     Case: 18-10408   Document: 00515061395     Page: 1   Date Filed: 08/02/2019




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

                                                                      FILED
                                 No. 18-10408                    August 2, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


             Plaintiff – Appellee,

v.

JOHNNY ESCALANTE, also known as Manuel Rojas,

             Defendant – Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before SMITH, WIENER, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Johnny Escalante failed to register as a sex offender when he travelled
to Texas.   The district court concluded that his prior Utah conviction for
unlawful sexual activity with a minor classified him as a tier II sex offender,
and he was sentenced based on the corresponding Guidelines range. Because
the district court deviated from the categorical approach to classify him as a
tier II sex offender, we VACATE and REMAND for resentencing.
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                                         No. 18-10408
                                                 I.
       The Sexual Offense Registration and Notification Act of 2006 (SORNA) 1
requires sex offenders to update their registration after a change in residence.
See 34 U.S.C. § 20913(c). Failing to do so is a federal crime when the offender
travels in interstate commerce. See 18 U.S.C. § 2250. Section 2A3.5 of the
Guidelines provides three base offense levels when a sex offender is found
guilty of failing to register. Those levels correspond with the sex offender tiers
in 34 U.S.C. § 20911. 2 Relevant to this case, a tier II sex offender is someone
“whose offense . . . is comparable to or more severe than the following offenses,
when committed against a minor[:] . . . abusive sexual contact (as described in
section 2244 of title 18)[.]” 34 U.S.C. § 20911(3).
       In 2010, Escalante was convicted in Utah for unlawful sexual activity
with a minor. 3 At the time of the offense, Escalante was 35 years old and the
victim was 14. After being released from prison, Escalante travelled to Texas
and failed to update his registration. He was subsequently identified by law
enforcement during an unrelated traffic stop and charged for failing to register
as a sex offender. He pleaded guilty. In the factual resume that he signed as
part of his plea agreement, he admitted that: (1) he was required to register as
a sex offender due to the 2010 Utah conviction; (2) he travelled to Texas; and
(3) he knowingly failed to update his registration.




       1   Pub. L. No. 109-248 (codified at 34 U.S.C. § 20911 et seq.).

       2 E.g., If the defendant was a tier III sex offender, the base offense level for failing to
register is 16. If tier II, then 14; if tier I, then 12. U.S.S.G § 2A3.5 (U.S. Sentencing Comm’n
2017).

       3  See Utah Code Ann. § 76-5-401 (2010) (criminalizing sexual activity with a person
aged 14–15 under circumstances not amounting to, inter alia, rape or aggravated sexual
assault).

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                                       No. 18-10408
       The Pre-Sentence Report (PSR) concluded that Utah’s crime of unlawful
sexual activity with a minor was comparable to abusive sexual contact as
described in 18 U.S.C. § 2244, 4 and therefore recommended that Escalante be
categorized as a tier II offender with a Guidelines imprisonment range of 27–
33 months. However, the PSR also urged the court to consider an upward
departure based on Escalante’s history of domestic violence, parole violations,
and high risk of recidivism.
       Escalante objected to the PSR, arguing, as relevant here, that the Utah
statute “sweeps more broadly than the federal statute” and therefore, under
the categorical approach, cannot serve as a predicate for classification as a tier
II offender. Specifically, Escalante pointed to the facts that: (1) 18 U.S.C. §
2243(c)(1) permits an affirmative defense if the defendant reasonably believed
the victim to be over 16, whereas Utah’s relevant statute did not; and (2) 18
U.S.C. § 2243(a)(2) requires the government to prove a four-year age
differential, whereas Utah’s relevant statute did not. 5
       At sentencing, the district court overruled Escalante’s objections,
adopted the PSR as its factual findings, and upwardly varied from the
Guidelines to sentence Escalante to 48 months’ imprisonment.                      Escalante
repeated his objections at sentencing and timely appealed.                        We have
jurisdiction to review Escalante’s sentence under 18 U.S.C. § 3742.




       18 U.S.C. § 2244 cross-references several other statutes. Of those, only 18 U.S.C.
       4

§ 2243—sexual abuse of a minor or ward—arguably corresponds with Utah’s crime of
unlawful sexual activity with a minor. 18 U.S.C. § 2243(a) criminalizes sexual acts with
someone who is (1) 12–15 years old and (2) at least four years younger than the offender.

       5 Instead, Utah considered the four-year age differential a mitigating factor which, if
established by the defendant, will reduce the crime to a misdemeanor and not require
registration. Compare Utah Code Ann. § 76-5-401(3)(b) (2010) with 18 U.S.C. § 2243(a)(2).
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                                 No. 18-10408
                                       II.
      “For properly preserved claims, this court reviews the district court’s
interpretation and application of the Sentencing Guidelines de novo.” United
States v. Young, 872 F.3d 742, 745 (5th Cir. 2017) (citation omitted).
                                      III.
      We employ the categorical approach when classifying the SORNA tier of
a defendant’s state law sex offense. See Young, 872 F.3d at 746 (joining four
other circuits in employing the categorical approach in such cases). “Under the
categorical approach, the analysis is grounded in the elements of the statute of
conviction rather than a defendant’s specific conduct.”        United States v.
Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc), abrogated on other
grounds by Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). If the
statute of conviction “sweeps more broadly” than the referenced federal
offense, the state offense cannot serve as a proper predicate. See Descamps v.
United States, 570 U.S. 254, 261 (2013).
      On appeal, Escalante repeats the objections he made to the PSR, arguing
that the district court erred by not considering that the Utah conviction offense
and the corresponding federal offense had different possible affirmative
defenses.   He also argues that the district court erred by considering the
specific circumstances of his offender-victim age differential when categorizing
his sex offender tier level. In response, the government contends that the
district court did not err, but, even if it did, that any such error would be
harmless. We address each argument in turn.
                                       1.
      First, we address Escalante’s affirmative defenses argument. Escalante
observes that 18 U.S.C. § 2243(c)(1) permits an affirmative defense if a
defendant can establish, by a preponderance of the evidence, that he
reasonably believed that the other person was at least 16 years old.          In
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                                   No. 18-10408
contrast, the Utah statute that he was convicted under provided no such
affirmative defense. See Utah Code Ann. § 76-5-401 (2010).
      Escalante argues that whether that affirmative defense was available
“reflects an enormous difference in culpability” because it distinguishes
between intentional and unintentional conduct. He argues that because a
mental state defense exists for one offense and not for the other, the two
offenses reach “significantly different” classes of offenders. Specifically, he
argues that § 2243 offenders are more culpable and blameworthy as a class
than § 76-5-401 offenders because they all knew, or should have known, that
the victim was under 16. Therefore, he asserts, it is immaterial whether the
defendant’s mental state is an element that needs to be proven by the
government or an affirmative defense that needs to be proven by the
defendant. Either way, Escalante argues, the class of people who are § 76-5-
401 offenders could include people with less culpability than the class of people
who are § 2243 offenders, and, therefore, § 76-5-401 cannot serve as a predicate
for classifying him as a tier II offender under the categorical approach.
      Escalante cites United States v. Roebuck, 2015 WL 13667427 (D.N.M.
Jan. 26, 2015) (unpublished), as supporting case law. In Roebuck, the district
court addressed this question when determining the tier level of a Texas
statutory rape offense that, like Utah’s, did not include an affirmative defense
for reasonably believing the victim to be 16. Id. at *5–6. Without offering
much analysis, the Roebuck court concluded that because § 2243 permits an
affirmative defense that the Texas law did not, the “Texas statute sweeps more
broadly than the federal statute” and could not serve as a predicate offense for
classification as a tier II sex offender. Id. at *6.
      We reject Escalante’s argument. The Supreme Court has repeatedly
articulated that the categorical approach looks exclusively to the elements of
the offenses to be compared. See, e.g., Mathis v. United States, 136 S. Ct. 2243,
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                                  No. 18-10408
2248 (2016) (directing that courts “focus solely on whether the elements of the
crime of conviction sufficiently match the elements of [the predicate crime]”
(emphasis added)); Descamps, 570 U.S. at 261 (holding that courts “may look
only to the statutory definitions—i.e., the elements—of a defendant’s prior
offenses” (emphasis added, citation and quotation marks omitted)); Taylor v.
United States, 495 U.S. 575, 602 (1990) (holding that courts “look only to the
fact of conviction and the statutory definition of the prior offense” (emphasis
added)).
      The Supreme Court has defined “elements” in this context to be “the
‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution
must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248 (quoting
Black’s Law Dictionary 634 (10th ed. 2014)). Despite Escalante’s assertion to
the contrary, it is black letter law that an affirmative defense (or the absence
thereof) is not the same thing as an element of the crime. See generally Martin
v. Ohio, 480 U.S. 228, 234–35 (1987) (discussing affirmative defenses and the
elements of a crime as different things, and holding it constitutional for the
defendant to bear the burden of proving the former but not the latter).
Moreover, we agree with the government that the unpublished district court
opinion in Roebuck fails to offer any appreciable analysis on this point and so
we give its holding to the contrary little weight.
      This conclusion aligns with that of at least two of our sister circuits. See
United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (“The
availability of an affirmative defense is not relevant to the categorical
analysis.”); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1282 (11th Cir. 2013)
(rejecting a comparison under the categorical approach when the mens rea
component was an element of the federal statute, but its absence was an
affirmative defense in the state statute because “[a]n affirmative defense
generally does not create a separate element of the offense that the government
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                                       No. 18-10408
is required to prove in order to obtain a conviction”). Conversely, we have not
identified any circuits expressly holding that different affirmative defenses
should be considered under the categorical approach.
       As a secondary point, we note the practical difficulty that would
accompany expanding the categorical approach to include consideration of all
the different permutations of potential affirmative defenses.                   One of the
reasons that the Supreme Court gave for implementing the categorical
approach in the first place was that the “practical difficulties” of the alternative
were deemed to be “daunting.” 6 See Taylor, 495 U.S. at 601–02. However,
requiring an examination of all the affirmative defenses that could have
possibly been raised under state law for someone charged with a state crime
(even if, like here, the defendant personally could not assert the defenses, and
thus they were not raised in the proceedings below), and then trying to align
all those possible defenses with the defenses permitted under federal law
would make applying the categorical approach an even more daunting task
than it already is. Escalante argues that the expansion he seeks would only
apply to this defense for this specific offense, but, as a matter of logic, it is hard
to see why it would stop there.
       For those reasons, we reject Escalante’s argument to consider different
permissible affirmative defenses, and we consider only the elements of the
offenses to be compared when applying the categorical approach.




       6But see Lewis v. Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to assess the
consequences of each approach and adopt the one that produces the least mischief. Our
charge is to give effect to the law Congress enacted.”).

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                                      No. 18-10408
                                             2.
       Second, we address Escalante’s argument that the district court erred by
considering the specific circumstances of his offender-victim age differential
when determining his sex offender tier level.
       Escalante argues that Utah’s § 76-5-401 offense sweeps more broadly
than “abusive sexual contact (as described in section 2244 of title 18)”—which
cross-references to 18 U.S.C. § 2243(a)—because § 2243(a) requires, as an
element, that the government prove at least a four-year age differential. See
18 U.S.C. § 2243(a)(2) (requiring the government to prove the victim “is at least
four years younger than the person so engaging”). Utah’s § 76-5-401, as it
existed in 2010, did not require the government to prove any age differential. 7
The Utah statute still took into account whether the offender was within a
four-year age range, but made that a mitigating factor which, if proven by the
defendant, reduced the crime to a misdemeanor. See Utah Code. Ann. § 76-5-
401(3)(b).    Looking solely at their elements, the Utah statute criminalized
consensual sexual activity between an 18-year-old and a 15-year-old, but the
federal statute does not.         Escalante therefore asserts that applying the
categorical approach means that the Utah offense is overly broad and cannot
be considered comparable to § 2243(a) (as cross-referenced by § 2244) for the
purpose of classifying him a tier II sex offender.
       The government responds by noting that this court has expressly left
open the question of whether the categorical approach should be used when
considering the specific circumstances of the victim’s age for SORNA tier
classifications. See Young, 872 F.3d at 747–48 (“[T]his opinion should not be


       7 Though it does not impact the analysis, Utah’s statute has since been amended to
only apply to persons 18 and older who engage in sexual activity with persons aged 14–15.
Thus, Utah’s law does in fact now require the government to prove an age differential of at
least two years (which is still smaller than the four-year age differential required under 18
U.S.C. § 2243).
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                                 No. 18-10408
read as holding that the categorical approach applies . . . when it comes to the
specific circumstance of the victims’ ages. . . . We save discussion of any
argument on [that] point for a day when it is properly raised.”).              The
government points out that at least three other circuits have adopted a
circumstance-specific approach when considering the victim’s age for the
purpose of SORNA’s §§ 20911(2)–(4) tier classifications. See United States v.
Berry, 814 F.3d 192, 197 (4th Cir. 2016) (“[T]he 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.”); United States v. White, 782 F.3d 1118, 1135 (10th Cir. 2015) (“[W]e
conclude Congress intended courts to apply a categorical approach to sex
offender tier classifications designated by reference to a specific federal
criminal statute, but to employ a circumstance-specific comparison for the
limited purpose of determining the victim’s age.”); United States v. Byun, 539
F.3d 982, 991 (9th Cir. 2008) (“[A]s to whether an individual is a ‘tier II’
offender, the language of the statute points strongly toward a non-categorical
approach with regard to the age of the victim.”). Conversely, the parties do not
brief, and we are not aware of, any circuits to expressly hold the opposite.
      We now address the question we left open in Young—does SORNA
require courts to perform a circumstance-specific inquiry to determine whether
the victim was a minor when applying the categorical approach to classify sex
offender tier levels? In Nijhawan v. Holder, the Supreme Court recognized
that federal statutes may impute the categorical approach by referring to
generic or cross-referenced crimes, but then require circumstance-specific
inquiries to determine whether specific conditional or modifying requirements
are also met. 557 U.S. 29, 37–40 (2009) (noting, inter alia, that the phrases “if
committed for commercial advantage,” “for the purpose of assisting . . . ,” and
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                                        No. 18-10408
“in which the loss . . .” required a circumstance-specific inquiry into those
underlying facts even though the offenses themselves were cross-referenced
statutes that should be compared under the categorical approach). This hybrid
approach—for lack of a better term—turns on how the circumstance-specific
conditions modify the generic or cross-referenced offenses.
       Applying that hybrid approach to this case, SORNA’s sex offender tier
classification imposes circumstance-specific conditions on the cross-referenced
offenses. Title 34 U.S.C. § 20911(3) modifies the cross-referenced offenses with
“when committed against a minor,” and 34 U.S.C. § 20911(4)(A)(ii) modifies the
cross-referenced offenses with “against a minor who has not attained the age
of 13 years.” Therefore, in alignment with every other circuit to consider the
question, we hold that when classifying sex offender tier levels under 34 U.S.C.
§§ 20911(2)–(4), the text of SORNA requires a circumstance-specific inquiry
into the victim’s age to determine whether the victim was, in fact, a minor at
the time of the offense. 8
       However, that does not end the inquiry in this case.                         Here, the
government urges us to look at the facts not only to determine whether the
victim was a minor, but also to determine whether the offender-victim age
differential existed. Accordingly, the government needs to establish that the
relevant statutory text permits departure from the categorical approach not
only when considering the victim’s age (i.e., to ascertain whether he or she is a
minor), but also when a cross-referenced federal crime includes, as an element,
an age differential that the state crime of conviction does not. This is an
apparent matter of first impression, as the parties have not briefed, nor have
we identified, any other circuits to specifically address this question.


       8 Or, in the case of a tier III categorization under § 20911(4)(A)(ii), whether the victim
was, in fact, younger than 13.

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                                    No. 18-10408
      Coming back to the basics, a state sex offense is a tier II sex offense for
SORNA sentencing purposes when, inter alia, it “is comparable to or more
severe than [abusive sexual contact as described in § 2244] when committed
against a minor.” 34 U.S.C. § 20911(3) (emphasis added). Abusive sexual
contact under 18 U.S.C. § 2244 includes, inter alia, sexual abuse of a minor
under 18 U.S.C. § 2243(a). Section 2243(a) requires that the victim be 12–15
years old and that the offender be four years older than the victim. The Utah
statute under which Escalante was convicted required that the victim be 14–
15 years old, but would not require the government to prove an age differential.
      The conditional language of “when committed against a minor” permits
the government to conduct a circumstance-specific inquiry into whether the
victim was a minor (which she was in this case), but it does not suggest that
the court can abandon the categorical approach and conduct a circumstance-
specific inquiry when looking at an offender-victim age differential that is
required    as    an    element     of   the    cross-referenced     federal    offense.
Sections 20911(2)–(4) of SORNA do not contain any conditional language
referring to the offender’s age or the offender-victim age differential—nor does
18 U.S.C. § 2244’s description of abusive sexual contact, which cross-references
to sexual abuse of a minor under 18 U.S.C. § 2243. Looking solely at the
elements then, the Utah offense criminalizes consensual sexual contact
between an 18-year-old and a 15-year-old, whereas the federal statute does not.
Thus, under the categorical approach, the Utah offense “sweeps more broadly”
than the comparable federal offense and cannot serve as a proper predicate for
a SORNA tier II sex offender designation. 9


      9  The government draws our attention to United States v. Coleman, 681 F. App’x 413
(5th Cir. 2017) (unpublished), for the proposition that under SORNA a comparable state
offense can be “slightly broader” than the corresponding federal offense. In Coleman, the
appellant argued that a Minnesota statute was not a proper SORNA predicate because that

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                                       No. 18-10408
       The government places a lot of weight on United States v. Gonzalez-
Medina, wherein we held that we must consider the specific circumstances of
the victim-offender age differential when determining whether an offense is a
“sex offense” at all under 34 U.S.C. § 20911(5)(C). 757 F.3d 425, 431 (5th Cir.
2014). Section 20911(5)(C) is an exception to SORNA, stating that “[a]n offense
involving consensual sexual conduct is not a sex offense for the purposes of this
subchapter . . . if the victim was at least 13 years old and the offender was not
more than 4 years older than the victim.” Gonzalez-Medina involved a



statute required “sexual or aggressive intent” while the relevant federal statute required
“intent to abuse . . . or gratify the sexual desire[.]” Id. at 417; compare 18 U.S.C. § 2246(3),
with Minn. Stat. § 609.341. We held that the abusive intent of the federal statute was
analogous to the aggressive intent of the Minnesota statute. Coleman, 681 F. App’x at 417.
However, we then also noted that “even if” aggressive intent was slightly broader than
abusive intent, other “[c]ourts have stated that, given SORNA’s broad purpose, a comparable
statute can be ‘slightly broader’ than the federal crime.” Id. at 416–18 (citing United States
v. Forster, 549 F. App’x 757, 769 (10th Cir. 2013) (unpublished), and United States v. Morales,
801 F.3d 1, 7–8 (1st Cir. 2015)).
        The Tenth Circuit’s Forster opinion, for its part, suggested that because SORNA uses
the word “comparable,” a corresponding state offense could possibly be “slightly broader”;
however, it then went on to hold that there was no distinction between the SORNA tier and
state offense in question, both of which referenced minors younger than 13. 549 F. App’x at
769. And the First Circuit’s Morales opinion, while suggesting that “‘comparable to’ may, as
the government argues, provide us some flexibility in examining the offenses,” declined to
give any flexibility in that case because “the question of age is so essential to the framework
that the congressional cut-off must be strictly construed.” 801 F.3d at 7–8.
        We are not bound by our unpublished opinions. Ballard v. Burton, 444 F.3d 391, 401
n.7 (5th Cir. 2006); 5th Cir. R. 47.5.4. Moreover, we are skeptical that courts applying the
categorical approach have leeway to hold that a broader offense can still be a predicate when
it is deemed only “slightly broader.” The Supreme Court has had many opportunities to
articulate how lower courts should conduct the categorical approach, and the government
does not point us to any decision wherein the Supreme Court suggested that a state offense
which criminalized broader conduct than the corresponding federal crime could constitute a
valid predicate if it was only “slightly broader.” Cf., e.g., Esquivel-Quintana, 137 S. Ct. at
1568 (articulating the categorical approach as an examination of whether the elements of the
state offense “would fall within the federal definition of the crime[,]” not whether they come
close to falling within that federal definition). Nonetheless, even assuming that the
categorical approach could be “slightly broader” under SORNA, a statutory rape offense that
criminalizes conduct without an age differential requirement is more than “slightly broader”
than one which does require an age differential.

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                                   No. 18-10408
situation where a 24-year-old offender violated a Wisconsin statute that
criminalized sexual activity with persons 16–17 years old. 757 F.3d at 427. He
subsequently argued that he was not required to register as a “sex offender” at
all because, under the categorical approach, the Wisconsin statute did not
include the age differential exception for when an offense is deemed a “sex
offense” under SORNA. Id. at 428–29. We disagreed with that argument,
concluding that “the language, structure, and broad purpose of SORNA all
indicate that Congress intended a non-categorical approach to the age-
differential determination in [34 U.S.C. § 20911(5)(C)].” 10 Id. at 432.
      Nonetheless, there are several reasons why the government’s emphasis
on Gonzalez-Medina is unavailing in this case.
      First, and most importantly, the age differential for the § 20911(5)(C)
exception is actually in SORNA’s text as an exception to when state offenses
can even constitute a “sex offense.” Conversely, the age differential relevant
for classifying tier II sex offenders under § 20911(3) is not actually found in
SORNA, but rather it is built in as an element of one of the many corresponding
offenses that SORNA cross-references.
      Second, the text of the § 20911(5)(C) exception states that it is applicable
to offenses “involving . . . conduct . . . [if] the offender was not more than 4 years
older than the victim.” That “involving conduct” verbiage is consistent with
circumstance-specific inquiries.      See Gonzalez-Medina, 757 F.3d at 430.
However, the text of § 20911(3), which is at issue in this case, does not use that
verbiage when classifying a tier II sex offender, and instead lists corresponding
“offenses” against which to compare the conviction offense, modified only by
the conditional language of “when committed against a minor.”



      10  Gonzalez-Medina refers to 42 U.S.C. § 16911 when discussing SORNA. That
provision has since been re-codified at 34 U.S.C. § 20911 (effective Sep. 1, 2017).
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                                         No. 18-10408
       And third, Gonzalez-Medina held that SORNA was intended to cast a
wide net, and that a categorical exception for any conviction involving
consensual conduct that did not require a four-year age differential as an
element—to include child pornography—“would frustrate SORNA’s broad
purpose” of requiring sex offenders to register. Id. at 431. However, those
purposive concerns are not as strong for sex offender tier classifications.
Applying the categorical approach to the age differentials built into the cross-
referenced corresponding offenses would not mean that Escalante does not
have to register under SORNA at all; instead, it means that his failure to
register imposes a sentencing baseline of 12 points rather than 14.
       Moreover, applying the categorical approach to age differentials built
into the cross-referenced statutes does not leave §§ 20911(2)–(4), or any
subsection thereof, without meaningful application. Cf. Nijhawan, 557 U.S. at
39 (not applying the categorical approach where doing so would leave a
subparagraph “with little, if any, meaningful application”).                            Instead,
§ 20911(3)’s “when committed against a minor” language still causes tier II
classification for an array of offenses based only on the fact that they were
committed against minors, 11 as well as for statutory rape offenses wherein the
government had to prove a four-year age differential. 12




       11 The offenses for which an offender is classified as tier II based solely on the fact that
the victim was a minor include sex trafficking, coercion and enticement, transportation with
intent to engage in criminal sexual activity, and abusive sexual contact (which, in addition
to the offense of sexual abuse of a minor or ward at issue here, also includes sexual abuse
and aggravated sexual abuse.). See 34 U.S.C. § 20911(3) and, as cross-referenced, 18 U.S.C.
§§ 2244 and 2243.

       12 For statutory rape offenses where the government did not have to prove a four-year
age differential, offenders still have to register under SORNA, but as tier I offenders rather
than tier II.

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                                      No. 18-10408
       As a final point, our decision in Rodriguez warrants discussion.                   In
Rodriguez, our court, sitting en banc, had the task of defining the generic term
“sexual abuse of a minor” for the crime-of-violence enhancement under
§ 2L1.2(b)(1)(A)(ii) of the Guidelines. We rejected the argument that Texas’s
statutory rape law was too broad to serve as a predicate offense because it only
required a three-year, not a four-year, age differential. 711 F.3d at 544, 562
n.28 (“We reject this argument because the definitions of ‘sexual abuse of a
minor’ in legal and other well-accepted dictionaries do not include such an age-
differential requirement.”). Esquivel-Quintana abrogated Rodriguez’s holding
that the generic age of a “minor” for consensual sex offenses could be higher
than 16; however, Esquivel-Quintana did not abrogate Rodriguez’s holding
that the generic crime of “sexual abuse of a minor” does not require an age
differential. 13 That holding remains the law of this circuit.
       However, that holding is distinguishable from the facts of this case in an
important way: Rodriguez dealt with the generic term “sexual abuse of a
minor”; this case deals with the phrase “abusive sexual contact (as described
in section 2244 of title 18).” See 34 U.S.C § 20911(3)(A)(iv). In other words,
SORNA does not classify someone as a tier II offender based on comparing
their offenses to a generic offense; It classifies them based on comparing their
offenses to a specified other offense. In this case, the specified other offense—
sexual abuse of a minor under 18 U.S.C § 2243(a)—does in fact require a four-
year age differential.
       Based on that reasoning, we hold—in alignment with every other circuit
to consider the issue—that SORNA requires a circumstance-specific inquiry


       13See also Shroff v. Sessions, 890 F.3d 542, 545 (5th Cir. 2018) (holding that because
Esquivel-Quintana “focused on the age requirement and did not make an express holding on
the requirement of sexual contact” that it did not abrogate this court’s precedent regarding
the contact requirement); United States v. Montes-Barrientos, 742 F. App’x 18, 19 (5th Cir.
2018) (unpublished) (noting that Shroff’s holding on that point was not dicta).
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                                  No. 18-10408
into the victim’s age when classifying sex offender tier levels to determine
whether the victim was a minor, or, in the case of a tier III categorization under
§ 20911(4)(A)(ii), whether the victim was younger than 13.
      We also hold, as a matter of apparent first impression, that the text of
SORNA does not permit a court, when applying the categorical approach to
determine sex offender tier levels, to conduct a circumstance-specific inquiry
into an offender-victim age differential that is built into one of the
corresponding cross-referenced offenses as an element of the crime. In this
case, looking solely at the elements, the Utah offense under which Escalante
was convicted sweeps more broadly than the cross-referenced federal offense
corresponding to tier level II.     Accordingly, the district court erred by
categorizing Escalante as a tier II sex offender.
                                        3.
      Last, we address the harmlessness argument. Escalante’s sentence was
based on a Guidelines calculation that categorized him as a tier II offender.
The government argues that even if the district court erred by classifying
Escalante as a tier II sex offender, any such error would be harmless because
the district court upwardly varied from the Guidelines at sentencing. That
variance, the government asserts, was based on his significant criminal history
and likelihood of recidivism, and therefore had nothing to do with the sex
offender tier at which he was classified.
      Nonetheless, we agree with Escalante that the government has not
cleared the “high hurdle” necessary for holding the sentencing error to be
harmless. See United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018)
(quoting United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010)).
Under our precedent, the harmless error doctrine only applies to Guideline
calculation errors when the government “convincingly demonstrates both (1)
that the district court would have imposed the same sentence had it not made
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                                  No. 18-10408
the error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” Id. The “crux” of the inquiry is “whether the district court
would have imposed the same sentence, not whether the district court could
have imposed the same sentence.” Id. (quoting United States v. Delgado–
Martinez, 564 F.3d 750, 753 (5th Cir. 2009)). And “[t]he record must show
‘clarity of intent’ expressed by the district court[.]” Id. (quoting United States
v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017)).
      Here, the government has not argued, nor does a review of the
sentencing transcript clearly indicate, that the district court would have
imposed the same 48-month sentence regardless of the Guidelines range
suggested by the sex offender tier. Instead, all the government argues is that
the district court’s rationale would have supported an upward variance from
whatever baseline that the Guidelines suggested. That is not enough. See,
e.g., Ibarra-Luna, 628 F.3d at 719 (“[W]e are convinced that the explanation
the district court gave for imposing an above-Guidelines sentence would have
led it to do so even if it had considered the correct Guidelines range. . . . [But
w]e cannot state with the requisite certainty, however, that the district court
would have imposed precisely the same sentence.”); United States v. Martinez-
Flores, 720 F.3d 293, 300 (5th Cir. 2013) (holding the error harmful where “the
district court did not clearly state (and we cannot glean from the record) that
it would impose the same sentence if [the Guidelines calculation had been
corrected]”). Escalante’s erroneous classification as a tier II sex offender was
not harmless.
                                       IV.
      In summary, the district court erred by deviating from the categorical
approach to consider the circumstance-specific facts of the offender-victim age
differential when classifying Escalante as a tier II sex offender under SORNA,
and by sentencing him based on a Guidelines range that was derived from that
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                                        No. 18-10408
tier II categorization. Because the record does not convey the district court’s
clear intent to impose the same sentence absent that Guidelines error, we must
VACATE and REMAND for resentencing.
                                         *   *     *   *
        This outcome is required by faithful adherence to precedent that has
struggled to grapple with the expansion and byzantine-like application of the
categorical approach. However, it is not lost on us that adherence to the
categorical approach leads to a result in this case that is almost certainly
contrary to any plain reading of the statute. Persons who commit sex offenses
against minors would, under any plain reading of SORNA, be expected to
register as tier II sex offenders. In this case, the victim was 14. Escalante was
35.     He abused a minor under any jurisdiction’s definition of minor.
Nonetheless, application of the categorical approach means that he is not a tier
II sex offender because Utah’s statute for unlawful sexual activity with a minor
did not require the same age differential that the referenced federal statute
did—even though Escalante was not even close to being within that age
differential at the time of the offense.
        In the nearly three decades since its inception, 14 the categorical approach
has developed a reputation for crushing common sense in any area of the law
in which its tentacles find an inroad. 15 What began as an effort by the Supreme


         See Sessions v. Dimaya, 138 S. Ct. 1204, 1252 (2018) (Thomas, J., dissenting) (“The
        14

categorical approach originated with Justice Blackmun’s opinion for the Court in Taylor v.
United States, 495 U.S. 575 (1990).”).

        15  See, e.g., United States v. Lewis, 720 F. App’x 111, 120 (3d Cir. 2018) (Roth, J.,
concurring in the judgment) (describing the categorical approach as “willful blindness—
which may allow violent offenders to evade accountability”); United States v. Davis, 875 F.3d
592, 595 (11th Cir. 2017) (observing that the categorical approach carries judges “down the
rabbit hole . . . to a realm where we must close our eyes as judges . . . . It is a pretend place
in which a crime that the defendant committed violently is transformed into a non-violent
one . . . . Curiouser and curiouser it has all become[.]”); United States v. Chapman, 866 F.3d

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                                        No. 18-10408
Court to simplify the judiciary’s job when determining whether a state crime
constituted generic “burglary” has now metastasized into something that
requires rigorous abstract reasoning to arrive at the conclusion that a 35-year-
old who sexually abused a 14-year-old cannot be categorized as a tier II sex
offender—notwithstanding the fact that his crime was actually “committed
against a minor”—because it is theoretically possible that someone else could
be convicted under the statute without being four years older than the victim.
       Members of this court have been critical of the counterintuitive—and all
too often absurd—conclusions that can result when the categorical approach
wraps its tentacles around a sentencing decision. 16 We have said that “[e]xcept
as otherwise directed by the Supreme Court, sentencing should not turn on
reality-defying distinctions.” United States v. Reyes-Contreras, 910 F.3d 169,
186 (5th Cir. 2018) (en banc) (citation omitted). Unfortunately, application of




129, 136–38 (3d Cir. 2017) (Jordan, J., concurring) (expressing dismay at the “kudzu quality
of the categorical approach, which seems to be always enlarging its territory[,]” and which
“often asks judges to feign amnesia,” and to “ignore facts already known and instead proceed
with eyes shut”); United States v. Faust, 853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring)
(observing that the categorical approach “can lead courts to reach counterintuitive results,
and ones which are not what Congress intended”); United States v. Doctor, 842 F.3d 306, 313–
15 (4th Cir. 2016) (Wilkinson, J., concurring) (stating that the categorical approach has
caused judges to “swap[] factual inquiries for an endless gauntlet of abstract legal
questions[,]” and recommending that the categorical approach should “loosen[] its present
rigid grip upon criminal sentencing”).

       16 See, e.g., United States v. Herrold, 883 F.3d 517, 550 (5th Cir. 2018) (en banc)
(Haynes, J., dissenting) (observing that “arcane technicalities” should not allow criminals to
evade sentencing enhancements (quoting Taylor, 495 U.S. at 589)), cert. granted, judgment
vacated, No. 17-1445, 2019 WL 2493911 (U.S. Jun. 17, 2019)); United States v. Castillo-
Rivera, 853 F.3d 218, 244 (5th Cir. 2017) (en banc) (Higginson, J., concurring in part and
dissenting in part) (“Our ongoing struggle to apply the categorical approach while respecting
the congressional purpose to enhance punishment for similar recidivists may justify Supreme
Court intervention yet again.”); Rodriguez, 711 F.3d at 545 n.2 (observing that the current
form of the categorical approach begets “confusion and gymnastics,” and suggesting that the
Supreme Court should provide clarity on the issue).


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                                    No. 18-10408
the categorical approach here leads us inexorably to the conclusion that this is
such a case.
      Somewhere along the way, when developing the categorical approach,
the federal judiciary has gotten lost. See also Mathis, 136 S. Ct. at 2266–68
(Alito, J., dissenting) (analogizing the evolution of the categorical approach to
someone who reportedly had the wrong address in her GPS for what was
supposed to be a less-than-an-hour trip, but who then drove across Europe in
the other direction for multiple days before entertaining the thought that she
was not going where she first set out to go). Perhaps one day the Supreme
Court will consider revisiting the categorical approach and setting the federal
judiciary down a doctrinal path that is easier to navigate and more likely to
arrive at the jurisprudential destinations that a plain reading of our criminal
statutes would suggest. 17




      17  See also Quarles v. United States, 139 S. Ct. 1872, 1881 (2019) (Thomas, J.,
concurring) (suggesting that the Supreme Court reconsider this approach and noting that
“the categorical approach employed today is difficult to apply and can yield dramatically
different sentences depending on where a [crime] occurred”).
                                           20
