                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4595


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

THOMAS EARL FAULLS, SR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:13-cr-00001-GEC-1)


Argued:   October 28, 2015                  Decided:   May 5, 2016


Before SHEDD, DIAZ, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Shedd and Judge Harris joined. Judge Shedd wrote a
separate concurring opinion.


ARGUED: Timothy Anderson, ANDERSON & ASSOCIATES, PC, Virginia
Beach, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: Anthony P. Giorno, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
DIAZ, Circuit Judge:

      Thomas Faulls was convicted of kidnapping in violation of

18    U.S.C.   § 1201(a)(1),     interstate   domestic   violence   in

violation of 18 U.S.C. § 2261(a)(2) and (b)(4), and possession

of a firearm in furtherance of a crime of violence in violation

of 18 U.S.C. § 924(c).      The district court sentenced Faulls to

295 months’ imprisonment and also required him to register as a

sex    offender    under   the    Sex   Offender   Registration     and

Notification Act (SORNA), 42 U.S.C. § 16911 et seq.

      On appeal, Faulls contends that his counsel was ineffective

in opening the door to testimony by a government expert, and in

failing to object to the district court’s decision to keep the

jury late one evening.     He also contends that the district court

erred in admitting prior acts evidence and in requiring him to

register as a sex-offender.        For the reasons that follow, we

affirm.



                                   I.

      We recite the relevant evidence in the light most favorable

to the government.     United States v. Seidman, 156 F.3d 542, 547

(4th Cir. 1998).




                                    2
                                       A.

     Thomas and Lori Faulls were married for about twenty-five

years; they had two children.          Their marriage was volatile, and

they separated in June 2012.

     Following their separation, the couple’s interactions were

marked   by   a   series   of    violent    episodes,   three    of   which   are

relevant here.      On June 28, 2012, Lori returned to the marital

home in Mineral, Virginia, to gather some of her belongings (the

“Mineral incident”).            There, Faulls confronted her about the

separation and expressed frustration that their children never

answered his calls.        He approached Lori with a gun and laughed

when she asked if he was going to kill her.                     When Lori told

Faulls that she was staying with a friend, Faulls called the

friend to say that she ruined his marriage by allowing Lori to

stay with her and that it would be her fault if Lori died.

Faulls then began yelling at Lori, telling her that the marital

home was her home and demanding to know why she was leaving.

Instead of leaving immediately, Lori stayed with Faulls to calm

him down.     When she did leave, Faulls followed her and, at some

point, hit her car with his truck. 1




     1 Lori told police that she wasn’t sure if it was an
accident or if Faulls acted intentionally because she “was
scared to death.” J.A. 198–99.


                                       3
     Shortly after this incident, Lori moved to Williamsburg,

Virginia, to       live    with   her     daughter      Britnee.       In    mid-August

2012, Faulls came to Britnee’s apartment and confronted her for

not answering his calls (the “Williamsburg incident”).                               When

Britnee tried to call 911, Faulls attacked the women and took

their    cell   phones     and    car    keys.        Faulls    allowed     Britnee    to

leave,    but     he    repeatedly       demanded       that    Lori     return    home.

Eventually,     Lori      was    able    to       convince    Faulls   to    leave    the

apartment. 2

     The third incident resulted in Faulls’s convictions.                              On

August 22, 2012, Lori drove Faulls to a repair shop, purportedly

to pick up his truck.            In fact, the truck was parked behind the

marital home.          On the way, Faulls pretended to call the shop to

see if his truck was ready, but he actually called one of the

couple’s children, knowing that no one would answer.                               Faulls

told Lori that the truck was not ready and they returned to the

house,    where    Lori     declined       his      invitation    to     come     inside.

Faulls became angry and revealed that his truck had been parked

behind the house the whole time.                   He took Lori’s cell phone and

car keys, then showed her a pair of zip ties that had been

fashioned into handcuffs.               He asked Lori whether she “wanted to

do this the easy way or the hard way.”                       J.A. 215.      Faulls then

     2   Lori did not report this incident to the police.



                                              4
ordered her into the truck, where Lori saw his shotgun in the

backseat.       Faulls locked the passenger door, and before driving

away,    threw       Lori’s    cell      phone       out   the    window.        That     night,

Faulls and Lori stayed at a hotel in Elkins, West Virginia,

nearly 200 miles from Mineral.

       The   next     morning,          Faulls     sought    to    have    sex     with    Lori.

Lori     told     him      that        she   was       uncomfortable       but     eventually

acquiesced out of fear.                      That day, Faulls and Lori went to

several stores, where Lori bought clothes and hygiene products.

They also stopped at a liquor store and purchased a bottle of

vodka.

        That evening, Faulls and Lori went to a restaurant and bar.

Faulls got drunk and told patrons sitting nearby that Lori was

his wife and that he had kidnapped her.                           The pair left shortly

thereafter        and,     after       discovering         that   there     were    no    rooms

available       at    a   nearby        hotel,     began     walking      back   toward      the

truck.       At that point, Lori fled.                     She saw two women getting

into a car and asked them to take her to the police.                                The women

drove her to the sheriff’s office, where Lori reported what had

happened to her.

                                                 B.

        Prior to trial, the district court preliminarily denied the

government’s         motion       to    allow      a   domestic     violence       expert     to

testify      in      the      government’s             case-in-chief,        stating       that

                                                 5
admission     would     depend    on    the       scope     of     defense      counsel’s

examination of the witnesses.                At trial, the government called

the bartender at the restaurant where Faulls and Lori stopped

for the evening.         On cross-examination, Faulls’s counsel asked

the bartender whether Lori was free to leave and whether he

believed Lori was being held against her will.                           The bartender

answered that Lori was free to leave and that, from what he

observed, she was not being held against her will.                               Although

Faulls’s counsel insisted that he merely asked the questions to

help the jury understand how close Lori was to the bar’s exit,

the court concluded that counsel had opened the door to the

government’s expert because the issue of whether Lori could have

fled had “both a physical and a psychological component.”                            J.A.

392.

        The expert’s testimony focused on her research regarding

intimate partner violence, risk factors involved with this type

of violence, and the psychological components of abuse.                          She did

not testify that Lori had been a victim of domestic violence,

and    the   court    addressed      the     jury        before    the    testimony      to

emphasize     that    the   expert     had       never    interviewed      or    examined

Lori.

       The district court also allowed the government to introduce

evidence of the Mineral and Williamsburg incidents under Federal

Rule    of   Evidence   404(b).        The       court     twice   gave    the    jury    a

                                             6
limiting instruction regarding this evidence, stating that it

could    be       considered      only       to   prove          “the   defendant’s        motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence       of    mistake      or    accident        in    connection       with”     Faulls’s

charges, but not as evidence of Faulls’s character or propensity

to commit the offenses.                J.A. 200, 402.

        At    the    end    of   the     first        day    of    trial,   weather        reports

forecast a snowstorm that threatened a delay in the proceedings.

The lawyers did not want Lori to testify over two days, so the

court asked the jurors if they would be willing to stay late to

complete her testimony.                  Faulls’s counsel did not object, and

though at least one juror did not want to stay late, the court

chose     to       complete      the    testimony           that    evening.         The    court

adjourned at 7:40 PM.

        The       jury     convicted         Faulls         of     kidnapping,       interstate

domestic violence, and possessing a firearm in furtherance of a

crime        of    violence.           The   jury      also        determined    that      Faulls

committed          aggravated     sexual      abuse         in    violation     of    18    U.S.C.

§ 2241(a)(2), which served as the predicate crime of violence

for the interstate domestic violence charge and also enhanced

Faulls’s sentencing range.                   The district court further enhanced

Faulls’s          sentencing      range      after          it    determined     that       Faulls

obstructed justice when he called his mother from jail and asked

her to convince Lori not to testify.

                                                  7
                                             II.

                                               A.

        We    first    consider     Faulls’s        argument       that    he     was    denied

effective assistance of counsel, an issue we review de novo.

United       States    v.   Hall,      551   F.3d        257,    266   (4th     Cir.    2009).

Faulls       contends    that   his     counsel          was    ineffective       during    his

cross-examination of the bartender, thereby opening the door to

allow    the    government        to    call       its    domestic     violence         expert.

Faulls also contends that his counsel was ineffective when he

failed to object to the court’s decision to keep the jury late

to complete Lori’s testimony.

        We decline to reach Faulls’s claim.                       Unless an attorney’s

ineffectiveness conclusively appears on the face of the record,

such claims are not addressed on direct appeal.                               United States

v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).                           Because there is

no conclusive evidence of ineffective assistance on the face of

this record, we conclude that Faulls’s claim should be raised,

if at all, in a 28 U.S.C. § 2255 motion.                          See United States v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

                                               B.

        Next,    we    consider     whether         the    district       court    correctly

admitted       prior    acts    evidence       under       Rule    404(b).        We     review

evidentiary rulings for abuse of discretion, United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997), and will not reverse a

                                               8
district court’s decision to admit prior acts evidence unless it

was “arbitrary or irrational,” United States v. Rawle, 845 F.2d

1244, 1247 (4th Cir. 1988) (citing United States v. Greenwood,

796 F.2d 49, 53 (4th Cir. 1986)).

       Faulls    asserts    that    the    district       court    should       not    have

admitted     testimony      regarding        the     Mineral      and        Williamsburg

incidents       because    the     evidence        was    neither       relevant       nor

necessary to the charges.            Alternatively, Faulls argues that the

probative value of the evidence was substantially outweighed by

its    prejudicial      effect     because        the    evidence       (if     believed)

demonstrated a pattern of domestic violence.

       Evidence    of   prior    wrongs      is    not   admissible      “to     prove    a

person’s     character     in    order     to     show    that    on     a    particular

occasion the person acted in accordance with the character.”

Fed.    R.   Evid.      404(b)(1).        However,       such     evidence       may     be

admissible      for     other    purposes,         including      to    show     motive,

opportunity,      intent,       preparation,       or    plan.         Id.     404(b)(2).

Prior act evidence is also admissible under Rule 404(b) to show

the victim’s state of mind.               E.g., United States v. Powers, 59

F.3d 1460, 1464 (4th Cir. 1995).

       To be admissible under any theory, the prior act evidence

must    be   “(1) relevant         to   an       issue   other      than      character;

(2) necessary; and (3) reliable.”                 United States v. Siegel, 536

F.3d 306, 317 (4th Cir. 2008) (quoting United States v. Wells,

                                             9
163 F.3d 889, 895 (4th Cir. 1998)).            Evidence is necessary when

it is “probative of an essential claim or an element of the

offense,” Queen, 132 F.3d at 997, or when it “furnishes part of

the context of the crime,” United States v. McBride, 676 F.3d

385, 398 (4th Cir. 2012) (quoting Rawle, 845 F.2d at 1247 n.4).

Even so, a district court may exclude the proffered evidence “if

its   probative   value   is    substantially      outweighed     by   a   danger

of . . . unfair prejudice.”           Fed. R. Evid. 403.         The danger of

prejudicial effect subsides when the district court gives proper

limiting instructions, particularly in the face of overwhelming

evidence of guilt.      See Powers, 59 F.3d at 1468; see also United

States   v.   Briley,   770    F.3d   267,   275   (4th   Cir.   2014)     (“Rule

404(b) is a rule of inclusion.”).

      We discern no error in the district court’s evidentiary

rulings.      First, the evidence was relevant to issues other than

character or propensity.         A jury could reasonably conclude that

Faulls’s motive with respect to the Mineral and Williamsburg

incidents was to stop Lori from leaving the marital home or,

generally, the marriage.          That same jury could conclude that

Faulls committed the charged offenses because he was again upset

that Lori wanted to leave the marital home and rejected his

invitation to come inside.

      A jury could also reasonably conclude that the evidence

demonstrated Faulls’s control and domination over Lori, which

                                       10
was necessary to explain Lori’s state of mind and her apparent

willingness to remain with Faulls during the events leading to

the charged offenses, even though Lori and Faulls were out in

public,    surrounded           by   others.        See     Powers,      59    F.3d    at    1467

(concluding that evidence of previous physical abuse by a father

accused of sexually assaulting his daughter was necessary to

show    the    power      and    control      he    had     over   his     victim      and    his

victim’s fear of retribution for standing up to or reporting

him).

       Finally,      we    conclude          that     the    probative        value    of    the

evidence      was    not       substantially        outweighed        by      the   danger    of

unfair prejudice to Faulls.                   The evidence was highly probative,

as it demonstrated Faulls’s domination over Lori, his motive for

committing the offenses, and Lori’s state of mind throughout the

ordeal.       Additionally, the district court gave the jury clear

limiting      instructions—reminding                the     jury   that       it    should   not

consider       the   evidence          to    prove      Faulls’s      character        or    his

propensity      to   commit          the    charged     offenses—which          obviated      the

danger of prejudice.

                                               C.

       Last,    we     consider        whether      the     district       court      correctly

required      Faulls      to    register      as    a     sex   offender       based    on   his

conviction for interstate domestic violence.



                                               11
       The parties dispute whether Faulls preserved this claim for

appeal, and the resolution of this preliminary question directs

our standard of review.                Usually, we review a district court’s

imposition of special conditions of supervised release for abuse

of discretion.          United States v. Holman, 532 F.3d 284, 288 (4th

Cir. 2008).          The government argues, however, that Faulls failed

to   object     at     sentencing,       thus       cabining   our   review    to    plain

error.         Although       Faulls     did       not   formally    object   when     the

district       court    asked     for     Faulls’s        thoughts    on   this     issue—

responding merely, “[W]e denied from the beginning this is a sex

offense, but I would obviously leave it to the discretion of the

Court,” J.A. 510—we conclude that Faulls preserved the issue for

review.        See United States v. Lynn, 592 F.3d 572, 577–79 (4th

Cir.    2010)    (abandoning         a   “formulaic”        objection      standard   and

providing, with examples, that the goal of the contemporaneous-

objection rule is to preserve the record and alert the district

court to its responsibility to address the issue).

                                               1.

       Faulls contends that the district court should not have

reached the question of whether his conviction for interstate

domestic violence was a sex offense because the government gave

“no clear indication that this should be a sex offender case

based     on     the    [Department           of     Justice]’s      own   guidelines.”

Appellant’s      Br.     at    24.       If    by    this   Faulls    means    that   the

                                               12
government          did    not    urge    the      district          court     to       impose    SORNA

registration          as    a     condition         of        supervised       release,          he    is

mistaken.            If,    on     the    other         hand,        Faulls    means       that       the

Department of Justice Guidelines require the government to give

notice, he has not pointed this court to such a requirement, and

we have not found one.                    In any event, Faulls cannot credibly

claim     to    have       been    surprised         by       the    issue,     given      that       the

district        court’s      local       standing         order       directs       the    probation

officer        to    determine       whether            sex     offender       registration            is

appropriate,          and    gives       the       court       discretion          to    impose       the

condition of supervised release at sentencing.

                                                   2.

         Turning      to    the     merits         of     the        imposed       condition,         sex

offenders       are       required       to   register          in    every    jurisdiction            in

which     the       offender      resides,         works,       and    attends          school.        42

U.S.C. § 16913(a).                A sex offender is someone who is convicted

of   a    sex       offense,      which       in   relevant          part     is    defined       as    a

criminal offense that “has an element involving a sexual act or

sexual contact with another,” or a “Federal offense . . . under

chapter 109(A) [Sexual Abuse offenses under 18 U.S.C. § 2241 et

seq.].”        42 U.S.C. § 16911(1), (5)(A)(i), (iii).

         Faulls contends that because interstate domestic violence

is not one of the enumerated crimes that qualifies as a sex

offense under SORNA, see § 16911(5)(A)(iii), the inquiry ends

                                                   13
there,    and    the    district      court     erred.        Faulls   is    incorrect,

however, because the statute also provides other definitions of

a sex offense, including an offense with an element “involving a

sexual act or sexual contact with another.”                    § 16911(5)(A)(i).

     The     government        says     that    Faulls’s       interstate       domestic

violence conviction satisfies this definition.                       The government’s

argument begins with the offense elements of interstate domestic

violence, which are (1) the defendant and victim are spouses or

intimate partners; (2) the defendant caused the victim to travel

in interstate commerce by force, coercion, duress, or fraud;

(3) the    defendant,      in    the     course    of    or    to    facilitate     such

travel, committed a crime of violence against the victim; and

(4) the defendant committed such acts knowingly and willfully.

18 U.S.C. § 2261(a)(2).            Here, the government alleged kidnapping

under      § 1201(a)(1)         and     aggravated         sexual       abuse      under

§ 2241(a)(2) as the underlying crimes of violence.                              The jury

convicted       Faulls    of     kidnapping       and    also       found    beyond    a

reasonable      doubt    that    Faulls    had    committed         aggravated     sexual

abuse.

     Interstate         domestic      violence      also      contains      a    penalty

enhancement      for     offenders      whose     qualifying         violent     conduct

constitutes       sexual        abuse     under     chapter         109A,       including

aggravated sexual abuse.              See §§ 2241, 2261(b)(4).              Because the

jury found that Faulls committed aggravated sexual abuse, he

                                           14
faced an increased statutory maximum penalty ranging from five

years’ imprisonment to “any term of years or life” imprisonment.

§§ 2241(a), 2261(b)(4)–(5).

       The government contends that the statutory enhancement is

an “element” of the interstate domestic violence offense under

Apprendi v. New Jersey, 530 U.S. 466 (2000), which in turn means

that       it    is   also   an   element     of    the    offense   for   purposes     of

determining whether Faulls was convicted of a sex offense under

SORNA.          Because aggravated sexual abuse “requires engaging in a

sexual act, [which] . . . necessarily requires physical contact”

with another, United States v. White, 782 F.3d 1118, 1137 (10th

Cir. 2015), the government contends that Faulls was convicted of

“a criminal offense that has an element involving a sexual act

or sexual contact with another,” 42 U.S.C. § 16911(5)(A)(i), and

accordingly,          was    subject     to   sex       offender   registration    under

SORNA.          We agree with the government’s conclusion but not its

reasoning.

                                              3.

       The       Constitution       requires        a    jury   to   find,     beyond    a

reasonable doubt, the elements of the criminal offense charged.

In Apprendi, the Supreme Court held that this bedrock principle

also applies to sentencing, declaring that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for    a    crime     beyond      the   prescribed       statutory   maximum    must    be

                                              15
submitted to a jury, and proved beyond a reasonable doubt.”                       530

U.S.   at   490.      Thus,     the   distinction        between    a     substantive

offense element and a sentencing (or penalty) enhancement is

meaningless        when   the         enhancement        requires         facts    or

circumstances—separate from those composing the base offense—to

have taken place in order to trigger a greater punishment than

the base offense statutorily carries.             Id. at 476–78 & n.4.

       In Alleyne v. United States, the Court extended this rule

to facts that increase the prescribed statutory minimum penalty—

i.e., facts that establish a new or higher mandatory minimum

sentence.     133 S. Ct. 2151, 2162–63 (2013).                The Court reasoned

that the “impossib[ility] [of] disput[ing] that facts increasing

the legally prescribed floor aggravate the punishment” leads to

the    logical     conclusion    that    “the     core    crime     and    the    fact

triggering the mandatory minimum sentence together constitute a

new, aggravated crime, each element of which must be submitted

to the jury.”      Id. at 2161 (emphasis omitted).

       Here, the jury found Faulls guilty of interstate domestic

violence.     For purposes of enhancing Faulls’s sentence, the jury

also found beyond a reasonable doubt that Faulls had committed

aggravated sexual abuse.          Relying on Apprendi and Alleyne, the

government    contends    that    the    jury’s     finding    also       necessarily

means that aggravated sexual abuse is an element of the charged

interstate domestic violence offense for purposes of SORNA.                        We

                                         16
do not agree.        The fact that a jury made the finding necessary

for    the    sentencing    enhancement      certainly     cures    any     Apprendi

issue, but it does not answer the statutory question of whether

that same finding is an “element” of Faulls’s “offense” under

§ 16911(5)(A)(i).

       The government directs us to United States v. Campbell, 259

F.3d 293 (4th Cir. 2001), as support for its view, but that case

is     inapposite.         In   Campbell,      we   held    that     the     penalty

enhancements in 18 U.S.C. § 111(b) were substantive elements of

the    offense   that    needed   to   be    proved   to   the     jury    beyond    a

reasonable doubt, not sentencing enhancements the court could

deem satisfied despite the jury’s opposite finding.                   259 F.3d at

298–300.      But there we were conducting a constitutional inquiry.

See also, e.g., United States v. Brown, 757 F.3d 183, 188 (4th

Cir. 2014) (observing that the drug quantity attributable to the

conspiracy, as provided in the penalty subsection of 21 U.S.C.

§ 841, was a question for the jury under Alleyne because of the

mandatory      minimum   sentences     each    quantity    category        carried),

cert. denied, 135 S. Ct. 229 (2014); United States v. Promise,

255 F.3d 150, 156–57 (4th Cir. 2001) (en banc) (holding the same

under Apprendi).         The statutory question here is substantially

different.

       Accordingly, we must look elsewhere for guidance.                     Recall

that    for    SORNA’s     sex-offender       registration    requirements          to

                                        17
properly      apply    to    Faulls,    he   must       have   been    convicted      of    a

“criminal offense that has an element involving a sexual act or

sexual      contact     with    another.”           42    U.S.C.       § 16911(5)(A)(i)

(emphasis added).           Recently, in United States v. Price, 777 F.3d

700    (4th    Cir.),       cert.   denied        135    S.    Ct.    2911    (2015),      we

confronted the question of whether the defendant was convicted

of a sex offense in order to determine whether SORNA’s sex-

offender registration requirements should apply.                             Although we

were       analyzing    SORNA’s        definition        of     a     sex    offense       in

§ 16911(5)(A)(ii)           (“specified       [criminal]         offense      against      a

minor”) and its extension at § 16911(7) (expanding subsection

(5)(A)(ii)’s definition), we nonetheless examined the statutory

language of § 16911(5)(A)(i).                Id. at 707–08.            In holding that

the    facts-based      “circumstance-specific”               approach      applies   to   a

sex offense determination under § 16911(5)(A)(ii), (7), we noted

in dicta that Congress’s use of “elements” in § 16911(5)(A)(i)

(the subsection before us now) “implicat[es] the categorical and

modified categorical frameworks.”                 Id. at 708. 3

       Other courts of appeals have also found these frameworks

relevant to the determination of what constitutes a sex-offense

       3
       Cf. United States v. Berry, 814 F.3d 192, 195 (4th Cir.
2016) (providing that courts have “embraced” the categorical and
modified categorical approaches in determining a sex offender’s
tier classification).




                                             18
under   SORNA,     although      none    has     squarely      applied    them     in    the

precise context before us.                See United States v. Rogers, 804

F.3d    1233,    1234–38    (7th     Cir.      2015)    (affirming       the     district

court’s decision to enhance defendant’s sentence under Guideline

§ 2A3.5(b)(1)(A) for committing a sex offense while in failure-

to-register status, and finding that the categorical approach

applies    to    the   threshold        definition      of    a    sex   offense      under

§ 16911(5)(A)(i));         United    States      v.    Gonzalez-Medina,         757     F.3d

425, 430 (5th Cir. 2014) (distinguishing § 16911(5)(A)(i) from

§ 16911(5)(C), and applying the circumstance-specific approach

to   the   defendant’s      prior    state       conviction        for   having    sexual

intercourse with a child age sixteen or older), cert. denied,

135 S. Ct. 1529 (2015); United States v. Mi Kyung Byun, 539 F.3d

982,    991-92    (9th     Cir.     2008)      (comparing         § 16911(5)(A)(i)        to

§ 16911(7)(I), and applying the circumstance-specific approach

to   the   defendant’s      federal      conviction       for      importation     of     an

alien   for     purposes    of    prostitution).             Following    the     lead    of

Price and our sister circuits, we proceed here to apply the

categorical and modified categorical approaches.

       Thus, we “focus[] solely on the elements” of interstate

domestic violence, rather than on “the specific way in which

[Faulls] committed the crime,” to determine whether interstate

domestic      violence     qualifies      as     a    criminal      offense      with    an

element involving a sexual act or contact.                         Price, 777 F.3d at

                                            19
704-05 (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)). 4                                In

applying the traditional categorical approach, we compare the

elements       of    the     defendant’s        offense      of    conviction         to     the

elements       of    the     federal       offense   (also    called          the   “generic”

offense).           There    is   a    categorical     match       if    “[t]he       elements

comprising      the    statute        of    conviction     [are]        the    same    as,    or

narrower than, those of the generic offense.”                           Id. at 704; e.g.,

United States v. Torres-Miguel, 701 F.3d 165, 168–69 (4th Cir.

2012)     (finding          no    categorical        match        between       defendant’s

California felony threat conviction and a “crime of violence”

under    the    U.S.        Sentencing      Guidelines     because        threatening         to

commit a crime against another that will result in death or

serious     injury         (crime     of     conviction)      does       not    necessarily

require “the use, attempted use, or threatened use of physical

force against [another]” (generic offense)).


     4  The district court did not have the benefit of our
decision in Price, and neither party on appeal has urged that we
apply the elements-based approach to determine whether Faulls
was convicted of a sex offense.     Although we generally do not
consider issues not passed upon below, the question before us is
purely one of law, and we perceive no injustice or unfair
surprise in doing so here.     See Singleton v. Wulff, 428 U.S.
106, 120–21 (1976) (“The matter of what questions may be taken
up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.”).    Nor are we are
bound by the district court’s reasoning—or the arguments
advanced by the parties—in exercising our plenary review.
United States v. Segers, 271 F.3d 181, 183 (4th Cir. 2001);
United States v. Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).


                                               20
     The modified categorical approach is almost identical, but

it   applies           only    to     divisible         statutes—those             containing

alternative elements—and it entails a brief “detour.”                                  Price,

777 F.3d at 705.              Before looking for a categorical match, we

consider     a    limited     number     of     trial    documents,         including       the

indictment and jury instructions, to determine which alternative

element formed the basis of the conviction.                        Descamps v. United

States, 133 S. Ct. 2276, 2284–85 (2013).                         Then the traditional

elements-based approach resumes.                      Id.; e.g., United States v.

Castleman, 134 S. Ct. 1405, 1414 (2014) (applying the modified

categorical approach to a Tennessee statute that defined assault

in   three       distinct      ways,     and        finding    that     the       defendant’s

conviction       for     “intentionally         or     knowingly       caus[ing]       bodily

injury to the mother of his child” qualified as a misdemeanor

crime of domestic violence under 18 U.S.C. § 922(g)(9) because

it “necessarily involve[d] the use of physical force” (internal

quotation marks omitted)).

     Under        either      approach,         we     compare        the     elements       of

interstate       domestic      violence        with     the    generic        offense—here,

SORNA’s definition of a sex offense: “a criminal offense that

has as an element involving a sexual act or sexual contact with

another.”         42    U.S.C.      § 16911(5)(A)(i).            As    relevant,       to    be

convicted of interstate domestic violence, the defendant must

commit   an      underlying      crime    of        violence   against        a    spouse    or

                                               21
intimate-partner victim.              See 18 U.S.C. § 2261(a)(2).             A crime

of violence is defined as

     [A]n offense that has an element the use, attempted
     use, or threatened use of physical force against the
     person or property of another, or any other offense
     that is a felony and that, by its nature, involves a
     substantial risk that physical force against the
     person or property of another may be used in the
     course of committing the offense.

§ 16.

     It is well established that some sex offenses qualify as

crimes    of    violence.          See   U.S.    Sentencing      Guidelines    Manual

§ 4B1.2,        comment.      (n.1)      (U.S.      Sentencing      Comm’n      2012)

[hereinafter         U.S.S.G.       § 4B1.2]        (including     “forcible      sex

offenses”       in   the    enumerated       list   of   established     crimes    of

violence); United States v. Peterson, 629 F.3d 432, 435 (4th

Cir. 2011) (calling the Guidelines commentary “authoritative and

binding”).        But a crime of violence is not necessarily a sex

offense,        which      means     that     interstate      domestic     violence

necessarily “‘sweeps more broadly’ and criminalizes more conduct

than the generic federal” sex offense, precluding a categorical

match.     Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)

(quoting Descamps, 133 S. Ct. at 2283).

     As     a    result,     we     consider     whether   interstate        domestic

violence is divisible for purposes of the modified categorical

approach, meaning it must “set[] out one or more elements of the

offense in the alternative.”                Descamps, 133 S. Ct. at 2281.          In

                                            22
Descamps    v.    United   States,       the    Supreme    Court    found     that

California’s burglary statute            “d[id] not concern any list of

alternative       elements”   but        rather     “involve[d]       a     simple

discrepancy” between generic burglary, which requires unlawful

entry, and California’s statute, which does not.                   Id. at 2285.

So although California’s statute was defined using disjunctive

elements, see Cal. Penal Code Ann. § 459 (West 2010) (defining

burglary as the entering of certain locations “with intent to

commit grand or petit larceny or any felony” (emphasis added)),

and    therefore     “refer[red]     to        several    different       crimes,”

Descamps, 133 S. Ct. at 2284 (quoting Nijhawan, 557 U.S. at 35),

none of those crimes required breaking and entering.                       Because

California’s burglary statute did not match the generic version

of    burglary   envisioned   by   the    federal    statute,      applying    the

modified categorical approach was improper.

       We grappled with the reach of Descamps in United States v.

Cabrera-Umanzor,     728   F.3d    347    (4th    Cir.    2013).      There,   we

announced that “[w]here the statute defines the offense broadly

rather than alternatively, the statute is not divisible, and the

modified categorical approach simply ‘has no role to play.’”

Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct.

at 2285).        Although we did not explain the broad–alternative

distinction, we found that the divisibility determination turns



                                     23
on the availability of a categorical fit, and not on the strict

statutory inclusion of textual alternatives.

       In     deciding        whether      a     Maryland       child       abuse   conviction

constituted a crime of violence for sentencing purposes, we said

that    the      disjunctive         state     statute       was    “generally      divisible”

because      the    offender         could     be    either     a    family    member     or   an

individual         with      responsibility           for     the    child’s     supervision,

either      physical         abuse    or   sexual      abuse        constituted     the    abuse

element of the statute, and sexual abuse could be alternatively

defined as sexual molestation or sexual exploitation.                                     Id. at

352 (defining the elements of Md. Code Ann., Crim. Law § 35C).

But general divisibility, we said, was not enough: “[O]nly if at

least    one      of    the    categories           into    which     the    statute    may    be

divided       constitutes,           by    its      elements,       [the     generic    federal

offense]” is the statute divisible “for purposes of applying the

modified categorical approach.”                       Id.     Because no arrangement of

the state child-abuse statute’s alternative elements lined up

with the elements of a crime of violence, we found the statute

indivisible.           Id.

       Applying these cases to the particular statute before us,

we hold that Faulls’s crime of conviction encompasses, by its

crime       of   violence        element,        additional,          alternative       offense

elements,        “effectively         creat[ing]            several    different       crimes.”

Descamps, 133 S. Ct. at 2285.                        This is so because a defendant

                                                 24
convicted of interstate domestic violence may have committed,

for example, assault with a deadly weapon, murder, or sexual

assault as the underlying crime of violence.                      See, e.g., United

States     v.    Barnette,      644    F.3d     192,    197–98    (4th    Cir.    2011)

(murder); United States v. Brown, 295 F.3d 152, 153–54 (1st Cir.

2002) (sexual assault); United States v. Bowe, 309 F.3d 234, 236

(4th Cir. 2002) (assault with a deadly weapon).

     Admittedly,        the   offense      of    interstate      domestic    violence

presents an unusual set of circumstances for the divisibility

analysis.        To begin with, the offense does not set out on its

face, in the disjunctive or otherwise, a list of alternative

crimes   that      constitute     the    offense,       but   rather     requires   the

defendant to commit an underlying “crime of violence.”                              This

case also requires that we compare a contemporaneous federal

conviction—rather        than    (as     is     more   typical)    a     prior,   state

conviction—to the generic federal offense.

     But        these   anomalies       have    no     bearing    on   the   modified

categorical approach’s application here.                      See United States v.

Ortiz-Gomez, 562 F.3d 683, 684–85 (5th Cir. 2009) (applying the

modified categorical approach to a state statute criminalizing

the communication of a threat to “commit any crime of violence”

to determine what underlying crime of violence supported the




                                           25
defendant’s       conviction). 5       Importantly,      in    a    prosecution     for

interstate domestic violence, the jury is charged with finding,

unanimously and beyond a reasonable doubt, the commission of a

specific underlying crime of violence, as well as the elements

of that offense.           See Omargharib, 775 F.3d at 198–99 (looking to

how the Virginia courts instruct juries with respect to larceny

to determine whether the offense is defined to include multiple

alternative elements); United States v. Royal, 731 F.3d 333, 341

(4th       Cir.    2013)     (same,     with     Maryland      assault         statute).

Interstate        domestic    violence       therefore   consists         of   multiple

alternative elements, as we define them for modified categorical

approach purposes: “Elements, as distinguished from means, are

factual      circumstances       of    the     offense   the       jury    must    find

‘unanimously and beyond a reasonable doubt.’”                       Omargharib, 775

F.3d at 198 (quoting Royal, 731 F.3d at 341).

       Treating     interstate        domestic    violence     as    divisible      for

purposes of the modified categorical approach dovetails with the

inquiry’s function and harmonizes its purpose.                       “The point of

the categorical inquiry [after all] is not to determine whether

       5
       And as Judge Shedd’s concurrence notes, we have applied
the categorical approach to instant offenses when determining
whether the defendant should be sentenced as a “career offender”
under the Sentencing Guidelines for having committed a “crime of
violence.” See United States v. Johnson, 953 F.2d 110, 114 (4th
Cir. 1991); accord United States v. Martin, 215 F.3d 470, 474
(4th Cir. 2000).



                                          26
the defendant’s conduct could support a conviction for a [sex

offense], but to determine whether the defendant was in fact

convicted       of     a     crime      that    qualifies            as     a    [sex     offense].”

Cabrera-Umanzor, 728 F.3d at 350.

      Here,     without          looking       to    the      relevant          documents    in    the

record,    we        would       have   no     way       of    knowing          whether     Faulls’s

conviction constitutes a sex offense because we do not know from

the   facial     elements          of    § 2261(a)(2)               what    underlying       offense

substantiated the finding of domestic violence.                                      But when we

look to the jury instructions and the indictment, we see that

the underlying crime of violence—aggravated sexual abuse—and its

elements were put to the jury and found unanimously beyond a

reasonable doubt.             See Supp’l J.A. 615, 650–55; J.A. 11.                               This

analysis      thus         furthers      the        categorical            framework’s       purpose

without frustrating its goal of “avoid[ing] conducting ‘mini-

trials’ for each prior offense.”                           United States v. Gomez, 690

F.3d 194, 200 (quoting United States v. Spence, 661 F.3d 194,

198 (4th Cir. 2011)).

      Our interpretation also comports with our past practice.

See, e.g., United States v. Rivers, 595 F.3d 558, 563 (4th Cir.

2010)    (“[O]nly          when    a    statute          prohibits         different       types   of

behavior such that it can be construed to enumerate separate

crimes can a court modify the categorical approach . . . .”);

Gomez,    690    F.3d       at    198    (applying            the    modified      approach       when

                                                    27
“different types of behavior satisfy an element of the offense

and the proscribed behaviors constitute at least two separate

crimes”).      And it is consistent with the practice of our sister

circuits.      See, e.g., United States v. Mahone, 662 F.3d 651, 654

(3d Cir. 2011) (calling for the modified approach “[w]hen the

enumerating         statute   invites     inquiry”),      abrogated      on      other

grounds by Descamps, 133 S. Ct. 2276; United States v. Williams,

627    F.3d    324,     327–28   (8th    Cir.    2010)    (providing      that     the

modified      categorical     approach     is   used     when    “the   conviction

criminalizes both conduct that does and does not qualify as [the

generic federal offense]”).

       Our holding also aligns with SORNA’s legislative goal of

“strengthen[ing] and increas[ing] the effectiveness of . . . sex

offender registration and notification [for the protection of

the public]”.          United States v. Gould, 568 F.3d 459, 464 (4th

Cir. 2009) (quoting The National Guidelines for Sex Offender

Registration and Notification, 73 Fed. Reg. 38030, 38030 (July

2, 2008)); see also Taylor v. United States, 495 U.S. 575, 581–

90 (1990) (looking to the statutory background and purpose of

the ACCA to determine how to apply the categorical approach to

the state offense at issue).

       Congress passed SORNA to fill the “gaps” and “loopholes”

left    by    its     predecessor   act’s     “patchwork”       standards,    which

“allowed      for     numerous   heinous      crimes”    to     be   unaffected    by

                                         28
registration requirements.            Gould, 568 F.3d at 473–74.                It would

make   little       sense,    then,   in    the    context    of     a   law   that    was

designed to bolster public protection through comprehensive sex-

offender registration, to bar courts from peering behind the

statutory      curtain       to   determine       what     offense       the   defendant

actually committed when the offense of conviction contains as an

element another generic federal crime acting as a placeholder

for the substantive offense.

       In    sum,    because      aggravated      sexual     abuse       “involv[es]    a

sexual act or sexual contact with another,” Faulls was convicted

of a criminal offense that “has an element involving a sexual

act or sexual contact with another”—a sex offense.                             42 U.S.C.

§ 16911(5)(A)(i).            Accordingly, the district court did not err

in requiring Faulls to register as a sex offender under SORNA.



                                           III.

       For   the     reasons      given,   we     affirm    the    district      court’s

judgment.

                                                                                AFFIRMED




                                            29
SHEDD, Circuit Judge, concurring:

       The majority applies the categorical approach to determine

if Faulls’s conviction for interstate domestic violence is a

“sex offense” under 18 U.S.C. § 16911(5)(A)(i). Regardless of

whether    the        categorical      approach      should     apply     to      past

convictions under this section, if I were deciding this issue on

a clean slate, I would not apply it in the context of this case,

which   involves       an    instant   offense.   As    the   Tenth    Circuit    has

explained, “the practical difficulties of conducting an ad hoc

mini-trial” that drive us to apply the categorical approach to a

past conviction “do not apply when the court is examining the

conduct of the defendant in the instant offense.” United States

v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (quotation

marks    and    alterations        omitted);   see     also   United     States    v.

Williams, 690 F.3d 1056, 1069 (8th Cir. 2012) (same).

       The categorical approach does not save judicial resources

because we are continuously called upon to determine whether

past convictions—on a state-by-state basis—qualify as predicate

offenses       in    multiple      contexts,   including        sentencing.      This

situation has left “[t]he dockets of our court . . . clogged

with these cases.” United States v. Vann, 660 F.3d 771, 787 (4th

Cir.    2011)       (Agee,   J.,   concurring).      Further,    the    categorical

approach is the antithesis of individualized sentencing; we do

not consider what the individual to be sentenced has actually

                                         30
done, but the most lenient conduct punished by his statute of

conviction. This flaw is even more apparent in cases like this

one, involving instant offenses: the district judge sat through

Faulls’s trial, heard the evidence against him, and witnessed

the jury’s finding that Faulls committed aggravated sexual abuse

against his wife. The categorical approach then requires the

“counter-intuitive           procedure”     whereby       that   same      judge      “must

ignore    the       actual   trial    record     and    the   facts   and       inferences

drawn from the testimony” to determine if Faulls’s conviction

was for a “sex offense.” United States v. Stoker, 706 F.3d 643,

651 (5th Cir. 2013) (Jones, J., concurring).

     Notwithstanding my view, however, circuit precedent rejects

this distinction between past convictions and instant offenses.

See United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1991)

(noting     the       “substantial      intuitive        appeal”      of    applying       a

circumstance-specific             approach        to      instant      offenses           but

nonetheless         concluding       that   the       approach   “must      .    .    .    be

rejected”); United States v. Martin, 215 F.3d 470, 474 (4th Cir.

2000) (applying categorical approach to instant conviction “no

matter how clear it may be from the record” that the defendant

committed       a    crime   of   violence).      I    therefore    concur       in   Judge

Diaz’s thoughtful opinion for the court.




                                            31
