1 The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1514

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Ronald R. Lowry, *
* Appellant. *

___________ Submitted: December 14, 2009 Filed: February 23, 2010

___________ Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.

___________ MELLOY, Circuit Judge. Appellant Ronald R. Lowry pleaded gu ilty to failing to register as a sex offender in violation of 18 U.S.C . § 2250. The district court 1 sentenced him in accordance with the Tier III sex-offender provision of U.S. Sentencing Guideline § 2A3.5(a)(1). The statutory range of imprisonment was zero to ten years, the adjusted Guidelines range was thirty-three to forty-one months, and the district court imposed an above-range sentence of forty-eight months. The district court also imposed a thirty-year term of supervisedrelease to follow Lowry’s incarceration.-2- This term of supervised release was within the applicable statutory range of five years to life.

Lowry appeals, characterizing use of th e Tier III sex offender provision, rather than the Tier I provision, as a significant pr ocedural error. He also argues that the district court abused its discretion in se ntencing him above the Guidelines range and that the thirty-year term of supervised release is substantively unreasonable. We affirm.

I. Background

On February 16, 1995, when Lowry wa s twenty-four years old, he had intercourse with a sleeping minor who was at least thirteen but younger than seventeen. In addition, he di gitally penetrated the vagina of a second, similarly aged minor who also was sleeping. Based on thes e acts, an Illinois court convicted him of aggravated sexual assault and sentenced hi m to eight years’ imprisonment with a requirement that he register as a sex offe nder for ten years. After he was released from prison, he was convicted of three sex-offender violations: in 2002 and 2006 he was convicted for violating registration requirements, and in2004 he was convicted for being unlawfully present in a school zone. In addition, in 2004 at the age of thirtythree, he pleaded guilty to two counts of animal torture.

In 2008, authorities discovered Lowry liv ing in Arkansas where he was not registered as a sex offender. Based on hi s Illinois conviction for aggravated sexual assault, the Sex Offender Reg istration and Notification Ac t (“SORNA”), codified at 42 U.S.C. § 16901 et seq., required his registration in Arkansas. His failure to register in Arkansas served as the basis for his present federal conviction.-3- II. Discussion

Lowry’s allegations of procedural erro r in sentencing involve solely questions of law, namely, whether and how the offe nse level provisions of U.S.S.G. § 2A3.5(a) should apply to state sex offenders whose underlying offenses and registration requirements arose prior to the enactment of SORNA. We review these legal questions de novo. SeeUnited States v. Weems , 517 F.3d 1027, 1030 (8th Cir. 2008). We review his challenges to the subs tantive reasonableness of his overall sentence—the terms of incarceration and supervised release—only for abuse of discretion. SeeUnited States v. Miller , 484 F.3d 968, 971 (8th Cir. 2007).

Guideline Section 2A3.5(a) defines the ba se offense level for violations of 18 U.S.C. § 2250 through reference to three “tiers” as set forth in 42 U.S.C. § 16911(2)–(4). Specifically, § 2A3.5(a)(1) sp ecifies a base offense level of sixteen “if the defendant was required to register as a Tier III offender.” The referenced Code section defines different tiers of offenders based on the severity of the offenders’ underlying criminal offenses:

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, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18); or (ii) abusive sexual contact (a s described in section 2244 of Title 18) against a minor who has not attained the age of 13 years; (B) involves kidnapping of a minor (unless committed by a parent or guardian); or (C) occurs after the offender b ecomes a tier II sex offender.-4- 42 U.S.C. § 16911(4); see also id. § 16911(2) & (3) (defini ng tier I and II offenders, respectively).

Like many recidivist statutes, § 16911 speaks in terms of the comparability of a defendant’s prior crimes of conviction to certain enumerated crimes. Here, one of the enumerated crimes is sexual abuse as defined in 18 U.S.C. § 2242. Two possible means of violating § 2242(2) are by “engag[i ng] in a sexual act with another person if that other person is (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act . . . .” As th e district court noted, our cases have held that performing a sexual act upon a person who is sleeping meets the requirements of § 2242(2)(B). SeeUnited States v. Wilcox , 487 F.3d 1163, 1169 (8th Cir. 2007) (“A reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act.”); United States v. Barrett , 937 F.2d 1346, 1348 (8th Cir. 1991) (describing evidence sufficient to show a state of incapacity within the meaning of § 2242(2)(B)).

Lowry argues that because his Illinoi s offense predated SORNA, and because Illinois was not in compliance with SOR NA, he technically was never “required to register as” any particular tie r of offender. U.S.S.G. § 2A3. 5(a). He also argues that, based on application of the rule of lenity , his base offense le vel should be computed using the lowest tier, Tier I. In the alte rnative, he argues that the actual registration and reporting requirements that Illinois im posed upon him were similar to federal registration and reporting requi rements as set forth for Tier I offenders in 42 U.S.C. §§ 16915 and 16916. He asserts th at this similarity demonstrates he was “required to register” in a manner comparable to the Tier I offender requirements of §§ 16915 and 16916 and therefore should be sentencedaccordingly in the present case.

We reject Lowry’s creative, but hypertec hnical argument. The district court properly followed the process unambiguously se t forth in the Guidelines and the Code-5- by comparing Lowry’s underlying Illinois conviction to the crimes listed in § 16911(4)(A)(i). Section 16911, which re ferences underlying offenses, is the classification or definition section for the three different tiers of offenders. Sections 16915 and 16916 are purely derivative, and th ey describe reporting requirements corresponding to each of the three tiers established in § 16911. These latter two sections merely set forth the consequences that flow from the determination of an applicable tier; they are not themselves tool s to be used for defining or determining an applicable tier. Lowry’s attempt to reverse the order of this system by using §§ 16915 and 16916 as the means to determine anapplicable tier is contrary to the language and organization of the statute.

In enacting § 2A3.5(a), the Sentencing Commission was carrying out a mandate from the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248. In section 141 of that Act, Congress creat ed 18 U.S.C. § 2250(a) and “included a directive to the Commission that when promulgating guidelines for the offense, to consider, among other factors, the serious ness of the sex offender’s conviction that gave rise to the requirement to register; relevant further offense conduct during the period for which the defendant failed to register; and the o ffender’s criminal history.” U.S.S.G. App. C, Amendment 701 (Reason for Amendment). Accordingly, Congress expressly provided that the anticipated Guid elines were to account for the seriousness of the underlying offense. Congress did not instruct the Commission to establish offense levels through reference to registrati on requirements that states previously had imposed on defendants.

Similarly, Congress did not suggest that a state’s compliance with SORNA should impact a defendant’s sentencing. As such, we reject Lowry’s separate argument that section 2A3.5(a)(1) does not apply to defendant s who were sentenced and required to regist er as sex offenders before th e creation of SORNA and the tier system. The Sentencing Commission chose to use the language “required to register

as a Tier III offender,”§ 2A3.5(a)(1) (emphasis added), and Lowry seizes upon this-6- language to infer that the Commission must not have intended § 2A 3.5(a)(1) to apply to pre-SORNA state offenders. We find no suggestion, however, that the Commission intended this Guidelines section to have a restricted and technical meaning that would exclude application to an entire class of defendants (many of whom would be sufficiently dangerous to be classified as Tier III offenders). Lowry’s argument in this regard is an attempt to create an ambiguity in the Guidelines wher e none exists. There was no procedural error in the calculation of Lowry’s adjusted Guidelines range.

Regarding the substantive reasonableness of Lowry’s term of incarceration and supervised release, we find no abuse of discretion. The district court applied the § 3553(a) factors and noted in particular th at Lowry had exhibited a repeated refusal to abide by his previously imposed registration requirements. His lengthy criminal history, the nature of his offenses, and hi s repeated failure to register caused the district court to conclude that he was a danger to society who posed a high risk of recidivism. The court took particular note of his acts of animal torture committed as an adult and reasonably imposed a sentence above the Guidelines range. The district court did not abuse its discretion.

Similarly, the district court did not abuse its discretion in imposing the substantial term of supervised release. Lowry’s present offense of conviction coupled with his repeated prior registration violati ons strongly suggest that the district court was reasonable in its view that Lowry woul d remain in need of a substantial period of oversight following completion of his prison term.

We affirm the judgment of the district court.

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