                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4216


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ANTWAIN GUANTERIO PRICE,

                Defendant – Appellant.

---------------------------

BRADLEY NELSON GARCIA,

                Court-Assigned Amicus Counsel.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:12-cr-00374-JFA-1)


Argued:   December 9, 2014                  Decided:   February 3, 2015


Before MOTZ and KING, Circuit Judges, and Arenda L. Wright
ALLEN, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Allen joined.


ARGUED:   Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.     Tommie
DeWayne Pearson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.   Bradley Nelson Garcia, O’MELVENY
& MYERS, LLP, Washington, D.C., as Court-Assigned Amicus
Counsel.    ON BRIEF: John H. Hare, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.      Gregory F. Jacob, Rakesh Kilaru,
O’MELVENY & MYERS, LLP, Washington, D.C., for Court-Assigned
Amicus Counsel.




                               2
KING, Circuit Judge:

      Antwain      Guanterio   Price     was    charged     in   the       District   of

South Carolina in May 2012 with knowingly failing to register as

a sex offender as required by the Sex Offender Registration and

Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a). 1

The single-count indictment alleged that Price was subject to

SORNA’s    registration     requirement         because     of   his    prior     South

Carolina conviction for the common law offense of assault and

battery of a high and aggravated nature (“ABHAN”).                      Price sought

dismissal on the ground that his ABHAN conviction was not for a

“sex offense” under SORNA.             By order of August 2, 2012, the

district court denied Price’s motion, predicating its ruling on

the facts underlying the ABHAN conviction.                  See United States v.

Price, No. 0:12-cr-00374 (D.S.C. Aug. 2, 2012), ECF No. 55 (the

“Denial Order”). 2      Price thereafter conditionally pleaded guilty

to   the   § 2250(a)    offense    and    was    sentenced       to    two    years   in

prison.      The    court   also   imposed       a   life   term      of     supervised

      1
       SORNA is primarily codified at 42 U.S.C. §§ 16901-16962,
and a failure to register pursuant to its provisions violates 18
U.S.C. § 2250(a). As relevant here, § 2250(a) provides criminal
penalties for any person who “is required to register under
[SORNA],” “travels in . . . interstate commerce,” and “knowingly
fails to register or update a registration as required by
[SORNA].” 18 U.S.C. § 2250(a)(1), (2)(B), (3).
      2
       The Denial Order is found at J.A. 78-82.       (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)



                                         3
release, based on its determination that the ABHAN conviction

was   for   a    “sex   offense”      under     section    5D1.2(b)(2)         of   the

Sentencing Guidelines.

      Price     filed   a   timely    notice     of    appeal,    and    we    possess

jurisdiction      pursuant    to     18    U.S.C.     § 3742(a)   and     28    U.S.C.

§ 1291.     On appeal, he maintains that the district court erred

in declining to dismiss the indictment and in calculating his

advisory Guidelines range for supervised release.                       As explained

below, we are satisfied that the Denial Order properly applied

the   “circumstance-specific              approach”    (sometimes       called      the

“noncategorical approach”) in deciding that Price was subject to

SORNA’s registration requirement.               The court erred, however, in

ruling that Price’s § 2250(a) conviction was for a sex offense

under Guidelines section 5D1.2(b)(2).                   We therefore affirm in

part, vacate in part, and remand for resentencing. 3


      3
       We ordered the parties to submit supplemental briefing in
this appeal to address recent authorities that might be
applicable, including Descamps v. United States, 133 S. Ct. 2276
(2013), and United States v. Hemingway, 734 F.3d 323 (4th Cir.
2013).    Because the government initially asserted that a
different approach applied to an analysis of Price’s dismissal
issue, we appointed amicus counsel (the “Amicus”) to argue the
position of the district court — namely, that the circumstance-
specific approach was the correct analytical vehicle.        The
government thereafter submitted a letter under Federal Rule of
Appellate Procedure 28(j), altering its position and agreeing
with the Amicus that the circumstance-specific approach is
correct.   The Amicus has ably discharged his duties, and we
commend his efforts.



                                            4
                                          I.

                                          A.

      We   first    address     Price’s    contention        that    his   indictment

should have been dismissed.               Before delving into the relevant

factual    and     procedural    background,         we     review    certain    legal

principles that are important to this issue.

                                          1.

      SORNA      establishes    a   comprehensive           regulatory     scheme      to

track and provide community notification regarding convicted sex

offenders.         Pursuant    thereto,        a   person    convicted     of   a     sex

offense must register in each state in which he resides, is

employed, or is a student.              See 42 U.S.C. §§ 16911(1), 16913.

If a sex offender changes his residence, employment, or student

status, he must update his registration within three business

days, so that the sex offender registry remains current.                              Id.

§ 16913(c).       SORNA also requires each state to maintain its own

sex   offender     registry     that    conforms      to    SORNA’s    requirements.

Id. §§ 16911(10)(A), 16912(a).

      Although SORNA “is a non-punitive, civil regulatory scheme,

both in purpose and effect,” noncompliance with the statute can

result in criminal prosecution under 18 U.S.C. § 2250(a).                             See

United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013).

A   prerequisite     to   SORNA’s      registration        requirement     —    and    to

criminal penalties under § 2250(a) — is that the defendant has

                                          5
been convicted of a sex offense.            See 18 U.S.C. § 2250(a)(1); 42

U.S.C.   §§ 16911(1),       16913.     Section   16911(5)(A)          of    Title    42

includes    the     following     definitions    of    a    “sex   offense”         for

purposes of SORNA:

     (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.

42   U.S.C.     § 16911(5)(A)(i)-(ii). 4          Subsection          (5)(A)(ii)’s

reference to a “specified offense against a minor” is further

defined in subsection (7) of § 16911, which identifies multiple

offenses — such as kidnapping, child pornography, and criminal

sexual   conduct,     see   id.    § 16911(7)(A)-(H)        —   and    contains       a

catch-all that encompasses “[a]ny conduct that by its nature is

a sex offense against a minor,” id. § 16911(7)(I).

                                       2.

     A person who fails to properly register violates 18 U.S.C.

§ 2250(a) if his prior conviction was for a sex offense within

the meaning of SORNA.           Therefore, a district court must examine

the underlying offense of conviction to determine whether it

satisfies     the   statutory     definition.         The   Supreme        Court    has

     4
       SORNA also defines a “sex offense” to include certain
specified federal and military offenses.        See 42 U.S.C.
§ 16911(5)(A)(iii)-(iv). Additionally, an attempt or conspiracy
to commit one of the enumerated sex offenses constitutes a sex
offense. Id. § 16911(5)(A)(v).



                                        6
developed three analytical frameworks that potentially control

the scope of materials that a court may consider in that regard,

as well as the focus of the court’s inquiry.                            Those frameworks

are     the     “categorical            approach,”      the     “modified      categorical

approach,”       and,       as     previously       mentioned,     the    “circumstance-

specific        approach”           (also     known      as      the     “noncategorical

approach”).

      First,         the    categorical       approach        focuses    solely     on   the

elements of the offense of conviction, comparing those to the

commonly understood elements of the generic offense identified

in the federal statute.                  See Taylor v. United States, 495 U.S.

575, 602 (1990) (requiring court to “look only to the fact of

conviction and the statutory definition of the prior offense”).

The elements comprising the statute of conviction must be the

same as, or narrower than, those of the generic offense in order

to find a categorical match.                     Id. at 599.            If, however, the

court     finds       “a     realistic        probability,        not     a    theoretical

possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime,” there is

no categorical match and the prior conviction cannot be for an

offense       under    the       federal    statute.      See     Gonzales     v.   Duenas-

Alvarez,       549    U.S.       183,   193   (2007).         Because    the   categorical

approach       looks       squarely      at   the    elements     of     the   offense   of

conviction, a reviewing court is precluded from examining the

                                                7
circumstances underlying the prior conviction.                       See Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013) (“The key . . . is

elements, not facts.”).

     Second, the modified categorical approach is an off-shoot

of the traditional categorical approach, and similarly focuses

on elements rather than facts.                 The modified approach comes into

play if the defendant was previously convicted under a divisible

statute, meaning that the offense contains a set of alternative

elements.         See    Descamps,       133    S.      Ct.    at   2281.          In    such

circumstances,          the     reviewing       court         conducts     an      analysis

identical to the categorical approach, but with a detour.                                That

is, the court is entitled to refer to certain documents from the

underlying case to discern which alternative element formed the

basis of conviction.            See Shepard v. United States, 544 U.S. 13,

19-20 (2005).       The documents that may be referenced are limited,

but include:       the indictment or information; the plea agreement

or transcript of the plea colloquy; the court’s formal legal

rulings     and    factual       findings       of   a    bench     trial;        and    jury

instructions.       See id. at 20, 26.                  The focus of the modified

categorical approach remains squarely on the elements of the

prior   conviction,           however,    and     the    reviewing        court     is    not

entitled     to    assess       whether     the      defendant’s         actual     conduct

matches the federal statute.



                                            8
     Finally,            the      circumstance-specific                      approach         (or,

noncategorical          approach)       is   a       different     species          of   analysis

altogether.        The circumstance-specific approach focuses on the

facts — not the elements — relating to the prior conviction.

That broader framework applies when the federal statute refers

“to the specific way in which an offender committed the crime on

a   specific       occasion,”       rather           than    to        the    generic       crime.

Nijhawan v. Holder, 557 U.S. 29, 34 (2009).                                  In utilizing the

circumstance-specific approach, the reviewing court may consider

reliable evidence concerning whether the prior offense involved

conduct      or    circumstances         that        are    required         by    the   federal

statute. 5

                                             B.

     Having        identified       and      discussed            the        foregoing       legal

principles,        we   turn   to   the      specifics            of    Price’s       motion   to

dismiss.      The relevant facts are not in dispute.

                                             1.

     On      May   13,    2010,     a    grand        jury    in       York       County,   South

Carolina, returned an indictment charging Price with a single


     5
        We are satisfied to utilize the term “circumstance-
specific” to describe this third approach, adhering to the
example set by the Supreme Court in Nijhawan. See 557 U.S. at
34 (using term “circumstance-specific” to describe analytic
framework “referring to the specific way in which an offender
committed the crime on a specific occasion”).



                                                 9
count of criminal sexual conduct with a minor.                          See S.C. Code

Ann. § 16-3-655.            The indictment — which did not refer to an

ABHAN offense — alleged that, on or about December 15, 2007,

Price      committed    “criminal         sexual   conduct       with   a   minor”      by

“commit[ting] a sexual battery” on a victim who was twelve years

old.        J.A.     23.          Price    subsequently        entered      into      plea

negotiations with the prosecution.

       Pursuant to those negotiations, on July 15, 2010, Price

pleaded no contest to an ABHAN offense in the Court of General

Sessions        of   York    County.         In    the    plea      proceedings,       the

prosecutor represented that ABHAN was a lesser-included offense

of   the    charge     in   the    indictment.           At   the   time    of     Price’s

offense, ABHAN was a common law crime in South Carolina, the

elements of which included “the unlawful act of violent injury

to another, accompanied by circumstances of aggravation.”                              See

State      v.   Easler,     489    S.E.2d     617,   624      (S.C.     1997). 6       The

“circumstances of aggravation” requirement of an ABHAN offense

could be satisfied in a number of ways, including


       6
       Although South Carolina codified ABHAN as a felony offense
effective June 2, 2010, see S.C. Code Ann. § 16-3-600(B)(1),
that enactment post-dated the commission of Price’s offense.
Thus, the common law crime of ABHAN is the only ABHAN offense
relevant to this appeal.    See United States v. Hemingway, 734
F.3d 323, 327 n.1 (4th Cir. 2013) (applying common law ABHAN
elements — rather than statutory ones — because offense conduct
occurred prior to enactment of ABHAN statute).



                                            10
     use of a deadly weapon, infliction of serious bodily
     injury, intent to commit a felony, disparity in age,
     physical   condition   or sex,  indecent   liberties,
     purposeful infliction of shame, resistance of law
     authority, and others.

Id. at 624 n.17.

     During Price’s plea colloquy in the state court in 2010,

the prosecutor — apparently pursuant to an oral plea agreement

— summarized the factual basis for the ABHAN offense as follows:

     These events occurred — reported to have occurred back
     between 2007 and 2008. Initially a report was made to
     the Akron Ohio Police Department that the step-father
     of the minor who was . . . eleven at the time in Ohio
     had been abused by Mr. Price, her step-father.    This
     continued when the family moved to . . . Rock Hill,
     York County, South Carolina.      The allegations were
     alleged to have happened at that house as well as
     another jurisdiction in South Carolina, and the victim
     would’ve been twelve years old at the time and she
     reported in 2009 that she had been abused and been
     required to perform oral sex on this defendant.

J.A. 52.     Price responded in the affirmative when the state

court asked, “Do you agree if you went to trial those facts

would be what the State would present to the jury?”                  Id.   The

court then accepted his no-contest plea to the ABHAN offense.

The court also accepted Price’s negotiated sentence, which was

for time served, but required that Price be placed on South

Carolina’s   central   registry   of    child   abuse    and   sex   offender

registry.

     Following his release from state custody after his ABHAN

conviction   and   sentencing,    Price     moved       to   Georgia.       He


                                   11
registered there as a sex offender on July 27, 2010.                     Around

November 1, 2010, Price moved to Ohio but failed to register as

a sex offender there.        As a result, the City of Akron issued a

warrant for his arrest on February 1, 2011.                    Price, then a

fugitive, resided in Arizona from September 2011 until February

2012.   He moved back to South Carolina in February 2012, where

he again failed to register as a sex offender.                  On March 17,

2012, Price was arrested on the basis of the Ohio warrant in

Rock Hill, South Carolina.

                                      2.

      On April 2, 2012, a criminal complaint was filed in the

District of South Carolina, alleging that Price had knowingly

failed to register as a sex offender, in contravention of 18

U.S.C. § 2250(a).      The single-count indictment for that offense

was   returned    on   May   1,    2012,    alleging   that    Price’s    South

Carolina ABHAN conviction in July 2010 was for a sex offense

under SORNA, and that he violated § 2250(a) by travelling in

interstate    commerce   and      failing   to   register     and   update   his

registration as a sex offender, as required by SORNA.

      By motion of June 21, 2012, Price sought dismissal of the

indictment.      He therein argued that his ABHAN conviction was not

for a sex offense under SORNA, and therefore that he was not

subject to SORNA’s registration requirement.            The district court

denied Price’s dismissal motion on August 2, 2012, deeming the

                                      12
record “sufficient to indicate that [Price] was convicted of a

sex offense as defined by SORNA.”     See Denial Order 3.     The

court reasoned that it could review the record of Price’s ABHAN

conviction under the noncategorical approach — which we call the

circumstance-specific approach — relying on decisions of the

Ninth and Eleventh Circuits.   Id. at 4 (citing United States v.

Dodge, 597 F.3d 1347, 1354 (11th Cir. 2010) (en banc); United

States v. Mi Kyung Byun, 539 F.3d 982, 992 (9th Cir. 2008)).

Employing that approach, the court reviewed the facts underlying

Price’s ABHAN conviction, as reflected in the plea colloquy in

the York County proceedings.    That colloquy revealed that the

prosecutor had “recounted the facts of the offense:     defendant

forced his twelve year old step-daughter to perform oral sex on

him.”   Id. at 3.    Price “affirmatively answered that he knew

those facts would be presented to the jury if he went to trial,”

evidencing that he understood the ABHAN charge.   Id.   The court

observed that Price had agreed to register on the state sex

offender registry.   The court thus discerned “ample evidence to

indicate that the ABHAN plea in this case rested on indecent

liberties with a female as the aggravating circumstance, and

therefore constituted a sex offense.”    Id.   As a result, the

court concluded that Price was required to register under SORNA

and denied his motion to dismiss.



                               13
       On August 27, 2012, Price pleaded guilty in the district

court    to    violating        18   U.S.C.    § 2250(a),        as    charged    in    the

indictment.             Nonetheless, Price reserved his right, pursuant to

Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to

appeal the court’s denial of his motion to dismiss.

                                              C.

       The issue with respect to the dismissal motion is purely

legal and one that we review de novo:                       Did the district court

err     in    applying        the    circumstance-specific            approach    to    its

assessment         of     whether    Price’s       ABHAN   offense       satisfied      the

statutory definition of a “sex offense” under SORNA?                           See United

States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (“This

Court reviews de novo the district court’s denial of a motion to

dismiss       an    indictment       where     the    denial     depends       solely   on

questions          of     law.”).       At    the    outset,      that       question    is

circumscribed            in   certain   respects.          As    the    government      now

concedes, our decision in United States v. Hemingway, 734 F.3d

323,    333-34       (4th     Cir.   2013),   determined        that   the    common    law

offense of ABHAN — on which Price was convicted in York County

— is indivisible, rendering the modified categorical approach

inapplicable.             Additionally, because our review is de novo and

we “may affirm on any grounds apparent from the record,” United

States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005), we are

entitled to focus on the definition of a “sex offense” provided

                                              14
by 42 U.S.C. § 16911(5)(A)(ii) and its extended definition at

§ 16911(7)(I), as those provisions contain the definition of a

“sex offense” that is most relevant here.                  Read together, they

define a “sex offense” as a criminal offense involving “[a]ny

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

See 42 U.S.C. § 16911(5)(A)(ii), (7)(I). 7

                                        1.

     We must assess, then, whether the categorical approach or

the circumstance-specific approach applies to our analysis.                        At

least two of our sister circuits have grappled with that very

question,     and   each     has   concluded        that   what    we    call     the

circumstance-specific        approach   —     which    they   refer     to   as   the

noncategorical approach — is applicable to an analysis under 42

U.S.C. § 16911(7).          See United States v. Dodge, 597 F.3d 1347,

1356 (11th Cir. 2010) (en banc) (holding that “courts may employ

a noncategorical approach to examine the underlying facts of a

defendant’s    offense,       to   determine        whether   a   defendant       has

committed a ‘specified offense against a minor’ [under 42 U.S.C.

§ 16911(7)]”),      cert.    denied,    131    S.    Ct.   457    (2010);    United

States v. Mi Kyung Byun, 539 F.3d 982, 990-94 (9th Cir. 2008)


     7
       The Denial Order did not explicitly identify which aspect
of 42 U.S.C. § 16911’s definition of a “sex offense” it relied
upon in determining that Price’s ABHAN conviction constituted a
sex offense.



                                        15
(concluding that court should apply noncategorical approach to

determination      of    age    of    victim      under      42    U.S.C.      § 16911(7)),

cert. denied, 555 U.S. 1088 (2008).                    We agree with those courts

of appeals and are satisfied to apply the circumstance-specific

approach to our resolution of this appeal.

                                             a.

       First, the text, structure, and purpose of the relevant

SORNA     provisions       show           that    Congress         intended         for    the

circumstance-specific           approach         to   apply        to     an   analysis      of

subsection (7)(I).          The Supreme Court has repeatedly analyzed

the    specific    terms   in     federal         statutes        to    determine    whether

Congress    intended      for    an       element-    or     fact-based        approach     to

apply.       For    example,      the       Court     has    interpreted         the      words

“conviction” and “element” to indicate that Congress meant for

the statutory definition to cover a generic offense, implicating

the categorical and modified categorical frameworks.                            See, e.g.,

Taylor, 495 U.S. at 600-01 (reasoning that Congress’s use of

words “conviction” and “element” in Armed Career Criminal Act,

18     U.S.C.     § 924(e),      supports         categorical            approach).         By

contrast, where a statute contains “language that . . . refers

to specific circumstances” or conduct, the Court has determined

that     Congress       meant        to     allow      the        circumstance-specific

approach’s      more    searching         factual     inquiry          concerning    a    prior

offense.     See Nijhawan, 557 U.S. at 37.

                                             16
       The     language      and      structure     of    § 16911     underscore         the

proposition that an analysis of subsection (7)(I) requires use

of    the     circumstance-specific            approach. 8      Congress         expressly

referenced         the    “elements”       of     the     offense     in     subsection

(5)(A)(i),         providing     that    one     such    element    must    involve       “a

sexual       act    or   sexual      contact     with     another.”        But    neither

subsection (5)(A)(ii) nor its extension at subsection (7) refers

to    “elements.”         That       contrasting    terminology       indicates         that

Congress      drafted       subsections     (5)(A)(ii)        and   (7)    to     cover    a

broader range of prior offenses than those reached by subsection

(5)(A)(i).         See Jama v. Immigration & Customs Enforcement, 543

U.S. 335, 341 (2005) (“We do not lightly assume that Congress

has    omitted       from      its     adopted     text      requirements        that     it

nonetheless intends to apply, and our reluctance is even greater

when Congress has shown elsewhere in the same statute that it

knows how to make such a requirement manifest.”).                            Similarly,


       8
       Repetition sometimes being helpful, 42 U.S.C. § 16911
defines a “sex offense” at subsections (5)(A)(i) and (5)(A)(ii)
as follows:

       (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.

Additionally, a “specified offense against a minor” is defined
at subsection (7)(I) to include “[a]ny conduct that by its
nature is a sex offense against a minor.”



                                            17
subsection           (7)(I)’s      explicit        reference      to     the        “conduct”

underlying a prior offense, as well as the “nature” of that

conduct, refers to how an offense was committed — not a generic

offense.        See Nijhawan, 557 U.S. at 37-39.                    The text of SORNA

thus     indicates         that       Congress      intended      that        the     broader

circumstance-specific              analysis    be    applicable        with    respect      to

subsection (7)(I).            See Dodge, 597 F.3d at 1354-55.

       The      purpose       of    SORNA     also       supports      the     use     of    a

circumstance-specific              approach        and     our    interpretation            of

subsection       (7)(I).           Although        subsection     (5)(A)(i)          includes

certain prior offenses without regard to whether the victim was

a     child     or    an   adult,      subsections        (5)(A)(ii)         and    (7)     are

applicable only where the victim was a minor.                            Through SORNA,

Congress sought “to protect the public from sex offenders and

offenders against children,” and was responding “to the vicious

attacks by violent predators.”                   42 U.S.C. § 16901.            In light of

SORNA’s focus on children, Congress’s use of broader language in

defining a “sex offense” for victims who are minors makes clear

its    intention       that     the    circumstance-specific           approach       should

apply.        The Supreme Court reached a similar conclusion in United

States v. Hayes, 555 U.S. 415, 426-27 (2009), where it analyzed

a statute criminalizing firearm possession by persons convicted

of a “misdemeanor crime of domestic violence.”                           Observing that

Congress       intended       to   close    loopholes       and     apply     the     statute

                                              18
broadly to confront domestic violence, the Court reasoned that

the legislative history supported use of a factual analysis on

the specific issue of a domestic relationship.          See id.    We thus

agree with the Eleventh Circuit’s well-reasoned conclusion in

Dodge that the text and purpose of SORNA demonstrate Congress’s

intention     that    the   circumstance-specific   approach     should   be

utilized    in   an   analysis   of   the   applicability   of   subsection

(7)(I).     See Dodge, 597 F.3d at 1352-53. 9

                                      b.

     Second, Sixth Amendment concerns that compel the judicial

use of the categorical approach in other contexts are simply not


     9
       We are also satisfied to reject Price’s contention that
the federal regulations interpreting SORNA, commonly called the
“SMART Guidelines,” are helpful to him here. See Office of the
Attorney    General,   National   Guidelines   for   Sex   Offender
Registration and Notification, 73 Fed. Reg. 38,030, 38,052 (July
2, 2008).     The SMART Guidelines address subsection (7)(I) by
using terms such as “convictions” and “element,” which could
indicate a preference for the categorical approach — had
Congress used them in the text of subsection (7)(I).        We need
not accord Chevron deference to those Guidelines, although Price
urges us to do so.      See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (concluding
that,    where   federal   statute    is   silent   or   ambiguous,
administering agency’s permissible construction controls).       To
accept Price’s argument on that point, we would have to decide
that Congress’s use of the terms “conduct” and “nature” of that
conduct, combined with its omission of the word “element” in
subsections (5)(A)(ii) and (7), is ambiguous or silent as to the
proper method of analysis.      We would then have to decide that
the   SMART    Guidelines   provide    a   clear   and   reasonable
interpretation of those subsections. We are unwilling to accept
those propositions.



                                      19
present here.           In other situations — such as where a prior

conviction may trigger a sentencing enhancement, increasing a

defendant’s       punishment          —      the    Sixth     Amendment      requires       a

reviewing       court       to     apply     the    categorical        approach.         See

Descamps,       133    S.    Ct.     at    2288.     As     Descamps     explained,       the

categorical approach is essential in the context of a sentencing

enhancement, in order to ensure that a defendant’s punishment is

not increased on the basis of facts that were not found by a

jury.     See id.       And “the only facts the court can be sure the

jury so found are those constituting elements of the offense —

as      distinct        from         amplifying         but     legally        extraneous

circumstances.”         Id.

     Price       argues,          however,    that    the     Sixth     Amendment        also

requires use of the categorical approach in an analysis of a 42

U.S.C.    § 16911(7)(I)             issue,     in    order     to   ensure        that   the

defendant was, in fact, convicted of a sex offense.                                On that

point,    the    Supreme          Court’s    Nijhawan     decision     is    instructive.

There, the Court considered whether the categorical approach was

required by the Sixth Amendment to be used in the determination

of a loss amount in a deportation proceeding.                            The petitioner

argued that the loss-amount finding could lead to a more severe

sentence in a criminal proceeding for illegal reentry, and thus

contended       that        the    Sixth     Amendment        required      use    of    the

categorical analysis with respect to loss amount.                           See Nijhawan,

                                              20
557 U.S. at 40.            The Court disagreed, reasoning that “the later

jury, during the illegal reentry trial, would have to find loss

amount     beyond      a   reasonable       doubt,”       thereby      “eliminating         any

constitutional concern.”             Id.

       Here,      even     applying     the    circumstance-specific               approach,

Price was entitled to go to trial and have a jury determine

beyond a reasonable doubt whether his York County conviction was

for    a   sex    offense     under     SORNA.          Price    gave    up    that       Sixth

Amendment        right,     however,       when     he    pleaded       guilty       to     the

§ 2250(a) offense in federal court.                      See United States v. Ruiz,

536 U.S. 622, 629 (2002) (observing that, by pleading guilty,

defendant        “forgoes     not    only     a    fair       trial,    but    also       other

accompanying        constitutional         guarantees,”          including         the    Sixth

Amendment right to a jury trial).                    Had Price gone to trial in

the District of South Carolina, the prosecution would have borne

the burden of proving, beyond a reasonable doubt, that he had

been   previously          convicted    of    a    sex    offense       —     an    essential

element     of    18     U.S.C.     § 2250(a).          The    jury    would       thus    have

examined     the       evidence     presented      to     it    concerning         the    facts

underlying Price’s 2010 ABHAN offense, and then decided whether

that evidence satisfied SORNA’s definition of a “sex offense.”

                                              2.

       In sum, we conclude that Congress intended for reviewing

courts      to     utilize        the   circumstance-specific                 approach       to

                                              21
determine whether a prior conviction was for a sex offense under

SORNA, within the meaning of 42 U.S.C. § 11691(5)(A)(ii), as

expanded by subsection (7)(I).             We therefore affirm the district

court’s denial of Price’s motion to dismiss the indictment.



                                        II.

     Price additionally assigned error to the district court’s

calculation      of    his   advisory   Sentencing     Guidelines   range     with

respect     to    supervised       release.      Guidelines      section    5D1.2

contains    the       applicable    supervised-release        provisions.      As

relevant here, subsection (a)(2) provides for an advisory range

of one to three years for a defendant convicted of a Class C

felony (such as a violation of 18 U.S.C. § 2250(a)), except as

provided by subsections (b) and (c).                   Pursuant to subsection

(b)(2), the term of supervised release “may be up to life if the

offense is . . . a sex offense.”                 Under subsection (c), the

“term of supervised release imposed shall be not less than any

statutorily required term of supervised release.”

     The facts relating to Price’s sentence are straightforward.

Price’s presentence report (the “PSR”), which was accepted by

the district court at the sentencing hearing on March 14, 2013,

concluded     that     the    applicable      statutory   provision      required

imposition of a term of supervised release of five years to

life.      See    18   U.S.C.   § 3583(k).       The    PSR   computed     Price’s

                                        22
advisory Guidelines range by first observing that the five-year

minimum term of supervised release required by statute fixed the

minimum advisory Guidelines range.                See USSG § 5D1.2(c).          The

PSR then determined that Price’s § 2250(a) conviction was for a

sex offense, and thus calculated the upper-end of the advisory

range   to   be    life,     applying      Guidelines     section   5D1.2(b)(2).

Consequently,      the     PSR   concluded,     Price’s    advisory     Guidelines

range for supervised release was five years to life.                    Price made

no objections to the PSR.             The court then sentenced Price to

twenty-four       months    in    prison    and   imposed    a   life    term   of

supervised release, “with the provisio” that he could seek to

terminate supervision after five years if he complied with the

conditions of release.           See J.A. 115.

     Price now argues that the district court erred in applying

Guidelines section 5D1.2(b)(2) to increase the upper-limit of

his advisory Guidelines range to a life term.                He maintains that

the offense at issue — failing to register as a sex offender in

violation of § 2250(a) — is not a “sex offense” under that

Guidelines provision.            When a defendant has failed to object on

a sentencing contention being pursued on appeal, the issue is

subject to plain error review only.               See United States v. Grubb,

11 F.3d 426, 440 (4th Cir. 1993).               To satisfy such a review, “we

must find that (1) an error was committed, (2) the error was

plain, and (3) the error affected the defendant’s substantial

                                           23
rights.”        United States v. Ford, 88 F.3d 1350, 1355 (4th Cir.

1996).     If those “threshold requirements are satisfied, we must

also     decide     whether        the    error      ‘seriously           affect[ed]      the

fairness,        integrity,        or      public      reputation           of      judicial

proceedings.’”       Id. at 1355-56 (quoting United States v. Olano,

507 U.S. 725, 736 (1993)).

       Our Court decided the precise issue raised by Price only a

few weeks ago in United States v. Collins, 773 F.3d 25 (4th Cir.

2014).      Judge    Floyd’s       decision        recognized     that      a     clarifying

amendment to the Guidelines, effective November 1, 2014, makes

clear that “failing to register as a sex offender under SORNA is

not a ‘sex offense’ for the purposes of the Guidelines.”                             Id. at

32.      Thus,    Price    was     not    subject     to    the   enhanced          advisory

Guidelines        range     for         supervised      release           under      section

5D1.2(b)(2).         Moreover,       a    second     clarifying       amendment,          also

effective       November      1,     2014,        establishes     that,          where     the

statutory minimum term of supervised release is greater than the

advisory Guidelines range, section 5D1.2(c) operates to create

an advisory term of a “single point” at the statutory minimum.

Id.       The     phrase    “single        point”      refers        to     a     Guidelines

recommendation of a specific sentence, rather than a range.                                See

United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013)

(“[T]he    properly       calculated       advisory        Guidelines           ‘range’   for

[defendant’s]       offense      appears     to    actually     be    a     point:        five

                                             24
years.”).         As    a    result,       the    Guidelines      recommend     that   Price

receive a five-year term of supervised release, rather than a

term within a range of five years to life.

        In light of our Collins decision, Price has shown plain

error that entitles him to relief.                        First, Collins establishes

that     the     district          court’s       calculation      of    Price’s     advisory

Guidelines        range       as     to    supervised        release     was      erroneous.

Second,        because       the     issue       concerning    the      Guidelines     range

calculation has been resolved in this Court, the error is plain.

See Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)

(concluding          that,    “whether       a    legal     question     was   settled    or

unsettled at the time of trial, it is enough that an error be

plain     at     the        time     of    appellate        consideration”         (internal

quotation        marks       omitted)).            Third,     the      calculation     error

affected Price’s substantial rights because the record indicates

that the erroneous calculation of the advisory Guidelines range

caused him to be sentenced to a more severe term of supervised

release.        See Ford, 88 F.3d at 1356 (“The error clearly affected

[defendant’s] substantial rights because the extra points caused

[him]    to     be     sentenced      at     a    more   severe     guideline      range.”).

Finally, “sentencing a defendant at the wrong guideline range

seriously affects the fairness, integrity, and public reputation

of the judicial proceedings.”                    Id.



                                                 25
     We thus conclude that the district court’s calculation of

Price’s advisory Guidelines range concerning supervised release

was plainly erroneous and that the error should be recognized

and corrected.   We therefore vacate and remand for resentencing

on the supervised release question.



                              III.

     Pursuant to the foregoing, we affirm Price’s conviction for

failing to register under SORNA, vacate the supervised release

sentence, and remand for such further sentencing proceedings as

may be appropriate.

                                               AFFIRMED IN PART,
                                                VACATED IN PART,
                                                    AND REMANDED




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