, 1042 (8th Cir. 2014) (quoting Henderson v.
United States, 133 S. Ct. 1121, 1130–31 (2013); citing United States v. Webster, 84
F.3d 1056, 1067 (8th Cir. 1996) ("[T]he proper focus is the law applicable on appeal
rather than at trial.")).

             In the absence of controlling precedent of either this court or the
       Supreme Court, the district court is granted more discretion under the
       plain error standard simply because the less guidance there is, the
       smaller the realm of decisions that would be clearly or obviously wrong
       under current law.

United States v. Lachowski, 405 F.3d 696, 698 (8th Cir. 2005).




                                           -5-
                                    A. Guilty Plea
       We first address whether the district court plainly erred in accepting
Mulverhill's plea of guilty to failure to register as a sex offender, in violation of 18
U.S.C. § 2250(a). "SORNA classifies sex offenders into three tiers with each
category corresponding to specific, enumerated crimes or to offenses incorporated
from other federal sexual abuse laws." United States v. Morales, 801 F.3d 1, 3 (1st
Cir. 2015).2 Tier III concerns "[t]he most egregious offenders." Id. (citing 42 U.S.C.
§ 16911(4)(A)). It provides, in relevant part, that

      [t]he term "tier III sex offender" means a sex offender whose offense is
      punishable by imprisonment for more than 1 year and—

             (A) is comparable to or more severe than the following
             offenses, or an attempt to commit such an offense:

                    (i) aggravated sexual abuse or sexual abuse
                    (as described in sections 2241 and 2242 of
                    Title 18); or

                    (ii) abusive sexual contact (as described in
                    section 2244 of Title 18) against a minor who
                    has not attained the age of 13 years . . . .

42 U.S.C. § 16911(4)(A).

      Similarly, a "tier II sex offender" is defined, in relevant part, as




      2
       "These tier levels are incorporated into the United States Sentencing
Guidelines and used to determine the defendant's base offense level." United States
v. Taylor, 644 F.3d 573, 576 (7th Cir. 2011) (citing U.S.S.G. § 2A3.5).


                                          -6-
       a sex offender other than a tier III sex offender whose offense is
       punishable by imprisonment for more than 1 year and—

              (A) is comparable to or more severe than the following
              offenses, when committed against a minor, or an attempt or
              conspiracy to commit such an offense against a minor:

                     (i) sex trafficking (as described in section
                     1591 of Title 18);

                     (ii) coercion and enticement (as described in
                     section 2422(b) of Title 18);

                     (iii) transportation with intent to engage in
                     criminal sexual activity (as described in
                     section 2423(a)) of Title 18;

                     (iv) abusive sexual contact (as described in
                     section 2244 of Title 18) . . . .

42 U.S.C. 16911(3)(A).

        "The final category, Tier I, serves as a catch-all provision for convicted sex
offenders not otherwise grouped into Tier II or Tier III." Morales, 801 F.3d at 3
(citing 42 U.S.C. § 16911(2)). A sex offender must keep his or her registration current
for "(1) 15 years, if the offender is a tier I sex offender; (2) 25 years, if the offender
is a tier II sex offender; and (3) the life of the offender, if the offender is a tier III sex
offender." 42 U.S.C. § 16915(a).

       Mulverhill argues that the district court plainly erred in accepting his guilty
plea to failure to register as a sex offender, in violation of § 2250(a), because, using
a categorical approach, neither of his two convictions under California Penal Code
§ 288(a) for lewd and lascivious acts with a child under 14 years old qualify as an
offense "comparable to or more severe than" any of the listed federal statutes in the

                                             -7-
definitions for Tier III or Tier II sex offenders. See 42 U.S.C. § 16911(3)–(4).3
Mulverhill contends that he is a Tier I sex offender and was therefore not required to
register as a sex offender during the time period set forth in the indictment because
the 15-year period had expired. See 42 U.S.C. § 16915(a)(1).

       We recently held in United States v. Hill that courts should employ a
circumstance-specific approach—not a categorical approach—in determining whether
an offender's conduct was by its nature a sex offense against a minor, thereby
rendering the conviction arising from such conduct a "sex offense" under SORNA.
820 F.3d 1003, 1005 (8th Cir. 2016) (citing 42 U.S.C. § 16911(5)(A)(ii) and (7)(I)).
Under the circumstance-specific approach, a court "examine[s] the 'particular
circumstances in which an offender committed the crime on a particular occasion.'"
Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1691 (2013)). The court rejected
application of the categorical approach to § 16911(5)(A)(ii) and (7)(I) of SORNA,
which "look[s] simply at the statute underlying [the] conviction to determine whether
its elements show categorically that it is a sex offense against a minor." Id.

       In Hill, we had no occasion to address whether a circumstance-specific or
categorical approach applies to the three tier classifications set forth in § 16911(2),
(3), and (4). We, however, note our sister circuits' admitted difficulty in answering
this question. See, e.g., United States v. White, 782 F.3d 1118, 1130 (10th Cir. 2015)
("Our review of Mr. White's tier classification is complicated by the fact that the term
'offense' as used in 42 U.S.C. § 16911 is ambiguous."); United States v. Forster, 549
F. App'x 757, 767 (10th Cir. 2013) (unpublished) ("However, it is far from clear
whether a categorical approach should be applied in the SORNA context." (citations
omitted)); United States v. Stock, 685 F.3d 621, 628 (6th Cir. 2012) ("Admittedly,
there was (and remains) some doubt about the extent to which Guidelines § 2A3.5(a)


      3
      Mulverhill concedes that he is a "sex offender" under SORNA. See 42 U.S.C.
§ 16911(1).

                                          -8-
directs district courts to look beyond the mere fact of a prior sex-offense conviction
and into the specific factual circumstances of that offense.").

       Here, we need not wade into the quagmire of which approach applies to the
three tier classifications set forth in § 16911(2), (3), and (4). Even assuming that the
categorical approach does apply, we conclude that the district court committed no
plain error by not applying that approach to Mulverhill's prior convictions to
determine his appropriate tier classification. We advance two reasons for this
conclusion. First, during his change-of-plea hearing, Mulverhill agreed with the
government's recitation of the facts that although he was required to register as a sex
offender, he had failed to do so as of January 29, 2015. Mulverhill's admission
constitutes a sufficient factual basis for the guilty plea.

       Second, even if we consider Mulverhill's duty to register as a sex offender
between June 19, 2014, and January 30, 2015, as a purely legal question, the district
court committed no plain error in not applying a categorical approach to Mulverhill's
California convictions. This is so because (1) we lack controlling precedent on the
question of whether a circumstance-specific approach or categorical approach is
applicable to the three tier classifications set forth in § 16911(2), (3), and (4); (2) our
Hill decision indicates that such an approach does not apply in other subsections of
the same statute; and (3) our sister circuits have had difficulty in determining whether
the circumstance-specific or categorical approach applies to § 16911(2), (3), and (4).
See Fed. Crop Ins. v. Hester, 765 F.2d 723, 727 (8th Cir. 1985) ("Because of the lack
of controlling precedent within the Eighth Circuit and the split of authority among
other courts, we decline to hold that the district court committed plain error in
instructing the jury as to the preponderance of evidence standard.")




                                           -9-
                                B. Total Offense Level
      Mulverhill next argues that the district court plainly erred in using a total
offense level of 23 instead of 21 based on the PSR's inadvertent error of assigning to
him a total offense level of 23.

       The government concedes that "the total offense level was 21" and that "the
district court mistakenly applied a total offense level of 23." Nonetheless, it argues
that Mulverhill cannot show a reasonable probability that he would have received a
lesser sentence but for the alleged error. We disagree.

       The Guidelines range for a total offense level of 23 with a criminal history
category of I is 46 to 57 months' imprisonment; by contrast, a Guidelines range for
Mulverhill's correct total offense level of 21 with a criminal history category of I is
37 to 46 months' imprisonment. "When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant's ultimate sentence falls within the
correct range—the error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error." Molina-Martinez, 136
S. Ct. at 1345. Here, Mulverhill "need not make a further showing of prejudice
beyond the fact that the erroneous guidelines range 'set the wrong framework for the
sentencing proceedings.'" United States v. Tegeler, No. 15-2911, 2016 WL 3057789,
at *3 n.3 (8th Cir. May 31, 2016) (unpublished per curiam) (quoting Molina-
Martinez, 136 S. Ct. at 1345).

      Nonetheless, the government argues that part of the sentencing colloquy in
which the district court "contemplated aloud a situation where it would have
exceeded the Guidelines" indicates that no reasonable probability exists that
Mulverhill would receive a lesser sentence. We recognize that "[t]here may be
instances when, despite application of an erroneous Guidelines range, a reasonable
probability of prejudice does not exist. The sentencing process is particular to each
defendant, of course, and a reviewing court must consider the facts and circumstances

                                         -10-
of the case before it." Molina-Martinez, 136 S. Ct. at 1346 (citation omitted). The
present case is not a situation in which the government has shown "that the court
'would have arrived at the same term of imprisonment absent the procedural error.'"
Tegeler, 2016 WL 3057789, at *3 n.3 (quoting United States v. Henson, 550 F.3d
739, 742 (8th Cir. 2008); citing United States v. Sanchez-Martinez, 633 F.3d 658,
660–61 (8th Cir. 2011); United States v. Woods, 670 F.3d 883, 887 (8th Cir. 2012)).
The district court made no affirmative statements or indications of its intention to
impose the same sentence even if Mulverhill's total offense level were lower.

      Accordingly, we find that the district court plainly erred in calculating
Mulverhill's total offense level as 23; therefore, Mulverhill is entitled to resentencing
under a correctly calculated Guidelines range utilizing a total offense level of 21.

                               III. Conclusion
      Accordingly, we vacate Mulverhill's sentence and remand for resentencing.
                     ______________________________




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