United States v. Escalante, No. 18-10408 (5th Cir. 2019)
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The Sex Offender Registration Act requires a circumstance-specific inquiry into the victim's age when classifying sex offender tier levels to determine whether the victim was a minor, or, in the case of a tier III categorization under 34 U.S.C. 20911(4)(A)(ii), whether the victim was younger than 13. The Fifth Circuit held, as a matter of first impression, that the text of SORNA does not permit a court, when applying the categorical approach to determine sex offender tier levels, to conduct a circumstance-specific inquiry into an offender-victim age differential that is built into one of the corresponding cross-referenced offenses as an element of the crime.
The court vacated the district court's conclusion that defendant's prior Utah conviction for unlawful sexual activity with a minor classified him as a tier II sex offender. The court held that the district court deviated from the categorical approach to classify him as a tier II sex offender. In this case, looking solely at the elements, the Utah offense under which defendant was convicted sweeps more broadly than the cross-referenced federal offense corresponding to tier level II. Accordingly, the court remanded for resentencing.
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