                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1514
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    Eastern District of Arkansas.
Ronald R. Lowry,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 14, 2009
                                Filed: February 23, 2010
                                 ___________

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Appellant Ronald R. Lowry pleaded guilty to failing to register as a sex
offender in violation of 18 U.S.C. § 2250. The district court1 sentenced him in
accordance with the Tier III sex-offender provision of U.S. Sentencing Guideline
§ 2A3.5(a)(1). The statutory range of imprisonment was zero to ten years, the
adjusted Guidelines range was thirty-three to forty-one months, and the district court
imposed an above-range sentence of forty-eight months. The district court also
imposed a thirty-year term of supervised release to follow Lowry’s incarceration.

      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
This term of supervised release was within the applicable statutory range of five years
to life.

       Lowry appeals, characterizing use of the Tier III sex offender provision, rather
than the Tier I provision, as a significant procedural error. He also argues that the
district court abused its discretion in sentencing him above the Guidelines range and
that the thirty-year term of supervised release is substantively unreasonable. We
affirm.

      I.     Background

       On February 16, 1995, when Lowry was twenty-four years old, he had
intercourse with a sleeping minor who was at least thirteen but younger than
seventeen. In addition, he digitally penetrated the vagina of a second, similarly aged
minor who also was sleeping. Based on these acts, an Illinois court convicted him of
aggravated sexual assault and sentenced him to eight years’ imprisonment with a
requirement that he register as a sex offender for ten years. After he was released
from prison, he was convicted of three sex-offender violations: in 2002 and 2006 he
was convicted for violating registration requirements, and in 2004 he was convicted
for being unlawfully present in a school zone. In addition, in 2004 at the age of thirty-
three, he pleaded guilty to two counts of animal torture.

       In 2008, authorities discovered Lowry living in Arkansas where he was not
registered as a sex offender. Based on his Illinois conviction for aggravated sexual
assault, the Sex Offender Registration and Notification Act (“SORNA”), codified at
42 U.S.C. § 16901 et seq., required his registration in Arkansas. His failure to register
in Arkansas served as the basis for his present federal conviction.




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      II.    Discussion

       Lowry’s allegations of procedural error in sentencing involve solely questions
of law, namely, whether and how the offense level provisions of U.S.S.G. § 2A3.5(a)
should apply to state sex offenders whose underlying offenses and registration
requirements arose prior to the enactment of SORNA. We review these legal
questions de novo. See United States v. Weems, 517 F.3d 1027, 1030 (8th Cir. 2008).
We review his challenges to the substantive reasonableness of his overall
sentence—the terms of incarceration and supervised release—only for abuse of
discretion. See United States v. Miller, 484 F.3d 968, 971 (8th Cir. 2007).

        Guideline Section 2A3.5(a) defines the base offense level for violations of 18
U.S.C. § 2250 through reference to three “tiers” as set forth in 42 U.S.C.
§ 16911(2)–(4). Specifically, § 2A3.5(a)(1) specifies a base offense level of sixteen
“if the defendant was required to register as a Tier III offender.” The referenced Code
section defines different tiers of offenders based on the severity of the offenders’
underlying criminal offenses:

      The term “tier III sex offender” means a sex offender whose offense is
      punishable by imprisonment for more than 1 year and–

             (A)    is comparable to or more severe than the following
                    offenses, or an attempt or conspiracy to commit such an
                    offense:
                    (i)   aggravated sexual abuse or sexual abuse (as
                          described in sections 2241 and 2242 of Title 18); or
                    (ii) abusive sexual contact (as described in section 2244
                          of Title 18) against a minor who has not attained the
                          age of 13 years;
             (B)    involves kidnapping of a minor (unless committed by a
                    parent or guardian); or
             (C)    occurs after the offender becomes a tier II sex offender.


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42 U.S.C. § 16911(4); see also id. § 16911(2) & (3) (defining tier I and II offenders,
respectively).

        Like many recidivist statutes, § 16911 speaks in terms of the comparability of
a defendant’s prior crimes of conviction to certain enumerated crimes. Here, one of
the enumerated crimes is sexual abuse as defined in 18 U.S.C. § 2242. Two possible
means of violating § 2242(2) are by “engag[ing] in a sexual act with another person
if that other person is (A) incapable of appraising the nature of the conduct; or (B)
physically incapable of declining participation in, or communicating unwillingness
to engage in, that sexual act . . . .” As the district court noted, our cases have held that
performing a sexual act upon a person who is sleeping meets the requirements of
§ 2242(2)(B). See United States v. Wilcox, 487 F.3d 1163, 1169 (8th Cir. 2007) (“A
reasonable jury may conclude that a person who is asleep when a sexual act begins is
physically unable to decline participation in that act.”); United States v. Barrett, 937
F.2d 1346, 1348 (8th Cir. 1991) (describing evidence sufficient to show a state of
incapacity within the meaning of § 2242(2)(B)).

       Lowry argues that because his Illinois offense predated SORNA, and because
Illinois was not in compliance with SORNA, he technically was never “required to
register as” any particular tier of offender. U.S.S.G. § 2A3.5(a). He also argues that,
based on application of the rule of lenity, his base offense level should be computed
using the lowest tier, Tier I. In the alternative, he argues that the actual registration
and reporting requirements that Illinois imposed upon him were similar to federal
registration and reporting requirements as set forth for Tier I offenders in 42 U.S.C.
§§ 16915 and 16916. He asserts that this similarity demonstrates he was “required to
register” in a manner comparable to the Tier I offender requirements of §§ 16915 and
16916 and therefore should be sentenced accordingly in the present case.

      We reject Lowry’s creative, but hypertechnical argument. The district court
properly followed the process unambiguously set forth in the Guidelines and the Code

                                            -4-
by comparing Lowry’s underlying Illinois conviction to the crimes listed in
§ 16911(4)(A)(i). Section 16911, which references underlying offenses, is the
classification or definition section for the three different tiers of offenders. Sections
16915 and 16916 are purely derivative, and they describe reporting requirements
corresponding to each of the three tiers established in § 16911. These latter two
sections merely set forth the consequences that flow from the determination of an
applicable tier; they are not themselves tools to be used for defining or determining
an applicable tier. Lowry’s attempt to reverse the order of this system by using
§§ 16915 and 16916 as the means to determine an applicable tier is contrary to the
language and organization of the statute.

       In enacting § 2A3.5(a), the Sentencing Commission was carrying out a mandate
from the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248. In
section 141 of that Act, Congress created 18 U.S.C. § 2250(a) and “included a
directive to the Commission that when promulgating guidelines for the offense, to
consider, among other factors, the seriousness of the sex offender’s conviction that
gave rise to the requirement to register; relevant further offense conduct during the
period for which the defendant failed to register; and the offender’s criminal history.”
U.S.S.G. App. C, Amendment 701 (Reason for Amendment). Accordingly, Congress
expressly provided that the anticipated Guidelines were to account for the seriousness
of the underlying offense. Congress did not instruct the Commission to establish
offense levels through reference to registration requirements that states previously had
imposed on defendants.

      Similarly, Congress did not suggest that a state’s compliance with SORNA
should impact a defendant’s sentencing. As such, we reject Lowry’s separate
argument that section 2A3.5(a)(1) does not apply to defendants who were sentenced
and required to register as sex offenders before the creation of SORNA and the tier
system. The Sentencing Commission chose to use the language “required to register
as a Tier III offender,”§ 2A3.5(a)(1) (emphasis added), and Lowry seizes upon this

                                          -5-
language to infer that the Commission must not have intended § 2A3.5(a)(1) to apply
to pre-SORNA state offenders. We find no suggestion, however, that the Commission
intended this Guidelines section to have a restricted and technical meaning that would
exclude application to an entire class of defendants (many of whom would be
sufficiently dangerous to be classified as Tier III offenders). Lowry’s argument in this
regard is an attempt to create an ambiguity in the Guidelines where none exists. There
was no procedural error in the calculation of Lowry’s adjusted Guidelines range.

       Regarding the substantive reasonableness of Lowry’s term of incarceration and
supervised release, we find no abuse of discretion. The district court applied the
§ 3553(a) factors and noted in particular that Lowry had exhibited a repeated refusal
to abide by his previously imposed registration requirements. His lengthy criminal
history, the nature of his offenses, and his repeated failure to register caused the
district court to conclude that he was a danger to society who posed a high risk of
recidivism. The court took particular note of his acts of animal torture committed as
an adult and reasonably imposed a sentence above the Guidelines range. The district
court did not abuse its discretion.

      Similarly, the district court did not abuse its discretion in imposing the
substantial term of supervised release. Lowry’s present offense of conviction coupled
with his repeated prior registration violations strongly suggest that the district court
was reasonable in its view that Lowry would remain in need of a substantial period
of oversight following completion of his prison term.

      We affirm the judgment of the district court.
                      ______________________________




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