     Case: 15-10061      Document: 00513303270         Page: 1    Date Filed: 12/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 15-10061
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       December 10, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

JASON PAUL ROBERTS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:12-CR-267


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Jason Paul Roberts pleaded guilty to attempting to transfer obscene
material to a minor under the age of 16 in violation of 18 U.S.C. § 1470. The
district court imposed an above-guidelines sentence of 63 months of
imprisonment to be followed by a three-year term of supervised release.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-10061
      Among other conditions of supervised release are the following:
      [T]he defendant shall register with state and local law enforcement as
      directed by the probation officer in each jurisdiction where the defendant
      resides, is employed, or is a student.

      The defendant shall provide all information required in accordance with
      state registration guidelines.

      Initial registration shall be completed within 3 business days after
      release from confinement.

      The defendant shall provide written verification of registration to the
      probation officer within 3 business days following registration.

      This registration shall be renewed as required by the defendant’s
      assigned tier.

      The defendant shall, no later than three business days after each change
      of name, residence, employment, or student status, appear in person in
      at least one jurisdiction and inform that jurisdiction of all changes in the
      information required in the sex offender registry.

The court’s written judgment included a verbatim recitation of the conditions
pronounced at sentencing. Although the standard judgment form contains a
box where the court could indicate that the defendant was required to comply
with the requirements of the Sex Offender Registration and Notification ACT
(SORNA), the district court did not check that box. The government filed a
motion to correct the written judgment suggesting that the court’s failure to
check the SORNA box was a clerical error. The district court denied the
motion, noting that the box was “surplusage.”
      Roberts challenges the length of his custodial sentence and the
lawfulness of the registration requirement. With respect to the latter issue, he
also moves to remand so that the district court can clarify whether it imposed
a SORNA registration obligation.


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                                      No. 15-10061
       Roberts first argues that the term of imprisonment was unreasonable
because it was based, in part, on his rehabilitative needs. See 18 U.S.C.
§ 3582(a); Tapia v. United States, 131 S. Ct. 2382, 2392 (2011). At sentencing,
defense counsel objected only to the reasonableness of the sentence without
mentioning the court’s alleged consideration of Roberts’s rehabilitative needs.
Accordingly, our review is for plain error. See United States v. Wooley, 740 F.3d
359, 368 (5th Cir. 2014).
       The court gave a lengthy and detailed explanation of its reasons for
imposing the sentence that referred to the section 3553(a). See The district
court made only a single comment about Roberts’s rehabilitative needs. That
remark came in response to defense counsel’s statement that Roberts was in
need of an “interdiction.” Although the court noted that Robert’s need for help
“also” supported a longer sentence, it emphasized that the interest in
“protecting the public” as justification for the length of the sentence imposed.
Roberts has not demonstrated a clear or obvious Tapia error. We therefore
reject the challenge to the prison term.
       Roberts next argues that the district court’s judgment was ambiguous as
to whether the sex offender registration requirements imposed by the district
court are identical to, in addition to, or in lieu of SORNA. If the district court
did impose a SORNA requirement, Roberts contends that the law does not
apply to his conviction because section 1470 is not a “sex offense” under
SORNA. But see United States v. Schofield, 802 F.3d 722 (5th Cir. 2015)
(holding that attempting to transfer obscene material to a minor in violation
of 18 U.S.C. § 1470 “can qualify as a sex offense under SORNA”). 1 If the district
court did not impose SORNA registration and instead ordered registration as



       1  Schofield was decided after Roberts was sentenced and after Roberts filed his brief
in this appeal.
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                                  No. 15-10061
an independent condition of supervised release, Roberts argues that this order
was an abuse of discretion because he is not legally required to register under
SORNA and neither state nor federal law has a mechanism for voluntary sex
offender registration.
      We agree that it is not clear whether the district court imposed a SORNA
requirement or instead some other registration obligation. Some requirements
are at odds with SORNA. For example, the district court required that Roberts
register within three business days after release from imprisonment. Yet
SORNA requires registration before completion of the prison sentence. See 42
U.S.C. § 16913(b)(1). As previously mentioned, the court did not check the
SORNA box on the judgment. And the district court did not specifically invoke
SORNA in the registration requirement. See 18. U.S.C. § 3583(d) (“The court
shall order, as an explicit condition of supervised release for a person required
to register under the Sex Offender Registration and Notification Act, that the
person comply with the requirements of that Act.”).
      But there are other indications that the district court did impose a
SORNA obligation.         The district court ordered Roberts to renew his
registration as required by his assigned “tier,” which refers to the SORNA
registration scheme. See 42 U.S.C. § 16915 (the length of an offender’s duty to
register under SORNA depends on the “tier” assigned to the offense). And, in
denying the motion to alter the judgment, the district court explained that
checking the SORNA box would be “surplusage.”
      Rather than engaging in guesswork about whether the district court
intended to impose the registration requirement pursuant to SORNA, the
better course is to remand to the district court to clarify the source and scope
of the registration requirement it was imposing.




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                               No. 15-10061
     The custodial sentence imposed by the district court is AFFIRMED. We
GRANT Roberts’s motion to remand for the limited purpose of allowing the
district court to clarify whether it intended Roberts to register pursuant to
SORNA.




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