                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-15005                ELEVENTH CIRCUIT
                                                             JUNE 17, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

               D. C. Docket No. 08-00262-CR-2-LSC-PWG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CHRISTOPHER MARTIN JONES,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (June 17, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Christopher Martin Jones appeals from his sentence imposed following his

conviction for possessing a firearm as a convicted felon. On appeal, Jones argues

that the district court erroneously found that his 1992 conviction by a special court-

martial for sodomy, in violation of United States Military Justice (“UCMJ”) Article

125, 10 U.S.C. § 925, constitutes a sex offense that requires registration under the

Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et. seq.

(“SORNA”). Accordingly, he argues, the court abused its discretion in ordering

that he register as a sex offender under SORNA as a special condition of his

supervised release (special condition 5). In addition, Jones also argues that the

court abused its discretion in imposing special conditions 2, 3, 4, 6, and 7 of his

supervised release, which are targeted toward preventing future sexual misconduct.

Relying on 18 U.S.C. § 3583(d), Jones contends that, in light of the fact that his

criminal history includes only one conviction for a sex offense, and this offense

occurred in 1992, these special conditions are not reasonably related to the

sentencing goals set forth in 18 U.S.C. § 3553(a).

      For the reasons set forth below, we vacate and remand.

                                           I.

      A federal grand jury indicted Jones for possessing a firearm as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Jones ultimately pled guilty to the



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offense.1

       In preparing the presentence investigation report (“PSI”), the probation

officer reported that, in 1992, Jones was convicted by a special court-martial for

the military offenses of sodomy and indecent acts. An investigation had revealed

that Jones engaged in sexual activity with a 16-year-old girl. At the time that he

and the 16-year-old engaged in sexual activity, they were in the presence of a 15-

year-old girl. Jones had provided the minor girls with alcohol. Regarding Jones’s

conviction for indecent acts, the probation officer reported that military records

specified that this conviction was based on the fact that Jones had committed

sodomy with a 16-year-old female while in the presence of a 15-year-old female.

       Before sentencing, Jones obtained military records that pertained to his

sodomy conviction. These military records showed that a special court-martial had

convicted Jones of sodomy under “Article 125,” and also of committing an

indecent act under “Article 134.” The documents did not provide further details

regarding Jones’s sodomy offense.

       The government filed a sentencing memorandum, arguing that Jones’s


       1
         We note that Jones and the government entered into a written plea agreement, which
included an appeal-waiver provision. The government, however, does not seek to enforce this
provision on appeal. Moreover, this provision would not be enforceable because, during Jones’s
plea colloquy, the district court failed to sufficiently confirm with Jones that he had knowingly
and voluntarily agreed to this provision. See United States v. Benitez-Zapata, 131 F.3d 1444,
1446 (11th Cir. 1997); United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).

                                                3
convictions for sodomy and indecent acts required him to register as a sex

offender, pursuant to SORNA. Jones also filed a sentencing memorandum,

arguing that he was not required to register as a sex offender under SORNA. In the

memoranda, the parties agreed that the U.S. Secretary of Defense is authorized to

specify those military offenses that require SORNA registration, and that these

offenses are set forth at 28 C.F.R. § 571.72. While the government argued that

Jones’s sodomy conviction under UCMJ 125, 10 U.S.C. § 925 was included in

§ 571.72, Jones contended that, while § 571.72 listed the military offenses of

forcible sodomy and sodomy of a minor under the age of 16, it did not list the

sodomy offense of which he was convicted. Accordingly, he asserted, he was not

required to register as a sex offender under SORNA. In addition, Jones pointed out

that he had never been ordered to register as a sex offender under federal or state

law, and asserted that, because his criminal history included only one conviction

for sexual misconduct, and this offense occurred in 1992, he is not a sexual

predator. Jones further argued that, when Congress enacted SORNA, it did not

intend to target individuals who are not sexual predators.

      At Jones’s sentencing hearing, the court adopted the factual statements and

guideline calculations set forth in the PSI. Thereafter, Jones and the government

reasserted the arguments set forth in the sentencing memoranda regarding SORNA



                                          4
registration. The court determined that Jones’s sodomy conviction required that he

register as a sex offender under SORNA, stating merely, “I am satisfied that

[Jones] is required to register as a sex offender.” The court did not otherwise

address the parties’ arguments regarding SORNA registration, and did not address

Jones’s argument that his sodomy conviction was not listed among those military

convictions that require SORNA registration.

      The court sentenced Jones to a term of 120 months’ imprisonment. The

court further ordered that, as a special condition of his supervised release, Jones

was required to register as a sex offender, in compliance with SORNA. The court

also imposed additional special conditions of Jones’s supervised release. In these

special conditions, the court ordered that Jones: (1) shall not have unsupervised,

one-on-one contact with any individual under the age of 18, other than his own

children (special condition 2); (2) shall not engage in any occupation, employment,

or volunteer activity that would place him in a position of trust with an individual

under the age of 18 (special condition 3); (3) shall allow a probation officer access

to any photographs or video recordings in his possession (special condition 4);

(4) shall, at any time, submit his person and any property, including data storage

media, to a search conducted by a law enforcement officer, regardless of whether

the officer has a search warrant (special condition 6); and (5) shall participate in an



                                           5
approved mental health treatment program specializing in sex-offender treatment,

which may include a psycho-sexual evaluation and polygraph testing (special

condition 7).

                                           II.

      We review “the district court’s imposition of a special condition of

supervised release for abuse of discretion.” United States v. Dodge, 597 F.3d

1347, 1350 (11th Cir. 2010) (en banc). We review de novo, however, a district

court’s interpretation of a statute. Id.

      “To facilitate judicial review of sentencing decisions and avoid unnecessary

remands, sentencing judges should make explicit findings of fact and conclusions

of law.” United States v. Villarino, 930 F.2d 1527, 1528-29 (11th Cir. 1991)

(quotation and alteration omitted); see also United States v. Foley, 508 F.3d 627,

633-34 (11th Cir. 2007) (remanding for resentencing because the district court

failed to make independent factual findings in support of its loss calculation, and

because it “abdicated its duty to rule on the obstruction of justice enhancement”);

In some cases, however, a district court’s summary rejection of an objection or an

argument does not preclude meaningful appellate review because the record clearly

demonstrates that the objection or argument lacked merit. See Villarino, 930 F.2d

at 1529.



                                           6
      “SORNA was enacted in July 2006 to protect the public from sex offenders

and offenders against children by establishing a comprehensive national system for

the registration of those offenders.” United States v. Ambert, 561 F.3d 1202, 1205

(11th Cir. 2009) (quoting 42 U.S.C. § 16901). “The requirements of SORNA

apply to all sex offenders, including sex offenders convicted of the offense for

which registration is required prior to the enactment of [SORNA].” United States

v. Dumont, 555 F.3d 1288, 1290 (11th Cir.), cert. denied, 130 S.Ct. 66 (2009)

(quoting 28 C.F.R. § 72.3) (alterations omitted). “SORNA defines a sex offender

as an individual who was convicted of a sex offense.” Dodge, 597 F.3d at 1350

(quoting 42 U.S.C. § 16911(1)). A sex offense, in turn, is either:

      (i)     a criminal offense that has an element involving a sexual act or
              sexual contact with another;

      (ii)    a criminal offense that is a specified offense against a minor;

      (iii)   a Federal offense (including an offense prosecuted under
              section 1152 or 1153 of Title 18) under section 1591, or chapter
              109A, or 110 (other than section 2257, 2257 A, or 2258), or
              117, of Title 18;

      (iv)    a military offense specified by the Secretary of Defense under
              section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. § 951
              note); or

      (v)     an attempt or conspiracy to commit an offense described in
              clauses (i) through (iv)




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42 U.S.C. § 16911(5)(A). A “criminal offense” is defined as, “a State, local, tribal,

foreign, or military offense (to the extent specified by the Secretary of Defense

under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. § 951 note)) or

other criminal offense.” 42 U.S.C. § 16911(6). In Dodge, we recognized that

SORNA intended to create an expansive definition of what constitutes a registrable

sex offense. 597 F.3d at 1355.

      The parties agree on appeal, as they agreed below, that the Secretary of

Defense has set forth the military offenses that require SORNA registration at 28

C.F.R. § 571.72(b). This regulation sets forth a list of 18 separate military

offenses, including “125A (Forcible sodomy),” and “125B1/2 (Sodomy of a

minor).” 28 C.F.R. § 571.72(b). The provision states that these offenses, along

with the 18 other military offenses listed in the regulation, are “Defense Incident

Based Reporting System (DIBRS) Code offenses under the Uniform Code of

Military Justice.” Id. The regulation does not define forcible sodomy or sodomy

of a minor, nor does it indicate whether a court-martial conviction under article

125A or 125B1/2 of the DIBRS Code is the equivalent of a court-martial

conviction under UCMJ Article 125 or 10 U.S.C. § 925. See generally 28 C.F.R.

§ 571.72.

      Under 10 U.S.C. § 925, “Any person subject to this chapter who engages in



                                           8
unnatural carnal copulation with another person of the same or opposite sex or with

an animal is guilty of sodomy. Penetration, however slight, is sufficient to

complete the offense.” 10 U.S.C. § 925. UCMJ Article 125 prohibits, verbatim,

this same offense. Manual for Courts-Martial, United States, Part IV, ¶ 51 (2008

ed.). The Manual for Courts-Martial indicates that an individual is guilty of

sodomy of a minor when the victim is under the age of 16. In addition, the manual

defines forcible sodomy as “unnatural carnal copulation with another person of the

same or opposite sex” that is accomplished “by force and without the consent of

the other person.” The offense of sodomy is a lesser-included offense of forcible

sodomy. Id.

      In addition to setting forth the military offenses that require SORNA

registration at 28 C.F.R. § 571.72(b), the Secretary of Defense has also set forth

these offenses in the Department of Defense Instruction No. 1325.7, enclosure 27.

This document notes that DIBRS code offenses 125A and 125B1/2 correspond to

UCMJ Article 125. The document does not, however, indicate the extent to which

an individual who is convicted under UCMJ Article 125 may also be guilty of

forcible sodomy, under DIBRS code article 125A, or sodomy of a minor, under

DIBRS code article 125B1/2.

      Here, the district court failed to expressly address the parties’ arguments



                                          9
regarding whether Jones’s sodomy conviction is a military offense that requires

SORNA registration. Instead, the court summarily stated that it was “satisfied that

[Jones] is required to register as a sex offender,” and did not support this

conclusion with factual findings or a legal analysis. As a result, it is impossible to

discern the legal and factual basis for the court’s decision to require that Jones

register as a sex offender. Moreover, as explained below, the record does not

conclusively demonstrate whether the court’s SORNA ruling was correct.

      As noted above, SORNA sets forth multiple definitions of what sort of crime

constitutes a “sex offense” that triggers registration requirements. See 42 U.S.C.

§ 16911(5)(A). The three definitions that are potentially applicable here are: (1) a

criminal offense that has an element involving a sexual act or sexual conduct with

another; (2) a criminal offense that is a specified offense against a minor; and (3) a

military offense specified by the Secretary of Defense. See 42 U.S.C.

§ 16911(5)(A)(i)-(ii), (iv). It seems unlikely that Jones’s conviction implicated

DIBRS code article 125B1/2, as his offense involved a 16-year-old girl, and not an

individual under the age of 16. It is not clear, however, whether Jones’s sodomy

conviction under UCMJ Article 125, 10 U.S.C. § 925 included a finding that the

sodomy was forcible, in violation of DIBRS code article 125A. Moreover, as

discussed above, it is not clear whether, or under what circumstances, a conviction



                                           10
under UCMJ Article 125 may also constitute a conviction under DIBRS code

article 125A. Accordingly, it is not clear whether Jones’s conviction falls under

those offenses enumerated in 28 C.F.R. § 571.72 and, as a result, it is also not clear

whether his offense is a “sex offense” within the meaning of § 16911(5)(A)(iv).

       Jones could still qualify as a sex offender if his offense satisfied another

definition set forth in § 16911(5)(A). See 42 U.S.C. § 16911(5)(A). The

remaining relevant definitions, however, require that a qualifying offense must

satisfy the definition of a “criminal offense.” See 42 U.S.C. § 16911(5)(A)(i)-(ii).

A criminal offense, in turn, is “a State, local, tribal, foreign, or military offense (to

the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of

Public Law 105-119 (10 U.S.C. § 951 note)) or other criminal offense.” 42 U.S.C.

§ 16911(6). The plain language of this SORNA provision indicates that a military

offense constitutes a “criminal offense” only to the extent that it is specified by the

Secretary of Defense. See id. This raises the same problem encountered

above—in order to determine whether Jones’s sodomy conviction constitutes a

“criminal offense” under § 16911(6), it must be determined whether his offense

was enumerated by the Secretary of Defense in 28 C.F.R. § 571.72. See 42 U.S.C.

§ 16911(6). As discussed above, it is not clear whether Jones’s offense satisfies

this criteria. Moreover, even though Dodge counsels that SORNA’s definition of a



                                            11
“sex offense” is broad, the language in § 16911(5)(A)(iv) and (6) appears to limit

the extent to which a military offense requires registration.

         Because the district court failed to articulate a factual and legal basis for its

SORNA ruling, and the law, together with the facts available to us, does not

conclusively establish whether the court’s ruling is correct, we vacate and remand

as to this issue. On remand, the district court should address and resolve the

parties’ arguments regarding whether Jones’s sodomy conviction requires SORNA

registration by making factual findings and legal conclusions on the record.

         In addition, we note that Jones challenges not only the special condition of

his supervised release that requires SORNA registration, but also challenges those

special conditions that are targeted toward preventing future sexual misconduct

(special conditions 2, 3, 4, 6, and 7). It is not clear whether the district court would

have imposed these special conditions even if it had found that Jones was not

required to register as a sex offender under SORNA. Accordingly, because we

vacate and remand as to the SORNA issue, we also vacate and remand as to this

issue.

         VACATED AND REMANDED.




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