IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40927

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

NAZARIO GONZALEZ-MEDINA,

Defendant – Appellant

Appeal from the United States District Court 

for the Southern District of Texas 

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Nazario Gonzalez-Medina appeals his conviction for failure to register as 

a sex offender in violation of 18 U.S.C. § 2250(a). On appeal, Gonzalez-Medina 

contends that he was not required to register as a sex offender because his 

Wisconsin conviction under Wisc. Stat. § 948.09 for having sexual intercourse 

with a child age sixteen or older does not qualify as a “sex offense” within the 

meaning of the Sex Offender Registration and Notification Act (“SORNA”), 42 

U.S.C. §§ 16901 et seq. Gonzalez-Medina further contends that SORNA’s 

registration requirement and criminal penalty exceed Congress’s authority 

under the Commerce Clause. For the reasons articulated below, we AFFIRM 

Gonzalez-Medina’s conviction.

United States Court of Appeals

Fifth Circuit

FILED

July 2, 2014

Lyle W. Cayce

Clerk

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I.

Gonzalez-Medina was born in Mexico in 1979 or 1980 and is a Mexican 

citizen. On June 24, 2005, he was charged in Wisconsin state court with having 

sexual intercourse with a child age sixteen or older in violation of Wisc. Stat. § 

948.09. He pleaded no contest to the charge and was sentenced to sixty days 

in jail. Two years later, on November 28, 2007, Gonzalez-Medina was 

convicted in Texas state court of aggravated assault and sentenced to two years 

imprisonment. Prior to his release from state prison, Texas authorities 

informed Gonzalez-Medina of his duty to register as a sex offender for the 

duration of his lifetime based on his Wisconsin conviction. He signed a sex 

offender registration form and was later deported to Mexico. Three years later, 

on September 7, 2012, federal authorities found Gonzalez-Medina in a city jail 

in San Benito, Texas. A subsequent investigation revealed that he had been 

living in Texas for over a year and had not updated his sex offender registration 

after returning to the United States.

On September 25, 2012, a federal grand jury indicted Gonzalez-Medina 

for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), and 

illegal reentry in violation of 8 U.S.C. § 1326(a). Gonzalez-Medina pleaded 

guilty to the illegal-reentry charge. He then moved to dismiss the failure-toregister charge on the ground that his prior Wisconsin conviction does not 

qualify as a “sex offense.” SORNA defines a “sex offense” as, inter alia, “a 

criminal offense that has an element involving a sexual act or sexual contact 

with another.” See 42 U.S.C. § 16911(5)(A)(i). SORNA includes an exception 

to its definition of “sex offense” for “[a]n offense involving consensual sexual 

conduct . . . if the victim was at least 13 years old and the offender was not 

more than 4 years older than the victim.” 42 U.S.C. § 16911(5)(C). In his 

motion, Gonzalez-Medina argued that the court should apply the categorical 

approach to the age-differential determination in the § 16911(5)(C) exception. 

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He further argued that Wisc. Stat. § 948.09 is not a “sex offense” under the 

categorical approach because it does not include a four-year age differential as 

an element.

The district court denied the motion, and Gonzalez-Medina waived his 

right to a jury trial. After a bench trial, the district court found GonzalezMedina guilty of failure to register as a sex offender. The court first found that 

Gonzalez-Medina knowingly failed to register as a sex offender upon his return 

to the United States in May 2011. The court next found that Gonzalez-Medina 

had a duty to register because his Wisconsin conviction falls under SORNA’s 

definition of “sex offense” as “a criminal offense that has an element involving 

a sexual act or sexual contact with another.” See 42 U.S.C. §16911(5)(A)(i). 

Finally, the court found that the age-differential exception in § 16911(5)(C) 

does not apply because the Wisconsin judgment listed Gonzalez-Medina as 24 

years old at the time of his Wisconsin offense. The district court rejected 

application of the categorical approach to analyzing the age-differential

language in the § 16911(5)(C) exception as inconsistent with the statutory 

language and intent of Congress. The court later sentenced Gonzalez-Medina 

to fifty-one months imprisonment and three years of supervised release on both 

his illegal-reentry and failure-to-register counts, to run concurrently. 

Gonzalez-Medina timely appealed. We review a district court’s finding of guilt 

after a bench trial for substantial evidence and its legal conclusions de novo. 

United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002). 

II.

A.

Gonzalez-Medina was convicted for violating 18 U.S.C. § 2250(a), which 

provides a criminal penalty for whoever (1) “is required to register under 

[SORNA]”; (2) “travels in interstate or foreign commerce . . .”; and (3) 

“knowingly fails to register or update a registration as required by [SORNA].”

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Gonzalez-Medina disputes the first element—that he was required to 

register under SORNA. SORNA requires an individual to register if he or she 

is a “sex offender,” 42 U.S.C. § 16913(a), and defines “sex offender” as “an 

individual who was convicted of a sex offense,” id. at § 16911(1). SORNA 

defines “sex offense” expansively as, inter alia:

(i) a criminal offense that has an element involving a sexual act or 

sexual contact with another; [or]

(ii) a criminal offense that is a specified offense against a minor[.]

Id. at § 16911(5)(A). SORNA provides exceptions to this definition of “sex 

offense,” including the exception at issue in this case: 

(C) An offense involving consensual sexual conduct is not a sex offense 

for the purposes of this subchapter if the victim was an adult, 

unless the adult was under the custodial authority of the offender 

at the time of the offense, or if the victim was at least 13 years old 

and the offender was not more than 4 years older than the victim.

Id. at § 16911(5)(C) (emphasis added).

On appeal, Gonzalez-Medina contends that the categorical approach 

applies to the age-differential determination in the § 16911(5)(C) exception, 

and that his Wisconsin conviction does not qualify as a “sex offense” under the 

categorical approach because the statute that formed the basis of his conviction

does not include a four-year age differential as an element. See Wisc. Stat. § 

948.09 (“Whoever has sexual intercourse with a child who is not the 

defendant’s spouse and who has attained the age of 16 years is guilty of a Class 

A misdemeanor.”). He further contends that, as a result, his Wisconsin offense 

is broader than SORNA’s definition of “sex offense” and he hypothetically could 

have been convicted despite being less than four years older than the victim. 

Under the categorical approach, a court would be limited to comparing the 

elements of the Wisconsin statute to SORNA’s definition of “sex offense,” and 

could not consider the facts underlying the conviction. See, e.g., Descamps v. 

United States, —U.S.—, 133 S. Ct. 2276, 2281 (2013). The government 

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responds that the text and purpose of SORNA indicate that Congress intended 

courts to be able to look at the factual circumstances of the conviction, rather 

than just the statutory elements, in determining the age differential between 

the victim and offender for the § 16911(5)(C) exception. 

Gonzalez-Medina does not dispute the district court’s finding that his 

Wisconsin conviction falls within SORNA’s definition of “sex offense” as “a 

criminal offense that has an element involving a sexual act or sexual contact 

with another.” See 42 U.S.C. § 16911(5)(A)(i). Nor does he dispute the district 

court’s finding that he was in fact more than four years older than the victim 

at the time of his Wisconsin offense. Additionally, the parties appear to agree 

that if the categorical approach applies to the age differential in § 16911(5)(C), 

Gonzalez-Medina’s Wisconsin conviction does not qualify as a “sex offense” 

because the Wisconsin statute does not include a four-year age differential as 

an element. Accordingly, the sole issue on appeal is whether the categorical 

approach applies to the four-year age differential in the § 16911(5)(C) 

exception.1 For the following reasons—based on the language, structure, and 

broad purpose of SORNA—we conclude that Congress contemplated a noncategorical approach to the age-differential determination in the § 16911(5)(C) 

exception.

B.

We start with the language of the statute. At the outset, SORNA defines 

a “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C. 

§ 16911(1) (emphasis added). Courts have held, particularly in the context of 

criminal sentencing and immigration law, that the use of the term “convicted” 

1 Contrary to the dissent’s implication, this court need not decide the applicability of 

the categorical approach to the phrase “involving consensual sexual conduct” in the (5)(C) 

exception, as the parties do not raise this issue on appeal. For the same reason, this court 

need not decide the applicability of the categorical approach to the definitions of “sex offense” 

in 42 U.S.C. § 16911(5)(A). 

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can signal a categorical analysis. See Taylor v. United States, 495 U.S. 575, 

600-01 (1990) (noting that the term “conviction,” rather than “committed,” in 

the Armed Career Criminal Act (“ACCA”) requires an examination of the 

statute of conviction rather than any underlying facts); James v. United States, 

550 U.S. 192 (2007) (applying the categorical approach to the residual clause 

of the definition of “violent felony” in the ACCA); see also Moncrieffe v. Holder, 

—U.S.—, 133 S. Ct. 1678, 1685 (2013) (“‘Conviction’ is ‘the relevant statutory 

hook.’”); Silva-Trevino v. Holder, 742 F.3d 197, 201-02 (5th Cir. 2014). 

Accordingly, SORNA’s use of the term “convicted” might trigger the categorical 

approach, at least to some extent, in determining if a defendant has been 

“convicted of” a sex offense.

The use of the term “convicted,” however, is not always determinative. 

For instance, in Nijhawan v. Holder, 557 U.S. 29, 32 (2009), the Supreme Court 

interpreted an immigration statute that rendered deportable any alien 

“convicted of an aggravated felony at any time after admission.” (quoting 8 

U.S.C. § 1227(a)(2)(A)(iii)) (emphasis added). The statute defined “aggravated 

felony” as, inter alia, “an offense that . . . involves fraud or deceit in which the 

loss to the victim or victims exceeds $10,000.” Id. (quoting 8 U.S.C. § 

1101(a)(43)(M)(i)) (emphasis added). The Court held that, despite the use of 

the term “convicted,” the italicized language relating to victim loss could be 

determined based on the particular facts of the case, rather than the 

categorical approach. Id. The Court found a number of factors persuasive, 

including: (1) the words “in which” modifying “offense” “can refer to the conduct 

involved ‘in’ the commission of the offense of conviction, rather than to the 

elements of the offense”; (2) the “aggravated felony” definition lists certain 

other offenses that “almost certainly” call for circumstance-specific 

determinations; and (3) a categorical approach would leave the definition with 

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“little, if any, meaningful application” as most fraud statutes do not include 

the relevant $10,000 monetary loss threshold as an element. Id. at 37-40.

Similarly, in United States v. Hayes, 555 U.S. 415, 418 (2009), the Court 

interpreted a criminal law prohibiting the possession of a firearm by any 

person “convicted of ‘a misdemeanor crime of domestic violence.’” (quoting 18 

U.S.C. § 922(g)(9)) (emphasis added). The statute defined “misdemeanor crime 

of domestic violence” as a misdemeanor that “has, as an element, the use or 

attempted use of physical force, or the threatened use of a deadly weapon, 

committed by a current or former spouse . . . .” Id. at 420 (quoting 8 U.S.C. 

921(a)(33)(A)) (emphasis added). The Court held that the domesticrelationship requirement need not be an element of the predicate statute of 

conviction and could be determined under the circumstance-specific approach. 

Id. at 418. The Court looked to the statutory language (“committed by”), the 

broad Congressional purpose, and the fact that only one-third of states had 

criminal statutes that specifically proscribed domestic violence when the 

provision was enacted. Id. at 421-29. 

Accordingly, here, as in Nijhawan and Hayes, the use of the term 

“convicted” is not determinative. We must look to the language, structure, and 

purpose of the statutory provision. See, e.g., Silva-Trevino, 742 F.3d at 200-05

(analyzing statutory language, structure, and purpose to determine whether 

the categorical approach applies to the “crime involving moral turpitude” 

determination in 8 U.S.C. § 1182(a)(2)(A)(i)). As described below, a number of 

considerations, including some of the same considerations present in Nijhawan

and Hayes, weigh against application of the categorical approach to the agedifferential determination in the § 16911(5)(C) exception.

First, a comparison of the definition of “sex offense” in § 16911(5)(A)(i) 

and the exception in § 16911(5)(C) lends support for a non-categorical approach 

to the age-differential determination in the exception. Subsection (5)(A)(i) 

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defines a “sex offense” as “a criminal offense that has an element involving a 

sexual act or sexual contact with another.” 42 U.S.C. § 16911(5)(A)(i) 

(emphasis added). The definition’s focus on the “element[s]” of the predicate 

offense strongly suggests that a categorical approach applies to (5)(A)(i). In 

contrast, the (5)(C) exception excludes from the definition of “sex offense” an

offense “involving consensual sexual conduct . . . if the victim was at least 13 

years old and the offender was not more than 4 years older than the victim.” 

Id. at § 16911(5)(C) (emphasis added). The exception contains no reference to 

the “elements” of the offense. Instead, Congress defined the exception in terms 

of the “conduct” “involv[ed]” in the “offense.” The exception’s reference to 

conduct, rather than elements, is consistent with a circumstance-specific 

analysis. See United States v. Byun, 539 F.3d 982, 992 (9th Cir. 2008) 

(reasoning that § 16911(7)(I)’s reference to “conduct” suggests that “it is the 

underlying ‘conduct,’ not the elements of the crime of conviction, that matter”).

Second, the other exception to the definition of “sex offense,” located in § 

16911(5)(B), calls for a non-categorical analysis. The (5)(B) exception provides 

that:

(B) A foreign conviction is not a sex offense for purposes of this 

subchapter if it was not obtained with sufficient safeguards for 

fundamental fairness and due process for the accused . . . .

42 U.S.C. § 16911(5)(B). This exception requires an inquiry into facts outside 

of the statute of conviction and into the circumstances of the country in which 

the conviction took place. In Nijhawan, the Supreme Court found it significant 

that the statute in question featured other provisions that “almost certainly” 

called for a non-categorical analysis. 557 U.S. at 37 (“More importantly, 

however, the ‘aggravated felony’ statute differs from the ACCA in that it lists 

certain other ‘offenses’ using language that almost certainly does not refer to 

generic crimes but refers to specific circumstances.”). Similarly here, that 

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Congress intended courts to look beyond the statute of conviction for the (5)(B) 

exception is evidence that Congress may have intended courts to look beyond 

the statute of conviction for the (5)(C) age-differential exception as well.

Third, other age-specific SORNA provisions similarly appear to call for a 

circumstance-specific, rather than categorical, approach as to age 

determinations. See, e.g., 42 U.S.C. § 16911(8); see also Byun, 539 F.3d at 993-

94 (holding that a non-categorical approach applies as to the victim’s age in the

§ 16911(7) definition of “specified offense against a minor”); National 

Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030, 

38,052-53 (July 2, 2008) (interpreting the victim’s age to be a circumstancespecific determination in a number of SORNA provisions).

Finally, application of a non-categorical approach to the age differential 

in the § 16911(5)(C) exception is most consistent with SORNA’s broad purpose. 

Congress enacted SORNA to “protect the public from sex offenders and 

offenders against children” and to “establish[] a comprehensive national 

system for the registration of those offenders.” 42 U.S.C. § 16901. SORNA’s 

language confirms “that Congress cast a wide net to ensnare as many offenses 

against children as possible.” United States v. Dodge, 597 F.3d 1347, 1355

(11th Cir. 2010) (en banc).

Application of the categorical approach to the (5)(C) age-differential 

determination would frustrate SORNA’s broad purpose and restrict SORNA’s 

reach. Gonzalez-Medina contends that a predicate statute of conviction can 

qualify as a sex offense only if it includes a four-year (or more) age differential 

as a statutory element. Yet, a significant number of federal and state statutes 

that fall into SORNA’s definition of “sex offense” in § 16911(5)(A) do not include 

an age differential as an element. See, e.g., 18 U.S.C. § 2251(a) (child 

pornography); Tex. Penal Code §§ 43.02, 22.011 (statutory rape and child 

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prostitution).2 Of the statutes that do include an age differential as an 

element, only a fraction include an age differential of four or more years. See, 

e.g., Miss. Code Ann. § 97-3-65 (three-year age differential). Application of the 

categorical approach in this context would cause statutes without such an age 

differential as an element to fall outside of SORNA’s definition of “sex offense.” 

We do not believe that Congress intended the age-differential language in the 

(5)(C) exception to restrict the reach of SORNA in this manner. See Nijhawan, 

557 U.S. at 40; Hayes, 555 U.S. at 427. 

In sum, all of the above considerations support application of a noncategorical approach to the age-differential determination in the (5)(C) 

exception.

C.

Gonzalez-Medina contends that the Sixth Amendment concerns present 

in the sentencing context require a categorical approach to the § 16911(5)(C)

age-differential exception. Gonzalez-Medina asserts that the categorical 

approach is necessary in order to protect a defendant’s right to a jury 

determination of the four-year age differential. Gonzalez-Medina cites 

Apprendi v. Jersey for the proposition that “[o]ther than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond 

a reasonable doubt.” 530 U.S. 466, 490 (2000). The government represented

in its brief and at oral argument that the prosecutor in a failure-to-register 

prosecution under 18 U.S.C. § 2250(a) is required to prove beyond a reasonable 

doubt to the jury (or to the court in the case of a jury-waived trial) that the 

criteria for the (5)(C) exception are not met, including the four-year age 

2 Although the dissent focuses on the fact that over half of states have statutory rape 

laws that include an age differential, the language of the (5)(C) exception does not restrict its 

application to statutory rape offenses. 

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differential, thus eliminating any Sixth Amendment concerns. See Nijhawan, 

557 U.S. at 40; Hayes, 555 U.S. at 426.3

Gonzalez-Medina further contends that the age-differential exception is 

ambiguous as to whether the categorical approach applies and the rule of lenity 

requires that the ambiguity be resolved in his favor. “[T]he rule of lenity only 

applies if, after considering the text, structure, history, and purpose, there 

remains a grievous ambiguity or uncertainty in the statute, such that the 

Court must simply guess as to what Congress intended.” United States v. 

Castleman, —U.S.—, 134 S. Ct. 1405, 1416 (2014) (quoting Barber v. Thomas, 

560 U.S. 474, 488 (2010)). For the reasons above, the (5)(C) exception does not 

rise to the level of a “grievous ambiguity,” requiring this court to “simply guess 

as to what Congress intended.” Instead, the language, structure, and broad 

purpose of SORNA all indicate that Congress intended a non-categorical 

approach to the age-differential determination in (5)(C).

We therefore hold that a non-categorical approach applies for purposes 

of determining the age differential in the § 16911(5)(C) exception. A four-year 

age differential need not be an element of the predicate offense. In this case, 

the government presented evidence, and Gonzalez-Medina did not dispute,

that he was in fact more than four years older than the victim at the time of 

his Wisconsin offense. Accordingly, the district court properly found that the 

(5)(C) exception does not apply and that Gonzalez-Medina was required to 

register as a sex offender.

3 Gonzalez-Medina also contends that application of the categorical approach avoids 

the “practical difficulties and potential unfairness” of relitigating facts related to a prior 

conviction years later in a subsequent criminal proceeding. See Taylor, 495 U.S. at 601. This 

concern, however, is less pressing where the disputed fact in the subsequent criminal 

proceeding is limited to the age of the victim and offender at the time of the prior offense. 

Ordinarily, age can be ascertained from documentary evidence or brief witness testimony. 

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III.

In his second issue on appeal, Gonzalez-Medina contends that SORNA’s 

criminal penalty and civil registration requirement exceed Congress’s power 

under the Commerce Clause. Gonzalez-Medina acknowledges that his 

challenge is foreclosed by United States v. Whaley, 577 F.3d 254 (5th Cir. 2009). 

In Whaley, this court held that SORNA’s criminal penalty under 18 U.S.C. § 

2250(a)(2)(B) falls within Congress’s power to regulate the channels of 

interstate commerce. Id. at 258. This court further held that SORNA’s civil 

registration requirement falls within Congress’s power under the Commerce 

Clause and the Necessary and Proper Clause as a means of “furthering the 

goal of preventing offenders from ‘slipping through the cracks’ by changing 

jurisdictions.” Id. at 260. We may not overturn the prior decision of another 

panel of our court absent an intervening change in law, such as a statutory 

amendment or a contrary or superseding decision by either the Supreme Court 

or this court en banc. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 

378 (5th Cir. 2008). Gonzalez-Medina does not assert that there has been an 

intervening change in law after the Whaley decision. Accordingly, we have no 

occasion to revisit Whaley in this case.4

IV.

For the foregoing reasons, we AFFIRM the district court’s judgment and 

Gonzalez-Medina’s conviction for failure to register as a sex offender under 18 

U.S.C. § 2250(a).

4 Gonzalez-Medina also states that if the court vacates his SORNA conviction, the 

court should vacate his sentence for his illegal-reentry charge to allow the government and 

district court to consider an additional one-level reduction for acceptance of responsibility 

under U.S. Sentencing Guidelines Manual § 3E1.1(b). Because we affirm Gonzalez-Medina’s 

SORNA conviction, we need not reach this request. Furthermore, we perceive no error in the 

district court’s award of a two-level, rather than three-level, reduction for acceptance of 

responsibility under § 3E1.1. See United States v. Kleinebreil, 966 F.2d 945, 952-53 (5th Cir. 

1992).

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EMILIO M. GARZA, Circuit Judge, dissenting:

The majority holds that when determining whether an individual’s prior 

sex offense conviction falls within the Sex Offender Registration and 

Notification Act (“SORNA”)’s consensual-sex exception, courts may undertake 

an independent factual inquiry into the ages of the offender and victim at the 

time of the offense. Respectfully, I disagree. I would instead hold that the 

consensual-sex exception requires courts to apply the categorical approach, 

which does not permit examination of the facts underlying a defendant’s prior 

conviction. Because the categorical approach compels the conclusion that 

Gonzalez-Medina was not convicted of a SORNA “sex offense,” I would vacate 

his conviction for failure to register.

I

When we are asked to determine whether an individual’s prior state 

conviction constitutes a generic offense provided in a federal statute, we 

generally apply the categorical approach. See United States v. Espinoza, 733 

F.3d 568, 571 (5th Cir. 2013). Under this approach, courts ask only whether 

the elements of the prior state offense correspond to the elements of the generic 

federal offense—that is, whether the prior conviction “necessarily implies” that 

the individual is “guilty of all the elements of [the generic offense].”1 See Taylor 

v. United States, 495 U.S. 575, 599 (1990) (applying categorical approach in 

determining whether prior offense triggers sentencing enhancement under 

Armed Career Criminal Act (“ACCA”)). Even when state offenses are broader

than the generic federal offense, courts still must look only to “the statutory 

1 For simplicity’s sake, I use “categorical approach” here to refer to both the categorical 

and modified categorical approaches, since the latter “merely helps implement the categorical 

approach when a [petitioner] was convicted of violating a divisible statute.” See Descamps v. 

United States, 133 S. Ct. 2276, 2285 (2013). As the Government recognizes, the Wisconsin 

statute at issue here is not divisible, so the modified categorical approach is inapplicable.

 

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definitions of the prior offenses, and not to the particular facts underlying those 

convictions.” Id. at 600.

At the outset, it is important to grasp the specific distinctions between 

SORNA and the Wisconsin statute. SORNA imposes federal criminal liability 

on any person who, having been “convicted of a sex offense,” fails to register in 

his jurisdiction of residency. See 42 U.S.C. § 16911(1); id. § 16913(a); 18 U.S.C. 

§ 2250(a). The statute excludes from its “sex offense” definition any “offense 

involving consensual sexual conduct” in which the victim was “at least 13 years 

old and the offender was not more than 4 years older than the victim.” 42 

U.S.C. § 16911(5)(C). By contrast, the Wisconsin statute under which 

Gonzalez-Medina was convicted in 2005 imposes misdemeanor criminal 

liability on an individual who has “sexual intercourse with a child . . . who has 

attained the age of 16 years . . . .” Wisc. Stat. § 948.09.2 Unlike SORNA, the 

Wisconsin statute contains no non-consent element or age differential; that is, 

it does not exempt offenses involving “consensual sexual conduct” in which the 

victim was “at least 13 years old and the offender was not more than 4 years 

older than the victim.” 42 U.S.C. § 16911(5)(C). 

Because of these distinctions, the majority recognizes and the parties 

agree that if SORNA’s consensual-sex exception is evaluated under the 

categorical approach, then Gonzalez-Medina had no obligation to register 

under SORNA. Ante at 5. Because the Wisconsin statute lacks a consensualsex exception, it criminalizes a different range of conduct than does SORNA. 

Thus, Gonzalez-Medina’s Wisconsin conviction does not “necessarily impl[y]” 

that he is “guilty of all the elements” of a SORNA sex offense. Taylor, 495 U.S. 

at 599. Accordingly, the Government can neither prove that Gonzalez-Medina 

2 A “child” is “a person who has not attained the age of 18 years.” Wisc. Stat. § 

948.01(1).

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is “an individual who was convicted of a sex offense” under SORNA, 42 U.S.C. 

§ 16911(1), nor penalize him for failing to register, 18 U.S.C. § 2250(a).

Under the categorical approach, because Gonzalez-Medina was not 

convicted of a sex offense under SORNA, he cannot be criminally liable for 

failing to register as a sex offender. This should be the end of our inquiry.

II

The majority, however, does not apply the categorical approach. Rather, 

today’s opinion relies on cases in which the Supreme Court concluded that a 

strictly categorical approach would not be faithful to the statutory text and 

Congressional intent.3 However, the majority misapplies these precedents and 

thus erroneously departs from the categorical approach.

The majority first emphasizes that the text of the consensual-sex 

exception refers to “an offense involving consensual sexual conduct,” rather 

than to general statutory elements. 42 U.S.C. § 16911(5)(C) (emphasis added);

see ante at 8. To be sure, the Supreme Court has explained that a statute’s 

focus on specific factual circumstances “in which” an offense occurred can 

counsel against the categorical approach. Nijhawan, 557 U.S. at 38–39 

(quoting 8 U.S.C. § 1101(a)(43)(M)(i)). But the majority overlooks the Court’s 

reasoning in James v. United States, 550 U.S. 192 (2007), which involved 

statutory language substantially more similar to SORNA’s consensual-sex 

exception. In James, the Court applied the categorical approach to the ACCA’s 

3 See Nijhawan v. Holder, 557 U.S. 29, 38–40 (2009) (applying “circumstance-specific” 

approach when text of federal statute focuses on facts underlying a prior conviction, rather 

than merely elements of that offense, and when practical consequences of applying the 

categorical approach would undermine legislative purpose); United States v. Hayes, 555 U.S. 

415, 426 (2009) (holding that Government can prove that prior offense was “misdemeanor 

crime of domestic violence” by establishing victim’s relationship to offender as factual matter, 

without relying solely on elements of statute). I further observe that aside from Hayes, the 

Supreme Court has not deployed the circumstance-specific approach in applying a criminal 

statute such as SORNA; Nijhawan involved a noncitizen’s removability. See Nijhawan, 557 

U.S. at 33.

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residual clause defining a “violent felony” as including an offense that 

“otherwise involves conduct that presents a serious potential risk of physical 

injury to another.” James, 550 U.S. at 196 (emphasis added). Given the 

similarity between the ACCA’s language in James and the consensual-sex 

exception’s reference to offenses “involving consensual sexual conduct,” I would 

follow James and apply the categorical approach. 42 U.S.C. § 16911(5)(C) 

(emphasis added).

The majority next reasons that the consensual-sex exception requires a 

circumstance-specific approach because such an approach almost certainly 

applies to an adjacent exception concerning whether a “foreign conviction . . . 

was not obtained with sufficient safeguards for fundamental fairness and due 

process.” 42 U.S.C. § 16911(5)(B), see ante at 8. Even assuming that the 

majority’s reading of the (5)(B) foreign conviction exception is correct, I would 

not conclude that the two exceptions’ proximity mandates a circumstancespecific approach. 

The Nijhawan Court explained that “[w]here . . . Congress uses similar 

statutory language and similar statutory structure in two adjoining provisions, 

it normally intends similar interpretations.” Nijhawan v. Holder, 557 U.S. 29, 

39 (2009). In that case, the Court considered a provision of the Immigration 

and Nationality Act (“INA”) that defined an “aggravated felony” to include:

an offense that—

(i) involves fraud or deceit in which the loss to the 

victim or victims exceeds $10,000; or

(ii) is described in section 7201 of Title 26 (relating to 

tax evasion) in which the revenue loss to the 

Government exceeds $10,000 . . . .

8 U.S.C. § 1101(a)(43)(M). The Court first determined that subparagraph 

(M)(ii) must require a circumstance-specific approach: Because no offense 

“described in section 7201 of title 26” has a loss amount as an element, the 

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categorical approach would render the tax-evasion provision “pointless.” 

Nijhawan, 557 U.S. at 38. Turning to subparagraph M(i), the Court then 

explained that “it is identical in structure to [M(ii)],” and uses “similar 

statutory language.” Id. at 38–39. Although the Court did not expressly 

enumerate these “similar” features, it likely found salient the parallel phrases 

“in which” and the express specifications of an amount of loss.4

By contrast, the SORNA exceptions here do not share substantially 

similar “statutory language” or “structure.” Id. at 39. The consensual-sex 

exception at issue here and its preceding provision appear as follows:

(B) Foreign convictions

A foreign conviction is not a sex offense for the 

purposes of this subchapter if it was not obtained with 

sufficient safeguards for fundamental fairness and 

due process for the accused under guidelines or 

regulations established under section 16912 of this 

title.

(C) Offenses involving consensual sexual conduct

An offense involving consensual sexual conduct is not 

a sex offense for the purposes of this subchapter if the 

victim was an adult, unless the adult was under the

custodial authority of the offender at the time of the 

offense, or if the victim was at least 13 years old and 

the offender was not more than 4 years older than the 

victim.

42 U.S.C. § 16911(5). Here, the two exceptions do not employ any similar 

language beyond the phrase “is not a sex offense.” Likewise, the structure of 

4 Additionally, the majority misunderstands Nijhawan’s reasoning: The Nijhawan 

Court did not simply conclude that “other provisions” in the statute called for a circumstancespecific approach. Ante at 8. This principle would require courts to scour a statute to 

determine whether categorical or circumstance-specific approaches should be applied 

anywhere else, and when different provisions require different approaches, courts would be 

left wondering “to which category [the provision at issue] belongs.” Nijhawan, 557 U.S. at 

38. Rather, the Court ultimately relied on an immediately “adjoining provisio[n]” that called 

for a circumstance-specific approach and—crucially—that shared similar language and 

structure. Id. at 39.

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the two exceptions is similar only insofar as both employ a conditional clause 

beginning with “if . . . .” In short, I see no similarities in these provisions’ text 

and structure so compelling as to warrant importing the circumstance-specific 

approach from subparagraph (5)(B) to (5)(C). Cf. Sebelius v. Auburn Reg’l Med. 

Ctr., 133 S. Ct. 817, 825 (2013) (rejecting argument that statutory provision is 

jurisdictional by virtue of proximity to other jurisdictional requirements).

Third, the majority looks to two persuasive authorities—the Ninth 

Circuit decision in United States v. Byun, 539 F.3d 982 (9th Cir. 2008), and 

Department of Justice Guidelines. See ante at 9. But these authorities do not 

bind this Court and, in any event, concern entirely different statutory 

provisions and language. Thus, they do not determine the outcome in this case. 

See, e.g., Byun, 539 F.3d at 991 (reasoning that the word “committed,” in 

contrast to “convicted,” counsels in favor of circumstance-specific approach 

under 42 U.S.C. § 16911(3)(A)).

Fourth, the majority asserts that SORNA’s broad purpose of creating a 

“comprehensive national system for the registration of [sex] offenders” requires 

a circumstance-specific approach. See ante at 9 (quoting 42 U.S.C. § 16901). 

This purpose, the majority claims, would be dramatically undermined by the 

categorical approach, since many state sex offense statutes do not contain a 

four-year age-differential exception consistent with SORNA’s. To be sure, both 

the Nijhawan and Hayes Courts surveyed state laws and concluded that 

because the categorical approach would render the federal law inapplicable in 

a substantial majority of states, Congress must have intended courts to take a 

circumstance-specific approach.5 However, over half of the states have age5 In Nijhawan, the Court opted for a circumstance-specific approach when only eight 

states had fraud statutes with a monetary threshold consistent with that of the federal 

offense. See Nijhawan, 557 U.S. at 40 (“We do not believe Congress would have intended 

(M)(i) to apply in so limited and so haphazard a manner.”). Similarly, in Hayes, the Court 

concluded that because only about one-third of states had statutes specifically criminalizing 

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differential exceptions in their statutory rape laws.6 Thus, SORNA’s purpose 

would not be eviscerated by our applying the categorical approach. 

The majority further submits that both parties understate the 

categorical approach’s potential impact on SORNA because “the language of 

the (5)(C) exception does not restrict its application to statutory rape offenses.” 

Ante at 10 n.2. To be sure, general sexual assault offenses (involving nonminors) do not require that the offender and victim be of any particular age. 

But even under the categorical approach, so long as the lack of consent is an 

element of the state sex offense, the offender will not fall within SORNA’s 

consensual-sex exception. Although the parties have not briefed the issue, 

according to one treatise, “slightly less than half of the states” require the lack 

of consent as an element of rape, while others require “force” or “compulsion.” 

See 2 Subst. Crim. L. § 17.4 (2d ed. 2013). While the categorical approach 

would exclude convictions in these “force” jurisdictions from SORNA’s 

registration requirement, in light of the many states that do require nonconsent, SORNA would, again, not be rendered “pointless.” Nijhawan, 557 

U.S. at 38; see also Tex. Penal Code § 22.011(a)(1) (criminalizing sex acts 

domestic violence, a provision of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(9), 

prohibiting firearm possession by a person convicted of a “misdemeanor crime of domestic 

violence” would have been a “dead letter” in the remaining two-thirds of the states. Hayes, 

555 U.S. at 427.

6 The Government recognizes that at least in 2004, twenty-seven states defined sex 

offenses against minors with reference, in part, to age differentials. See generally The Lewin 

Group, Statutory Rape: A Guide to State Laws and Reporting Requirements 8 (2004). 

Additionally, I note that in adopting a circumstance-specific approach, this Court has 

previously reasoned that the “categorical approach would render the crime of domestic 

violence as a basis for removal [of a noncitizen] under [8 U.S.C. §] 1227(a)(2)(E)(i) 

inapplicable in about one-half of the States.” Bianco v. Holder, 624 F.3d 265, 272 (5th Cir. 

2010). In Bianco, however, the panel relied substantially on the Supreme Court’s 

circumstance-specific approach in Hayes, which happened also to apply a circumstancespecific approach in evaluating the generic federal crime of domestic violence. See id. at 271–

73 (applying Hayes). I therefore do not understand Bianco (or the Supreme Court’s 

precedents) to establish a rigid bright-line rule on the number of states whose laws would not 

fit the elements of a federal statute, thus triggering the circumstance-specific approach.

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committed with “another person . . . without that person’s consent”); N.Y. Penal 

Law § 130.20 (defining sexual misconduct as a sexual act committed “with 

another person without such person’s consent”); Cal. Penal Code § 261(a) 

(defining rape as sexual intercourse “against a person’s will” or committed 

when other cannot consent).

Absent clearer statutory language or legislative intent mandating 

otherwise, the categorical approach must govern. Congress, by choosing to 

base SORNA’s registration requirement on prior state convictions, acted with 

full awareness of the potential effects of disparate state sex offense regimes.7 

If Congress wishes to broaden SORNA’s scope and remedy inconsistencies 

across states, it may certainly choose to do so.

III

While the majority makes much of the Supreme Court’s circumstancespecific approach in Nijhawan, scant attention is paid to our subsequent 

decision in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014), which 

clarified our application of Nijhawan. In Silva-Trevino, the BIA permitted 

consideration of evidence beyond the record of conviction in determining 

whether a noncitizen had been convicted of a “crime involving moral turpitude” 

under the INA, 8 U.S.C. § 1182(a)(2)(A)(i). We rejected this approach, instead 

applying the categorical approach. We concluded that Nijhawan did not 

govern since the aggravated felony fraud provision in that case defined “a 

subset of a category of convictions”—fraud and deceit resulting in a loss of at 

least $10,000. Id. at 204. By contrast, because the broad category of “crime 

involving moral turpitude” contained “no such subset,” we had “no . . . 

permission to abandon the categorical approach.” Id. 

7 Further, as Gonzalez-Medina notes, in most states, where the age of consent is 

sixteen, he would not even have been convicted for engaging in consensual sexual activity 

with a sixteen year-old.

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Here, like the statute in Silva-Trevino, SORNA establishes a broad 

category of “sex offenses” that trigger the registration requirement. The 

consensual-sex exception does not establish a “subset” of offenses, id. at 204; 

rather, it merely carves out an exclusion from this broad category. In light of 

our reasoning in Silva-Trevino, the majority’s reliance on Nijhawan is 

misguided.

Additionally, the majority understates the circumstance-specific 

approach’s potential to spawn unwieldy re-litigation of past convictions under 

the consensual-sex exception. This practical concern is one of the primary 

rationales animating the categorical approach, which strictly limits the means 

by which federal courts may determine whether prior convictions fit within 

generic federal offenses. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1690–91

(2013). 

The majority claims that the concern for resource-consuming relitigation is “less pressing where the disputed fact . . . is limited to the age of 

the victim and offender at the time of the prior offense,” because “age can be 

ascertained from documentary evidence or brief witness testimony.” Ante at 

11 n.3. Indeed, the ages of the offender and victim are at the center of this 

particular dispute, and if the Government would need to prove only these 

additional facts to establish that a SORNA defendant is a federal sex offender, 

then there would be somewhat less reason to fear the specter of mini-trials.

Yet proof of the age differential aside, the majority overlooks the first 

component of the exception, which refers to “offense[s] involving consensual 

sexual conduct.” 42 U.S.C. § 16911(5)(C). While the parties have not briefed 

at length the issue of consent, it is cause for concern under the circumstancespecific approach. As the Government recognizes, lack of consent is neither an 

element of nor a defense to liability under statutory rape laws, to which the 

consensual-sex exception applies. The text of the exception plainly 

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contemplates that a victim who is “at least 13 years old” could be capable of 

engaging in “consensual sexual conduct,” if the offender is “not more than 4 

years older than the victim.” 42 U.S.C. § 16911(5)(C). Thus, there is a real 

possibility that federal courts, applying a circumstance-specific approach, will 

need to grapple with the difficult question of consent—years (or decades) after 

the events giving rise to the original state conviction.8 Rather than forcing 

district courts down this uncertain path, adopting the categorical approach 

would minimize “the practical difficulties and potential unfairness of a factual 

approach.” Taylor, 495 U.S. at 601. In the interim, Congress could develop a 

longer-term solution, for ultimately, it is the task of that elected body, and not 

the courts, to effect and refine the aims of SORNA.9

8 For instance, under the majority’s circumstance-specific approach, a seventeen-yearold offender convicted of sexually assaulting a thirteen-year-old victim would satisfy the 

exception’s age-differential requirement. But the Government, as it concedes, would still 

need to prove beyond a reasonable doubt that the offense did not involve “consensual sexual 

conduct.” Consent is a potential problem for Gonzalez-Medina as well, since under the 

categorical approach, the lack of consent as an element of statutory rape might undermine 

SORNA’s applicability to statutory rapists. See, e.g., Miss. Code Ann. § 97-3-65 (statutory 

rape). In response, he essentially submits that lack of consent is an implied element of 

statutory rape because state laws presume minor victims of statutory rape to be incapable of 

giving consent. See, e.g., United States v. Rodriguez, 711 F.3d 541, 561 (5th Cir. 2013) (“For 

these reasons, we conclude that the ‘generic, contemporary meaning’ of ‘statutory rape’ sets 

the age of consent as a person under the age of majority as defined by statute.”). Thus, by 

Gonzalez-Medina’s logic, the categorical approach would not exclude a statutory rapist from 

SORNA’s registration requirement unless he comes within the age-differential exception (as 

determined by examining only the elements of the state sex offense law). While today’s case 

does not require us to resolve the complex issue of consent, adopting the circumstance-specific 

approach could require future courts to take on a difficult task.

9 The majority professes not to reach the question of “the applicability of the 

categorical approach to the phrase ‘involving consensual sexual conduct’ in the (5)(C) 

exception.” Ante at 5 n.1. This claim is belied by the majority’s relying on this very phrase 

to conclude that “[t]he exception’s reference to conduct, rather than elements, is consistent 

with a circumstance-specific analysis.” Ante at 8. In any event, the majority fails to explain 

how a future court could ever conclude in a principled manner that while, under today’s 

decision, a circumstance-specific approach governs the age differential, a categorical 

approach applies to the “consensual sexual conduct” phrase in the very same statutory 

provision. See 42 U.S.C. 16911(5)(C). As explained above, supra note 8, this case does not 

require us to discuss exhaustively the implications of either a categorical or circumstancespecific approach for the phrase “consensual sexual conduct.” However, the majority is 

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IV

The SORNA consensual-sex exception is governed by the categorical 

approach. Under that approach, because the Wisconsin statute did not contain 

a comparable exception, the Government failed to prove beyond a reasonable 

doubt that Gonzalez-Medina was convicted of a “sex offense” as defined in 

SORNA. Accordingly, Gonzalez-Medina’s SORNA conviction must be vacated.

Respectfully, I dissent.

mistaken in implying that its opinion leaves open the question of whether a categorical or 

circumstance-specific approach applies to this phrase at all. After today’s decision, a 

circumstance-specific approach governs the consensual-sex exception in its entirety—

including both the phrase “consensual sexual conduct” and the age differential.

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