                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                        No. 12-30233
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           2:12-cr-02027-
                                                      WFN-1
 PEDRO CABRERA -GUTIERREZ,
             Defendant-Appellant.                     OPINION


     Appeal from the United States District Court
        for the Eastern District of Washington
 Wm. Fremming Nielsen, Senior District Judge, Presiding

                    Argued and Submitted
             April 11, 2013—Seattle, Washington

                           Filed June 3, 2013

  Before: A. Wallace Tashima and Consuelo M. Callahan,
   Circuit Judges, and Raner C. Collins, District Judge.*

                   Opinion by Judge Callahan




 *
   The Honorable Raner C. Collins, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
2          UNITED STATES V . CABRERA -GUTIERREZ

                           SUMMARY**


                           Criminal Law

    Affirming a conviction and sentence for failing to register
under the Sex Offender Registration and Notification Act
(SORNA), the panel held that Congress has the authority
under the Commerce Clause to enact SORNA and to require
the defendant, a convicted sex offender who traveled
interstate, to register as a sex offender.

     The panel also held that the defendant’s admission in his
plea agreement that the victim of his sexual abuse was unable
to consent because of her intoxication is sufficient, under the
modified categorical approach, to render his state conviction
under Or. Rev. Stat. § 263.425 (1998) a crime of sexual abuse
pursuant to 18 U.S.C. § 2242, thereby rendering him a Tier
III sex offender at sentencing.


                             COUNSEL

Rebecca L. Pennell, Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellant.

Michael C. Ormsby, United States Attorney, and Alison L.
Gregoire (argued), Assistant United States Attorney, Yakima,
Washington, for Plaintiff-Appellee.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V . CABRERA -GUTIERREZ                        3

                             OPINION

CALLAHAN, Circuit Judge:

    Pedro Cabrera-Gutierrez (“Cabrera”) appeals his
conviction and sentence for failing to register under the Sex
Offender Registration and Notification Act (“SORNA”). On
appeal he advances two arguments. First, he asserts that
Congress lacked authority under the Commerce Clause to
compel his registration as a sex offender. Second, he
contends that he should have been sentenced as a Tier I,
rather than a Tier III, sex offender. We hold that Congress
has authority under the Commerce Clause to compel Cabrera,
a convicted sex offender who traveled interstate, to register
under SORNA. We also hold that under the modified
categorical approach, Cabrera’s plea to the state charge of
sexual abuse rendered him a Tier III sex offender.
Accordingly, we affirm Cabrera’s conviction and sentence.1

                                   I

    Cabrera was born in Mexico and has been removed from
the United States several times. In 1998, Cabrera was



 1
   Cabrera raises a third issue: whether the government improperly denied
him a third level of reduction for acceptance of responsibility under the
United States Sentencing Guidelines § 3E1.1(b). However, Cabrera
recognizes that we rejected this position in United States v. Johnson,
581 F.3d 994, 1001 (9th Cir. 2009) (holding that “the allocation and
expenditure of prosecutorial resources for the purposes of defending an
appeal is a rational basis for declining to move for the third reduction
point”), and that our three-judge panel is foreclosed from reconsidering
the issue. See United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).
Thus, Cabrera has raised the issue to preserve it should the law change.
4        UNITED STATES V . CABRERA -GUTIERREZ

convicted in Oregon of second degree sexual assault. In his
guilty plea statement, Cabrera admitted:

       I on May 2, 1998 did knowingly have sexual
       intercourse with [redacted] and she was
       unable to legally consent to having sexual
       intercourse with me because she was under
       the influence of alcohol at the time of the
       sexual intercourse. Further [redacted] was 15
       years old on May 2, 1998.

Cabrera was sentenced to 36 months’ imprisonment and
required to register as a sex offender. When Cabrera was
released from custody in September 2000, he was advised of
his responsibility to register as a sex offender under Oregon
law and promptly removed to Mexico.

    On February 3, 2012, Cabrera was arrested for a traffic
violation in Yakima, Washington. He was subsequently
charged in the district court with failing to register as a sex
offender in violation of 18 U.S.C. § 2250. Specifically, the
indictment alleged that Cabrera was an individual who was
required to register under SORNA, and having traveled in
interstate commerce, did knowingly fail to register in
violation of 18 U.S.C. § 2250. The indictment further alleged
that Cabrera had failed to meet his registration obligation
during a period of time from February 3, 2011, through
February 3, 2012.

    Cabrera filed a motion to dismiss, arguing that Congress
lacked authority to require him to register as a sex offender.
The district court denied the motion, noting that although
United States v. George, 625 F.3d 1124 (9th Cir. 2010), had
been vacated, 672 F.3d 1126 (9th Cir. 2012), “the Court finds
          UNITED STATES V . CABRERA -GUTIERREZ                5

the reasoning in George persuasive and notes that the opinion
was vacated on different grounds.” Thereafter, Cabrera
entered a conditional plea of guilty, preserving his right to
appeal the denial of his motion to dismiss.

    A Pre-Sentence Investigation Report (“PSR”) was
prepared which listed Cabrera’s offense level as 16 under
United States Sentencing Guidelines § 2A3.5(a)(1) because
he was required to register as a Tier III sex offender. Cabrera
objected to the PSR. He argued that his prior conviction only
qualified him as a Tier I sex offender, not a Tier III offender,
because his Oregon conviction was not comparable to, or
more severe than, “aggravated sexual abuse or sexual abuse,”
as defined in 42 U.S.C. § 16911. The district court rejected
this argument noting that Cabrera’s guilty plea admitted that
the girl was intoxicated and 15 years old. The court gave
Cabrera credit for time served on a prior conviction and
sentenced him to 17 months in prison with three years of
supervised release. Cabrera filed a timely notice of appeal
from his conviction and sentence.

                              II

    We first review the district court’s denial of Cabrera’s
motion to dismiss the indictment. We review that decision de
novo. United States. v. Milovanovic, 678 F.3d 713, 719 (9th
Cir. 2012) (en banc); United States v. Marks, 379 F.3d 1114,
1116 (9th Cir. 2004).

    Cabrera argues that SORNA requires sex offenders to
register their names, addresses, employment or school
information, and to appear in person at least once a year for
verification of their information. This, Cabrera asserts, is an
unconstitutional regulation of his inactivity under the
6         UNITED STATES V . CABRERA -GUTIERREZ

Supreme Court’s recent opinion in National Federation of
Independent Business v. Sebelius, – U.S. –, 132 S. Ct. 2566
(2012). Cabrera accepts that Congress has broad powers
under the Commerce Clause, but points out that in Sebelius,
the Court stated that “[c]onstruing the Commerce Clause to
permit Congress to regulate individuals precisely because
they are doing nothing would open a new and potentially vast
domain to congressional authority.” Id. at 2587. Cabrera
further argues that, unlike the Affordable Care Act, SORNA
has nothing to do with commerce. Its purpose is to “protect
the public from sex offenders and offenders against children.”
42 U.S.C. § 16901. He argues that this purpose, while
laudable, is not an appropriate purpose under the Commerce
Clause because public safety measures lie exclusively in the
realm of the States.

    In anticipation of the government’s reliance on “an
additional jurisdictional hook,” such as travel across state
lines, Cabrera argues that SORNA requires all sex offenders
to register, regardless of travel, and that the duty to register
under SORNA precedes any act of travel. Thus, he continues,
“SORNA would hold an individual who fails to register,
travels and then registers equally responsible as an individual
who never registers, before or after travel.” He argues, citing
Sebelius, 132 S. Ct. at 2590, that “the proposition that
Congress may dictate conduct of an individual today [i.e.,
registering as a sex offender] because of prophesied future
activity [i.e., interstate travel] finds no support in the
applicable Commerce Clause precedent.” Cabrera concludes
that because Congress lacks the power to require an
individual to register as a sex offender, it follows that it
cannot penalize him for failing to register, even if he has
traveled in interstate commerce.
         UNITED STATES V . CABRERA -GUTIERREZ               7

     Cabrera’s arguments may be creative but they are not
persuasive. In United States v. Lopez, 514 U.S. 549 (1995),
the Supreme Court recognized three broad categories of
activity that Congress may regulate under its commerce
power: (1) “Congress may regulate the use of the channels of
interstate commerce;” (2) “Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities;”
and (3) “Congress’ commerce authority includes the power to
regulate those activities having a substantial relation to
interstate commerce.” Id. at 558–59. The government asserts
that the requirement of interstate travel meets “the first two
categories of Congress’s Commerce Clause authority,
because an interstate traveler is both a person “in interstate
commerce” and one who uses the “channels of interstate
commerce.”

     We held in George, 625 F.3d at 1130, vacated on other
grounds, 672 F.3d 1126, that “Congress had the power under
its broad commerce clause authority to enact the SORNA,”
and we now reaffirm that holding, which has been embraced
by our fellow circuits. In George, we explained:

       SORNA was enacted to keep track of sex
       offenders. See Carr v. United States, – U.S.
       –, 130 S. Ct. 2229, 2240, 176 L. Ed.2d 1152
       (2010) (“[SORNA was] enacted to address the
       deficiencies in prior law that had enabled sex
       offenders to slip through the cracks.”). Such
       offenders are required to “register, and keep
       registration current, in each jurisdiction”
       where the offender lives, works, or goes to
       school. 42 U.S.C. § 16913(a). As stated by
8          UNITED STATES V . CABRERA -GUTIERREZ

         the Eighth Circuit, “[t]his language indicates
         Congress wanted registration to track the
         movement of sex offenders through different
         jurisdictions.” United States v. Howell,
         552 F.3d 709, 716 (8th Cir. 2009). “Under
         § 2250, Congress limited the enforcement of
         the registration requirement to only those sex
         offenders who were either convicted of a
         federal sex offense or who move in interstate
         commerce.”         Id. (citing 18 U.S.C.
         § 2250(a)(2)). The requirements of § 16913
         are reasonably aimed at “regulating persons or
         things in interstate commerce and the use of
         the channels of interstate commerce.” Id. at
         717 (quoting [United States v.] May, 535 F.3d
         [912] at 921 [(8th Cir. 2008)]) (quotation
         marks omitted).

625 F.3d at 1129–30.

    In George we noted that, in addition to the Eighth Circuit,
the Fourth, Fifth, Tenth, and Eleventh Circuits had upheld
SORNA’s constitutionality under the Commerce Clause.2


 2
   See United States v. Gould, 568 F.3d 459, 471 (4th Cir. 2009) (holding
“that § 2250(a) does not violate the Commerce Clause”); United States v.
Whaley, 577 F.3d 254, 258 (5th Cir. 2009) (stating “[t]hrough § 2250,
Congress has forbidden sex offenders from using the channels of interstate
commerce to evade their registration requirements, and we have no doubt
that it was within its power under the Commerce Clause to do so”); United
States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008) (stating “[b]y
requiring that a sex offender travel in interstate commerce before finding
a registration violation, SORNA remains well within the constitutional
boundaries of the Commerce Clause”), abrogated on other grounds by
Reynolds v. United States, – U.S. –, 132 S. Ct. 975, 978 (2012); United
           UNITED STATES V . CABRERA -GUTIERREZ                           9

The Second Circuit has also affirmed the constitutionality of
SORNA under the Commerce Clause.3 In at least two extant
opinions we have approvingly referenced George.4
Moreover, the Supreme Court’s opinions in Reynolds
v. United States, – U.S. –, 132 S. Ct. 975 (2012), and Carr
v. United States, – U.S. –, 130 S. Ct. 2229 (2010), affirming
but limiting SORNA, implicitly affirm SORNA’s
constitutionality.

   In sum, we see no reason to depart from our previously
expressed opinion and reaffirm that Congress had the power
under the Commerce Clause to enact SORNA.

    Cabrera’s attempt to separate SORNA’s interstate travel
and duty to register components fails for several reasons.
First, because Cabrera was charged and convicted of failing
to register after having traveled in interstate commerce, it is
questionable whether he may properly challenge the duty to




States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009) (holding that
“Section 2250 is a proper regulation falling under either of the first two
Lopez categories because it regulates both the use of channels of interstate
commerce and the instrumentalities of interstate commerce”).

 3
   See United States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010) (stating
“[w]e have no difficulty concluding that § 2250(a) is a proper
congressional exercise of the commerce power under Lopez”).

  4
    See United States v. Fernandes, 636 F.3d 1254, 1256 n.2 (9th Cir.
2011) (noting the argument that SORNA “is an invalid exercise of
Congress’ power under the Commerce Clause was rejected by this court”
in George); United States v. Valverde, 628 F.3d 1159, 1161 (9th Cir.
2010) (noting that George’s holding of constitutionality was binding).
10         UNITED STATES V . CABRERA -GUTIERREZ

register without interstate travel.5 More importantly, such a
parsing of SORNA has been rejected by the Supreme Court
and the circuit courts that have considered the issue. In Carr,
the Court explained that “Section 2250 is not a stand-alone
response to the problem of missing sex offenders; it is
embedded in a broader statutory scheme enacted to address
the deficiencies in prior law that had enabled sex offenders to
slip through the cracks.” 130 S. Ct. at 2240. The Seventh
Circuit explained the symbiotic relationship between the two
sections in United States v. Sanders, 622 F.3d 779, 783 (7th
Cir. 2010), stating:

        [S]ection 16913 cannot be divorced from
        section 2250 in evaluating whether the
        Commerce Clause gives Congress the
        authority to require anyone convicted of a sex
        offense to register. Imposing a duty to
        register as a matter of federal law would do
        little to solve the problem of sex offenders
        slipping through the cracks absent the
        enforcement mechanism supplied by section
        2250. Interstate travel by a sex offender is not
        merely a jurisdictional hook but a critical part
        of the problem that Congress was attempting
        to solve, for whenever sex offenders cross
        state lines they tend to evade the ability of any
        individual state to track them and thereby
        “threaten the efficacy of the statutory
        scheme. . . .” [Carr, 130 S. Ct.] at 2239; see
        also id. at 2238 (it was reasonable for


  5
    The propriety of SORNA’s application to intrastate travel by a sex
offender is before the Supreme Court in United States v. Kebodeaux, No.
12-418, cert. granted, 133 S. Ct. 928 (2013).
           UNITED STATES V . CABRERA -GUTIERREZ                       11

         Congress to give States primary responsibility
         to supervise and ensure compliance among
         state sex offenders and subject such offenders
         to federal criminal liability only when “they
         use the channels of interstate commerce in
         evading a State’s reach”); id. at 2240 (act of
         travel by sex offender is not merely a
         jurisdictional predicate but is “the very
         conduct at which Congress took aim”); id. at
         2241 (section 2250 “subject[s] to federal
         prosecution sex offenders who elude
         SORNA’s registration requirements by
         traveling in interstate commerce”).

The Second, Fifth, Eighth, and Eleventh Circuits are in
accord.6

    Furthermore, we have recently upheld the registration
requirement under the Necessary and Proper Clause. In
United States v. Elk Shoulder, 696 F.3d 922, 931–932 (9th
Cir. 2012), we held:


  6
    See Guzman, 591 F.3d at 90 (stating that “Sections 2250 and 16913
were enacted as part of the Adam W alsh Child Protection and Safety Act
of 2006, and are clearly complementary”); Whaley, 577 F.3d at 259
(same); United States v. Howell, 552 F.3d 709, 716 (8th Cir. 2009)
(concluding that “the statutory scheme Congress created to enforce
§ 16913 demonstrates Congress was focused on the interstate movement
of sex offenders, not the intrastate activity of sex offenders”); Ambert,
561 F.3d at 1212 (commenting that “an examination of § 16913 and
§ 2250 makes the interstate focus abundantly clear,” and “the only federal
enforcement provision against individuals is found in § 2250, which
explicitly subjects state sex offenders to federal prosecution under
SORNA only if they travel in interstate or foreign commerce and fail to
register under § 16913”) (internal quotation marks omitted).
12          UNITED STATES V . CABRERA -GUTIERREZ

         The Supreme Court has “made clear that, in
         determining whether the Necessary and
         Proper Clause grants Congress the legislative
         authority to enact a particular federal statute,
         we look to see whether the statute constitutes
         a means that is rationally related to the
         implementation of a constitutionally
         enumerated power.” Comstock, 130 S. Ct. at
         1956. . . [A] registration requirement aimed at
         informing the public of the identity and
         location of individuals convicted of sex
         offenses is reasonably related to Congress’s
         authority to ensure the safety of the public,
         which in turn flows from its authority to enact
         and enforce criminal laws.

The Second, Third, Fourth, Fifth, Seventh and Eleventh
Circuits are in agreement.7 Accordingly, we reject Cabrera’s


   7
     See Guzman, 591 F.3d at 91 (stating “[t]o the extent that § 16913
regulates solely intrastate activity, its means are reasonably adapted to the
attainment of a legitimate end under the commerce power”) (quotation
marks and citations omitted); United States v. Pendleton, 636 F.3d 78, 88
(3d Cir. 2011) (holding that “§ 16913 is a law made in pursuance of the
constitution because it is necessary and proper for carrying into execution
Congress’s power under the Commerce Clause”) (quotation marks and
citations omitted); Gould, 568 F.3d at 475 (stating “[r]equiring all sex
offenders to register is an integral part of Congress’ regulatory effort and
the regulatory scheme could be undercut unless the intrastate activity were
regulated”) (quotation marks and citation omitted); Whaley, 577 F.3d at
261(concluding that “that requiring sex offenders to register both before
and after they travel in interstate commerce . . . is ‘reasonably adapted’ to
the goal of ensuring that sex offenders register and update previous
registrations when moving among jurisdictions”); United States v.
Vasquez, 611 F.3d 325, 331 (7th Cir. 2010) (holding that “[t]o the extent
that § 16913 regulates solely intrastate activity, the regulatory means
           UNITED STATES V . CABRERA -GUTIERREZ                       13

contention that Congress lacked the authority to enact
SORNA and require that a convicted sex offender, like
Cabrera, who travels interstate register.

    Finally, whatever the merits of Cabrera’s reading of
Sebelius, SORNA does not regulate individuals “precisely
because they are doing nothing,” 132 S. Ct. at 2587.
SORNA applies only to individuals who have been convicted
of a sexual offense. Thus, registration is required only of
those individuals who, through being criminally charged and
convicted, have placed themselves in a category of persons
who pose a specific danger to society. Moreover, SORNA’s
application to Cabrera is based on his further admitted
activities of traveling in interstate commerce and then failing
to register. Thus, SORNA does not punish the type of
inactivity addressed in Sebelius. We adhere to precedent and
sound reasoning in concluding that Congress had the
authority to enact SORNA and that SORNA’s application to
Cabrera is constitutional.

                                  III

    We next consider Cabrera’s challenges to his sentence.
We review a district court’s interpretation of the Sentencing
Guidelines de novo, and the court’s factual findings for clear
error. United States v. Swank, 676 F.3d 919, 921 (9th Cir.




chosen are reasonably adapted to the attainment of a legitimate end under
the commerce power”) (quotation marks omitted); Ambert, 561 F.3d at
1212 (stating that “Section 16913 is reasonably adapted to the attainment
of a legitimate end under the commerce clause”).
14           UNITED STATES V . CABRERA -GUTIERREZ

2012); United States v. Laurienti, 611 F.3d 530, 551–52 (9th
Cir. 2010).8

    As applied to Cabrera’s situation, 42 U.S.C. § 16911(4)
defines a “tier III sex offender” as “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).”9 Section 2242 defines the crime of



 8
   In these cases, we have noted “an intracircuit conflict as to whether the
standard of review for application of the Guidelines to the facts is de novo
or abuse of discretion.” Swank, 676 F.3d at 921–22. However, as in those
cases, we need not resolve this conflict because our conclusion is the same
under either standard. See Swank, 676 F.3d at 922; Laurienti, 611 F.3d at
552.

 9
     42 U.S.C. § 16911(4) defines a Tier III offender as follows:

          The 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 or conspiracy 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;

          (B) involves kidnapping of a minor (unless committed
          by a parent or guardian); or
             UNITED STATES V . CABRERA -GUTIERREZ                       15

sexual abuse to include knowingly engaging “in a sexual act
with another person if that other person is – (A) incapable of
appraising the nature of the conduct; or (B) physically
incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act.”10




          (C) occurs after the offender becomes a tier II sex
          offender.

 10
      18 U.S.C. § 2242 reads:

          W hoever, in the special maritime and territorial
          jurisdiction of the United States or in a Federal prison,
          or in any prison, institution, or facility in which persons
          are held in custody by direction of or pursuant to a
          contract or agreement with the head of any Federal
          department or agency, knowingly--

          (1) causes another person to engage in a sexual act by
          threatening or placing that other person in fear (other
          than by threatening or placing that other person in fear
          that any person will be subjected to death, serious
          bodily injury, or kidnapping); or

          (2) engages in a sexual act with another person if that
          other person is--

              (A) incapable of appraising the nature of the
          conduct; or

               (B) physically incapable of declining participation
          in, or communicating unwillingness to engage in, that
          sexual act;

          or attempts to do so, shall be fined under this title and
          imprisoned for any term of years or for life.
16       UNITED STATES V . CABRERA -GUTIERREZ

    The Oregon statute governing Cabrera’s prior conviction
stated:

       (1) A person commits the crime of sexual
       abuse in the second degree when that person
       subjects another person to sexual intercourse,
       deviate sexual intercourse . . . and the victim
       does not consent thereto.

Or. Rev. Stat. § 263.425 (1998).

    Cabrera argues that the district court misunderstood the
nature of his plea. He asserts that he “never admitted to
having intercourse with someone incapable of providing
actual consent, as required by federal law. All [he] admitted
was having sexual intercourse with someone who was legally
incapable of consenting, due to being under the influence of
alcohol and due to age.” Cabrera claims that being under the
influence of drugs or alcohol “does not vitiate the capacity to
make voluntary decisions.”

    Cabrera also argues that the limited nature of his
admission has significance under Oregon law. He asserts that
under “Oregon law all individuals under 18 are legally
incapable of consenting to intercourse, regardless of actual
consent,” and incapacity based on the minor’s age is second
degree sexual assault. See Or. Rev. Stat. § 163.315. Cabrera
contrasts this with an Oregon law that provides that a person
who is mentally incapacitated or physically helpless cannot
consent to intercourse, and that a violation of this statute
constitutes first degree rape. See Or. Rev. Stat. § 163.375(d).
Cabrera claims that when he pled guilty, he “only intended to
establish the offense of second degree child abuse, not the
more serious offense of first degree rape.”
            UNITED STATES V . CABRERA -GUTIERREZ                          17

    Cabrera goes on to argue, citing Young v. Holder,
697 F.3d 976, 983 (9th Cir. 2012) (en banc), that because “the
modified categorical approach only captures those facts
necessarily admitted by a defendant as part of his plea, . . .
[w]here a particular fact is not necessary to sustain a
conviction, it cannot be deemed admitted unless the record is
absolutely clear that this was the defendant’s intent.” Cabrera
reasons that because the only fact necessary for his Oregon
conviction was that the victim was under the age of 18, the
additional fact that the victim had also been drinking might
have underscored her inability to consent, but “did not
establish that she was so intoxicated that she was incapable of
doing so.” Cabrera concludes that because he “did not
necessarily admit to having intercourse with an individual
incapable of providing actual consent, the ‘sexual abuse’
requirement under federal law was not met,” and he should
not have been classified as a Tier III offender.11

     We agree with the parties that the Oregon conviction is
not a categorical match to 18 U.S.C. § 2242, but conclude
that the application of the modified categorical approach
establishes that Cabrera is a Tier III offender. Cabrera’s plea
is a document that the court may consider under the modified
categorical approach. United States. v. Castillo-Marin,
684 F.3d 914, 919 (9th Cir. 2012) (noting that, “[u]nder the
modified categorical approach, courts may rely only on
documents that give [it] the certainty of a generic finding,
including the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented” (internal quotation marks and citations omitted)).

  11
     It is undisputed that if Cabrera is not a Tier III offender, he is a Tier
I offender.
18         UNITED STATES V . CABRERA -GUTIERREZ

    Cabrera’s arguments concerning Oregon law and his plea
agreement are not persuasive. First, the federal definition of
“sexual abuse” as set forth in 18 U.S.C. § 2243, which
requires that the victim be “incapable of appraising the nature
of the conduct,” does not cover only convictions where the
victim was “incapable of consent by reason of mental defect,
mental incapacitation or physical helplessness.” Such a
limited interpretation is contrary to a common-sense reading
of the statute, would render a section of the statute
redundant,12 and is not supported by any authorities.

     Second, intoxication can be the cause of a victim’s
incapacity to consent. See United States v. Smith, 606 F.3d
1270, 1281–82 (10th Cir. 2010) (noting that victim was
heavily intoxicated before the assault); United States v.
Carter, 410 F.3d 1017, 1027 (8th Cir. 2005) (holding that
evidence the victim smoked marijuana and drank alcohol, and
felt drowsy and really tired, was sufficient to conclude that
the victim was unable to appraise the nature of the
perpetrator’s conduct).13


 12
    If the language in § 2242(1)(A) requiring that the victim be “incapable
of appraising the nature of the conduct” were limited to the meaning
proposed by Cabrera, the disjunctive language in § 2242(1)(B) providing
that it is also sexual abuse to engage in a sexual act with a person
“physically incapable of declining participation in, or communicating
unwillingness to engage in” the sexual act, would be at least partially
redundant. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 347
(1998) (reiterating that courts should avoid interpreting statutes in a way
that renders some words altogether redundant).

  13
      Cabrera cites cases holding that intoxication does not necessarily
invalidate a consent to search. See United States v. Watters, 572 F.3d 479,
483–84 (8th Cir. 1999); United States v. Scheets, 188 F.3d 829, 839 (7th
Cir. 1999). These cases are inapposite for at least two reasons. First, they
concern efforts by defendants to use their intoxication as a defense, and
           UNITED STATES V . CABRERA -GUTIERREZ                       19

    Third, our opinion in Young does not support Cabrera’s
argument. As he notes, we there held that “[w]hen applying
the modified categorical approach in the context of a guilty
plea, we must determine whether a guilty plea to an offense
defined by a nongeneric statute necessarily admitted elements
of the generic offense.” 697 F.3d at 983 (quotation marks
omitted). Here, Cabrera acknowledged in his plea statement
that his victim, due to intoxication, was “incapable of
appraising the nature of the conduct,” and thus, he
“necessarily admitted” that his state conviction was for sexual
abuse, as defined by 18 U.S.C. § 2242. In other words, he
chose to admit to an element of the state crime – that his
victim did not consent due to her lack of capacity to do so –
by confessing to facts that also defined his crime as a sexual
offense under federal law. Perhaps he could have been
convicted under Oregon law on another basis that might not
have satisfied the federal definition of sexual abuse.14
However, Cabrera chose first to admit to his victim’s
incapacity to consent in a manner that clearly satisfied the
federal definition of sexual abuse. Accordingly, the district
court properly determined that he was a Tier III sex offender.

                                  IV

   Cabrera, having been convicted in Oregon of the crime of
sexual abuse and having been ordered to register as a sex



second, Cabrera in his plea statement admitted that his victim was unable
to consent because of her intoxication.

  14
    Because we hold that Cabrera’s statement that his victim could not
consent due to intoxication is sufficient to render him a Tier III sex
offender, we need not, and do not, consider whether the victim’s young
age would meet § 2242’s definition of sexual abuse.
20        UNITED STATES V . CABRERA -GUTIERREZ

offender, chose to travel interstate and failed to register under
SORNA. We conclude, as have our sister circuits, that
Congress has the authority under the Commerce Clause to
enact SORNA and to require Cabrera to register under
SORNA as a sex offender. We also conclude that Cabrera’s
admission in his plea statement that the victim of his sexual
abuse was unable to consent because of her intoxication is
sufficient, under the modified categorical approach, to render
his state conviction a crime of sexual abuse pursuant to
18 U.S.C. § 2242. Accordingly, Cabrera’s conviction and
sentence are AFFIRMED.
