IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff 

v. 

CHRISTOPHER ALAN SMITH, 

Defendant. 

AIKEN, Judge: 

Case No. 6:15-cr-00301-AA 

OPINION AND ORDER 

Defendant is charged with failing to register as a sex offender in violation of 18 U.S.C. § 

2250(a). Defendant moves to dismiss the indictment on grounds that the Sex Offender 

Registration and Notification Act (SORNA) does not apply to him, and, as a result, the 

indictment fails to allege a violation of a criminal offense. The government opposes the motion. 

On April 12, 2016, the court heard oral argument from both parties. The motion is denied. 

DISCUSSION 

SORNA was enacted to create a "'comprehensive national system for the registration' of 

sex offenders and offenders against children." United States v. Elkins, 683 F.3d 1039, 1040 (9th 

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Case 6:15-cr-00301-AA Document 31 Filed 04/13/16 Page 1 of 5
Cir. 2012); 42 U.S.C. § 16901. To that end, "sex offenders" must register as such in their 

relevant jurisdictions and update their registration if changes to their names, residence, 

employment, or student status occur. See 42 U.S.C. § 16913(a),(c). SORNA defines the term 

"sex offender" as "an individual who was convicted of a sex offense." Id. § 16911 (1 ). 

In this case, defendant has a prior State of Vermont conviction for committing lewd and 

lascivious conduct with a child under the age of sixteen. 13 V.S.A § 2602(b )(1 ). The government 

alleges that defendant traveled from Tennessee to Oregon without registering or updating his 

sex-offender status as required by SORNA. 18 U.S.C. § 2250(a). Defendant moves to dismiss the 

indictment on grounds that his prior Vermont conviction does not meet the definition of "sex 

offense" under SORNA and the registration requirement does not apply to him. Specifically, 

defendant maintains that the court must employ the "categorical approach" to determine whether 

his prior conviction constitutes a "sex offense." Under the categorical approach, defendant 

contends that the Vermont statute underlying his prior conviction is "overbroad" and does not 

categorically inatch the elements of a "sex offense," because it criminalizes conduct that is 

neither "sexual contact" nor a "sexual act" as defined by federal law. See § 18 U.S.C. 2246(2),(3) 

(providing definitions for sexual contact and sexual act under the "Sexual Abuse" subchapter). I 

disagree with defendant's analysis and argument. 

Defendant is correct that SORNA defines the term "sex offense" as an offense that has 

"an element involving a sexual act or sexual contact with another." 42 U.S.C. § 1691 l(S)(A)(i). 

However, a "sex offense" also includes "a criminal offense that is a specified offense against a 

minor," which is the relevant type of sex offense in this case. Id. § 1691 l(S)(A)(ii). Importantly, 

the definition of "specified offense against a minor" does not include the terms "sexual contact" 

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Case 6:15-cr-00301-AA Document 31 Filed 04/13/16 Page 2 of 5
or "sexual act." Instead, Congress defined the term "specified offense against a minor" as "an 

offense against a minor that involves ... criminal sexual conduct involving a minor" or "any 

conduct that by its nature is a sex offense against a minor." Id. § 16911(7)(H),(I). I find no 

authority that imports the meanings of "sexual contact" and "sexual act" into the definition of 

"specified offense against a minor." 

Granted, SORNA does not define "sexual conduct" or conduct that "by its nature" is a 

sex offense. However, the fact that these terms are not defined does not mean that Congress 

intended to import the more limiting definitions of "sexual contact" or "sexual act" into the 

meaning of "specific offense against a minor." If Congress had so intended, it would not have 

enacted another definition of "sex offense" pertaining to offenses against children. In fact, 

through the expansive definition of "specific offense against a minor," Congress clearly intended 

to encompass a broad category of criminal conduct, i.e., "any conduct," that is sexual in nature 

and committed against a child. Id. § 16911 (7)( expanding definition to include "all offenses by 

child predators"). Consequently, I will not import the terms and definitions of "sexual contact" 

and "sexual act" into the meaning of "specified offense against a minor" when doing so would 

render statutory language superfluous and contradict clear congressional intent. Accordingly, I 

find that the terms "sexual contact" and "sexual act" have no relevance to and no bearing on 

whether defendant's prior conviction constitutes a "specified offense against a minor." 

Given the broad definition of "specific offense against a minor" as an offense that 

"involves" sexual conduct, the government argues that the categorical approach does not apply, 

and the court may look to defendant's conduct underlying his prior conviction to determine if it 

involved "criminal sexual conduct involving a minor." 42 U.S.C. § 16911(7); United States v. 

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Case 6:15-cr-00301-AA Document 31 Filed 04/13/16 Page 3 of 5
Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015) (explaining that the language of an "offense 

involving" certain types of conduct is "fact-specific language, strongly suggesting that a 

conduct-based inquiry applies"); see also United States v. Gonzalez-Medina, 757 F.3d 425, 430 

(5th Cir. 2014) (stating that SORNA's "reference to conduct, rather than elements, is consistent 

with a circumstance-specific analysis"); United States v. Byun, 539 F.3d 982, 992 (9th Cir. 2008) 

(accord). Courts agree that interpreting '"specified offense against a minor' to allow 

circumstance-specific inquiry into the age of the victim and conduct underlying the offense is 

both reasonable and in line with Congress's statement that the term should 'include all offenses 

by child predators."' Suhail v. US. Atty. Gen., 2015 WL 7016340, at *8 (E.D. Mich. Nov. 12, 

2015) (quoting 42 U.S.C. § 16911(7)); see also id., at *7 (citing cases); United States v. Piper, 

2012 WL 4757696, at *4 (D. Vt. Oct. 5, 2012). In his Vermont case, defendant admitted to 

inserting his penis inside the mouth of a minor under the age of sixteen; this conduct is clearly 

"criminal sexual conduct" and conduct that, "by its nature," is a sex offense against a child. 

Defendant nonetheless maintains that the Ninth Circuit's opinion in United States v. 

Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2013), requires application of the categorical 

approach to determine whether his prior conviction qualifies as a "sex offense." However, 

Cabrera-Gutierrez involved a different statutory provision and a different definition of the 

relevant sex offense. See id. at 1132 (relevant SORNA provision defined sex offender as "a sex 

offender whose offense ... is comparable or more severe than ... aggravated sexual abuse or sexual 

abuse" as defined by federal law). Therefore, I do not find Cabrera-Gutierrez controlling. 

Regardless, even if the elements of the Vermont statute prohibiting lewd and lascivious 

conduct against a minor must "categorically" match a "specified offense against a minor," I find 

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Case 6:15-cr-00301-AA Document 31 Filed 04/13/16 Page 4 of 5
that they do. Again, SORNA defines a "specified offense against a minor" as an offense that 

"involves ... criminal sexual conduct involving a minor" or "any conduct that by its nature is a 

sex offense against a minor." Id. § 1691 l(?)(H),(I). The elements of defendant's prior offense of 

conviction are 1) the willful and lewd, 2) commission of a lewd and lascivious act, 3) upon or 

with the body of a child under the age of sixteen, 4) "with the intent of arousing, appealing to, or 

gratifying the lust, passions, or sexual desires of such person or such child." 13 V.S.A. § 2602(a); 

State v. Beaudoin, 970 A.2d 39, 48 (Vt. 2008). 

Certainly, a willful act committed "upon or with the body of a child" to "arouse, appeal 

to, or gratify" the person's or the child's "sexual desires" categorically qualifies as "criminal 

sexual conduct involving a minor" and an offense that "by its nature is a sex offense against a 

minor." Even without looking to the conduct underlying defendant's prior conviction, he was 

convicted of an offense that categorically qualifies as a "specified offense against a minor" under 

SORNA. 

CONCLUSION 

Accordingly, defendant's motion to dismiss (doc. 21) is DENIED. 

IT IS SO ORDERED. 

Dated this ~~ day of April, 2016. 

Ann Aiken 

United States District Judge 

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