     Case: 14-11293   Document: 00513225476        Page: 1   Date Filed: 10/08/2015




                      REVISED OCTOBER 8, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 14-11293                            FILED
                                                                    September 23, 2015

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
             Plaintiff - Appellee

v.

NICHOLAS W. SCHOFIELD,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:
      Nicholas W. Schofield pleaded guilty to one count of attempted transfer
of obscene material to a minor, and the district court required him, as part of
his sentence, to register as a sex offender after his release from prison.
Schofield appeals the registration requirement. For the following reasons, we
AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In November 2013, Nicholas W. Schofield, who was twenty-four at the
time, began sending text messages to a fifteen-year-old girl in San Angelo,
Texas. Schofield identified himself as an eighteen-year-old mechanic named
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                                        No. 14-11293
“Nick,” and he continued to converse with the girl via text messages through
February 2014. At that time, an undercover federal agent assumed the girl’s
side of the conversation, and Schofield continued the conversation with the
agent through April 2014. Believing he was still communicating with the girl,
Schofield sent the agent images of his erect penis, videos of himself and others
masturbating, links to pornographic websites, and text messages describing
himself masturbating. Schofield later admitted to sending eight pictures of his
penis, three videos of himself masturbating, and messages describing himself
masturbating and instructing the girl how to masturbate.                        Schofield also
admitted to soliciting and receiving nude images of the girl.
       On May 14, 2014, a grand jury indicted Schofield on one count of transfer
of obscene material to a minor and four counts of attempted transfer of obscene
material to a minor, in violation of 18 U.S.C. § 1470. 1 Pursuant to a written
plea agreement, Schofield pleaded guilty to one count of attempted transfer of
obscene material to a minor—specifically, his attempted transfer via text
message of a video of an adult male masturbating. The remaining counts were
dismissed at sentencing. The district court sentenced Schofield to twenty-four
months imprisonment and ordered him to register as a sex offender under the
Sex Offender Registration and Notification Act (SORNA).
       Prior to and at sentencing, Schofield objected to the district court’s
requirement that he register as a sex offender under SORNA, arguing that the
crime of attempted transfer of obscene material to a minor was not a sex




       1The statute provides that:
              Whoever, using the mail or any facility or means of interstate or foreign
       commerce, knowingly transfers obscene matter to another individual who has
       not attained the age of 16 years, knowing that such other individual has not
       attained the age of 16 years, or attempts to do so, shall be fined under this title,
       imprisoned not more than 10 years, or both.
18 U.S.C. § 1470.
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offense within the meaning of SORNA and therefore did not require
registration.   Schofield contended that, because his offense is neither an
enumerated federal offense nor a “specified offense against a minor” under
42 U.S.C. § 16911(5)(A), it is not a sex offense and therefore he is not required
to register as a sex offender under SORNA.          Schofield also argued that
SORNA’s definition of “sex offense” under 42 U.S.C. § 16911(5)(A) and (7)(I) is
unconstitutionally vague. The district court overruled Schofield’s objections
and required him to register under SORNA upon release from prison. While
Schofield waived the right to appeal his conviction as part of his plea
agreement, he reserved the right to appeal the requirement to register as a sex
offender. Schofield exercised that right and timely appealed.
                        II. STANDARD OF REVIEW
      The Government argues that this court’s review is limited to plain error
because Schofield did not object after the district court pronounced his
sentence.    Schofield apparently concedes that plain error is the proper
standard of review. However, the court, not the parties, must determine the
appropriate standard of review. United States v. Torres-Perez, 777 F.3d 764,
766 (5th Cir. 2015); see also United States v. Vontsteen, 950 F.2d 1086, 1091
(5th Cir. 1992) (en banc) (“[N]o party has the power to control our standard of
review.”).   Schofield objected both to the presentence report and at his
sentencing, raising the same arguments in the district court as he now raises
on appeal.      Although Schofield did not renew his objection to SORNA
registration after the district court imposed his sentence, his earlier objections
sufficiently preserved the issues he now raises in this court.         Based on
Schofield’s earlier objections, the district court was aware of his arguments
concerning why SORNA registration was not required.              Therefore, “the
purposes of the preservation requirement were met in th[is] case[]—namely,
the [defendant] ‘raise[d] a claim of error with the district court in such a
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manner so that the district court may [have] correct[ed] itself and thus,
obviate[d] the need for [this court’s] review.’” Torres-Perez, 777 F.3d at 767
(quoting United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009)). Because Schofield preserved the issues he now raises in this court and
because he only challenges the district court’s legal conclusions (not its factual
findings), we review whether he is required to register under SORNA de novo.
United States v. Gonzalez-Medina, 757 F.3d 425, 427 (5th Cir. 2014), cert.
denied, 135 S. Ct. 1529 (2015); United States v. Morgan, 311 F.3d 611, 613 (5th
Cir. 2002) (“We review the district court's legal conclusions, however, de
novo.”).
                              III. DISCUSSION
      SORNA, 42 U.S.C. §§ 16901–16962, establishes a national sex offender
registry “to protect the public from sex offenders and offenders against
children.” 42 U.S.C. § 16901. A sex offender must “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). SORNA defines a “sex offender” as a person “who was convicted of
a sex offense.” 42 U.S.C. § 16911(1). Excluding exceptions not relevant here,
SORNA defines “sex offense” as:
            (i) a criminal offense that has an element involving a
                  sexual act or sexual contact with another;
            (ii) a criminal offense that is a specified offense against a
                  minor;
            (iii) a Federal offense (including an offense prosecuted
                  under section 1152 or 1153 of Title 18) under section
                  1591, or chapter 109A, 110 (other than section 2257,
                  2257A, or 2258), or 117, of Title 18;
            (iv) a military offense specified by the Secretary of Defense
                  under section 115(a)(8)(C)(i) of Public Law 105-119 (10
                  U.S.C. 951 note); or
            (v) an attempt or conspiracy to commit an offense described
                  in clauses (i) through (iv).
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42 U.S.C. § 16911(5)(A). Schofield’s criminal offense did not involve sexual
contact and was not a military offense, making subsections (i) and (iv)
inapplicable here. Additionally, subsection (iii) does not include 18 U.S.C.
§ 1470, so Schofield’s offense is not a sex offense under this subsection.
Therefore, Schofield must register as a sex offender only if he attempted to
commit an offense under subsection (v) that is “described in” subsection (ii) as
“a criminal offense that is a specified offense against a minor.”       42 U.S.C.
§ 16911(5)(A)(ii), (v).
      SORNA defines “criminal offense” as “a State, local, tribal, foreign, or
military offense . . . or other criminal offense.” 42 U.S.C. § 16911(6). SORNA
then defines “a specified offense against a minor” as
          an offense against a minor that involves any of the following:
             (A) An offense (unless committed by a parent or guardian)
                  involving kidnapping.
             (B) An offense (unless committed by a parent or guardian)
                  involving false imprisonment.
             (C) Solicitation to engage in sexual conduct.
             (D) Use in a sexual performance.
             (E) Solicitation to practice prostitution.
             (F) Video voyeurism as described in section 1801 of Title 18.
             (G) Possession, production, or distribution of child
                  pornography.
             (H) Criminal sexual conduct involving a minor, or the use of
                  the Internet to facilitate or attempt such conduct.
             (I) Any conduct that by its nature is a sex offense against a
                  minor.

42 U.S.C. § 16911(7) (emphasis added). Subsection (I), the “SORNA residual
clause,” is the relevant provision here since no other provision could encompass
Schofield’s offense. Thus, for Schofield’s offense to constitute a sex offense, it
must be a “criminal offense” that involves “any conduct that by its nature is a
sex offense against a minor.” 42 U.S.C. § 16911(5)(A)(ii), (7)(I). Our analysis

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of whether Schofield’s attempted transfer of obscene material to a minor
constitutes a sex offense proceeds in three parts. First, we consider whether a
violation of 18 U.S.C. § 1470 can qualify as a sex offense under SORNA when
it is not listed among the federal offenses SORNA defines as sex offenses.
Because we conclude that it can qualify as a sex offense, we next consider
whether Schofield’s offense is a “specified offense against a minor” under the
SORNA residual clause. Finally, we address whether the SORNA residual
clause is ambiguous or unconstitutionally vague. We conclude that because
the attempted transfer of obscene material to a minor is a “specified offense
against a minor” and because SORNA is neither ambiguous nor vague,
Schofield’s offense is a sex offense, requiring SORNA registration.
  A. Schofield’s Offense Can Qualify as a Sex Offense Under SORNA
      Although SORNA lists a number of federal offenses that qualify as sex
offenses, Schofield’s offense—a violation of 18 U.S.C. § 1470—is not among
them. Therefore, we first determine whether the attempted transfer of obscene
material to a minor can qualify as a sex offense under SORNA. Because it is
not an enumerated federal offense under 42 U.S.C. § 16911(5)(A)(iii), a
violation of 18 U.S.C. § 1470 can only qualify as a sex offense if it is “a criminal
offense that is a specified offense against a minor” under 42 U.S.C.
§ 16911(5)(A)(ii).   Schofield argues that because subsection (iii) does not
include 18 U.S.C. § 1470, Congress intended to exclude this offense as one of
the federal offenses that qualify as sex offenses under SORNA. Schofield
further argues that because Congress excluded 18 U.S.C. § 1470 from
subsection (iii), this offense cannot qualify as a sex offense under subsection
(ii), as this would extend the statute to offenses beyond those Congress
intended to include. While this court has never confronted whether a violation
of a federal statute not listed in subsection (iii) can nevertheless qualify as a


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                                       No. 14-11293
sex offense, the Eleventh Circuit’s opinion in United States v. Dodge, 597 F.3d
1347 (11th Cir. 2010) (en banc), is instructive.
       In Dodge, the defendant violated the same federal statute as Schofield
and argued, similar to Schofield, that because 18 U.S.C. § 1470 was not one of
the federal offenses listed under 42 U.S.C. § 16911(5)(A)(iii), he could not be
required to register as a sex offender under either subsection (ii) or (iii). Id. at
1351–52.     After examining SORNA’s plain language, structure, legislative
history, and purpose, the court rejected the defendant’s argument and held
that a violation of 18 U.S.C. § 1470 could fall within subsection (ii). Id. at 1352.
The court explained that “[t]aken as a whole, the statute does not suggest an
intent to exclude certain offenses but rather to expand the scope of offenses
that meet the statutory criteria” and that “[t]o exclude entirely the obscenity
statutes from SORNA’s reach would be inconsistent with the broad purpose
and scope of SORNA . . . .” Id. The court went on to hold that “[n]othing in the
plain language of 42 U.S.C. § 16911(5)(A)(iii), when read together with the rest
of the statute, prohibits an unenumerated federal offense such as 18 U.S.C.
§ 1470 from qualifying as a ‘specified offense against a minor’ [under subsection
(ii)].” 2 Id. at 1353. We agree with the Eleventh Circuit. Additionally, we have
previously explained that “SORNA's language confirms ‘that Congress cast a
wide net to ensnare as many offenses against children as possible.’” Gonzalez-
Medina, 757 F.3d at 431 (quoting Dodge, 597 F.3d at 1355). Excluding a
federal statute not explicitly enumerated in 42 U.S.C. § 16911(5)(A)(iii) is not
consistent with “cast[ing] a wide net.” Id. Accordingly, we conclude that a
violation of 18 U.S.C. § 1470 can qualify as a sex offense under subsection (ii).



       2The court also explained that “[i]f Congress intended that 42 U.S.C. § 16911(5)(A)(iii)
represent a closed universe of federal crimes requiring SORNA registration, Congress would
not have listed another specific federal crime in defining ‘specified offense against a minor’
[under § 16911(5)(A)(ii)].” Dodge, 597 F.3d at 1353.
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    B. Schofield’s Offense Falls Within the SORNA Residual Clause
       We now consider whether Schofield’s attempted transfer of obscene
material to a minor constitutes a “specified offense against a minor” under
subsection (ii).    To do so, we look to § 16911(7), which includes a list of
enumerated offenses and specific conduct that constitute “specified offense[s]
as a minor.”       However, because Schofield’s offense and conduct toward a
fifteen-year-old girl do not fit squarely within any listed offenses or conduct,
our inquiry focuses on whether Schofield’s offense involves “[a]ny conduct that
by its nature is a sex offense against a minor,” 42 U.S.C. § 16911(7)(I), under
the SORNA residual clause.             The Supreme Court has announced three
separate analytical frameworks that focus courts’ inquiries and control what
courts may consider when deciding whether a defendant’s offense qualifies for
a sentencing enhancement under a separate statutory provision, such as the
SORNA residual clause. See United States v. Price, 777 F.3d 700, 704–05 (4th
Cir. 2015), cert. denied, 135 S. Ct. 2911 (2015). Two of those frameworks are
relevant here: the categorical and non-categorical approaches. 3
       First, when applying the categorical approach, courts “compare the
elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime—i.e., the offense as commonly understood” that
triggers the sentencing enhancement. Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). “If the [offense of conviction] has the same elements as the
‘generic’ . . . crime [in the sentencing enhancement], then the prior conviction
can serve as [the] predicate; so too if the statute defines the crime more


       3The third approach, the modified categorical approach, is not relevant to this case
and neither party urges us to apply it. We note that some courts refer to the non-categorical
approach as the circumstance-specific approach. E.g., Price, 777 F.3d at 705.
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narrowly, because anyone convicted under that law is ‘necessarily . . . guilty of
all the [generic crime’s] elements.’” Id. at 2283 (last alternation in original)
(quoting Taylor v. United States, 495 U.S. 575, 599 (1990)). Second, courts
applying the non-categorical approach focus “on the facts—not the elements—
relating to the prior conviction.” Price, 777 F.3d at 705. “In utilizing the [non-
categorical] approach, the reviewing court may consider reliable evidence
concerning whether the prior offense involved conduct or circumstances that
are required by the [sentencing] statute.” Id.
      Schofield urges this court to apply the categorical approach to determine
whether his conduct falls within the SORNA residual clause and thus within
42 U.S.C. § 16911(5)(A)(ii), while the Government argues that the non-
categorical approach is appropriate here. Schofield argues that when a statute
uses the term “convicted,” as SORNA does in 42 U.S.C. § 16911(1), the
Supreme Court has directed lower courts to apply the categorical approach.
See Taylor, 495 U.S. at 588–89 (approving the use of the categorical approach
when the defendant had been convicted of burglary). He further argues that
the SORNA residual clause, when read in the context of the overall statute,
provides an ambiguous, circular, and vague definition of “sex offense.”
Schofield maintains that in the face of this ambiguity, courts have an
obligation to apply the categorical approach and find that conduct does not
constitute a sex offense if the elements of the offense do not warrant it. 4
Finally, Schofield argues that, although the SORNA residual clause was meant
to capture as many offenses against children as possible as sex offenses, this
does not require or direct courts to employ the non-categorical approach.




      4  Schofield also argues that the ambiguity in SORNA rises to the level of
unconstitutional vagueness. We address this issue below.
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      The Government contends that the non-categorical approach applies
here because the SORNA residual clause makes the conduct of the defendant,
not the elements of his offense, the focus of the inquiry. This is reinforced by
the fact that the residual clause requires an inquiry into the “nature” of the
conduct. Because the focus of the residual clause inquiry is conduct, and not
whether the defendant was convicted of a particular crime, the Government
argues that the non-categorical approach applies. Price, 777 F.3d at 705. The
Government points to three separate cases where courts applied the non-
categorical approach to interpret the SORNA residual clause. Price, 777 F.3d
at 709–10 (applying the non-categorical approach to the SORNA residual
clause when the defendant was convicted of assault and battery of a high and
aggravated nature); Dodge, 597 F.3d at 1353–56 (applying the non-categorical
approach to the SORNA residual clause when the defendant was convicted of
a violation of 18 U.S.C. § 1470 and finding that the defendant committed a sex
offense); United States v. Mi Kyung Byun, 539 F.3d 982, 990–93 (9th Cir. 2008)
(applying the non-categorical approach to the SORNA residual clause to
determine whether the victim was a minor). The Government also notes that
while this court has never applied the non-categorical approach to the SORNA
residual clause, it has applied that approach to a different provision of SORNA.
See Gonzalez-Medina, 757 F.3d at 429–32 (“[T]he language, structure, and
broad purpose of SORNA all indicate that Congress intended a non-categorical
approach to the age-differential determination in [42 U.S.C. § 16911(5)(C)].”).
In that case, we also examined Supreme Court precedent and concluded that,
contrary to Schofield’s contention that the term “convicted” requires a
categorical approach, “[t]he use of the term ‘convicted’ . . . is not always
determinative.” Id. at 429.
      While circuit precedent and this court’s prior decision in Gonzalez-
Medina tend to favor the application of the non-categorical approach, we need
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not decide which approach applies here because Schofield’s offense is a sex
offense under both the non-categorical and categorical approaches. We begin
with the non-categorical approach. Consistent with the “broad discretion [of
courts] to determine what conduct is ‘by its nature’ a sex offense [under
SORNA],” Dodge, 597 F.3d at 1355, we find that Schofield’s conduct in
attempting to send a video of an adult male masturbating to a fifteen-year-old
girl falls within the SORNA residual clause. As the court in Dodge noted, “[t]he
key is conduct that contains a ‘sexual component’ toward a minor,” and “judges
do not need a statute to spell out every instance of conduct that is a sexual
offense against a minor.” Id. Schofield’s sending a video of an adult male
masturbating clearly involves engaging with a fifteen-year-old girl on a sexual
level, so his conduct includes a sufficiently “sexual component toward a minor”
to fall within the SORNA residual clause. Id.
      When applying the non-categorical approach to the SORNA residual
clause, previous courts have considered the similarity between the conduct
underlying the defendant’s offense and conduct that clearly requires
registration under SORNA. Dodge, 597 F.3d at 1356; Mi Kyung Byun, 539
F.3d at 989–90. We observe that there is little difference between Schofield’s
conduct as charged under 18 U.S.C. § 1470 and conduct that obviously requires
registration. For example, 18 U.S.C. § 2252B(b) criminalizes the use of a
“misleading domain name on the Internet with the intent to deceive a minor
into viewing material that is harmful to minors.” 5 Under this statute, which
is one of the enumerated federal offenses constituting a sex crime under
42 U.S.C. § 16911(5)(A)(iii), depictions of acts of masturbation are included in
the definition of “material that is harmful to minors.” Thus, if Schofield had


      5 The Eleventh Circuit also observed that there was little difference between the
defendant’s conduct in Dodge and conduct that “would undoubtedly be registerable under
18 U.S.C. § 2252B(b).” Dodge, 597 F.3d at 1355–56.
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attempted to deceive a fifteen-year-old girl into viewing the images he
transmitted, he certainly would have been required to register under SORNA.
As the Dodge court explained, “[i]t would be a bizarre result not to compel his
registration simply because he is a truthful predator.” Dodge, 597 F.3d at
1356.
        As with the non-categorical approach, Schofield’s offense also falls within
the SORNA residual clause under the categorical approach, which requires us
to compare the elements of Schofield’s offense of conviction and the elements
of the offense requiring SORNA registration. Under a categorical approach to
“[a]ny conduct that by its nature is a sex offense against a minor,” 42 U.S.C.
§ 16911(7)(I), we must determine whether a defendant’s offense of conviction
includes two elements: (1) the victim is a minor and (2) the conduct is sexual
in nature. Section 1470 requires that (1) the victim be less than sixteen years
old, i.e., a minor, and (2) the material transferred be “obscene.” 18 U.S.C.
§ 1470. The offense of conviction clearly includes the first element of the
SORNA residual clause—that the victim be a minor. The transfer of obscene
material to a minor also includes the second element—that the conduct be
sexual in nature—as the Supreme Court has defined obscenity in exclusively
sexual terms. See Miller v. California, 413 U.S. 15, 24 (1973) (“As a result, we
now confine the permissible scope of such regulation [of obscene materials] to
works which depict or describe sexual conduct.”). Because Schofield’s offense
of conviction includes both elements of the SORNA residual clause, his offense
is a sex offense under the categorical approach.
  C. The SORNA Residual Clause Is Neither Ambiguous, Nor Vague
        Because Congress enacted SORNA with the intent to “ensnare as many
offenses against children as possible” as sexual offenses, Gonzalez-Medina, 757
F.3d at 431 (quoting Dodge, 597 F.3d at 1355), the statute necessarily includes
multiple parts to the definition of “sex offense.” Schofield argues that defining
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                                  No. 14-11293
a sex offense through the residual clause results in an ambiguous and
unconstitutionally vague definition because reading (5)(A)(ii) and (7)(I)
together defines a “sex offense” as “an offense against a minor that involves . . .
[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C.
§ 16911(5)(A)(ii), (7)(I). Schofield points to two district court cases that found
ambiguity in the SORNA residual clause because of this “circular” definition.
United States v. Baptiste, 34 F. Supp. 3d 662, 677 (W.D. Tex. 2014); see also
United States v. Piper, No. 1:12-cr-41-jgm-1, 2013 WL 4052897, at *9 (D. Vt.
Aug. 12, 2013). Schofield also argues that because SORNA indicates the use
of the categorical approach for some subsections but the non-categorical
approach for others, it is unconstitutionally vague. Based on what Schofield
describes as a circular, ambiguous, and vague definition, he argues that (1) the
statute’s ambiguity requires this court to defer to the regulations promulgated
by the Department of Justice interpreting and applying SORNA (the “SMART
Guidelines”), (2) this court should apply the categorical approach instead of the
non-categorical   approach,    and    (3)    the   SORNA      residual   clause   is
unconstitutionally vague.
      In claiming that the residual clause is circular or ambiguous, Schofield
misreads the statute. As the Government points out, “sex offense” as used in
subsections 16911(1) and (5) is a term of art, to be defined later in the statute.
Subsection 16911(7)(I) provides part of that definition and in doing so uses the
term “sex offense” in its ordinary way, as a catch-all, to expand the universe of
crimes encompassed by the statute, and its meaning is refined by the examples
that surround it in the statute. The term “sex offense,” when used in its
ordinary way, is not ambiguous or vague even if used as a catch-all. The “key”
according to the Dodge court is whether the offense involves a “sexual
component,” Dodge, 597 F.3d at 1355, and requiring courts and defendants to
determine whether an offense involves a “sexual component” does not render
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the definition of “sex offense” ambiguous or vague. Indeed, Congress intended
to expand the universe of offenses constituting sex offenses, and including an
ordinary term to capture offenses not otherwise specified is consistent with
that intent. See id. (“Congress's stated purpose was to capture a wider range
of conduct in its definition of a ‘sex offense.’”).
      Because we do not find the SORNA residual clause circular or
ambiguous, we take none of the actions Schofield requests. First given the
absence of ambiguity in the statute, we need not address whether deference to
the SMART Guidelines under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984), is required. See Price, 777 F.3d at 709
n.9 (“We need not accord Chevron deference to [the SMART] Guidelines.”).
Second, Schofield’s offense constitutes a sex offense under both the categorical
and non-categorical approaches, so we need not consider which approach is
more appropriate. Third, given that the residual clause is not ambiguous, it
certainly does not rise to the level of unconstitutional vagueness, and we turn
to recent Supreme Court guidance to confirm this.
      The Supreme Court recently held that the residual clause in the Armed
Career Criminals Act (ACCA) was unconstitutionally vague because it
essentially required potential defendants to guess what “ordinary” instances
of several crimes involved and “how much risk it takes for a crime to qualify as
a violent felony.” Johnson v. United States, 135 S. Ct. 2551, 2557–58 (2015).
The Court explained that instead of deciding whether a defendant’s conduct
fell within the ACCA residual clause, courts were required, under the ACCA,
to imagine the kind of conduct that a crime involves in the “ordinary case” and
judge whether that abstraction involved a serious potential risk of physical
injury. Id. Based on the Court’s reasoning in Johnson, we conclude that the
SORNA residual clause is not unconstitutionally vague whether applied non-
categorically or categorically.     Under the non-categorical approach to the
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residual clause, we apply a qualitative standard—“[a]ny conduct that by its
nature is a sex offense against a minor”—to the facts of an individual
defendant’s case. The Court in Johnson noted that “laws [which] require
gauging the riskiness of conduct in which an individual defendant engages on
a particular occasion,” like the SORNA residual clause, were distinguishable
from the law it declared unconstitutionally vague. Id. at 2561. Similarly, the
application of the categorical approach to the SORNA residual clause does not
suffer from the same problems as the application of this approach to the ACCA
residual clause. First, while the Court in Johnson found that the crimes listed
prior to the ACCA residual clause were dissimilar, Id. at 2558, the crimes
preceding the SORNA residual clause, which provide examples of “specified
offense[s] against minor[s],” are much less divergent.      For example, video
voyeurism and child pornography are much more similar than burglary, arson,
and extortion.      Compare 42 U.S.C. § 16911(7)(F)–(G), with 18 U.S.C.
§ 924(e)(2)(B)(ii). Second, the Court in Johnson, 135 S. Ct. at 2558, found
“repeated attempts and repeated failures” on the part of the Supreme Court
and the courts of appeals “to craft a principled and objective standard out of
the [ACCA] residual clause.” Id. No such failures are apparent with respect to
the SORNA residual clause, see, e.g., Dodge, 597 F.3d at 1354–56 (applying the
SORNA residual clause without noting any difficulty in crafting an appropriate
standard).
      Because the SORNA residual clause is neither ambiguous nor vague, we
may apply its plain language to Schofield’s offense. A violation of 18 U.S.C.
§ 1470 can qualify as a sex offense under SORNA. Applying either the non-
categorical or categorical approach to Schofield’s attempted transfer of obscene
material to a minor, his offense of conviction falls within the SORNA residual
clause, and he must therefore register as a sex offender.
                             IV. CONCLUSION
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  Case: 14-11293   Document: 00513225476    Page: 16   Date Filed: 10/08/2015



                             No. 14-11293
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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