                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4019


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DWAINE ALLEN COLLINS, a/k/a Dwaine Allen Cline,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
Chief District Judge. (6:13-cr-00141-1)


Argued:   October 30, 2014                 Decided:   December 8, 2014


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed in part; vacated and remanded in part by published
opinion.    Judge Floyd wrote the opinion, in which Judge
Wilkinson and Judge Motz joined.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.     Jennifer
Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee. ON BRIEF: Brian J. Kornbrath,
Acting Federal Public Defender, Lex A. Coleman, Assistant
Federal   Public  Defender,  Charleston,  West   Virginia,   for
Appellant. R. Booth Goodwin, II, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
FLOYD, Circuit Judge:
      Dwaine Allen Collins was convicted of knowingly failing to

register as a sex offender under the Sex Offender Registration

and   Notification   Act   (SORNA).         The    district    court    sentenced

Collins to 30 months’ imprisonment and ten years of supervised

release.     On this direct appeal, Collins contests his conviction

primarily on the grounds that the government failed to prove an

essential element of a SORNA violation: that he knew he had an

obligation to register.

      In support, he points to comments made by a state court

judge in a separate proceeding, which in Collins’s view suggest

that his obligation to register had expired.                  We agree with the

district court, however, that the state judge appeared to be

giving advice rather than a binding legal opinion.                      Moreover,

there   is   substantial   evidence        in   the   record   to     support   the

district court’s conclusion that Collins knowingly avoided an

obligation    to   register   as   a   sex        offender.      We    thus     find

Collins’s claim unpersuasive and affirm his conviction.

      Collins also appeals his sentence.                We find his 30-month

term of imprisonment, which is within the applicable Guidelines

range, to be reasonable and thus affirm the district court’s

sentence in that respect. As to the term of supervised release,

however, the United States Sentencing Commission recently issued

a clarifying amendment stating that a failure to register under

                                       2
SORNA is not a “sex offense” for the purposes of the Guidelines.

Consequently,        we    vacate    the     supervised          release     portion    of

Collins’s sentence and remand for further proceedings.



                                            I.

       In 1998, Dwaine Allen Collins pleaded guilty to two counts

of taking indecent liberties with a child in North Carolina.

Upon    his    conviction,        both     North      Carolina     and      federal    law

required him to register as a sex offender.

       After his release from prison in 2001, Collins moved to

Ohio, where he registered as a sex offender.                           As part of the

registration         procedures,         Collins        signed     a     form,    titled

“Explanation of Duties to Register as a Sex Offender,” which

explained     that    he   was    required       to   register     annually      for   ten

years and verify his residence annually.                         Despite signing this

form, Collins failed to re-register in 2002.                      Thus a warrant was

issued in Ohio for his arrest.                  Before he could be apprehended,

he moved to Parkersburg, West Virginia, where he remained until

2011.       He did not register his sex offender status in West

Virginia during that time.

       In January 2011, Collins was arrested while attempting to

steal   a     television     in     Ohio.       After    being     released,     he    was

detained      on   the     2002     warrant       for    failing       to   update     his

registration.         While in custody, Collins signed another form,

                                            3
titled      “Notice   of     Registration       Duties       of   Sexually        Oriented

Offender or Child-Victim Offender.”                   J.A. 145.         The form listed

Collins’s expected address as Parkersburg, West Virginia, but

did   not    identify       the   sheriff’s     office       where      Collins    was   to

register.      The form also stated that: (i) Collins was classified

as a Tier II sex offender, a more serious category than his

original Tier I status; and (ii) he was required to register for

25 years.      The 25-year requirement conflicts with his original

10-year requirement. 1

      In March 2011, Collins pleaded no contest to the single

count indictment in Ohio state court charging him with failing

to verify his address.            In the state court proceeding, the judge

suggested that a recent Ohio Supreme Court case rendered the

increase      from    a     10-year   registration           period      to   a   25-year

registration     period       “void.” 2        J.A.    78.        The    judge     further

suggested     that    the    original     ten-year      registration          requirement

applied.      Id.; see also J.A. 78 (stating that he thought “this



      1
        The district court later found that the Notice of
Registration form mandating 25 years of registration was
inaccurate.
      2
       Specifically, the state court judge cited State v. Bodyke,
933 N.E.2d 753 (Ohio 2010).     In that case, the Ohio Supreme
Court held the Ohio Attorney General could not change the
classification of sex offenders and therefore severed the
provision giving the Attorney General the power to reclassify
sex offenders from the Ohio sex offender statute.



                                           4
period was a ten year period dating from the time he would have

been   released”).           Thus    the     judge   sentenced        Collins      to    time

served for the outstanding 2002 warrant.                     J.A. 79-80.

       After being released from custody in Ohio, Collins returned

to West Virginia.         He again did not register as a sex offender

with West Virginia authorities, despite signing forms expressly

stating that he was required to do so.

       In   May   2013,      Collins    was       again    charged     for    failing      to

register as a sex offender—this time under federal law (SORNA),

a   violation        separate       from     the     one     underlying       the       first

indictment     in    Ohio.      In     the    federal      proceeding,       the    parties

agreed to a bench trial on a single issue: whether Collins had

knowingly failed to register as a sex offender.

       Collins agreed to a bench trial. Collins primarily argued

that he had not “knowingly” failed to register as a sex offender

in light of the Ohio state court judge’s comments that his 10

year    registration      period       had     expired.         The    district         court

rejected      this   argument.          Notwithstanding         any    requirement         to

register     under    state     law,    the       district    court    concluded         that

Collins had a separate obligation to register under federal law—

namely      SORNA.     The    district       court    found     that    the     knowledge

element was satisfied as long as Collins knew he was required to

register “under some scheme”—that is, any state or federal law,

but not necessarily SORNA specifically.                    J.A. 147.         The district

                                              5
court also rejected Collins’s reliance on the Ohio state judge’s

statements, concluding that the judge “did not make a definite

legal       ruling    during   the      sentencing        hearing    as     to    whether

[Collins] was no longer required to register at all” and that

the judge was merely “stating his opinion.”                   J.A. 146.

       The presentence investigation report (PSR) calculated the

Guideline range for Collins’s conviction as 30-37 months based

on a base offense level of 12 and Category VI criminal history.

The district court granted Collins’s request for a two-level

reduction (to level 10) for acceptance of responsibility, thus

reducing      the     Guideline    range     to    24-30    months.         Emphasizing

Collins’s long criminal history, the district court imposed a

30-month sentence, finding that a sentence at the upper limit of

the Guidelines was “appropriate to protect the community.”                           J.A.

180.     Although both Collins and the government agreed that a

five-year       supervised        release        period    was     appropriate,       the

district court imposed ten years of supervised release.



                                            II.

                                            A.

       We     first     address        Collins’s     challenge       to     his     SORNA

conviction.           Following    a    bench     trial,    this    Circuit       reviews

findings of fact for clear error and findings of law de novo.

United      States    v.   Leftenant,       341    F.3d    338,    342-43    (4th    Cir.

                                             6
2003). 3   A guilty verdict must be affirmed if “any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.”              United States v. Poole, 640 F.3d

114, 121 (4th Cir. 2011) (quoting United States v. Madrigal–

Valadez, 561 F.3d 370, 374 (4th Cir. 2009)).                    “This standard is

met when there is substantial evidence in the record, viewed in

the   light    most     favorable   to   the       government,   to   support     the

district      court’s    judgment.”          Id.    (internal    quotation   marks

omitted).



                                         B.

      Under SORNA, a “sex offender shall register, and keep the

registration current, in each jurisdiction where the offender

resides,      where   the   offender     is    an    employee,    and   where     the

offender    is   a    student.”     42    U.S.C.      § 16913(a).       Failure    to

register triggers an array of potential penalties, but only if

the offender has knowledge of the registration requirement.                        18

U.S.C. § 2250(a)(3) (“Whoever . . . knowingly fails to register

or update a registration as required by [SORNA] . . . shall be

fined under this title or imprisoned not more than 10 years, or

both.”).

      3
       Collins’s appeal of his conviction pertains only to the
sufficiency of the prosecution’s evidence. There is no issue of
law in this case for knowingly failing to register under SORNA.



                                         7
      The parties do not dispute that Collins was a sex offender

under federal law, that he was required to register under SORNA,

and that he failed to do so.                 Appellee Br. at 12; Appellant Br.

at   13.     The    only      issue   regarding          his    conviction       is    whether

Collins     knowingly       failed    to     register,          as    required      under     18

U.S.C. § 2250(a)(3).

      In    criminal       trials,      the        government         can     “establish      a

defendant’s guilty knowledge by either of two different means.”

Poole,     640    F.3d   at    121.         “The    government         may    show     that   a

defendant        actually      was     aware        of     a        particular        fact    or

circumstance, or that the defendant knew of a high probability

that a fact or circumstance existed and deliberately sought to

avoid confirming that suspicion.”                  Id.

      Here, the government relies on the latter means, arguing

that Collins’s previous failure to register in Ohio and West

Virginia showed, as the district court found, “his state of mind

and intention to avoid registration requirements.”                                  J.A. 144.

In further support of its argument that Collins knew he had a

duty to register, the government also cites: (i) the fact that

Collins    registered       as   a    sex    offender          several      times     in   North

Carolina and Ohio between 2002 and 2011; (ii) Collins’s signed

notification        forms        reminding          him        of      his     registration

obligations; (iii) his statements to the police that he disliked

registering as a sex offender because he had previously been

                                              8
assaulted after doing so; and (iv) his use of an alias, which

the government contends he used to avoid being identified as a

sex offender.

      Although        Collins     disputes     much     of     this     evidence,       he

primarily     seeks     reversal      based     on    the    Ohio      state     judge’s

statement that he had no further registration requirements.                             In

Collins’s view, the state judge assured him that his obligations

to register as a sex offender had lapsed and therefore he could

not have knowingly failed to register.                       Collins believes the

state judge’s statements override much of the government’s other

evidence,     including         his   signed    registration          forms,     because

Collins      cannot     read     or   write     and    needs     others’       help     to

understand documents.            In contrast, the government argues, and

the district court found, that the Ohio state judge “was merely

stating his opinion that the Ohio registration period may have

lapsed.”     J.A. 146.      We find no reason to part from the district

court’s interpretation of the state judge’s comments.                          The state

judge appeared to be couching his comments as advice to Collins

rather     than    as   a   binding     legal     ruling.         Pursuant       to    the

deferential standard of review for convictions in this Circuit,

the   district        court’s     interpretation        of     the     state     judge’s

comments was not clear error.

      Even    if   we   accepted      Collins’s       assertion       that   the      state

judge issued a substantive legal ruling as to his registration

                                          9
requirements, we would still affirm.                  Collins argues that the

state judge’s comments show a form of entrapment by estoppel,

which stands for the proposition that the state’s prosecution of

“someone for innocently acting upon . . . mistaken advice is

akin to throwing water on a man and arresting him because he’s

wet.”       People v. Studifin, 504 N.Y.S.2d 608, 610 (N.Y. Sup. Ct.

1986).         The   Supreme   Court     narrowly     defined    entrapment      by

estoppel in Cox v. Louisiana, 379 U.S. 559 (1965), and Raley v.

Ohio, 360 U.S. 423 (1959).          Unlike here, the defendants in both

of those cases relied upon state officials’ prior interpretation

of state law and then were charged with a violation of state

law.        In contrast, here Collins relied on a state official’s

interpretation       of   state   law,    but   was    later    charged   with    a

violation of federal law.           In other words, Collins effectively

asks us to extend the reach of entrapment by estoppel to cases

with two different sovereigns. 4

        We have previously held that entrapment by estoppel occurs

only when the same sovereign advises that certain conduct is

permissible, but later initiates a prosecution based on that

conduct.       In United States v. Etheridge, 932 F.2d 318, 320-21

        4
       Collins concedes that entrapment by estoppel does not
formally apply but urges that then “animating principle behind
it . . . still applies” here.   Appellant’s Br. at 19. Even if
that were true, his argument is foreclosed by our prior
precedent, including Etheridge.



                                         10
(4th Cir. 1991), we held that a convicted felon violated federal

law by possessing two shotguns used for hunting, even though a

state judge had advised him that he was permitted to possess the

shotguns for that purpose.             The Etheridge court quoted at length

from an Eleventh Circuit case, United States v. Bruscantini, 761

F.2d   640,     642    (11th   Cir.    1985),    which     distinguished      Cox    and

Raley by finding that when “the government that advises and the

government      that    prosecutes      are    not   the   same,     the    entrapment

problem is different.”

       Etheridge       controls   the    outcome     in    this     case:    here,   as

there, the defendant was convicted for violating federal law

despite receiving conflicting advice from a state official about

similar state law.             We of course are not free to disregard

binding precedent.         And even if we were, we would reach the same

result.        Entrapment by estoppel is a narrow exception to the

general principle that ignorance of the law is no excuse, and it

would be unwise to extend its application here.

       Having disposed of Collins’s reliance on the Ohio state

judge’s comments, it is readily apparent that his conviction

should    be    affirmed.       Over    the    years,     Collins    signed   several

forms acknowledging his obligations to register.                     J.A. 143, 145.

Upon his arrest, he also made comments to federal marshals about

his reluctance to register due to the threats and assault he

received upon registering.             J.A. 101-102.        Taken together, these

                                          11
facts constitute “substantial evidence in the record . . . to

support the district court’s judgment,” Poole, 640 F.3d at 121

(internal quotation marks omitted), that Collins knew he was

required to register as a sex offender.                          Consequently, we

affirm Collins’s conviction.



                                     III.

      Collins also argues that his 30-month sentence is excessive

and should be reduced.           When using the Sentencing Guidelines,

“[t]he     courts    of   appeals    review      sentencing        decisions   for

unreasonableness.”        United States v. Booker, 543 U.S. 220, 264

(2005).      The    reasonableness     of   a   sentence     “is    not    measured

simply by whether the sentence falls within the statutory range,

but   by   whether    the   sentence    was      guided     by    the   Sentencing

Guidelines    and    by   the   provisions      of   [18   U.S.C.]      § 3553(a).”

United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).                       In

this Circuit, the reasonableness inquiry “focuses on whether the

sentencing court abused its discretion in imposing the chosen

sentence.”    United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).

      After applying a two-level reduction in light of Collins’s

accepting responsibility for his crime, the district court found

that Collins’s base offense level was 10.                  After the reduction,

Collins’s criminal history was determined to be in Category VI,

                                       12
leading to an advisory guidelines range of 24-30 months.                                   In

ultimately      ordering      a    30-month       sentence,     the    district       court

found    that     Collins’s         criminal       history     included       “extremely

serious crimes . . . [that] reflect the type of conduct that

would    make    one   fear       that   this     defendant     is    some    type    of   a

predator.”        J.A. 179.        The district court went on to conclude

“that the defendant pretty much stays in trouble, irrespective

of his illiteracy, other problems.”                     J.A. 180; see also id.

(noting that Collins was “very prone to breaking the law” and

that he will “probably commit other offenses after he serves his

prison term here”).           Because the 30-month sentence is within the

Guidelines range, we find it is entitled to a presumption of

reasonableness.          Rita      v.    United     States,     551    U.S.    338,     347

(2007); United States v. Wright, 594 F.3d 259, 268 (4th Cir.

2010).

       That is especially true because Collins actually requested

a sentence between 24-30 months in his presentencing memorandum,

thus    clearly    signaling        that    he    believed     such   a     sentence    was

reasonable.        In light of this request, his argument on appeal

that a 30-month term of imprisonment is excessive rings hollow.

Simply    put,     the   district          court’s    decision        was    within    the

applicable      Guidelines         range,    was     heavily    influenced       by     the

§ 3553(a) factors, and was thorough. Accordingly, the sentence

is affirmed.

                                             13
                                             IV.

                                              A.

     Collins also contests the district court’s imposition of a

ten-year       supervised      release       period.        Specifically,      he   argues

that the district court used an incorrect Guidelines calculation

when making that determination.                     In support, he cites United

States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013), which held

the correct Guidelines calculation for a SORNA violation was a

single “point” of five years, rather than five years to life (as

stated    in    the     PSR    here).        At    oral   argument,     the    government

agreed with Collins’s position.                    More importantly, in May 2014,

the Sentencing Commission published proposed amendments to the

Sentencing Guidelines that affects Collins’s case.                             Sentencing

Guidelines       for     United      States       Courts,      79    Fed.   Reg.    25,996

(proposed May 6, 2014).               Due to a lack of congressional action,

those amendments became effective on November 1, 2014. U.S.S.G.

§ 5D1.2 cmt. nn.1 & 6 (text of amendments). 5

     In    Goodwin,           the    Court    considered        whether       failure   to

register was a “sex offense” for the purposes of the Guidelines,

concluding       that    it    was    not    because      it   was    not   “perpetrated

against a minor” as required by the Guidelines.                             Goodwin, 717


     5
       The amendments became effective after briefing and oral
argument in this case.



                                              14
F.3d at 520.         Congress enacted SORNA to protect the population

at large rather than the victim of the underlying crime.                             See

United States v. W.B.H., 664 F.3d 848, 854 (11th Cir. 2011)

(“SORNA plainly states that its purpose is to protect society

. . . from sexual offenders, 42 U.S.C. § 16901 . . . .”).                         Other

circuits have adopted the reasoning in Goodwin.                          United States

v. Segura, 747 F.3d 323, 329-30 (5th Cir. 2014); United States

v. Herbert, 428 Fed. App’x 37 (2d Cir. 2011).

      The     Sentencing     Commission        amended       the        Guidelines   to

implement Goodwin’s holding.             The Commission may generally enact

two   types     of    amendments:       clarifying     and    substantive.           See

generally United States v. Butner, 277 F.3d 481, 489 (4th Cir.

2002) (explaining how to distinguish clarifying amendments from

substantive      amendments).             Clarifying        amendments       “change[]

nothing     concerning     the    legal    effect      of    the   guidelines,       but

merely clarif[y] what the Commission deems the guidelines to

have already meant.”             United States v. Capers, 61 F.3d 1100,

1109 (4th Cir. 1995).             A substantive amendment, by contrast,

“has the effect of changing the law in this circuit.”                            Id. at

1110.

      The   amendment      does    not    change    the     law    of    this   Circuit

because we do not have a published opinion addressing whether

the   failure    to    register    is    itself    a   sex    offense.          Previous

unpublished opinions are contradictory.                     Compare United States

                                          15
v. Nelson, 400 F. App’x 781, 782 (4th Cir. 2010) (per curiam)

(Guidelines range is five years to life) with United States v.

Acklin,       557   F.    App’x       237,   240    (4th    Cir.       2014)    (per        curiam)

(remanding for reconsideration in light of DOJ memo endorsing a

“single point” of five years).                      We find that this amendment to

the     Guidelines        is      a    clarifying         amendment          rather     than     a

substantive amendment.                 The amendment resolves an uncertainty

created by contradictory language in the Guidelines and § 2250

rather than revising a preexisting rule.

       This      Circuit       has      previously        held     that        “a    clarifying

amendment must be given effect at sentencing and on appeal, even

when    the    sentencing       court        uses   an    edition       of    the     guidelines

manual that predated adoption of the amendment.” United States

v.     Goines,      357    F.3d       469,    474    (4th     Cir.       2004)        (citations

omitted);       U.S.S.G.       § 1B1.11(b)(2)            (“[I]f    a    court        applies    an

earlier       edition     of    the      Guidelines        Manual,       the        court    shall

consider       subsequent         amendments,         to     the       extent        that      such

amendments are clarifying rather than substantive changes.”).

       Accordingly, we must give effect to the amendment here.                                   We

find that failing to register as a sex offender under SORNA is

not a “sex offense” for the purposes of the Guidelines.




                                               16
                                             B.

        Because the maximum term of imprisonment for failing to

register    under    SORNA      is     ten    years       under    § 2250(a),    such     a

failure constitutes a Class C felony.                        18 U.S.C. § 3559(a)(3)

(defining a Class C felony as an offense with a maximum term of

imprisonment of “less than twenty-five years but ten or more

years”).    The Guidelines recommend a term of supervised release

between one and three years for Class C felonies.                               U.S.S.G.

§ 5D1.2(a)(2).       Thus, this entire Guidelines range is below the

statutory    minimum       of   five    years     of      supervised     release.        18

U.S.C. § 2250(a).

    Our     sister       circuits    disagree        as     to    how   to   resolve    the

situation    when    a    Guidelines         range    for    supervised       release    is

below the statutory minimum.                  In Goodwin, the Seventh Circuit

relied on a rule developed in another case, Gibbs, to construe

the Guidelines to recommend a single “point” at the statutory

minimum: five years.            717 F.3d at 520 (citing United States v.

Gibbs, 578 F.3d 694, 695 (7th Cir. 2009)).                        The Gibbs rule holds

that when the Guidelines range is below the statutory minimum,

the Guidelines should be read to recommend a ‘single point’ at

the statutory minimum, rather than a range. Gibbs, 578 F.3d                              at

695. The Eighth Circuit in Deans took a different approach in

which     the   statutory         requirement             entirely      supplants       the

Guidelines range. United States v. Deans, 590 F.3d 907, 911 (8th

                                             17
Cir. 2010). Under the Deans rule, the Guidelines are construed

to recommend the full statutory range irrespective of the lower

Guidelines range. Id.

       The Sentencing Commission adopted the Gibbs rule as part of

its amendment on sex offenders.                 Cf. U.S.S.G. § 5D1.2 cmt. n.6.

As noted above, this Circuit has not ruled definitively on this

issue and has not adopted either the Gibbs rule or the Deans

rule.     Consequently, this change is also a clarifying amendment

because it does not change our substantive law. Butner, 277 F.3d

at 489; Capers, 61 F.3d at 1109.                  We must give effect in this

direct appeal to the clarifying amendment adopting the Gibbs

rule    on      appeal.          Goines,    357        F.3d   at    474;       U.S.S.G.

§ 1B1.11(b)(2).



                                           C.

       This     Circuit’s    practice      is     to    vacate     and    remand      for

resentencing when the Sentencing Commission enacts a clarifying

amendment.       See, e.g., Goines, 357 F.3d at 480-81; United States

v. Ross, 352 F. App’x 771, 773 (4th Cir. 2009) (per curiam).

Because       clarifying    amendments      simply      elucidate        existing     law

rather than create new law or modify existing Circuit precedent,

Collins      should   benefit     from     reconsideration         of    his   term   of

supervised       release    in    light    of    the    Sentencing       Commission’s

recent amendment.           Although it is possible that the district

                                           18
court will re-impose ten years of supervised release, this time

as    an     upward   variance,     the     importance       of        the    Guidelines’

recommended range to sentencing merits vacatur and remand.                                 See

United States v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008)

(“Practically speaking, applicable Sentencing Guidelines provide

a    starting    point   or     ‘anchor’    for    judges        and    are    likely       to

influence the sentences judges impose.”).



                                           V.

       For     the    reasons    provided       above,      we     affirm          Collins’s

conviction and his term of imprisonment, and remand for further

proceedings      consistent      with   this      opinion    as        to    his    term    of

supervised release.

                                                             AFFIRMED IN PART;
                                                  VACATED AND REMANDED IN PART




                                           19
