The Honorable Raner C. Collins, District Judge for the U.S. District *

Court for the District of Arizona, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PEDRO CABRERA-GUTIERREZ,

Defendant-Appellant.

No. 12-30233

D.C. No.

2:12-cr-02027-

WFN-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted

April 11, 2013—Seattle, Washington

Filed June 3, 2013

Before: A. Wallace Tashima and Consuelo M. Callahan,

Circuit Judges, and Raner C. Collins, District Judge.*

Opinion by Judge Callahan
2 UNITED STATES V. CABRERA-GUTIERREZ

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Criminal Law

Affirming a conviction and sentence for failing to register

under the Sex Offender Registration and Notification Act

(SORNA), the panel held that Congress has the authority

under the Commerce Clause to enact SORNA and to require

the defendant, a convicted sex offender who traveled

interstate, to register as a sex offender.

The panel also held that the defendant’s admission in his

plea agreement that the victim of hissexual abuse was unable

to consent because of her intoxication is sufficient, under the

modified categorical approach, to render his state conviction

under Or. Rev. Stat. § 263.425 (1998) a crime of sexual abuse

pursuant to 18 U.S.C. § 2242, thereby rendering him a Tier

III sex offender at sentencing.

COUNSEL

Rebecca L. Pennell, Federal Defenders of Eastern

Washington & Idaho, Yakima, Washington, for DefendantAppellant.

Michael C. Ormsby, United States Attorney, and Alison L.

Gregoire (argued), Assistant United States Attorney, Yakima,

Washington, for Plaintiff-Appellee.
UNITED STATES V. CABRERA-GUTIERREZ 3

 Cabrera raises a third issue: whether the government improperly denied 1

him a third level of reduction for acceptance of responsibility under the

United States Sentencing Guidelines § 3E1.1(b). However, Cabrera

recognizes that we rejected this position in United States v. Johnson,

581 F.3d 994, 1001 (9th Cir. 2009) (holding that “the allocation and

expenditure of prosecutorial resources for the purposes of defending an

appeal is a rational basis for declining to move for the third reduction

point”), and that our three-judge panel is foreclosed from reconsidering

the issue. See United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).

Thus, Cabrera has raised the issue to preserve it should the law change.

OPINION

CALLAHAN, Circuit Judge:

Pedro Cabrera-Gutierrez (“Cabrera”) appeals his

conviction and sentence for failing to register under the Sex

Offender Registration and Notification Act (“SORNA”). On

appeal he advances two arguments. First, he asserts that

Congress lacked authority under the Commerce Clause to

compel his registration as a sex offender. Second, he

contends that he should have been sentenced as a Tier I,

rather than a Tier III, sex offender. We hold that Congress

has authority under the Commerce Clause to compel Cabrera,

a convicted sex offender who traveled interstate, to register

under SORNA. We also hold that under the modified

categorical approach, Cabrera’s plea to the state charge of

sexual abuse rendered him a Tier III sex offender.

Accordingly, we affirm Cabrera’s conviction and sentence.

1

I

Cabrera was born in Mexico and has been removed from

the United States several times. In 1998, Cabrera was
4 UNITED STATES V. CABRERA-GUTIERREZ

convicted in Oregon of second degree sexual assault. In his

guilty plea statement, Cabrera admitted:

I on May 2, 1998 did knowingly have sexual

intercourse with [redacted] and she was

unable to legally consent to having sexual

intercourse with me because she was under

the influence of alcohol at the time of the

sexual intercourse. Further [redacted] was 15

years old on May 2, 1998.

Cabrera was sentenced to 36 months’ imprisonment and

required to register as a sex offender. When Cabrera was

released from custody in September 2000, he was advised of

his responsibility to register as a sex offender under Oregon

law and promptly removed to Mexico.

On February 3, 2012, Cabrera was arrested for a traffic

violation in Yakima, Washington. He was subsequently

charged in the district court with failing to register as a sex

offender in violation of 18 U.S.C. § 2250. Specifically, the

indictment alleged that Cabrera was an individual who was

required to register under SORNA, and having traveled in

interstate commerce, did knowingly fail to register in

violation of 18 U.S.C. § 2250. The indictment further alleged

that Cabrera had failed to meet his registration obligation

during a period of time from February 3, 2011, through

February 3, 2012.

Cabrera filed a motion to dismiss, arguing that Congress

lacked authority to require him to register as a sex offender.

The district court denied the motion, noting that although

United States v. George, 625 F.3d 1124 (9th Cir. 2010), had

been vacated, 672 F.3d 1126 (9th Cir. 2012), “the Court finds
UNITED STATES V. CABRERA-GUTIERREZ 5

the reasoning in George persuasive and notes that the opinion

was vacated on different grounds.” Thereafter, Cabrera

entered a conditional plea of guilty, preserving his right to

appeal the denial of his motion to dismiss.

A Pre-Sentence Investigation Report (“PSR”) was

prepared which listed Cabrera’s offense level as 16 under

United States Sentencing Guidelines § 2A3.5(a)(1) because

he was required to register as a Tier III sex offender. Cabrera

objected to the PSR. He argued that his prior conviction only

qualified him as a Tier I sex offender, not a Tier III offender,

because his Oregon conviction was not comparable to, or

more severe than, “aggravated sexual abuse or sexual abuse,”

as defined in 42 U.S.C. § 16911. The district court rejected

this argument noting that Cabrera’s guilty plea admitted that

the girl was intoxicated and 15 years old. The court gave

Cabrera credit for time served on a prior conviction and

sentenced him to 17 months in prison with three years of

supervised release. Cabrera filed a timely notice of appeal

from his conviction and sentence.

II

We first review the district court’s denial of Cabrera’s

motion to dismissthe indictment. We review that decision de

novo. United States. v. Milovanovic, 678 F.3d 713, 719 (9th

Cir. 2012) (en banc); United States v. Marks, 379 F.3d 1114,

1116 (9th Cir. 2004).

Cabrera argues that SORNA requires sex offenders to

register their names, addresses, employment or school

information, and to appear in person at least once a year for

verification of their information. This, Cabrera asserts, is an

unconstitutional regulation of his inactivity under the
6 UNITED STATES V. CABRERA-GUTIERREZ

Supreme Court’s recent opinion in National Federation of

Independent Business v. Sebelius, – U.S. –, 132 S. Ct. 2566

(2012). Cabrera accepts that Congress has broad powers

under the Commerce Clause, but points out that in Sebelius,

the Court stated that “[c]onstruing the Commerce Clause to

permit Congress to regulate individuals precisely because

they are doing nothing would open a new and potentially vast

domain to congressional authority.” Id. at 2587. Cabrera

further argues that, unlike the Affordable Care Act, SORNA

has nothing to do with commerce. Its purpose is to “protect

the public from sex offenders and offenders against children.”

42 U.S.C. § 16901. He argues that this purpose, while

laudable, is not an appropriate purpose under the Commerce

Clause because public safety measures lie exclusively in the

realm of the States.

In anticipation of the government’s reliance on “an

additional jurisdictional hook,” such as travel across state

lines, Cabrera argues that SORNA requires all sex offenders

to register, regardless of travel, and that the duty to register

under SORNA precedes any act of travel. Thus, he continues,

“SORNA would hold an individual who fails to register,

travels and then registers equally responsible as an individual

who never registers, before or after travel.” He argues, citing

Sebelius, 132 S. Ct. at 2590, that “the proposition that

Congress may dictate conduct of an individual today [i.e.,

registering as a sex offender] because of prophesied future

activity [i.e., interstate travel] finds no support in the

applicable Commerce Clause precedent.” Cabrera concludes

that because Congress lacks the power to require an

individual to register as a sex offender, it follows that it

cannot penalize him for failing to register, even if he has

traveled in interstate commerce.
UNITED STATES V. CABRERA-GUTIERREZ 7

 Cabrera’s arguments may be creative but they are not

persuasive. In United States v. Lopez, 514 U.S. 549 (1995),

the Supreme Court recognized three broad categories of

activity that Congress may regulate under its commerce

power: (1) “Congress may regulate the use of the channels of

interstate commerce;” (2) “Congress is empowered to

regulate and protect the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even

though the threat may come only from intrastate activities;”

and (3) “Congress’ commerce authority includes the power to

regulate those activities having a substantial relation to

interstate commerce.” Id. at 558–59. The government asserts

that the requirement of interstate travel meets “the first two

categories of Congress’s Commerce Clause authority,

because an interstate traveler is both a person “in interstate

commerce” and one who uses the “channels of interstate

commerce.”

We held in George, 625 F.3d at 1130, vacated on other

grounds, 672 F.3d 1126, that “Congress had the power under

its broad commerce clause authority to enact the SORNA,”

and we now reaffirm that holding, which has been embraced

by our fellow circuits. In George, we explained:

SORNA was enacted to keep track of sex

offenders. See Carr v. United States, – U.S.

–, 130 S. Ct. 2229, 2240, 176 L. Ed.2d 1152

(2010) (“[SORNA was] enacted to address the

deficiencies in prior law that had enabled sex

offenders to slip through the cracks.”). Such

offenders are required to “register, and keep

registration current, in each jurisdiction”

where the offender lives, works, or goes to

school. 42 U.S.C. § 16913(a). As stated by
8 UNITED STATES V. CABRERA-GUTIERREZ

 See United States v. Gould, 568 F.3d 459, 471 (4th Cir. 2009) (holding 2

“that § 2250(a) does not violate the Commerce Clause”); United States v.

Whaley, 577 F.3d 254, 258 (5th Cir. 2009) (stating “[t]hrough § 2250,

Congress has forbidden sex offenders from using the channels of interstate

commerce to evade their registration requirements, and we have no doubt

that it was within its power under the Commerce Clause to do so”); United

States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008) (stating “[b]y

requiring that a sex offender travel in interstate commerce before finding

a registration violation, SORNA remains well within the constitutional

boundaries of the Commerce Clause”), abrogated on other grounds by

Reynolds v. United States, – U.S. –, 132 S. Ct. 975, 978 (2012); United

the Eighth Circuit, “[t]his language indicates

Congress wanted registration to track the

movement of sex offenders through different

jurisdictions.” United States v. Howell,

552 F.3d 709, 716 (8th Cir. 2009). “Under

§ 2250, Congress limited the enforcement of

the registration requirement to only those sex

offenders who were either convicted of a

federal sex offense or who move in interstate

commerce.” Id. (citing 18 U.S.C.

§ 2250(a)(2)). The requirements of § 16913

are reasonably aimed at “regulating persons or

things in interstate commerce and the use of

the channels of interstate commerce.” Id. at

717 (quoting [United States v.] May, 535 F.3d

[912] at 921 [(8th Cir. 2008)]) (quotation

marks omitted).

625 F.3d at 1129–30.

In George we noted that, in addition to the Eighth Circuit,

the Fourth, Fifth, Tenth, and Eleventh Circuits had upheld

SORNA’s constitutionality under the Commerce Clause.

2
UNITED STATES V. CABRERA-GUTIERREZ 9

States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009) (holding that

“Section 2250 is a proper regulation falling under either of the first two

Lopez categories because it regulates both the use of channels of interstate

commerce and the instrumentalities of interstate commerce”).

 See United States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010) (stating 3

“[w]e have no difficulty concluding that § 2250(a) is a proper

congressional exercise of the commerce power under Lopez”).

 See United States v. Fernandes, 636 F.3d 1254, 1256 n.2 (9th Cir. 4

2011) (noting the argument that SORNA “is an invalid exercise of

Congress’ power under the Commerce Clause was rejected by this court”

in George); United States v. Valverde, 628 F.3d 1159, 1161 (9th Cir.

2010) (noting that George’s holding of constitutionality was binding).

The Second Circuit has also affirmed the constitutionality of

SORNA under the Commerce Clause. In at least two extant 3

opinions we have approvingly referenced George.

4

Moreover, the Supreme Court’s opinions in Reynolds

v. United States, – U.S. –, 132 S. Ct. 975 (2012), and Carr

v. United States, – U.S. –, 130 S. Ct. 2229 (2010), affirming

but limiting SORNA, implicitly affirm SORNA’s

constitutionality.

In sum, we see no reason to depart from our previously

expressed opinion and reaffirm that Congress had the power

under the Commerce Clause to enact SORNA.

Cabrera’s attempt to separate SORNA’s interstate travel

and duty to register components fails for several reasons.

First, because Cabrera was charged and convicted of failing

to register after having traveled in interstate commerce, it is

questionable whether he may properly challenge the duty to
10 UNITED STATES V. CABRERA-GUTIERREZ

 The propriety of SORNA’s application to intrastate travel by a sex 5

offender is before the Supreme Court in United States v. Kebodeaux, No.

12-418, cert. granted, 133 S. Ct. 928 (2013).

register without interstate travel. More importantly, such a 5

parsing of SORNA has been rejected by the Supreme Court

and the circuit courts that have considered the issue. In Carr,

the Court explained that “Section 2250 is not a stand-alone

response to the problem of missing sex offenders; it is

embedded in a broader statutory scheme enacted to address

the deficiencies in prior law that had enabled sex offenders to

slip through the cracks.” 130 S. Ct. at 2240. The Seventh

Circuit explained the symbiotic relationship between the two

sections in United States v. Sanders, 622 F.3d 779, 783 (7th

Cir. 2010), stating:

[S]ection 16913 cannot be divorced from

section 2250 in evaluating whether the

Commerce Clause gives Congress the

authority to require anyone convicted of a sex

offense to register. Imposing a duty to

register as a matter of federal law would do

little to solve the problem of sex offenders

slipping through the cracks absent the

enforcement mechanism supplied by section

2250. Interstate travel by a sex offender is not

merely a jurisdictional hook but a critical part

of the problem that Congress was attempting

to solve, for whenever sex offenders cross

state lines they tend to evade the ability of any

individual state to track them and thereby

“threaten the efficacy of the statutory

scheme. . . .” [Carr, 130 S. Ct.] at 2239; see

also id. at 2238 (it was reasonable for
UNITED STATES V. CABRERA-GUTIERREZ 11

 See Guzman, 591 F.3d at 90 (stating that “Sections 2250 and 16913 6

were enacted as part of the Adam Walsh Child Protection and Safety Act

of 2006, and are clearly complementary”); Whaley, 577 F.3d at 259

(same); United States v. Howell, 552 F.3d 709, 716 (8th Cir. 2009)

(concluding that “the statutory scheme Congress created to enforce

§ 16913 demonstrates Congress was focused on the interstate movement

of sex offenders, not the intrastate activity of sex offenders”); Ambert,

561 F.3d at 1212 (commenting that “an examination of § 16913 and

§ 2250 makes the interstate focus abundantly clear,” and “the only federal

enforcement provision against individuals is found in § 2250, which

explicitly subjects state sex offenders to federal prosecution under

SORNA only if they travel in interstate or foreign commerce and fail to

register under § 16913”) (internal quotation marks omitted).

Congress to give States primary responsibility

to supervise and ensure compliance among

state sex offenders and subject such offenders

to federal criminal liability only when “they

use the channels of interstate commerce in

evading a State’s reach”); id. at 2240 (act of

travel by sex offender is not merely a

jurisdictional predicate but is “the very

conduct at which Congress took aim”); id. at

2241 (section 2250 “subject[s] to federal

prosecution sex offenders who elude

SORNA’s registration requirements by

traveling in interstate commerce”).

The Second, Fifth, Eighth, and Eleventh Circuits are in

accord.6

Furthermore, we have recently upheld the registration

requirement under the Necessary and Proper Clause. In

United States v. Elk Shoulder, 696 F.3d 922, 931–932 (9th

Cir. 2012), we held:
12 UNITED STATES V. CABRERA-GUTIERREZ

 See Guzman, 591 F.3d at 91 (stating “[t]o the extent that § 16913 7

regulates solely intrastate activity, its means are reasonably adapted to the

attainment of a legitimate end under the commerce power”) (quotation

marks and citations omitted); United States v. Pendleton, 636 F.3d 78, 88

(3d Cir. 2011) (holding that “§ 16913 is a law made in pursuance of the

constitution because it is necessary and proper for carrying into execution

Congress’s power under the Commerce Clause”) (quotation marks and

citations omitted); Gould, 568 F.3d at 475 (stating “[r]equiring all sex

offenders to register is an integral part of Congress’ regulatory effort and

the regulatory scheme could be undercut unless the intrastate activity were

regulated”) (quotation marks and citation omitted); Whaley, 577 F.3d at

261(concluding that “that requiring sex offenders to register both before

and after they travel in interstate commerce . . . is ‘reasonably adapted’ to

the goal of ensuring that sex offenders register and update previous

registrations when moving among jurisdictions”); United States v.

Vasquez, 611 F.3d 325, 331 (7th Cir. 2010) (holding that “[t]o the extent

that § 16913 regulates solely intrastate activity, the regulatory means

The Supreme Court has “made clear that, in

determining whether the Necessary and

Proper Clause grants Congress the legislative

authority to enact a particular federal statute,

we look to see whether the statute constitutes

a means that is rationally related to the

implementation of a constitutionally

enumerated power.” Comstock, 130 S. Ct. at

1956. . . [A] registration requirement aimed at

informing the public of the identity and

location of individuals convicted of sex

offenses is reasonably related to Congress’s

authority to ensure the safety of the public,

which in turn flows from its authority to enact

and enforce criminal laws.

The Second, Third, Fourth, Fifth, Seventh and Eleventh

Circuits are in agreement. Accordingly, we reject Cabrera’s 7
UNITED STATES V. CABRERA-GUTIERREZ 13

chosen are reasonably adapted to the attainment of a legitimate end under

the commerce power”) (quotation marks omitted); Ambert, 561 F.3d at

1212 (stating that “Section 16913 is reasonably adapted to the attainment

of a legitimate end under the commerce clause”).

contention that Congress lacked the authority to enact

SORNA and require that a convicted sex offender, like

Cabrera, who travels interstate register.

Finally, whatever the merits of Cabrera’s reading of

Sebelius, SORNA does not regulate individuals “precisely

because they are doing nothing,” 132 S. Ct. at 2587.

SORNA applies only to individuals who have been convicted

of a sexual offense. Thus, registration is required only of

those individuals who, through being criminally charged and

convicted, have placed themselves in a category of persons

who pose a specific danger to society. Moreover, SORNA’s

application to Cabrera is based on his further admitted

activities of traveling in interstate commerce and then failing

to register. Thus, SORNA does not punish the type of

inactivity addressed in Sebelius. We adhere to precedent and

sound reasoning in concluding that Congress had the

authority to enact SORNA and that SORNA’s application to

Cabrera is constitutional.

III

We next consider Cabrera’s challenges to his sentence.

We review a district court’s interpretation of the Sentencing

Guidelines de novo, and the court’s factual findings for clear

error. United States v. Swank, 676 F.3d 919, 921 (9th Cir.
14 UNITED STATES V. CABRERA-GUTIERREZ

 In these cases, we have noted “an intracircuit conflict as to whether the 8

standard of review for application of the Guidelines to the facts is de novo

or abuse of discretion.” Swank, 676 F.3d at 921–22. However, as in those

cases, we need not resolve this conflict because our conclusion is the same

under either standard. See Swank, 676 F.3d at 922; Laurienti, 611 F.3d at

552.

 42 U.S.C. § 16911(4) defines a Tier III offender as follows: 9

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 (as 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

2012); United States v. Laurienti, 611 F.3d 530, 551–52 (9th

Cir. 2010).8

As applied to Cabrera’s situation, 42 U.S.C. § 16911(4)

defines a “tier III sex offender” as “a sex offender whose

offense is punishable by imprisonment for more than 1 year

and . . . is comparable to or more severe than . . . aggravated

sexual abuse or sexual abuse (as described in sections 2241

and 2242 of Title 18).” Section 2242 defines the crime of 9
UNITED STATES V. CABRERA-GUTIERREZ 15

(C) occurs after the offender becomes a tier II sex

offender.

 18 U.S.C. § 2242 reads: 10

Whoever, in the special maritime and territorial

jurisdiction of the United States or in a Federal prison,

or in any prison, institution, or facility in which persons

are held in custody by direction of or pursuant to a

contract or agreement with the head of any Federal

department or agency, knowingly--

(1) causes another person to engage in a sexual act by

threatening or placing that other person in fear (other

than by threatening or placing that other person in fear

that any person will be subjected to death, serious

bodily injury, or kidnapping); or

(2) engages 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;

or attempts to do so, shall be fined under this title and

imprisoned for any term of years or for life.

sexual abuse to include knowingly engaging “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.”10
16 UNITED STATES V. CABRERA-GUTIERREZ

The Oregon statute governing Cabrera’s prior conviction

stated:

(1) A person commits the crime of sexual

abuse in the second degree when that person

subjects another person to sexual intercourse,

deviate sexual intercourse . . . and the victim

does not consent thereto.

Or. Rev. Stat. § 263.425 (1998).

Cabrera argues that the district court misunderstood the

nature of his plea. He asserts that he “never admitted to

having intercourse with someone incapable of providing

actual consent, as required by federal law. All [he] admitted

was having sexual intercourse with someone who was legally

incapable of consenting, due to being under the influence of

alcohol and due to age.” Cabrera claims that being under the

influence of drugs or alcohol “does not vitiate the capacity to

make voluntary decisions.”

Cabrera also argues that the limited nature of his

admission has significance under Oregon law. He asserts that

under “Oregon law all individuals under 18 are legally

incapable of consenting to intercourse, regardless of actual

consent,” and incapacity based on the minor’s age is second

degree sexual assault. See Or. Rev. Stat. § 163.315. Cabrera

contrasts this with an Oregon law that provides that a person

who is mentally incapacitated or physically helpless cannot

consent to intercourse, and that a violation of this statute

constitutes first degree rape. See Or. Rev. Stat. § 163.375(d).

Cabrera claims that when he pled guilty, he “only intended to

establish the offense of second degree child abuse, not the

more serious offense of first degree rape.”
UNITED STATES V. CABRERA-GUTIERREZ 17

 It is undisputed that if Cabrera is not a Tier III offender, he is a Tier 11

I offender.

Cabrera goes on to argue, citing Young v. Holder,

697 F.3d 976, 983 (9th Cir. 2012) (en banc), that because “the

modified categorical approach only captures those facts

necessarily admitted by a defendant as part of his plea, . . .

[w]here a particular fact is not necessary to sustain a

conviction, it cannot be deemed admitted unless the record is

absolutely clear that this was the defendant’s intent.” Cabrera

reasons that because the only fact necessary for his Oregon

conviction was that the victim was under the age of 18, the

additional fact that the victim had also been drinking might

have underscored her inability to consent, but “did not

establish that she was so intoxicated that she was incapable of

doing so.” Cabrera concludes that because he “did not

necessarily admit to having intercourse with an individual

incapable of providing actual consent, the ‘sexual abuse’

requirement under federal law was not met,” and he should

not have been classified as a Tier III offender.11

We agree with the parties that the Oregon conviction is

not a categorical match to 18 U.S.C. § 2242, but conclude

that the application of the modified categorical approach

establishes that Cabrera is a Tier III offender. Cabrera’s plea

is a document that the court may consider under the modified

categorical approach. United States. v. Castillo-Marin,

684 F.3d 914, 919 (9th Cir. 2012) (noting that, “[u]nder the

modified categorical approach, courts may rely only on

documents that give [it] the certainty of a generic finding,

including the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented” (internal quotation marks and citations omitted)).
18 UNITED STATES V. CABRERA-GUTIERREZ

 If the language in § 2242(1)(A) requiring that the victim be “incapable 12

of appraising the nature of the conduct” were limited to the meaning

proposed by Cabrera, the disjunctive language in § 2242(1)(B) providing

that it is also sexual abuse to engage in a sexual act with a person

“physically incapable of declining participation in, or communicating

unwillingness to engage in” the sexual act, would be at least partially

redundant. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 347

(1998) (reiterating that courts should avoid interpreting statutes in a way

that renders some words altogether redundant).

 Cabrera cites cases holding that intoxication does not necessarily 13

invalidate a consent to search. See United States v. Watters, 572 F.3d 479,

483–84 (8th Cir. 1999); United States v. Scheets, 188 F.3d 829, 839 (7th

Cir. 1999). These cases are inapposite for at least two reasons. First, they

concern efforts by defendants to use their intoxication as a defense, and

Cabrera’s arguments concerning Oregon law and his plea

agreement are not persuasive. First, the federal definition of

“sexual abuse” as set forth in 18 U.S.C. § 2243, which

requires that the victim be “incapable of appraising the nature

of the conduct,” does not cover only convictions where the

victim was “incapable of consent by reason of mental defect,

mental incapacitation or physical helplessness.” Such a

limited interpretation is contrary to a common-sense reading

of the statute, would render a section of the statute

redundant, and is not supported by any authorities. 12

Second, intoxication can be the cause of a victim’s

incapacity to consent. See United States v. Smith, 606 F.3d

1270, 1281–82 (10th Cir. 2010) (noting that victim was

heavily intoxicated before the assault); United States v.

Carter, 410 F.3d 1017, 1027 (8th Cir. 2005) (holding that

evidence the victim smoked marijuana and drank alcohol, and

felt drowsy and really tired, was sufficient to conclude that

the victim was unable to appraise the nature of the

perpetrator’s conduct).13
UNITED STATES V. CABRERA-GUTIERREZ 19

second, Cabrera in his plea statement admitted that his victim was unable

to consent because of her intoxication.

 Because we hold that Cabrera’s statement that his victim could not 14

consent due to intoxication is sufficient to render him a Tier III sex

offender, we need not, and do not, consider whether the victim’s young

age would meet § 2242’s definition of sexual abuse.

Third, our opinion in Young does not support Cabrera’s

argument. As he notes, we there held that “[w]hen applying

the modified categorical approach in the context of a guilty

plea, we must determine whether a guilty plea to an offense

defined by a nongeneric statute necessarily admitted elements

of the generic offense.” 697 F.3d at 983 (quotation marks

omitted). Here, Cabrera acknowledged in his plea statement

that his victim, due to intoxication, was “incapable of

appraising the nature of the conduct,” and thus, he

“necessarily admitted” that his state conviction was for sexual

abuse, as defined by 18 U.S.C. § 2242. In other words, he

chose to admit to an element of the state crime – that his

victim did not consent due to her lack of capacity to do so –

by confessing to facts that also defined his crime as a sexual

offense under federal law. Perhaps he could have been

convicted under Oregon law on another basis that might not

have satisfied the federal definition of sexual abuse.14

However, Cabrera chose first to admit to his victim’s

incapacity to consent in a manner that clearly satisfied the

federal definition of sexual abuse. Accordingly, the district

court properly determined that he was a Tier III sex offender.

IV

Cabrera, having been convicted in Oregon of the crime of

sexual abuse and having been ordered to register as a sex
20 UNITED STATES V. CABRERA-GUTIERREZ

offender, chose to travel interstate and failed to register under

SORNA. We conclude, as have our sister circuits, that

Congress has the authority under the Commerce Clause to

enact SORNA and to require Cabrera to register under

SORNA as a sex offender. We also conclude that Cabrera’s

admission in his plea statement that the victim of his sexual

abuse was unable to consent because of her intoxication is

sufficient, under the modified categorical approach, to render

his state conviction a crime of sexual abuse pursuant to

18 U.S.C. § 2242. Accordingly, Cabrera’s conviction and

sentence are AFFIRMED.