                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4934


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRIAN KEITH BERRY,

                Defendant - Appellant.

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

FEDERAL PUBLIC DEFENDER OFFICE,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-cr-00329-FL-1)


Argued:   December 10, 2015                 Decided:   February 19, 2016


Before WILKINSON, KING, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Wilkinson and Judge King joined.


ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant.  Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.    Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Amicus
Curiae.




                               2
WYNN, Circuit Judge:

      Defendant Brian Keith Berry was convicted of a sex offense

in state court and obligated to register under the federal Sex

Offender Registration and Notification Act, also known as SORNA.

Defendant    failed        to   register          as   required    and    pled     guilty    to

violating 18 U.S.C. § 2250(a).

      At   sentencing,          the    district        court    calculated       Defendant’s

United States Sentencing Guidelines (“Guidelines”) range as if

he were a tier III sex offender.                       Defendant challenges that tier

designation.         Using      the        categorical     approach,       which       we   hold

applicable here, and comparing his state court conviction for

endangering    the     welfare         of     a    child   to     the    generic       offenses

enumerated     in     42    U.S.C.         § 16911(4)(A),         we    must     agree:     the

district court erred in deeming Defendant a tier III offender.

Accordingly,     we     vacate         Defendant’s         sentence      and     remand      for

resentencing.

                                                  I.

      In 2002, Defendant pled guilty in New Jersey state court to

endangering the welfare of a child in violation of N.J. Stat.

Ann. § 2C:24-4(a) (2002).                  Upon Defendant’s release from prison,

he was advised that he must register as a sex offender with the

New   Jersey    police.               He     initially      registered          with    a   New

Brunswick,     New     Jersey,         address;          but,   in      March     2013,      law

enforcement agents found that he no longer lived at that listed

                                                  3
address.          Thereafter, the State of New Jersey thus issued a

warrant to arrest Defendant for violating the conditions of his

parole.       Ultimately, Defendant was found in North Carolina where

he    admitted      to    law     enforcement            officials      that    he    had       not

registered as a sex offender in the State of North Carolina.

          Defendant pled guilty to one count of failing to register

as    a     sex   offender      in       violation       of     18    U.S.C.   § 2250.           At

sentencing, the district court found Defendant to be a tier III

sex    offender      under      SORNA,      with     a    corresponding        base       offense

level of sixteen.            In a memorandum opinion, the court explained

that its tier III determination was “based upon description of

the    conduct      underlying           defendant’s      prior       sex   offense       as    set

forth in the presentence report.”                        United States v. Berry, No.

5:13-CR-329-FL-1,          2014      WL     7149736,       at    *1    (E.D.N.C.      Dec.      15,

2014).       The court found that the conduct underlying the offense,

penetrating the vagina of a five-year-old victim with his hand,

was comparable to the offense of “abusive sexual contact . . .

against a minor who has not attained the age of 13 years” listed

in    the    definition      of      a    tier   III      sex    offender      in    42    U.S.C.

§ 16911(4)(A).        Id. at *3.

          Based on his tier III designation and other factors, the

district      court      determined        Defendant’s          Guidelines      range      to    be

thirty-three to forty-one months.                        The district court sentenced

Defendant to thirty-three months in prison and five years of

                                                 4
supervised         release.         Defendant       appeals,     arguing       that    the

district court erred in its determination that he qualified as a

tier III sex offender.

                                             II.

                                             A.

       On appeal, we must determine whether the district court

imposed      an    unreasonable       sentence       by    calculating       Defendant’s

Guidelines range as if he were a tier III sex offender under

SORNA.        We    review       sentences    under       an   abuse    of    discretion

standard. 1       Gall v. United States, 552 U.S. 38, 51 (2007).                      Such

a   review     includes         procedural    and     substantive       reasonableness

components.         Id.; United States v. Dimache, 665 F.3d 603, 606

(4th   Cir.       2011).        Relevant    here,    a    sentence     is    procedurally

unreasonable if the district court “fail[ed] to calculate (or

improperly calculat[ed]) the Guidelines range.”                         Gall, 552 U.S.

at 51; United States v. Avila, 770 F.3d 1100, 1103 (4th Cir.

2014).              Further,        “[w]hen         considering         a      sentence’s

reasonableness,            we     ‘review     the         district     court’s        legal

       1
       We reject out of hand the government’s suggestion that
Defendant failed to preserve this issue and that we should thus
review only for plain error.     The record clearly shows that
Defendant’s counsel objected to the district court’s tier
classification and the court’s consideration of the facts and
circumstances   surrounding  Defendant’s   prior  sex   offense
conviction. Not surprisingly, the district court thus addressed
the preserved argument in its memorandum opinion.   Berry, 2014
WL 7149736, at *2. We do the same.



                                              5
conclusions de novo and its factual findings for clear error.’”

United States v. Thornton, 554 F.3d 443, 445 (4th Cir. 2009)

(quoting United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.

2008)).

                                              B.

       SORNA   requires           sex     offenders        to    register      “in     each

jurisdiction where the offender resides, where the offender is

an employee, and where the offender is a student.”                             42 U.S.C.

§ 16913(a).           Further,          sex    offenders        must     update       their

registration upon a change in residence.                        Id. § 16913(c).         And

18 U.S.C. § 2250 imposes criminal penalties on persons who are

required, but knowingly fail, to register.

       SORNA classifies sex offenders into three tiers depending

on    the   nature    of    their       underlying     sex      offense.      42     U.S.C.

§ 16911(2)–(4).        Sex offenders who have committed more serious

sex    offenses      are    classified        under    tiers     II    and    III.      Id.

§ 16911(3)–(4).        Tier I is a catch-all provision for all other

sex offenders.        Id. § 16911(2).              A defendant’s tier designation

plays into his sentencing, as the Guidelines assign base offense

levels of sixteen, fourteen, and twelve for tier III, tier II,

and tier I sex offenders, respectively.                    U.S.S.G. § 2A3.5(a).

       To   determine       a    defendant’s        tier     classification,         courts

compare the defendant’s prior sex offense conviction with the

offenses     listed    in       SORNA’s   tier     definitions.         See    42    U.S.C.

                                              6
§ 16911(2)–(4).           Courts have embraced two analytical frameworks

for   such    inquiries:         1)       the    “categorical         approach”          and    its

derivative,     the       “modified         categorical        approach,”          and    2)    the

“circumstance-specific                approach”            (also           known        as      the

“noncategorical approach”).                  See Descamps v. United States, 133

S. Ct. 2276, 2281 (2013); Nijhawan v. Holder, 557 U.S. 29, 34

(2009).

      The    categorical        approach          focuses      solely       on    the    relevant

offenses’ elements, comparing the elements of the prior offense

of    conviction      with      the       elements      of     the        pertinent      federal

offense,     also    referred        to     as    the   “generic”          offense.          United

States v. Price, 777 F.3d 700, 704 (4th Cir.), cert. denied, 135

S. Ct. 2911 (2015).             If the elements of the prior offense “are

the   same    as,    or     narrower        than,”      the    offense       listed       in    the

federal statute, there is a categorical match.                              Descamps, 133 S.

Ct.   at    2281.         But   if    the       elements      of    the    prior    conviction

“sweep[]     more    broadly,”         id.       at   2283,    such        that    there       is   a

“realistic probability” that the statute of the offense of prior

conviction encompasses conduct outside of the offense enumerated

in the federal statute, the prior offense is not a match, Price,

777 F.3d at 704 (quoting Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007)).

      The modified categorical approach serves as a “tool for

implementing        the    categorical           approach”         where    the    defendant’s

                                                 7
prior conviction is for violating a “divisible” statute—that is,

a statute that “sets out one or more elements of the offense in

the alternative.”             Descamps, 133 S. Ct. at 2281, 2284–85.                         The

modified categorical approach permits the court to consult a

limited    menu        of     so-called       Shepard       documents,       such      as    the

indictment,       the        plea     agreement,      and      jury       instructions,        to

“determine which alternative formed the basis of the defendant’s

prior conviction.”                Id. at 2281; see also id. at 2283–85 (citing

Shepard    v.   United            States,     544   U.S.    13     (2005)).         Once      the

elements of the offense of conviction have been identified, the

examination       of        any     Shepard    documents          ends,    and   the        court

proceeds with employing the categorical approach, comparing the

elements of the offense of conviction with the elements of the

offense identified in the federal statute.                         Id. at 2281.

      In   contrast          to    the    categorical       and    modified      categorical

approaches,     the         circumstance-specific           approach       focuses     on     the

circumstances underlying the defendant’s prior conviction, not

the offense’s elements.                  Price, 777 F.3d at 705.             “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.”            Id.




                                                8
                                          C.

      The Tenth Circuit recently considered which approach best

fits the portion of the tier III definition found in Section

16911(4)(A)—the precise question before us here—and held that

“Congress    intended    courts     to    look        to    the    actual      age    of   the

defendant’s    victim,    but     to     otherwise          employ       a    [categorical]

approach.”     United States v. White, 782 F.3d 1118, 1133, 1135

(10th Cir. 2015).       We agree.

      Like    the   Tenth    Circuit,           and        as     with       any    statutory

interpretation, we begin by analyzing SORNA’s text.                                Generally,

when a federal statute refers to a generic offense, the text

evidences    Congress’s     intent       that    the       categorical         approach     be

applied.     See Nijhawan, 557 U.S. at 34–35; see also Moncrieffe

v. Holder, 133 S. Ct. 1678, 1685 (2013).                             However, when the

statute refers to specific conduct or a factual circumstance,

its   text    suggests      Congress’s           intent         to       allow      for    the

circumstance-specific approach.                Nijhawan, 557 U.S. at 34, 37–

38; Price 777 F.3d at 705.

      Here, Section 16911(4) defines a “tier III sex offender,”

in relevant part, as:

      [an] 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:

                                          9
         (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).             Thus, a defendant cannot be classified

as a tier III sex offender under Section 16911(4)(A) unless the

prior sex offense conviction is “comparable to or more severe

than” aggravated sexual abuse, sexual abuse, or abusive sexual

contact as the offenses are “described in” Sections 2241, 2242,

and 2244 of the Criminal Code.             Id. § 16911(4)(A)(i)–(ii).

     As the Tenth Circuit recently noted in White, “a reference

to a corresponding section of the [C]riminal [C]ode” like here

“strongly suggests a generic intent.”                       782 F.3d at 1132.          In

Nijhawan    v.   Holder,       for   example,     the       Supreme   Court       analyzed

subsections      of       an   “aggravated      felony”       provision,      8     U.S.C.

§ 1101(a)(43),        which      similarly      cross-references          “‘offense[s]

described    in’      a    particular     section      of    the   Federal        Criminal

Code.”     557 U.S. at 37 (citation omitted).                      According to the

Supreme Court, such language “must refer to generic crimes.”

Id. (emphasis added).            SORNA’s text therefore suggests that the

categorical approach should be used to determine whether a prior

conviction    is      comparable     to   or    more    severe     than   the      generic

crimes listed in Section 16911(4)(A).




                                           10
       Nonetheless, we must also consider the language in Section

16911(4)(A)(ii)      stating        that   a    defendant       is    a    tier    III   sex

offender if his prior conviction is comparable to or more severe

than   abusive      sexual     contact     “against         a   minor      who     has   not

attained    the    age   of    13    years.”      42       U.S.C.    § 16911(4)(A)(ii)

(emphasis    added).          The    definition       of    abusive       sexual    contact

encompasses a number of alternative elements.                             See 18 U.S.C.

§ 2244.     However, it does not include an element specifying a

victim “who has not attained the age of 13 years.”                                42 U.S.C.

§ 16911(4)(A)(ii); see 18 U.S.C. § 2244.                     Congress’s decision to

reference in SORNA a victim “who has not attained the age of 13

years,” 42 U.S.C. § 16911(4)(A)(ii), must therefore be read as

an instruction to courts to consider the specific circumstance

of a victim’s age, rather than simply applying the categorical

approach.

       The language used to define a tier II sex offender also

supports the conclusion that Congress intended courts to use a

categorical       approach     when     the     sex    offender       tier       definition

references a generic offense, with the exception of the specific

circumstance regarding the victim’s age.                        White, 782 F.3d at

1133−34.     Section 16911(3)(A) indicates that a defendant is a

tier II sex offender if he has committed an offense that is

“comparable to or more severe than” a list of generic crimes

cross-referenced         in    the     Criminal        Code.          See     42     U.S.C.

                                           11
§ 16911(3)(A)(i)−(iv) (listing the offenses of sex trafficking,

coercion and enticement, transportation with intent to engage in

criminal    sexual       activity,    and        abusive       sexual    contact       “as

described        in”   Sections    1591,        2422(b),       2423(a),       and   2244

respectively).         However, Section 16911(3)(A) qualifies that such

a generic offense reaches tier II status only when committed

“against a minor,” i.e., “an individual who has not attained the

age of 18 years.”            Id. § 16911(3)(A), (14) (emphasis added).

Thus, the language of Section 16911(3)(A), like the language of

Section 16911(4)(A), instructs courts to apply the categorical

approach    when       comparing   prior        convictions      with    the    generic

offenses     listed       except     when       it     comes     to     the    specific

circumstance of the victims’ ages.                   White, 782 F.3d at 1134; see

also United States v. Mi Kyung Byun, 539 F.3d 982, 991 (9th Cir.

2008).

     In sum, an examination of 42 U.S.C. § 16911(4)(A)’s text

and structure leads us to the same conclusion the Tenth Circuit

reached     in     White:    “Congress      intended        courts      to     apply    a

categorical       approach    to     sex    offender        tier      classifications

designated by reference to a specific federal criminal statute,




                                           12
but to employ a circumstance-specific comparison for the limited

purpose of determining the victim’s age.”                 782 F.3d at 1135. 2

       Our approach to Section 16911(4)(A) also accords with the

Supreme Court’s instructions that courts account for practical

considerations            when    determining        whether      to    employ     the

categorical        or     circumstance-specific       approach. 3       The    Supreme

Court      has    noted    that   the   circumstance-specific          approach   can

create      “daunting      difficulties”     for     sentencing    courts,    tasking

them       with    examining      evidence      to    understand       the    specific

circumstances of past convictions.                 Descamps, 133 S. Ct. at 2289


       2
       The portions of the tier III definition found in 42 U.S.C.
§ 16911(4)(B) and (C) are irrelevant to this case. We therefore
do not address them here.
       3The Supreme Court has identified additional factors,
including legislative history, equitable considerations, and
Sixth Amendment implications, relevant to the determination of
whether to apply the categorical or circumstance-specific
approach.   See Descamps, 133 S. Ct. at 2287–89.     Because the
text and structure of Section 16911(4)(A) clearly evidence
Congress’s intent, we need not address these additional factors
in our analysis, as none would change the result here. We note,
however, that two of these factors—legislative history and
equitable considerations—lend particularly strong additional
support to our conclusion that the categorical approach should
apply with the exception that we look to the specific
circumstance of a victim’s age. See White, 782 F.3d at 1134–35
(discussing SORNA’s legislative history); see also Descamps, 133
S. Ct. at 2289 (explaining the potential unfairness of the
circumstance-specific   approach  in   the   context   of  prior
conviction sentencing enhancements, as it may allow for
consideration of factual allegations from past convictions that
the defendant had little incentive to challenge at trial or
deprive the defendant of the benefits of a negotiated plea
deal).



                                           13
(internal      quotation       marks   omitted).      Such    examinations        could

require the review of aged documents, “[t]he meaning of [which]

will often be uncertain,” and “statements of fact . . . [that

are] downright wrong.”             Id.    A defendant may contest much of

this,    raising     the    possibility        of   “minitrials”     wherein       past

convictions are re-litigated.              Moncrieffe, 133 S. Ct. at 1690;

see Taylor v. United States, 495 U.S. 575, 601–02 (1990).

      Applying     the     categorical     approach    to    the    generic    crimes

listed in SORNA’s tier III definition will avoid such practical

difficulties.         And      looking    to    the   circumstances      of       prior

convictions for the limited purpose of identifying the age of

the     victim    raises       less    concern.       Determining       age       is     a

“straightforward         and    objective”      inquiry      that   “involves          the

inspection of a single threshold fact.”                      Hernandez-Zavala v.

Lynch, 806 F.3d 259, 267 (4th Cir. 2015).

      The government nevertheless contends that we should employ

the circumstance-specific approach wholesale, relying primarily

on our recent United States v. Price decision.                      True, we there

employed the circumstance-specific approach—but to a different,

and differently-worded, SORNA subsection.                     777 F.3d 700.            In

Price, we had to decide which approach to employ in assessing

whether    a     defendant’s      prior   conviction      qualified    as     a    “sex

offense” under Section 16911(7)(I).                 Id. at 707–09.       That term

includes “[a]ny conduct that by its nature is a sex offense

                                          14
against a minor.”            42 U.S.C. § 16911(7)(I) (emphasis added).

Examining this language, we found that the “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.”                  Price, 777 F.3d at 709.               As

explained     above,       the        relevant     statutory        language—and         the

conclusions we must draw from it—differ markedly here.

      We also reject the government’s contention that practical

considerations       weigh       in    favor     of     adopting      a     circumstance-

specific     approach      wholesale.            According     to     the    government,

considering       the     specific       circumstances         to     determine       tier

classifications should be unproblematic after Price, since the

factfinder must already consider the specific circumstances to

determine whether a defendant has committed a “sex offense.”

While perhaps true in some cases, that assertion may well be

untrue in many others, like here, where it is uncontested that

Defendant’s prior conviction constitutes a sex offense.

      Moreover,      Price   held       only     that   the   circumstance-specific

approach     is   applicable      to     determinations        with       respect   to    42

U.S.C. § 16911(7)(I).            777 F.3d at 709.             Subsection (7)(I) is

but one of several subsections comprising SORNA’s definition of

the   term    “sex      offense.”         See     42    U.S.C.      § 16911(5)(A)–(C),

(7)(A)–(I).       The Court acknowledged in Price that the language

of at least one other subsection included in the sex offense

                                            15
definition         calls   for    an    elements-based,        categorical   approach.

See 777 F.3d at 708.               Thus, in some cases, one can and should

determine whether a defendant was convicted of a sex offense

without     looking        at    the    factual      circumstances    of     the    prior

offense.

                                               D.

       Having determined that we apply the categorical approach in

assessing whether a defendant’s prior conviction constitutes a

tier    III    sex     offense         under     Section   16911(4)(A),      with       the

exception      that    we       look   to   the     specific    circumstance       of   the

victim’s age, we now apply this approach to Defendant’s case.

And, doing so, we conclude that the district court erred in

deeming Defendant a tier III sex offender.

       As     we    already      noted,     in    2002   Defendant   pled    guilty      to

endangering the welfare of a child in violation of N.J. Stat.

Ann. § 2C:24-4(a).          At that time, the statute stated:

       Any person having a legal duty for the care of a child
       or who has assumed responsibility for the care of a
       child who engages in sexual conduct which would impair
       or debauch the morals of the child, or who causes the
       child harm that would make the child an abused or
       neglected child as defined in R.S.9:6-1, R.S.9:6-3 and
       P.L.1974, c. 119, s.1 (C.9:6-8.21) is guilty of a
       crime of the second degree. Any other person who
       engages in conduct or who causes harm as described in
       this subsection to a child under the age of 16 is
       guilty of a crime of the third degree.

N.J. Stat. Ann. § 2C:24-4(a) (2002) (emphasis added).



                                               16
     Because        the    statute    provided        alternative     elements        that

could     constitute        child     endangerment—“engag[ing]              in   sexual

conduct”    or      “caus[ing]      . . .    harm”—the      statute    is   divisible.

Id.; see Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014)

(“[C]rimes are divisible . . . if they set out elements in the

alternative and thus create multiple versions of the crime.”

(internal quotation marks omitted)).                      Generally, therefore, we

would use the modified categorical approach to determine the

elements       of   Defendant’s      child    endangerment         conviction.        See

Descamps, 133 S. Ct. at 2281.

     Here, however, there is no need to do so—because regardless

of   whether        Defendant’s     New     Jersey    conviction      was     based    on

“sexual conduct which would impair or debauch the morals of [a]

child”    or    “harm      that   would     make    [a]    child    . . .   abused     or

neglected,”         N.J.    Stat.     Ann.        § 2C:24-4(a)      (2002),      neither

alternative would qualify as a tier III sex offense.

        The only subsection of relevance to Defendant’s potential

tier III classification is subsection (4)(A), which identifies

the generic crimes of aggravated sexual abuse, sexual abuse, and

abusive sexual contact defined in the Criminal Code.                          42 U.S.C.

§ 16911(4)(A).            And all three—aggravated sexual abuse, sexual

abuse, and abusive sexual contact—require a defendant to have

engaged in or attempted physical contact.



                                             17
        Specifically,    aggravated      sexual        abuse    and     sexual       abuse

require an actual or attempted sexual act, 18 U.S.C. §§ 2241,

2242,     which,   in    turn,      involves    physical        contact,       see    id.

§ 2246(2)     (defining    sexual      act     to    include         contact     between

genitals, contact between the mouth and genitals, penetration of

genitals    with   a    hand   or    object    with     a    specific     intent,      or

intentional touching of a person under the age of sixteen with a

specific    intent).      Similarly,      the       offense     of    abusive    sexual

contact requires physical contact.                   See id. § 2244 (defining

“abusive     sexual     contact”);      id.    § 2246(3)        (defining       “sexual

contact” as “intentional touching” with a specific intent).

        The New Jersey Supreme Court has, however, made clear that

actual or even attempted physical contact is not necessary for

conviction under the child endangerment statute at issue here.

For example, the New Jersey Supreme Court held in 2001 that

“mere nudity repeatedly presented at a window can constitute

endangering the welfare of children if the other elements of the

endangering crime are met.”           State v. Hackett, 764 A.2d 421, 428

(N.J. 2001).       The statute’s first alternative, “sexual conduct

which would impair or debauch the morals of [a] child,” N.J.

Stat. Ann. § 2C:24-4(a) (2002), thus does not qualify for tier

III   classification,      see   United       States    v.     Aparicio-Soria,         740

F.3d 152, 154 (4th Cir. 2014) (en banc) (“To the extent that the

statutory definition of the prior offense has been interpreted

                                         18
by the state’s highest court, that interpretation constrains our

analysis of the elements of state law.”).

       Nor is physical contact necessary to “cause[] [a] child

harm that would make the child an abused or neglected child”—the

statute’s      second     alternative.           N.J.   Stat.     Ann.     § 2C:24-4(a)

(2002).       For example, one could cause such harm by “willfully

failing to provide proper and sufficient food.”                       See id. § 9:6-

1.

       In sum, the New Jersey child endangerment statute under

which    Defendant      was    convicted,        N.J.   Stat.     Ann.     § 2C:24-4(a)

(2002),       can   encompass    conduct,        such   as   repeated       nudity    and

willing       failure   to    provide   proper       food,    that    clearly     falls

outside of the generic crimes of aggravated sexual abuse, sexual

abuse, and abusive sexual contact, all of which require actual

or    attempted     physical     contact.         And   because      the    New   Jersey

statute sweeps more broadly than the generic crimes listed in 42

U.S.C. § 16911(4)(A), Defendant’s New Jersey conviction is not

“comparable to or more severe than” those crimes.                            42 U.S.C.

§ 16911(4)(A); see Descamps, 133 S. Ct. at 2283.                           Accordingly,

Defendant cannot properly be classified as a tier III offender,

and     the    district      court   thus    erred      in   so   classifying        him.

Because that error led to an improper calculation of Defendant’s

base offense level under the Sentencing Guidelines, Defendant’s

sentence is procedurally unreasonable and must be vacated.                           See,

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e.g., United States v. Clay, 627 F.3d 959, 964, 970 (4th Cir.

2010). 4

                                     III.

     For    the   reasons    above,    the     district    court   erred     in

classifying Defendant as a tier III sex offender.              We therefore

vacate Defendant’s sentence and remand for the district court to

determine   Defendant’s     proper    tier    classification   (i.e.,    I   or

II), calculate    the   corresponding        Sentencing   Guidelines    range,

and impose a sentence.

                                                      VACATED AND REMANDED




     4 We summarily reject Defendant’s argument that the Court
should defer to New Jersey’s classification of him as a tier II
offender.   The Guidelines make clear that a defendant’s base
offense level for violation of 18 U.S.C. § 2250 is determined by
the defendant’s tier classification under SORNA.        U.S.S.G.
§ 2A3.5 cmt.   And even a cursory review of New Jersey’s sex
offender tier system reveals that it is grounded in criteria
distinct from SORNA’s tier definitions.   See, e.g., N.J. Stat.
Ann. § 2C:7-8.



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