                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0811n.06

                                            No. 11-1666                                      FILED
                                                                                        Dec 05, 2011
                             UNITED STATES COURT OF APPEALS
                                                                                 LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
TROY LAMAR WALKER,                                )    WESTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )



       Before: BATCHELDER, COLE, and, COOK Circuit Judges.


       COOK, Circuit Judge. Troy Lamar Walker (“Walker”) pleaded guilty to one count of failing

to register as a sex offender in violation of 18 U.S.C. § 2250(a). The district court sentenced him to

24 months’ imprisonment. On appeal, Walker challenges both the procedural and substantive

reasonableness of the district court’s sentence. For the following reasons, we AFFIRM.


                                                  I.


       On December 4, 1998, law enforcement officials in Wake County, North Carolina arrested

Walker after he abducted and sexually assaulted his estranged wife. On September 5, 2000, a jury

found Walker guilty of second-degree rape, second-degree sexual offense, violating a domestic

violence protection order, felonious restraint, and two counts of misdemeanor assault on a female.
No. 11-1666
United States v. Walker


The Wake County Superior Court sentenced him to 73 to 97 months’ imprisonment followed by 60

months’ probation. He was paroled on December 31, 2004.


       On October 3, 2005, Walker signed forms acknowledging his obligations under North

Carolina’s Sex Offender and Public Protection Registration program, which required him to register

as a sex offender and inform appropriate state officials whenever he moved to a new residence,

including out-of-state addresses. Since North Carolina’s program categorized him as a “Sexual

Offender” but not an “Aggravated Offender” or “Sexually Violent Predator,” the duration of Walker’s

state law registration requirement was ten years.


       In 2006, Congress passed the Sex Offender Registration and Notification Act (“SORNA”).

SORNA sorts offenders into three tiers to determine the duration of their registration obligations.

Tier III includes any “sex offender whose offense is punishable by imprisonment for more than 1 year

and . . . is comparable to or more severe than . . . aggravated sexual abuse or sexual abuse (as

described in sections 2241 and 2242 of Title 18).” 42 U.S.C.A. § 16911(4). Tier III offenders must

register for life. Id. § 16915(a)(3). Tier II includes offenders convicted of sex offenses against

minors. Id. § 16911(3). Individuals in Tier II must register for 25 years. Id. § 16915(a)(2). SORNA

designates all offenders not included in Tiers II or III as Tier I offenders who must register for 15

years. Id. § 16911(2); § 16915(a)(1). SORNA’s registration requirements apply to offenders whose

convictions pre-date the statute. 28 C.F.R. § 72.3. Walker concedes that his conviction for second-

degree rape in North Carolina makes him a Tier III offender under SORNA. Walker’s parole was


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United States v. Walker


revoked for reasons unspecified in November 2006. He remained incarcerated until February 5, 2008,

when his prison term ended with no parole to follow.


       Walker last verified his address on April 13, 2009, at the Harnett County Sheriff’s

Department. On June 29, 2009, he contacted the Harnett County Sheriff’s Department again to

inform them that he was moving, but did not provide a specific address for his prospective residence.

On July 2, 2009, a felony warrant was issued for Walker’s arrest after North Carolina officials were

unable to verify his current address. On December 1, 2010, United States Marshals Service

(“USMS”) officials in North Carolina learned that Walker resided in Lansing, Michigan. They

forwarded this information to the USMS office in the Western District of Michigan. Michigan State

Police arrested Walker the next day and remanded him to USMS custody.


       Walker pled guilty to one count of failing to register as a sex offender, in violation of 18

U.S.C. § 2250(a). The United States Sentencing Guidelines Manual calculates the base offense level

for sex offender registration violations by looking to the offender’s SORNA tier classification—Tier

I offenders are assigned a base offense level of 12; Tier II offenders, 14; and Tier III offenders, 16.

In its Presentence Report, the United States Probation Office noted that Walker’s North Carolina

conviction for second-degree rape qualified him as a Tier III offender and assigned him the

corresponding base offense level of 16.


       Walker objected to his base offense level calculation. He asserted that though he was aware

of his duty to register under North Carolina law, he was not aware of SORNA’s three-tiered

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United States v. Walker


registration scheme at the time of his arrest. Since North Carolina law only required him to register

for ten years, Walker argued, he should be sentenced as a Tier I offender. The district court overruled

this objection, applied the Tier III designation, and used the corresponding base offense level of 16

to calculate an advisory imprisonment range of 18-24 months. In its statement of reasons, the district

court examined the § 3553(a) factors and expressed concern over Walker’s “patterned behavior” of

violence toward women and his history of violations on probation and parole. The court then

sentenced Walker to 24 months’ imprisonment. This appeal followed.


                                                  II.


       We review a district court’s sentencing decision under a two-part test, ensuring first “that the

district court committed no significant procedural error,” and second the substantive reasonableness

of the sentence imposed. Gall v. United States, 552 U.S. 38, 51 (2007).


                                                  A.


       Gall provides a non-exhaustive list of procedural errors, including “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for any deviation from the Guidelines range.”

552 U.S. at 51.




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United States v. Walker


        Here, Walker’s procedural challenges all stem from his assertion that the district court

improperly calculated the Guidelines by assigning him a base offense level of 16, the level specified

for Tier III SORNA offenders. Walker does not challenge his conviction under SORNA, nor does

he dispute the factual premise that his 2000 North Carolina conviction qualifies him as a Tier III

offender under the relevant SORNA provisions. Instead, he seems to ground his three procedural

challenges on the assumption that North Carolina registration law trumps federal registration law.

That is, because North Carolina law only required him to register for ten years—even less than the

period for a Tier I offender under SORNA—the federal district court erred by using the offense level

of a Tier III offender at sentencing. In the process, Walker peppers his appellate brief with generic

references to “the government,” “officials,” and “the law” in an apparent effort to blur the line

between state and federal officials and the distinct sets of laws that they enforce. For the reasons that

follow, Walker’s arguments fail.


        Walker first asserts that sentencing him as a Tier III offender violated his due process rights

because he “was not provided with proper notice regarding the effects of SORNA.” Walker

acknowledges that he “was aware of a duty to register . . . under state law,” which he concedes

suffices to establish notice for the purposes of his SORNA conviction. See, e.g., United States v.

Samuels, 319 F. App’x 389, 393 (6th Cir. 2009), (“Samuels’s prior knowledge of his duty to register

under state law qualified as effective notice under SORNA.”), overruled on other grounds by United

States v. Cain, 583 F.3d 408 (6th Cir. 2009). He argues, however, that because the government failed

to provide him “with information regarding the retroactive classification system under SORNA,” his


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United States v. Walker


sentencing guideline range must “reflect a classification that is comparable to that under [North

Carolina] law.”


       Walker has it wrong. SORNA did not disturb his classification under North Carolina law, nor

did the court’s use of Walker’s Tier III SORNA designation affect his North Carolina registration

requirements. SORNA instead established his registration obligations and offense level under federal

law. Thus, there was no “retroactivity” in Walker’s Tier III SORNA classification. Walker concedes

that he knew he was required to register as a sex offender when he moved to Michigan. That is all

the notice required for the purposes of SORNA. Walker’s appellate brief cites no authority for the

proposition that his classification under state law can affect, much less dictate, his sentencing

guideline range for a federal crime. We therefore reject his “notice” challenge.


       Next, Walker argues that the doctrine of equitable estoppel bars the district court’s application

of the Tier III offense level. This Circuit recognizes three “traditional elements of equitable estoppel

. . . : (1) misrepresentation by the party against whom estoppel is asserted; (2) reasonable reliance on

the misrepresentation by the party asserting estoppel; and (3) detriment to the party asserting

estoppel.” Michigan Express, Inc. v. United States, 374 F.3d 424, 427 (6th Cir. 2004). A party

asserting estoppel against the government “must demonstrate some ‘affirmative misconduct’ by the

government in addition to the other estoppel elements.” Id.


       According to Walker, since North Carolina documents and officials told him that he only

needed to register for ten years, the estoppel doctrine forbade the district court from sentencing him


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United States v. Walker


as a Tier III offender. But even if Walker relied on statements made by North Carolina officials, he

cites no affirmative misconduct by the United States, the party against whom he attempts to assert

estoppel. Walker cannot impute the words of North Carolina state officials regarding North Carolina

law to federal officials applying federal law. Similarly, as to the “reasonable reliance” element,

Walker points to no government officials—much less federal officials—who addressed him about

his federal classification under SORNA, as opposed to his classification under state law. Walker also

does not specify how he relied on any “official statements” to his detriment, since his SORNA arrest

occurred well within even the fifteen-year window of Tier I. As the district court noted at sentencing:


       And it’s important, I think, to note as well that in this case it’s not as though the
       duration of the registration period is material to whether the conviction for failure to
       register is valid or not. Everybody agrees even within the shortest possible registration
       window the registration was not done here.


For these reasons, we reject Walker’s estoppel challenge.


       Last, Walker argues that the district court’s “retroactive application of SORNA to [his]

original sexual offense” violates the ex post facto clause. He acknowledges that given the nonpunitive

and regulatory nature of SORNA’s registration obligations, courts forgo ex post facto analysis of its

requirement that he register for life. See, e.g., Smith v. Doe, 538 U.S. 84, 93 (2003) (“[A]n imposition

of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive

governmental objective . . . .’”) (citation omitted). His classification as a Tier III offender under

SORNA thus does not, by itself, present any ex post facto concerns.



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United States v. Walker


       Walker nonetheless argues that use of the Tier III classification to determine his sentencing

guideline range offends the ex post facto clause because it “raised” his penalty from what it had been

under North Carolina law. As noted previously, however, the use of Walker’s SORNA tier

classification at sentencing did not “raise” his state law penalty or “retroactively” alter his state law

obligations. It instead provided his advisory range of imprisonment for a federal crime using federal

guidelines. As with his “notice” argument, Walker cites no authority suggesting that the ex post facto

clause requires courts to look to an offender’s state law registration obligations when determining his

offense level under federal law. As the district court explained:


       [T]he underlying conviction that drives the registration hasn’t changed. It’s a North
       Carolina conviction. It is what it is. And we’re simply now applying the definitional
       categories of that conviction against the definitions in the registration requirement for
       the federal act, and the punishment is imposed accordingly.


Assigning Walker an offense level based on his Tier III SORNA classification thus does not violate

the ex post facto clause.


                                                   B.


       We also reject Walker’s substantive challenge. Appellate courts review the substantive

reasonableness of a defendant’s sentence for abuse of discretion. United States v. Houston, 529 F.3d

743, 755 (6th Cir. 2008). “The touchstone for our review is whether the length of the sentence is

reasonable in light of the § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008).

Examples of substantive unreasonableness include “selecting the sentence arbitrarily, basing the


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United States v. Walker


sentence on impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an

unreasonable amount of weight to any pertinent factor.” United States v. Webb, 403 F.3d 373, 385

(6th Cir. 2005).


       Walker does not claim that the district court committed any recognized error in determining

his sentence. Instead, he argues that a sentence based on the guideline range for a Tier I offender

would “better serve” and “better reflect” the goals of § 3553(a), and that a “shorter time[] of

incarceration would [be] sufficient” to deter Walker from further violations. Our task, however, is

not to determine whether a shorter sentence would be “better” or “sufficient,” but rather whether the

district court’s sentence was unreasonable. Here, the district court’s statement of reasons shows that

it arrived at its sentence after a reasoned consideration of the § 3553(a) factors, giving particular

attention to the nature of the offense conduct and Walker’s history and characteristics. Walker points

to no error or statement in the record suggesting that the district court ignored or accorded

impermissible weight to a § 3553(a) factor or otherwise determined his sentence unreasonably.


                                                 III.


       For these reasons, we AFFIRM the district court’s judgment.




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