     Case: 12-11262   Document: 00512579103     Page: 1   Date Filed: 03/31/2014




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 12-11262                       March 31, 2014
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                           Plaintiff-Appellee,
v.

ANGEL SEGURA,

                                           Defendant-Appellant.




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


Before STEWART, Chief Judge, and GARZA, and SOUTHWICK, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Angel Segura (“Segura”) appeals his sentence on
the grounds that the district court’s imposition of a 120-month term of
incarceration was unreasonable. He also appeals the district court’s imposition
of a life-term of supervised release on the grounds that the district court
erroneously treated his conviction for failure to register as a sex offender as a
“sex offense.” For the reasons explained below, we affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In August 2012, Segura pleaded guilty to failure to register as a sex
offender (“failure to register”) under the Sex Offender Registration and
Notification Act (“SORNA”).     See 18 U.S.C. § 2250(a). In preparation for
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                                        No. 12-11262
Segura’s sentencing, the United States Probation Office (“Probation”)
completed a Presentence Investigation Report (“PSR”) that detailed Segura’s
protracted criminal history that started in 1986 and concluded with the instant
offense that was committed in 2012. Segura’s criminal history includes, inter
alia, convictions for drug possession, sexual offenses against minors, illegal
weapon possession, and failure to register as a sex offender.
       Probation used the 2011 version of the United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) to determine Segura’s Guidelines
range. According to Probation’s calculations, Segura’s total offense level was
13 with a criminal history category of IV, yielding a Guidelines range of 33 to
41 months’ imprisonment followed by a term of supervised release of five years
to life. The PSR recommended a life term of supervised release based upon the
conclusion that failure to register is a “sex offense” pursuant to U.S.S.G.
§ 5D1.2(b)(2). 1 The district court adopted the PSR without objection from
either party.       The district court made an upward variance from the
recommended Guidelines range and sentenced Segura to 120 months’
imprisonment.        Further, the district court adopted the PSR’s supervised
release recommendation and sentenced Segura to a life-term.
                                     II. DISCUSSION
                                               A.
       On appeal, Segura argues the district court’s upward variance from the
guidelines range of 33 to 41 months to a sentence of 10 years’ imprisonment
was substantively unreasonable. According to Segura, the district court failed
to properly balance the 18 U.S.C. § 3553(a) sentencing factors and relied too
heavily upon Segura’s history of “contact offenses” and prior convictions for


       1 Section 5D1.2(b)(2) is a “policy statement” explaining that “[i]f the instant offense of
conviction is a sex offense . . . the statutory maximum term of supervised release is
recommended.”
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                                  No. 12-11262
failure to register. Segura claims that the district court ignored the twenty-
three-year distance between the “contact offenses” and the instant offense.
According to Segura, the district court’s finding that Segura is a “clear and
present danger” to children is not supported by the record. Although Segura
makes these very specific challenges to his sentence on appeal, he only lodged
a general reasonableness objection at sentencing before the district court.
      To properly preserve a challenge to the reasonableness of a sentence for
appeal, a defendant is required to inform the district court of the specific
grounds for the challenge. See United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013). Because Segura failed to object on the aforementioned grounds
before the district court at sentencing, we review his reasonableness challenge
for plain error. See id. There are four requirements that must be satisfied to
justify reversal under our plain error analysis: (1) there must be an error or
deviation from an established legal rule; (2) the error must be clear or obvious
and not subject to reasonable dispute; (3) the error affected the defendant’s
substantial rights; and (4) if the first three requirements are satisfied, the
court of appeals retains the discretion to correct the error and will do so only
when it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” See United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (alteration in original) (citation omitted).
      We disagree with Segura’s assertion that the district court failed to
properly balance the § 3553(a) factors. During sentencing, the district court
provided a sufficient explanation for why it believed a 120-month sentence was
appropriate. In addition to considering each of the § 3553(a) factors, the
district court explained that it took particular note of the nature and
circumstances of the instant offense and Segura’s lengthy history of
criminality. Specifically, the district court noted that Segura has three prior
convictions for contact sex offenses and that the instant conviction was his
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                                 No. 12-11262
third for failure to register. These comments demonstrate that the district
court engaged in a well-guided deliberative process that included balancing the
§ 3553(a) factors. An upward variance is unreasonable only if it “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006) (citation omitted). Though Segura disagrees
with the district court’s conclusion, he provides no authority that supports his
assertion that the district court improperly balanced the § 3553(a) factors.
Therefore, his argument fails to satisfy the first element of our plain error
analysis—that an error was committed. Accordingly, we need not reach the
remaining elements and conclude that the district court did not plainly err by
sentencing Segura to 120 months’ imprisonment.
                                       B.
      Segura also argues that the district court committed error by imposing a
life term of supervised release based upon an erroneous conclusion that failure
to register is a sex offense.   Segura asserts that because the Guidelines’
definition of sex offense requires that the offense be perpetrated against a
minor, failure to register cannot be a sex offense. The government agrees and
concedes that an error was committed on this issue. Nevertheless, because
Segura failed to present this argument to the district court, we are bound to
review the district court’s decision only for plain error. See Warren, 720 F.3d
at 332.
      18 U.S.C. § 3583 sets forth general standards for imposing terms of
supervised release as part of a defendant’s sentence. The statutory penalties
for violating § 2250(a)—Segura’s offense of conviction—include a term of
supervised release of five years to life. See 18 U.S.C. § 3583(k). In addition to
the statutory sentencing scheme, the Guidelines provide recommendations for
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                                     No. 12-11262
imposing supervised release as part of a defendant’s sentence. See U.S.S.G.
§ 5D1.2.     Section 5D1.2(b)(2) is a policy statement recommending that
sentencing courts impose the statutory maximum term of supervised release if
the offense of conviction is a sex offense. The commentary to § 5D1.2 states
that a “sex offense,” for the purposes of that Guideline, is an offense
perpetrated against a minor under, inter alia, 18 U.S.C. Chapter 109B.
U.S.S.G. § 5D1.2 cmt. n.1. The only offense listed in Chapter 109B is failure
to register under 18 U.S.C. § 2250—Segura’s offense of conviction. As a result
of the interplay between 18 U.S.C. § 3583 and U.S.S.G. § 5D1.2, the district
court concluded that failure to register qualifies as a sex offense.
      As the parties noted in their briefs and at oral argument, this court
previously commented on the implications of the commentary to § 5D1.2.
United States v. Tang, 718 F.3d 476, 483 n.3 (5th Cir. 2013). In Tang, a panel
of this court stated in a footnote that under § 5D1.2 cmt. n.1, “failure to register
qualifies as a sex offense.” Id. The government argues that the footnote in
Tang has precedential value while Segura argues that it constitutes orbiter
dictum. 2 “It is well-established in this circuit that one panel of this Court may
not overrule another.” Cent. Pines Land Co. v. United States, 274 F.3d 881,
893 (5th Cir. 2001) (citation omitted). Three-judge panels “abide by a prior
Fifth Circuit decision until the decision is overruled, expressly or implicitly, by
either the United States Supreme Court or by the Fifth Circuit sitting en banc.”
Id. (citing United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976)). The
binding force of a prior-panel decision applies “not only [to] the result but also
[to] those portions of the opinion necessary to that result.”               Gochicoa v.
Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (quoting Seminole Tribe v.


       2These arguments have more direct implications on our plain error analysis infra. We
discuss Tang in this section to explain why it does not guide our analysis with respect to
whether failure to register qualifies as a sex offense.
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Florida, 517 U.S. 44, 67 (1996)). Nevertheless, the “binding force of earlier
opinions [does not extend] to orbiter dictum.” Rios v. City of Del Rio, Tex., 444
F.3d 417, 425 n.8 (5th Cir. 2006) (citing In Re Hearn, 376 F.3d 447, 453 & n.5
(5th Cir. 2004)).

      A statement is dictum if it could have been deleted without
      seriously impairing the analytical foundations of the holding and
      being peripheral, may not have received the full and careful
      consideration of the court that uttered it. A statement is not
      dictum if it is necessary to the result or constitutes an explication
      of the governing rules of law.
Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (citation
and internal quotation marks omitted). If a statement is dictum, “[w]e are free
to disregard [it] from prior panel opinions when we find it unpersuasive.”
United States v. Lipscomb, 619 F.3d 474, 481 n.5 (5th Cir. 2010) (King, J.,
concurring) (citing United States v. Gieger, 190 F.3d 661, 665 (5th Cir. 1999)).

      The Tang panel considered whether conditions attached to terms of
supervised release were reasonably related to the nature of the underlying
offense—failure to register.    Tang, 718 F.3d at 482–83.       Tang’s primary
argument was that a ban on internet use without prior approval from
probation services was inappropriate, as he never used the internet in the
commission of a crime. Id. at 483. The panel agreed, holding that, “the ban
d[id] not relate to the nature and circumstances of Tang’s offense; [t]here, the
failure to register as a sex offender.”    Id. at 484 (citations and internal
quotation marks omitted). The panel’s central focus in Tang was whether an
Internet ban is reasonably related to failure to register as a sex offender. The
panel did not meaningfully consider whether failure to register qualifies as a
sex offense. Moreover, whether a conviction for failure to register constitutes
a sex offense was not “necessary to the result” reached in Tang. See Int’l Truck
& Engine Corp., 372 F.3d at 721. The panel would have arrived at the same

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conclusion without the passing observation it made in footnote 3. In other
words, the footnote “could have been deleted without seriously impairing the
analytical foundations of the holding. . . .” See id.

       Therefore, we hold that footnote 3 in Tang is dictum and does not bind
the court under the prior-panel rule. Accordingly, we are free to examine the
question of whether failure to register qualifies as a sex offense without regard
to the statement in the Tang opinion. For the reasons explained below, we
hold that failure to register does not qualify as a sex offense for the purposes
of § 5D1.2(b)(2).
       The Seventh Circuit’s reasoning in United States v. Goodwin is
instructive. 717 F.3d 511, 517–20 (7th Cir. 2013). 3 In that case, the defendant,
like Segura, pleaded guilty to failure to register and the district court
sentenced him to a life-term of supervised release. Id. at 514. On appeal,
Goodwin argued, inter alia, that the district court miscalculated the advisory
Guidelines range for his term of supervised release, and thereby committed
plain error. Id. at 516. More specifically, Goodwin posited that
      U.S.S.G. § 5D1.2(b)(2) is inapplicable to his offense, that the [PSR]
      erroneously relied on this Guideline in recommending a life term
      of supervised release, and that the district court’s sentencing him
      to a life term of supervised release under the incorrect assumption
      that this sentence was within the advisory Guidelines constitutes
      plain error.
Id. at 518.     The Seventh Circuit agreed with Goodwin.                In reaching its
conclusion, the Seventh Circuit first considered whether failure to register
should be classified as a sex offense. Id. at 518–19. The court disagreed with
the Application Note’s apparent suggestion that any failure to register under



      3  We adopt the Seventh Circuit’s reasoning only to the extent that it concluded that
an error was committed. Unlike the Seventh Circuit and for reasons explained infra, we do
not conclude that the error committed in this case was plain.
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                                       No. 12-11262
SORNA could be considered an offense perpetrated against a minor. 4 See id at
519. The court noted that “[i]n Goodwin’s case, there was no specific victim of
his failure to register” and accordingly, “it seems incorrect to claim that
Goodwin committed his failure to register ‘against a minor.’” Id. The court
explained that applying the term ‘“perpetrated against a minor’ to any failure
to register stretches this term past its breaking point.’” Id. We agree. In
Segura’s case, there was no specific victim attributed to his failure to register.
Therefore, the crime was not perpetrated against a minor and should not
qualify as a sex offense.

                                              C.

       Having concluded that the district court erred in finding that failure to
register is a sex offense, we now discuss whether that error was plain—that is,
whether the error was clear or obvious. To determine whether the district
court’s error was plain, we examine the state of the law at the time of appeal.
Escalante-Reyes, 689 F.3d at 423 (holding that “where the law is unsettled at
the time of trial but settled by the time of appeal, the ‘plainness’ of the error
should be judged by the law at the time of appeal”). Segura filed his initial
brief in this appeal on June 20, 2013. At that point, we had not addressed
whether failure to register qualifies as a sex offense under § 5D1.2. However,
Tang stated that failure to register qualifies as a sex offense. Because the
statement in Tang was mere dictum, parties could reasonably dispute whether
failure to register qualifies as a sex offense. See United States v. Rodriguez-




       4 The Application Note defines a “sex offense” as “an offense, perpetrated against a
minor, under . . . (ii) Chapter 109B of [Title 18, United States Code].” The only offense listed
in Chapter 109B is failure to register. Therefore, the Application Note suggests that failure
to register can be perpetrated against a minor.
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                                 No. 12-11262
Parra, 581 F.3d 227, 231 (5th Cir. 2009) (explaining that an error that is
subject to reasonable dispute is not clear or obvious).

      Moreover, several Fifth Circuit cases declined to reach this issue and,
until now, the question remained unresolved. See United States v. Cuneo, No.
12-60537, 2014 WL 545435, at *2 (5th Cir. Feb. 12, 2014) (per curiam)
(unpublished) (explaining that no Fifth Circuit case “resolved the question of
whether failure to register is a ‘sex offense,’ but rather, they determined that
‘treating failure to register as a sex offense is not plain error’” (citation
omitted)); see also United States v. Byrd, No. 12-60659, 2013 WL 6510891 (5th
Cir. Dec. 13, 2013); United States v. Nelson, No. 12-60894, 2013 WL 5881246,
at *1 (5th Cir. Nov. 4, 2013) (per curiam) (unpublished); United States v. Kroft,
535 F. App’x 422, 423 (5th Cir. 2013) (per curiam) (unpublished). Segura cites
no Fifth Circuit authority that would make the district court’s error clear or
obvious. Therefore, he fails to satisfy the second prong of our clear error
analysis.

      Alternatively, even if the error was clear or obvious, Segura failed to
demonstrate that it affected his substantial rights. “In the sentencing context,
[this] requires that the defendant demonstrate a ‘reasonable probability’ that,
but for the district court’s error, he would have received a lesser sentence.”
United States v. Culbertson, 712 F.3d 235, 243 (5th Cir. 2013) (citing United
States v. Dickson, 632 F.3d 186, 191 (5th Cir. 2011)).        Here, the correct
Guidelines recommendation for supervised release is five years. The district
court calculated a Guidelines range of five years to life, with life recommended.
The only references to the PSR’s recommendation are the district court’s initial
comment that both parties adopted the PSR without objection, and that the
court adopted “the analysis made under the sentencing guidelines.” When
discussing its decision to impose a life term of supervised release, the district

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                                  No. 12-11262
court specifically stated: “I believe this is necessary to see that the defendant
does assimilate himself back into society, that he obtains suitable employment,
and that he maintains a law-abiding lifestyle.” The district court was well
aware of Segura’s extensive criminal history beginning in 1989 and inclusive
of three sexual offense convictions against very young male and female
children, plus an assortment of other convictions ending with the instant 2012
conviction for failure to register as a sex offender. The district court’s decision
was based upon an assessment—independent of the PSR’s erroneous
recommendation—that Segura required lifetime supervision. In light of these
considerations, we conclude that Segura has not meet his burden of
demonstrating a reasonable probability that the sentence would have been
different but for the erroneous recommendation. Accordingly, we conclude that
the district court did not commit plain error by sentencing Segura to a life-term
of supervised release.

                                             D.

      Finally, we note that even if we were to conclude that the district court
committed plain error—which we do not—this is a not a case that merits the
exercise of our discretion to reverse the district court’s ruling. We may exercise
our discretion to reverse under plain error review only where “the error
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Escalante-Reyes, 689 F.3d at 419 (alteration in original) (citation
and internal quotation marks omitted). The types of errors that warrant
reversal are ones that “would shock the conscience of the common man, serve
as a powerful indictment against our system of justice, or seriously call into
question the competence or integrity of the district judge.” Id. at 435. Mr.
Segura has, on multiple occasions, failed to comply with the courts’ orders that
he register as a sex offender. As mentioned previously, he has also been

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                                  No. 12-11262
convicted of numerous other offenses throughout his twenty-three-year
criminal history.     The protracted nature of his criminality and the
circumstances surrounding the instant conviction do not persuade us to
conclude that the district court’s decision seriously affects the fairness,
integrity, or public reputation of judicial proceeds. As a result, we would not
exercise our discretion to reverse even if the district court’s error was plain.

      For the foregoing reasons, we hold that the district court erred in finding
that failure to register is a sex offense for the purposes of § 5D1.2(b)(2).
However, we conclude that the error was not plain and reversal is not
warranted. Accordingly, we affirm.




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