### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3529

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee,

v.

R ICHARD W ALKER

, Defendant

‐ Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:17

‐ cr

‐ 184

— Pamela Pepper

, Judge

.

____________________

A RGUED M AY 29, 2019

— D ECIDED J ULY 23, 2019

____________________

Before R IPPLE

, R OVNER

, and B ARRETT

, Circuit Judges

.

B ARRETT

, Circuit Judge

. Richard Walker was convicted for

failing to register as a sex offender between 2016 and 2017, as

required by the Sex Offender Registration and Notification

Act. He argues that his conviction must be vacated because he

did not have to register at that time. We agree. Because his

obligation to register—triggered by a 1998 Colorado convic

‐ tion—expired after fifteen years, we reverse the district court

and vacate Walker’s conviction and sentence.2 No. 18

‐ 3529

I.

In 1997, Richard Walker sexually assaulted his four

‐ and

six

‐ year

‐ old nephews. In 1998, he pleaded guilty to violating

a Colorado law that prohibits sexual contact with a child un

‐

der fifteen by anyone who is a least four years older than the

child. C OLO

. R EV

. S TAT

. § 18

‐ 3

‐ 405(1). Walker was sentenced

to four years’ probation, but probation was later revoked, and

he served a term in prison. After his release, Walker had to

register as a sex offender under the Sex Offender Registration

and Notification Act (SORNA). SORNA imposes a three

‐ tier

progressive registration scheme that tracks the severity of the

original offense. Tier I offenders must register for 15 years,

Tier II offenders for 25 years, and Tier III offenders for life. See

34 U.S.C. § 20915(a).

In 2017, Walker was indicted for failing to register as a sex

offender from June 2016 to July 2017. See 18 U.S.C. § 2250(a).

To prove “failure to register,” the government must, among

other things, prove that the defendant was in fact required to

register. Id. § 2250(a)(1). Walker moved to dismiss the indict

‐

ment, arguing that his 1998 conviction was only a Tier I of

‐

fense, which would mean that his obligation to register as a

sex offender ended 15 years after his conviction and sentence.

Because he had no obligation to register between June 2016

and July 2017, he contended, he could not be convicted for

failing to do so.

The district court disagreed. It determined that Walker

was at least a Tier II offender and denied his motion to dis

‐

miss. Walker later entered a conditional guilty plea, preserv

‐ ing his right to appeal the district court’s decision about

whether the law required him to register as a sex offender.No. 18

‐ 3529 3

At sentencing, the district court had to determine more

precisely whether Walker was a Tier II or Tier III offender in

order to calculate his guidelines range. The relevant differ

‐

ence between Tiers II and III for purposes of the district

court’s analysis is the age of the victim: if the defendant’s vic

‐

tim was under 13, then he is a Tier III offender; if the victim

was a minor age 13 or older, then he is a Tier II offender. See

34 U.S.C. § 20911(4)(A)(ii) & (3)(A). Though Walker’s convic

‐

tion under the Colorado statute communicated only that his

victim was under 15, the district court looked past the convic

‐

tion to find that his victims were actually ages four and six.

The court thus held that Walker was a Tier III offender and

sentenced him to a below

‐ guidelines 26

‐ month term of im

‐ prisonment.

Walker appeals, arguing that his conviction must be va

‐

cated because he is a Tier I offender and was therefore not re

‐ quired to register during the relevant time.

II.

Walker’s conviction and sentence both turn on his tier

classification. If he is a Tier I offender, we must reverse the

denial of his motion to dismiss and vacate his conviction. If

he is a Tier II offender, his conviction stands, but he must be

resentenced. If he is a Tier III offender, his conviction and sen

‐

tence must be affirmed.

A.

As relevant here, a person is a Tier II sex offender if his

offense of conviction is “comparable to or more severe than

... abusive sexual contact (as described in section 2244 of title

18)” and is “committed against a minor.” 34 U.S.C.

§ 20911(3)(A)(iv). A person is a Tier III offender if he commits4 No. 18

‐ 3529

the same kind of offense “against a minor who has not at

‐

tained the age of 13 years.” Id. § 20911(4)(A)(ii). 1 And if a sex

offender does not satisfy the requirements of Tier II or Tier III,

then he is a Tier I offender. Id. § 20911(2).

Determining Walker’s proper tier classification thus re

‐ quires us to compare his 1998 Colorado conviction with

SORNA’s tier definitions. Because SORNA instructs us to

compare Walker’s offense to the “offenses” described in cor

‐ responding sections of the Federal Criminal Code (18 U.S.C.

§ 2244 and offenses listed therein), we employ the “categori

‐

cal approach.” See United States v. Taylor

, 644 F.3d 573, 576 (7th

Cir. 2011); see also Nijhawan v. Holder

, 557 US. 29, 36–37 (2009)

(explaining that reference “to an ‘offense described in’ a par

‐

ticular section of the Federal Criminal Code” indicates a ge

‐

neric offense that calls for a categorical analysis); United States

v. White

, 782 F.3d 1118, 1132–33 (10th Cir. 2015). Under the

categorical approach, the actual facts underlying the defend

‐

ant’s conviction don’t matter. Instead, the court compares the

elements of the predicate offense—i.e., the facts necessary for

conviction—to the elements of the relevant federal offense. If

the elements of the predicate offense are the same (or nar

‐

rower) than the federal offense, there is a categorical match.

See Descamps v. United States

, 570 U.S. 254, 260–61 (2013). But

if the elements of the state conviction sweep more broadly

such that there is a “realistic probability

... that the State

would apply its statute to conduct that falls outside” the def

‐

inition of the federal crime, then the prior offense is not a

1 There are other ways to qualify as a Tier II or III offender, but none

is relevant here. See 34 U.S.C. § 20911(3) & (4).No. 18

‐ 3529 5

categorical match. Gonzales v. Duenas

‐ Alvarez

, 549 U.S. 183,

193 (2007). 2

SORNA, however, adds a wrinkle to the analysis. For a sex

offender to qualify for Tier II or III, SORNA also requires that

his victim have certain characteristics distinct from the ele

‐

ments of the referenced federal offenses—namely, that the

victim be under a specified age. The two circuits to have di

‐ rectly considered the implications of SORNA’s age require

‐

ments agree that the text compels a circumstance

‐ specific

analysis of the victim’s age on top of the otherwise categorical

comparison between the state and federal offenses. See United

States v. Berry

, 814 F.3d 192, 196–98 (4th Cir. 2016) (applying

“the categorical approach to the generic crimes listed in

SORNA’s tier III definition” but reading SORNA’s reference

to a victim “who has not attained the age of 13” to be “an

2 Other courts that have applied SORNA’s tier provisions seem to read

“whose offense

... is comparable to or more severe than” one of the listed

federal “offenses,” see 34 U.S.C. § 20911(3)(A) & (4)(A), as collectively trig

‐ gering a categorical approach identical to that employed under other stat

‐

utes, see, e.g.

, United States v. Cammorto

, 859 F.3d 311, 314 (4th Cir. 2017);

United States v. Young

, 872 F.3d 742, 745–47 (5th Cir. 2017); White

, 782 F.3d

at 1137. As we note above, our caselaw suggests that SORNA triggers at

least that much. It is possible, though, that the phrases “comparable to”

and “more severe than” trigger independent categorical commands such

that the predicate offense must be either comparable to or more severe than

the federal offense. On this reading, the latter phrase might encompass

predicate offenses that prohibit conduct that is not covered by, but is cat

‐ egorically more severe than, that prohibited by the baseline federal of

‐

fenses. For example, that phrase might encompass a predicate offense

whose elements reach victims younger than those included in the federal

offense because molesting a younger child is an even more severe offense

than molesting an older one. The government does not raise this possibil

‐ ity, however, so we do not address it here.6 No. 18

‐ 3529

instruction to courts to consider the specific circumstance of a

victim’s age”); White

, 782 F.3d at 1135 (“Congress intended

courts to apply a categorical approach to sex offender tier

classifications designated by reference to a specific federal

criminal statute, but to employ a circumstance

‐ specific com

‐ parison for the limited purpose of determining the victim’s

age.”).

We join the Fourth and Tenth Circuits in concluding that

SORNA’s text compels a hybrid approach. In so doing, we fol

‐

low the Supreme Court’s analysis in Nijhawan v. Holder

. See

557 U.S. at 37–38 (acknowledging that a single provision

might call for a hybrid approach—part categorical and part

circumstance

‐ specific—when comparing the defendant’s of

‐

fense of conviction). In Nijhawan

, the Supreme Court empha

‐

sized that the “aggravated felony” provision of the Immigra

‐

tion and Nationality Act “contains some language that refers

to generic crimes and some language that almost certainly re

‐

fers to the specific circumstances in which a crime was com

‐

mitted.” Id. at 38. Sometimes that dual language appears in a

single provision. The Court identified subparagraph (P) of the

aggravated felony statute as one such example. Id. at 37–38.

That provision refers to “an offense” that amounts to “forg

‐ ing

... passport[s]” but adds an exception to that qualifying

crime for offenses committed under particular circumstances.

Id. (alterations in original). The Court explained that while the

forging

‐ passports language “may well refer to a generic

crime

... the exception cannot possibly refer to a generic

crime

... because there is no such generic crime.” Id. at 37. If

no criminal statute contains both the offense and the excep

‐

tion outlined in subparagraph (P), then it would be impossi

‐

ble for a defendant’s conviction to qualify as a predicate un

‐

der that provision, and the provision would be void of anyNo. 18

‐ 3529 7

meaningful application. Id. Thus, the Court concluded that

“the exception must refer to the particular circumstances in

which an offender committed the crime on a particular occa

‐

sion.” Id. at 38; see also id. (explaining that, in the same way,

subparagraph (K)(ii) would be severely diluted without a hy

‐

brid analysis). Similar considerations dictate a hybrid ap

‐ proach in this case.

A person is a Tier II offender only if his prior offense

matches “abusive sexual contact (as described in section 2244

of title 18)” and was “committed against a minor.” 34 U.S.C.

§ 20911(3)(A). And he is a Tier III offender only if his prior

offense matches one of the same federal offenses and was com

‐

mitted “against a minor who has not attained the age of 13

years.” Id. § 20911(4)(A). While the references to 18 U.S.C.

§ 2244 trigger a categorical approach, we must also give

meaning to the age

‐ qualifiers that appear in both Tier II and

Tier III. Only two of the five offenses cross

‐ referenced in

§ 2244 even refer to age, and none of them have SORNA’s spe

‐

cific age requirements as elements. Cf. Nijhawan

, 557 U.S. at 38

(when the statute’s added textual condition appears in only

one of three cross

‐ referenced criminal statutes, reading the

condition as part of the generic crime would render the other

two cross references “pointless”). Under Nijhawan

, the age re

‐ quirements are best and most naturally read to refer to the

“particular circumstances in which an offender committed

the crime on a particular occasion.” Id

. Because SORNA’s tier

provisions highlight victim age as an additional circum

‐

stance

‐ specific consideration—apart from the categorical

analysis comparing the defendant’s offense to the federal of

‐

fenses listed in § 2244—we must treat it like one.8 No. 18

‐ 3529

The government argues that a circumstance

‐ specific in

‐ quiry into victim age resolves this case because knowing the

actual ages of Walker’s victims (four and six) not only satisfies

SORNA’s Tier III victim

‐ age requirement, but also places his

offense within the scope of “abusive sexual contact (as de

‐

scribed in section 2244 of title 18).” See 34 U.S.C.

§ 20911(4)(A)(ii); see also 18 U.S.C. § 2244(a)(5) (sexual contact

with a person who has not attained the age of 12 years consti

‐

tutes abusive sexual contact). In other words, the government

wants to double dip: it asks us to apply SORNA’s age require

‐

ment as both an independent addition to the categorical anal

‐ ysis and an exception within the categorical analysis, thereby

collapsing the two

‐ part inquiry outlined above.

That approach is inconsistent with both the text of

SORNA—which, as we have already said, calls for a categor

‐

ical approach—and the Supreme Court’s precedent on con

‐ ducting a categorical analysis. The Court has made clear that

in a categorical analysis, there are no exceptions to the ele

‐

mental comparison. See Mathis v. United States

, 136 S. Ct. 2243,

2257 (2016) (“For more than 25 years, we have repeatedly

made clear that application of the [categorical approach] in

‐

volves, and involves only, comparing elements.”). While it

may “seem counterintuitive,” id. at 2251, it isn’t enough to

know that Walker’s victims were four and six—nor is it

enough to know that he satisfies the “against a minor who has

not attained the age of 13” requirement of Tier III. We must

first consider whether his Colorado conviction is a categorical

match to “abusive sexual contact (as described in section 2244

of title 18).” 34 U.S.C. § 20911(3)(A)(iv) & (4)(A)(ii). If it is, we

then consider the age of the victim to complete the tier

‐ classi

‐

fication determination.No. 18

‐ 3529 9

This kind of distinction, derived from the text and struc

‐

ture of the statute, is familiar to our SORNA jurisprudence.

See United States v. Rogers

, 804 F.3d 1233, 1234 (7th Cir. 2015)

(“We conclude that the threshold definition of ‘sex offense’

found in § 16911(5)(A)(i) requires a categorical approach—an

inquiry limited to the elements of the offense—but the excep

‐

tion in subsection (5)(C) calls for an examination of the spe

‐

cific facts of the offense conduct.”). We follow the same ap

‐ proach in analyzing Walker’s case.

B.

We start with a categorical comparison of Walker’s Colo

‐

rado conviction to the generic federal crime of abusive sexual

contact as defined by § 2244.

To sustain a conviction under the Colorado statute, a jury

must find (or, as here, a guilty plea must admit) that the de

‐

fendant “knowingly subject[ed]” a child who was “less than

fifteen years of age” to “any sexual contact” and that the de

‐

fendant was “at least four years older than the victim.” C OLO

.

R EV

. S TAT

. § 18

‐ 3

‐ 405(1). For its part, § 2244 defines abusive

sexual contact as “knowingly engag[ing] in or caus[ing] sex

‐

ual contact with or by another person, if doing so would vio

‐

late” any one of five cross

‐ referenced offenses “had the sexual

contact been a sexual act.” See 18 U.S.C. § 2244(a). As relevant

here, those cross

‐ referenced offenses prohibit knowingly en

‐ gaging in a sexual act with another person if that person: is

“incapable of appraising the nature of the conduct,”

§ 2242(2)(A); “has attained the age of 12 years but has not at

‐

tained the age of 16 years” and “is at least four years younger

than the person so engaging,” § 2243(a); or “has not attained

the age of 12 years,” § 2241(c). See id. § 2244(a)(2), (3), & (5).10 No. 18

‐ 3529

Because the cross

‐ referenced offenses (as modified by

§ 2244) and the Colorado statute both contain the element of

knowing sexual contact with another, the only question is

whether the Colorado statute’s requirements that the victim

be under 15 and at least four years younger than the defend

‐

ant categorically match the remaining element(s) in any of the

federal offenses.

The district court determined that the Colorado statute is

a categorical match for § 2242(2)(A) (victim incapable of ap

‐ praising the nature of sexual conduct). In reaching that con

‐

clusion it explained that the federal statute “appears to be

very broad,” encompassing adult victims with cognitive dis

‐

abilities, those incapacitated by drugs or alcohol, and seniors

with cognitive impairment. The court reasoned that young

children are incapable of understanding the nature of sexual

conduct. So, it continued, “if one assumes that children under

the age of fifteen are ‘incapable of appraising the nature’ of

sexual contact/assault, then § 2242(2)(A) appears to be much

broader, and to encompass far more behavior, than the Colo

‐

rado statute,” making it a categorical match.

We disagree. Certainly, many children, and indisputably

all children under a certain age, are incapable of appraising

the nature of sexual conduct. But the assumption that children

under the age of 15 are categorically incapable of understand

‐ ing sexual conduct goes too far. At the very least, it is safe to

say that many 14

‐ year

‐ olds understand the nature of sexual

conduct. That means that the Colorado statute criminalizes

conduct not covered by § 2242(2)(A)—i.e., the state statute

“sweeps more broadly” than the federal statute—and there is

no categorical match. See Descamps

, 570 U.S. at 261.No. 18

‐ 3529 11

So that leaves either § 2243(a) (victim at least 12 but under

16, and four years younger than the defendant) or § 2241(c)

(victim under 12). Neither is a categorical match for the Colo

‐

rado statute at issue here. Though narrower in some respects,

the Colorado statute sweeps more broadly than § 2243(a) be

‐

cause it covers sexual contact against some victims under 12,

and § 2243(a) does not. Likewise, the Colorado statute is

broader than § 2241(c) to the extent that it covers some victims

between the ages of 12 and 15, and § 2241(c) does not. In short,

a conviction under the Colorado statute doesn’t necessarily

satisfy the elements of either federal offense and so fails the

categorical analysis.

Because Walker’s Colorado conviction is not a categorical

match with “abusive sexual contact (as described in section

2244 of title 18),” he does not qualify for Tier II or Tier III sta

‐

tus regardless of the actual ages of his victims. Walker is thus

a Tier I offender. See 34 U.S.C. § 20911(2).

* * *

As a Tier I offender, Walker was not required to register

during the relevant period. We therefore REVERSE the dis

‐

trict court’s decision denying Walker’s motion to dismiss, and

we VACATE Walker’s conviction and sentence.