                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30154

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05597-RJB-1

  v.
                                                 MEMORANDUM *
CHRISTOPHER CORTLAND KENT,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                        Argued and Submitted May 5, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Christopher Kent was sentenced and put on supervised release after pleading

guilty to possession of a destructive device and possession of lewd and lascivious

materials, in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 1462, respectively.

He then violated his supervised release conditions, and the district court imposed



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an additional special supervised release condition requiring Kent to register

pursuant to the Sexual Offender Registration and Notification Act (“SORNA”).

Kent challenges the imposition of the SORNA condition. We affirm.

      SORNA mandates registration for “sex offenders and offenders against

children.” 42 U.S.C. § 16901. Under SORNA, a “sex offender” is “an individual

who was convicted of a sex offense.” Id. at § 16911(1). A “sex offense,” in turn,

includes:

      (i) a criminal offense that has an element involving a sexual act or
      sexual contact with another; [or]
      (ii) a criminal offense that is a specified offense against a minor . . .

§ 16911(5)(A). “[S]pecified offense against a minor” is then defined in a separate

subpart to cover “an[y] offense against a minor that involves . . . [a]ny conduct that

by its nature is a sex offense against a minor.” § 16911(7)(I).

      Here, the threshold dispute is whether Kent’s conviction for possession of

lewd and lascivious materials falls into the catchall category of “conduct that by its

nature is a sex offense against a minor.” We determine that Kent’s conviction for

possession of lewd and lascivious materials, on the basis of the underlying record

in this case, was a sex offense against a minor and therefore the district court

properly required his registration under SORNA. Our caselaw defines lascivious

as covering an offense that has a sexual component. See United States v. Banks,


                                           2
556 F.3d 967, 980 (9th Cir. 2009) (explaining that the “definition of lascivious . . .

criminalizes images so presented by the photographer as to arouse or satisfy the

sexual cravings of a voyeur”) (internal quotation marks omitted); United States v.

Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (“[A]pplied to the conduct of

children, lasciviousness is not a characteristic of the child photographed but of the

exhibition which the photographer sets up for an audience that consists of himself

or likeminded pedophiles.”); see also United States v. Hill, 459 F.3d 966, 972 (9th

Cir. 2006) (discussing the definition of lascivious images).

      Here, the facts in the record show that Kent’s sex offense was against

minors. The Ninth Circuit takes a “non-categorical” approach to determining the

age of the victim and examines the underlying facts of an offense, rather than just

the elements of the crime of conviction, when determining whether the offense

involved “conduct that by its nature is a sex offense against a minor.” United

States v. Byun, 539 F.3d 982, 992 (9th Cir. 2008). At the sentencing hearing, Kent

agreed that the lewd and lascivious photos depicted “very young girls in sexually

provocative poses.” This and other evidence, such as a graphic letter found on

Kent’s computer and Kent’s acceptance of responsibility for “explicit images of

young girls,” showed that he harbored disturbing views on young girls, sex and

violence. The evidence is sufficient to establish that Kent’s crime was a sex


                                           3
offense against minors. See United States v. Dodge, 597 F.3d 1347, 1355 (11th

Cir. 2010) (“Congress left courts with broad discretion to determine what conduct

is ‘by its nature’ a sex offense . . . . The key is conduct that contains a ‘sexual

component’ toward a minor.”).

      AFFIRMED.




                                            4
