In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3132

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH LEE TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:10-cr-30032-MJR-1—Michael J. Reagan, Judge.

ARGUED FEBRUARY 11, 2011—DECIDED JULY 7, 2011

Before BAUER, POSNER and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Kenneth Lee Taylor entered an

open plea of guilty, without the benefit of a plea agreement, for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act

(SORNA), 18 U.S.C. § 2250. The district court judge sentenced Taylor to eighteen months in prison, twenty

years of supervised released, and a $100 special assessment fee. We affirm.
2 No. 10-3132

I. BACKGROUND

Taylor was serving in the Navy when he was charged

with forcible sodomy in violation of the Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 925. He pleaded

guilty, and a general court-martial sentenced him to

seven months in prison.

As required by SORNA, Taylor registered as a sex

offender in 2003 and listed an address in East St. Louis

as his residence. In 2006, the Illinois State Police discovered that Taylor was no longer residing at his

registered address and that he had not updated his registration to reflect this change. Despite many attempts,

authorities did not locate Taylor until early 2010.

In April 2010, Taylor pleaded guilty to failing to

register as a sex offender. While released on bond and

awaiting sentencing, Taylor again changed residences

without updating his sex offender registration or

notifying the United States Probation Office.

The district court judge classified Taylor as a Tier III

sex offender and calculated the United States Sentencing

Guideline range to be 24 to 30 months in prison and 5 years

to life of supervised release. The judge sentenced Taylor

to 18 months in prison and 20 years of supervised

release, but he indicated a willingness to reduce the

supervised release term if Taylor remained out of

trouble for a “significant” amount of time.
No. 10-3132 3

II. ANALYSIS

The defendant presents two issues on appeal. He

first argues that the district court improperly classified

Taylor as a Tier III sex offender, and he then argues that

his sentence is unreasonable. We disagree.

A. The Statutory Framework

SORNA requires sex offenders to register in the jurisdictions in which they live, work, or go to school. 18 U.S.C.

§ 2250. The term “sex offender” is defined as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911

(emphasis added). A sex offense is “a criminal offense

that has an element involving a sexual act or sexual

contact with another,” and a criminal offense is “a

State, local, tribal, foreign, or military offense (to the

extent specified by the Secretary of Defense under

section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C.

951 note)).” Id. (emphasis added).

Public Law 105-119, referenced above, provides that

the Secretary of Defense “shall specify categories of

conduct punishable under the Uniform Code of

Military Justice which encompasses a range of conduct

comparable to that described in . . . the Violent Crime

Control and Law Enforcement Act of 1994 (42 U.S.C.

§ 14071(a)(3)(A) and (B)).” Section 14071 of the Violent

Crime Control Act established the Jacob Wetterling

Act, and 32 C.F.R. § 635.7 (which was enacted under

the authority of the Jacob Wetterling Act) states,

Soldiers who are convicted by court-martial for

certain sexual offenses must comply with all
4 No. 10-3132

Courts-martial recognize the offense of “forcible sodomy.” See, 1

e.g., United States v. Rangel, 64 MJ. 678, 684 (AF. Ct. Crim. App.

2007) (explaining that force is an element of the offense

of “forcible sodomy”). According to the Manual for CourtsMartial, “[t]hat the act was done by force and without the

consent of the other person” may be added as an “element”

under UCMJ Article 125, as applicable. Manual For CourtsMartial United States, pt. IV, ¶ 51(b) (2008).

applicable state registration requirements in effect

in the state in which they reside. . . . This is a statutory requirement based on the Jacob Wetterling

Act, and implemented by DOD Instruction 1325.7. 

DOD Instruction 1325.7, in turn, contains a “Listing of

Offenses Requiring Sex Offender Processing.” It provides, “convictions of any of the following offenses punishable under the Uniform Code of Military Justice

shall trigger requirements to notify State and local law

enforcement agencies and to provide information to

inmates concerning sex offender registration requirements.” See http://www.dtic.mil/whs/directives/corres/

pdf/132507p.pdf (last visited July 1, 2011). One of

the listed offenses is “Forcible Sodomy.” Id. 1

Therefore, through a series of cross references,

SORNA requires individuals who are convicted of

certain sex offenses under the UCMJ—including forcible

sodomy—to register as a sex offender.

In addition to defining the terms “sex offender” and “sex

offense,” 42 U.S.C. § 16911 classifies sex offenders into

three different categories: 
No. 10-3132 5

Taylor concedes that forcible sodomy is similar to a violation 2

of 18 U.S.C. § 2241, which provides, “Whoever, in the special

maritime and territorial jurisdiction of the United States . . .

knowingly causes another person to engage in a sexual act

by using force against that other person,” shall be imprisoned

for up to life.

(2) Tier I sex offender

The term “Tier I sex offender” means a sex offender

other than a Tier II or Tier III sex offender.

(3) Tier II sex offender

The term “Tier II sex offender” means a sex offender

other than a Tier III sex offender whose offense

is punishable by imprisonment for more than 1 year

and—

(A) is comparable to or more severe than the

following offenses . . .

(iv) abusive sexual contact (as described in

section 2244 of Title 18) . . . . 

(4) Tier III sex offender

The term “Tier III sex offender” means a sex offender

whose offense is punishable by imprisonment for

more than 1 year and—

(A) is comparable to or more severe than the

following offenses . . . 

(i) aggravated sexual abuse or sexual abuse

(as described in sections 2241 and 2242 of

Title 18) . . . .

2
6 No. 10-3132

These tier levels are incorporated into the United States

Sentencing Guidelines and used to determine the defendant’s base offense level. U.S.S.G. § 2A3.5.

B. Modified Categorical Approach

To calculate the advisory Guideline range for a violation of SORNA, the judge must first determine the defendant’s tier classification. See U.S.S.G. § 2A3.5. The

judge usually accomplishes this task by examining the

elements of the statute under which the defendant was

convicted. This is called the “categorical approach.” See

United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008);

Begay v. United States, 553 U.S. 137, 141 (2008). However,

because the statute under which Taylor was convicted

prohibited all sodomy—whether consensual, forcible,

or involving a child—the judge in this case also examined the charging document to determine the type

of sodomy to which the defendant pleaded guilty. This

is called the “modified categorical approach.” See Smith,

544 F.3d at 786. Taylor contends that the judge’s use of

the modified categorical approach constitutes reversible

error, a question of law which we review de novo. United

States v. Franco-Fernandez, 511 F.3d 768, 769 (7th Cir. 2008).

Although we have never addressed whether a judge

may use the modified categorical in this particular circumstance, we have held that when a statute proscribes

multiple types of conduct, some of which would constitute a violent felony and some of which would not,

a judge may examine a “limited range of additional

material” in order to determine whether the defendant
No. 10-3132 7

pleaded guilty to the portion of the statute that constitutes a violent felony. See id. (citing Shepard v. United

States, 544 U.S. 13, 16-17 (2005); Taylor v. United States,

495 U.S. 575, 602 (1990); United States v. Spells, 537 F.3d

743, 749 (7th Cir. 2008); United States v. Mathews, 453 F.3d

830, 833-34 (7th Cir. 2006)). The rationale behind this

rule applies with equal force to this case.

Taylor was convicted under 10 U.S.C. § 925, a statute

that prohibits sodomy in all its forms. It is therefore

impossible to determine from the face of the statute

whether Taylor pleaded guilty to forcible sodomy, consensual sodomy, or sodomy of a child. Consequently,

under the categorical approach, forcible sodomy convictions under 10 U.S.C. § 925 would always be a Tier I

offense. We need not confine ourselves to the categorical

approach in this case, however, because the statute at

issue here prohibits multiple types of conduct, including

“forcible sodomy,” which is considered to be an offense

with different elements than “sodomy” alone. See supra

Part A; United States v. Woods, 576 F.3d 400, 403-07 (7th

Cir. 2009). We therefore affirm the district court’s use of

the modified categorical approach and hold that a

judge may examine a limited set of additional materials—such as the charging instrument in this case—

to determine the portion of 10 U.S.C. § 925 to which

the defendant pleaded guilty. 

C. Reasonableness of the Sentence

The Sentencing Guideline range for Taylor’s offense

was 24 to 30 months in prison and 5 years to life of super-
8 No. 10-3132

The government argues that we should review the sentence 3

for plain error because Taylor failed to object to his sentence

as unreasonable in the district court. We have repeatedly

rejected this argument. See United States v. Dale, 498 F.3d 604,

610 & n.5 (7th Cir. 2007). 

vised release. Although the judge sentenced Taylor to

a prison term that was below the Guideline range (18

months) and a supervised release term that was within

the Guideline range (20 years), Taylor challenges his

sentence as unreasonable. We review the substantive

reasonableness of his sentence for abuse of discretion.3

A sentencing judge must consult the Sentencing Guidelines and consider the factors set forth in 18 U.S.C.

§ 3553(a). Where, as here, a sentence is within the

advisory Guideline range, the sentence is presumed

reasonable. See United States v. Hills, 618 F.3d 619, 636

(7th Cir. 2010).

Although the district court found that Taylor is not

dangerous and that he maintained steady employment,

the district court also noted that Taylor committed a

very serious sex offense and intentionally refused to

register as a sex offender for seven years. Then, while

out on bond for failing to register as a sex offender,

Taylor again changed residences without updating his

registration. The judge was rightly concerned by this,

especially in light of the fact that SORNA requires Taylor

to register for the rest of his life. Given these facts, we

cannot say that Taylor has overcome the presumptive

reasonableness of his sentence.
No. 10-3132 9

III. CONCLUSION

For the foregoing reasons, we AFFIRM the defendant’s

sentence.

7-7-11