     Case: 18-20620      Document: 00514968037         Page: 1    Date Filed: 05/22/2019




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

                                      No. 18-20620                              FILED
                                                                            May 22, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                     Plaintiff - Appellee

v.

WARREN D. BROWN,

                     Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-81-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       This is an appeal from a district court’s classification of a criminal
defendant as a Tier III sex offender for sentencing purposes under 42 U.S.C.
§ 20911 (the Sex Offender Registration and Notification Act), and its decision
that the defendant’s failure to register as a sex offender as required by federal
law, 18 U.S.C. Sec. 2250(a), was itself a sex offense. Because courts are divided
about whether the Uniform Code of Military Justice statute under which the
defendant was convicted is comparable to the federal sexual abuse statute, it


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20620
was not plain error for the district court to determine that the two statutes
were comparable and, consequently, to classify the defendant as a Tier III sex
offender. The government concedes plain error, however, in the district court’s
assignment of the defendant’s failure to register as a separate sex offense when
calculating his period of supervised release. We AFFIRM the defendant’s
sentence, REVERSE the terms of his supervised release, and REMAND to the
district court for proceedings consistent with this opinion.
                               I. BACKGROUND
      Warren Brown was convicted in 2015 in a Navy court martial of one
count of Abusive Sexual Contact and two counts of Sexual Assault in violation
of the Uniform Code of Military Justice (“UCMJ”) and sentenced to eighty-six
months in prison with all but eighteen months suspended. The court martial
found that Brown had assaulted a woman who was “incapable of consenting
. . . due to impairment by alcohol and that condition was known or reasonably
should have been known” by Brown. Brown served his sentence and, upon his
release from prison, signed a form that notified him to register as a sex offender
under the Sex Offender Registration and Notification Act (“SORNA”). Brown
moved to Houston immediately after he was released but never registered as a
sex offender with the Houston Police Department or the Harris County
Sherriff’s Office.
      Brown was indicted for this violation in 2018 and pleaded guilty to failing
to register as a sex offender in violation of 18 U.S.C. § 2250. Material for
present purposes, the Pre-Sentence Report (“PSR”) recommended that Brown’s
base offense level was that of a Tier III sex offender due to the length of Brown’s
military sentence. According to the final PSR calculation, Brown’s sentencing-
guideline range was 18 to 24 months. The PSR also recommended a guideline
range for Brown’s term of supervised release after his sentence of five years to
life, and because “the instant offense of conviction is a sex offense,” the PSR
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                                  No. 18-20620
recommended life.     The district court overruled Brown’s stated objections,
adopted in part the factual findings and guideline applications of the PSR, and
sentenced Brown to 18 months’ imprisonment and ten years of supervised
release.
                         II. STANDARD OF REVIEW
      Because Brown raises new issues in this appeal that he did not raise in
the district court, we review only for plain error. See United States v. Buck,
847 F.3d 267, 274 (5th Cir. 2017). Under plain-error review, an appellant must
satisfy three conditions to obtain relief. First, he must show that the issue
raised has not been “intentionally relinquished or abandoned.”            Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). Second, the alleged
error must be plain—that is, “clear or obvious, rather than subject to
reasonable dispute.” United States v. Guillen-Cruz, 853 F.3d 768, 770 (5th Cir.
2017) (internal quotation marks omitted). Finally, the appellant must show
that the error “affected his substantial rights.” Id. (citation omitted). In other
words, he must demonstrate a “reasonable probability that, but for the error,
the outcome of the proceeding would have been different.” Rosales-Mireles,
138 S. Ct. at 1905. If an appellant satisfies all three conditions, the court may
“exercise its discretion” to correct the error if the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
                               III. DISCUSSION
      Brown argues that the district court committed plain error by
categorizing his prior conviction as a Tier III offense and by treating his failure
to register as a sex offender as a separate sex offense when deciding supervised
release.




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                                  No. 18-20620
      A. Tier III Offense
      Federal law requires sex offenders to “register, and keep the registration
current, in each jurisdiction where the offender resides [and] where the
offender is an employee . . . .” 34 U.S.C. § 20913 (formerly 42 U.S.C. § 16913).
Sex offenders who fail to register are assigned a base offense level according to
the severity of the past offense. See 34 U.S.C. § 20911. Tier III sex offenses
are the most severe, including offenses against victims under the age of 13,
offenses against other kinds of vulnerable victims, and offenses involving the
use of force. Id. To qualify as Tier III, an offense must be punishable by more
than one year of imprisonment and be “comparable to or more severe than” one
of the enumerated offenses in the statute. Id. Brown contends that his offense
under 10 U.S.C. § 920, the Sexual Assault statute in the Uniform Code of
Military Justice, was not comparable to the enumerated offenses in
§ 20911(4)(A).      Consequently, his offense was improperly classified under
Tier III.
      The enumerated offenses in § 20911(4)(A) are “aggravated sexual abuse
or sexual abuse” and “abusive sexual contact . . . against a minor who has not
attained the age of 13 years.” Brown’s offense did not involve a minor, thus
the dispute in this case boils down to whether the offense of sexual assault
under the UCMJ is comparable to the federal sexual abuse offense listed in
§ 20911(4)(A)(i).
      This court uses the categorical approach to determine whether an offense
is “comparable to or more severe than” one of the enumerated offenses listed
in § 20911. United States v. Young, 872 F.3d 742, 746 (5th Cir. 2017) (citations
omitted). In doing so, the court does not look to the particular facts of the
underlying conviction and focuses only on comparing the elements or statutory
definition of the prior offense to those of the enumerated offense. Taylor v.
United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990).
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                                  No. 18-20620
      Sexual assault under the UCMJ is defined in relevant part as
“committ[ing] a sexual act upon another person . . . when the person knows or
reasonably should know that the other person is asleep, unconscious, or
otherwise unaware that the sexual act is occurring.” 10 U.S.C. § 920(b)(2)(B)
(emphasis added).
      The federal sexual abuse statute defines sexual abuse in relevant part
as “knowingly . . . engag[ing] in a sexual act with another person if that other
person is incapable of appraising the nature of the conduct, or physically
incapable of declining participation in, or communicating unwillingness to
engage in, that sexual act.” 18 U.S.C. § 2242.
      Both statutes proscribe nonconsensual sexual acts; the relevant inquiry
is whether the mens rea of the federal sexual abuse statute (“knowingly”)
applies equally to each element of the statute or only to the sexual act itself. If
the federal sexual abuse statute only requires knowledge of the act but not
knowledge of the victim’s ability to consent, then it would punish a broader
range of conduct than the UCMJ sexual assault statute: a federal defendant
would be guilty solely for performing the act on an unaware victim, while a
military defendant must at least be negligent about the victim’s lack of
capacity. If that were the case, there is no way a defendant could violate the
UCMJ statute without also violating the federal sexual abuse statute and the
district court correctly considered the offenses comparable.
      If, however, the federal sexual abuse statute requires a defendant to
have knowledge of both the sexual act and the victim’s inability to consent,
then the statute is narrower than the UCMJ sexual assault statute, which only
requires a negligence (should have known) standard of awareness. The district
court would have erred here when it found the defendant’s UCMJ conviction
comparable to a conviction under the federal sexual abuse statute.


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                                 No. 18-20620
      The interpretation of the mens rea of the federal sex abuse statute is a
matter of first impression in this court. Although, in reviewing other criminal
statutes, the Supreme Court has held that there are “strong textual reasons”
to apply “knowingly” to each element of a statute, see Flores-Figueroa v. United
States, 556 U.S. 646, 650, 129 S. Ct. 1886, 1890 (2009), the specific question
before us remains unsettled.       The pattern jury instructions recognize
uncertainty about whether § 2242 contains a mens rea requirement. See Fifth
Circuit Pattern Jury Instructions (Criminal Cases), 2.82B Sexual Abuse—
Victim Incapable 18 U.S.C. § 2242(2), comment. The Eighth Circuit—over a
spirited dissent—held that “knowingly” applies to every element of the statute.
United States v. Bruguier, 735 F.3d 754, 758 (8th Cir. 2013). In contrast, the
pattern jury instructions of the Ninth and Seventh Circuits do not include a
knowledge requirement for the victim’s incapacity.        See Manual of Model
Criminal Jury Instructions for the District Courts of the Ninth Circuit, § 8.172
(2010); Pattern Jury Instructions of the Seventh Circuit 625 (2012).
      Given the unsettled state of the law and the plain error standard of
review, this court need not weigh in on the underlying issue. To reverse for
plain error, a district court’s error must be “clear or obvious, rather than
subject to reasonable dispute.” Guillen-Cruz, 853 F.3d at 770. In the face of
obviously conflicting indications about the applicable law, the district court’s
determination that the UCMJ sexual assault statute and the federal sexual
abuse statute are comparable was not plainly erroneous. Consequently, the
decision to classify Brown as a Tier III sex offender in this case must be
affirmed.
      B. Categorization of Brown’s Failure-to-Register Offense
      Brown also appeals the district court’s determination that his failure to
register as a sex offender was a separate “sex offense” for purposes of
calculating his term of supervised release. The government concedes plain
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                                No. 18-20620
error. An earlier decision of this court held that failing to register under
SORNA does not qualify as a sex offense for guideline purposes. United States
v. Putnam, 806 F.3d 853, 855 (5th Cir. 2015) (per curiam). The district court’s
error on this issue was clear, and it affected Brown’s substantial rights,
because the maximum permissible length of his supervised release would
otherwise be five years. The court gave no reason for assessing ten years.
Pursuant to Rosales-Mireles, 138 S. Ct. at 1904, this error warrants reversal.
                               CONCLUSION
      For these reasons, we AFFIRM Brown’s sentence in part, REVERSE
the length of his supervised release, and REMAND to the district court for
further proceedings.




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