                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4660


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRIAN PAIGE ISDELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00011-MOC-DCK-1)


Argued:   October 29, 2014                 Decided:   January 23, 2015


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.   ON BRIEF: Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Brian Isdell pleaded guilty to failing to register as a sex

offender, see 18 U.S.C. § 2250(a), and was sentenced to a 21-

month term of imprisonment to be followed by a 15-year term of

supervised    release.         Isdell   appeals    the    term     of    supervised

release imposed by the district court, arguing that the court

erred in calculating the advisory range under the Sentencing

Guidelines    and   failed     to    adequately   explain    its        reasons    for

imposing   the   15-year     term.      Finding    no    reversible       error,    we

affirm.

                                        I.

     It is a crime under federal law to “knowingly fail[] to

register   or    update    a    registration      as    required    by     the     Sex

Offender Registration and Notification Act [42 U.S.C. § 16913 et

seq.].” 18 U.S.C. § 2250(a)(3).              The statutory penalties for

violating § 2250 include a 10-year maximum term of imprisonment,

see id. § 2250(a), and a term of supervised release of 5 years

to life, see 18 U.S.C. § 3583(k).

     Under the Sentencing Guidelines, the recommended term of

supervised release for a crime with a 10-year maximum prison

term generally is 1-3 years.            See U.S.S.G. § 5D1.2(a)(2) (2014);

18 U.S.C. § 3559(a)(3).             If a statute mandates a longer term

than that recommended by the Guidelines, the term of supervised

release imposed cannot be less than the statutorily required

                                         3
term.         See   id.   §   5D1.2(c).       And   if    the   underlying     crime

qualifies as a “sex offense,” the upper end of the advisory

supervised-release range is life.             See id. § 5D1.2(b)(2).

     At the time of Isdell’s sentencing, the Guidelines defined

“sex offense” as

     (A) an offense, perpetrated against a minor, under (i)
     chapter 109A of title 18, United States Code; (ii)
     chapter 109B of such title; (iii) chapter 110 of such
     title, not including a recordkeeping offense; (iv)
     chapter 117 of such title, not including transmitting
     information about a minor or filing a factual
     statement about an alien individual; (v) an offense
     under 18 U.S.C. 1201; or (vi) an offense under 18
     U.S.C. 1591; or (B) an attempt or a conspiracy to
     commit any offense described in subdivisions (A)(i)
     through (vi) of this note.

U.S.S.G. § 5D1.2, cmt. n.1 (2012) (emphasis added). 1                    The statute

defining the failure-to-register crime at issue in this case, 18

U.S.C. § 2250, is the only statute contained in chapter 109B of

Title 18.       If a violation of § 2250 qualifies as a sex offense

under this definition, then the upper end of Isdell’s advisory

Guidelines range was life.

        The   PSR   prepared    in   anticipation        of   Isdell’s    sentencing

indicated that Isdell’s advisory supervised-release range was 5

years to life.            Neither Isdell nor the government filed any

written objections to the PSR, and counsel for Isdell stated at



     1
       As we will discuss, this portion of the Guidelines has
since been amended.



                                          4
the outset of the sentencing hearing that he had no objections

to the PSR.

       During   the     sentencing       hearing,     the    government      questioned

whether Isdell’s offense qualified as a sex offense under the

Guidelines.           Counsel     for      the    government      noted      that       the

Department of Justice had previously taken the position that

failure to register was a sex offense, but that the Department

had    recently        changed     its     views       and     determined       that     a

registration offense was not a sex offense.                     The government did

not explain the basis for the Department’s initial position, nor

did    it    explain     why     the    Department      had     changed      its    view.

Regarding     the   appropriate         term     in   this   case,     the   government

requested that the court vary upward and impose a 15-year term

of supervised release.

       At no time during sentencing did counsel for Isdell argue

that    a    failure-to-register            offense      did     not     satisfy        the

Guidelines’     definition       of    a   sex    offense.      And     while      counsel

requested a time-served term of imprisonment, counsel did not

seek any particular term of supervised release, nor did he argue

against the 15-year term sought by the government.

       The   district      court       ultimately      sentenced       Isdell      to    21

months’ imprisonment and 15 years’ supervised release.                              As to

supervised release, the court stated,



                                            5
      I do believe that the supervised release term could be
      five years to life.   So I don’t think it’s just five
      years, I think it [is] five years to life.           I
      appreciate what the Justice Department is saying.    I
      think I have every right to go up on supervised
      release.

J.A. 40.

                                      II.

      On appeal, Isdell argues that the district court erred in

determining     the   Guidelines’    supervised-release           range   and   that

his   sentence   is     therefore   procedurally       unreasonable.        Isdell

contends that the failure to register under 18 U.S.C. § 2250 is

not a “sex offense” because the registration offense was not

“perpetrated against a minor,” as required by the Guidelines.

U.S.S.G. § 5D1.2, cmt. n.1 (2012).               And because his offense is

not a sex offense, Isdell argues that the supervised-release

range recommended by the Guidelines is not a “range” but is

instead a single point – 5 years, the minimum term authorized by

18 U.S.C. § 3583(k).

      Because    this    argument   is       raised   for   the   first   time   on

appeal, we review for plain error only. 2              To obtain relief under


      2
       Despite his failure to object, Isdell contends that the
issue is preserved (and thus subject to harmless-error review)
because the government raised the issue below.      We disagree.
Assuming without deciding that an objection or argument made by
the government could be sufficient to preserve an appellate
issue for a criminal defendant, the government’s argument is not
sufficient in this case.        The government explained the
Department of Justice’s change of position in general terms
(Continued)
                                         6
plain-error review, Isdell bears the burden of establishing that

“the district court erred, that the error was plain, and that it

affected his substantial rights.             Even when this burden is met,

we have discretion whether to recognize the error, and should

not   do    so   unless   the   error    seriously   affects   the   fairness,

integrity or public reputation of judicial proceedings.”                United

States v. Aidoo, 670 F.3d 600, 611 (4th Cir. 2012) (citation and

internal quotation marks omitted).

        The first two prongs of the plain-error standard are met

here.      After sentencing in this case, the Sentencing Commission

amended the commentary to § 5D1.2 to clarify that failure-to-

register violations under 18 U.S.C. § 2250 are not sex offenses.

See U.S.S.G. § 5D1.2, cmt. n.1 (2014).               We are obliged to give

effect     to    that   amendment   on   appeal.     See   United    States   v.

Collins, ___ F.3d ___, 2014 WL 6871409, at *6 (4th Cir. Dec. 8,

2014); see also Henderson v. United States, 133 S. Ct. 1121,

1130-31 (2013) (error is “plain” for purposes of plain-error



without ever bringing to the district court’s attention the
issue raised on appeal – whether a violation of the sex-offender
registration requirements is a crime perpetrated against a
minor.   See, e.g., United States v. Zayyad, 741 F.3d 452, 459
(4th Cir. 2014) (“To preserve an argument on appeal, the
defendant must object on the same basis below as he contends is
error on appeal.    Because he must state    the specific ground
upon which he objects below, Fed. R. Evid. 103(a), an objection
on one ground does not preserve objections on different grounds
on appeal.” (internal quotation marks omitted)).



                                         7
review as long as the error is plain at the time of appellate

review).         Thus, as Isdell argues, his offense of conviction is

not    a   sex    offense,   and     the   Guidelines’    advisory      supervised-

release “range” is 5 years.                See Collins, 2014 WL 6871409, at

*7; U.S.S.G. § 5D1.2 cmt. n.6 (2014).

       Although the district court is deemed to have committed

plain error by concluding that the Guidelines supervised-release

range was 5 years to life, that error does not warrant reversal

in    this   case.     As    noted    above,     Isdell   bears   the    burden   of

establishing not only the existence of plain error, but also

that the plain error affected his substantial rights.                    He cannot

satisfy that burden in this case.

       “In the sentencing context, the [substantial-rights] prong

of the plain-error standard is satisfied if there is a non-

speculative basis in the record to conclude that the district

court would have imposed a lower sentence upon the defendant but

for the error.”         United States v. McLaurin, 764 F.3d 372, 388

(4th Cir. 2014) (internal quotation marks omitted).                      Here, the

record does not show that the district court would have imposed

a shorter term of supervised release but for the error.                           If

anything, the record establishes just the opposite – that the

district court was prepared to impose the same term even if the

Guidelines range were 5 years.                 See J.A. 34 (“I don’t want any

problem, if I have the authority to go up on the supervised

                                           8
release, I don’t mind doing that.”); J.A. 40 (“I think I have

every right to go up on supervised release.”).                         Because Isdell

cannot satisfy his burden under plain-error review, we affirm

the term of supervised release imposed by the district court. 3

                                           III.

      When imposing sentence, the district court must consider

the advisory Guideline range and the arguments of the parties in

light of the factors set forth in 18 U.S.C. § 3553(a), and the

court     must    select      what    it   believes     to     be    the    appropriate

sentence based on an “individualized assessment” of the facts of

the   case.       Gall   v.    United      States,    552    U.S.     38,   50    (2007).

“Regardless       of   whether       the   district    court    imposes      an   above,

below,    or     within-Guidelines         sentence,    it     must    place      on   the

record    an     individualized        assessment     based     on    the    particular

facts of the case before it.”               United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

      Isdell      contends       that      the    district      court       failed      to

sufficiently explain the reasoning behind the supervised-release


      3
       Facing a similar issue, the court in United States v.
Collins, ___ F.3d ___, 2014 WL 6871409 (4th Cir. Dec. 8, 2014),
vacated a 10-year supervised-release term and remanded for
reconsideration, see id. at *7. Our application of plain-error
review, which requires the defendant to prove prejudice, rather
than harmless-error review, which requires the government to
prove the absence of prejudice, distinguishes this case from
Collins.



                                             9
term it selected, particularly given the extent of the variance

it imposed.   We disagree.    Although the district court did not

tick off each of the § 3553(a) factors or explicitly tie its

sentence to the relevant factors, the statements made by the

district   court   during   the   sentencing    hearing   sufficiently

established the basis for the sentence.         As the record shows,

the district court was concerned about protecting the public

given Isdell’s potential for violence, as revealed by the nature

of the sex offense that led to the registration requirement, and

his history of non-compliance with terms of supervision.           See

J.A. 36 (“How am I going to protect folks if he’s cutting these

things [an ankle monitor] off?          What am I supposed to do?”);

J.A. 39 (“I don’t know how well we’re going to keep up with

him.”).    While the court’s comments during sentencing were not

exhaustive, we nonetheless believe they sufficiently reveal the

basis for the 15-year term of supervised release imposed by the

district court.

                                  IV.

     Accordingly, for the foregoing reasons, we hereby affirm

the sentencing judgment of the district court.

                                                              AFFIRMED




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