United States Court of Appeals

For the First Circuit

No. 13-1999

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTIAN J. MORALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Howard, Chief Judge

Kayatta and Barron, Circuit Judges.

K. Hayne Barnwell for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Peter F. Neronha, United States Attorney, was on brief, for

appellee.

August 27, 2015
HOWARD, Chief Judge. This appeal presents the question

of whether a state Rhode Island conviction for first degree child

molestation, R.I. Gen. Laws § 11-37-8.1, is "comparable to or more

severe than" one of the offenses listed in Tier III of the federal

Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C.

§ 16911(4). Appellant-Defendant Christian Morales, who had

previously been convicted under that Rhode Island law, was

sentenced in federal court to 65 months in prison and a lifetime of

supervised release for failing to register as a sex offender under

SORNA, 18 U.S.C. § 2250(a). At sentencing, the district court

utilized the prior Rhode Island conviction to deem Morales a Tier

III offender, resulting in a base-offense level two levels higher

than if he had been deemed a Tier II offender. Finding the Tier

III designation to be plain error, we vacate Morales's prison term

and remand for re-sentencing. 

I.

In December 2006, Morales entered a plea of nolo

contendere to two counts of first degree child molestation in the

state of Rhode Island. R.I. Gen. Laws. § 11-37-8.1. At the time

that he committed the sexual assault, he was 18 and the victim was

13. The state of Rhode Island sentenced Morales to a 30-year

incarcerative term, with all but seven years suspended. 

As a result of that sentence, Morales was required to

register as a sex offender under SORNA. That law classifies

-2-
offenders into three tiers based on the severity of the sex

offense. Those categories, in turn, detail the frequency and

longevity of an individual's registration requirements. For

instance, a Tier III offender must register for the remainder of

his or her life, while a Tier II offender must register for 25

years. 42 U.S.C. § 16915. 

In 2010, a federal grand jury indicted Morales in the

District of Rhode Island for failing to register, and Morales

subsequently pled guilty. Prior to sentencing, the probation

officer prepared a pre-sentence report classifying Morales as a

Tier III sex offender. U.S.S.G. §2A3.5(a) (setting the baseoffense level at 16 for a Tier III offender, as defined in SORNA,

rather than 14 for a Tier II offender). The district court

accepted this designation, which increased Morales's Guidelines

sentence range from 46-57 months in prison to 57-71 months. 

At sentencing, the court imposed a mid-guidelines

incarcerative sentence of 65 months. With respect to supervised

release, however, the district court emphasized Morales's behavior

since the time of the predicate conviction (including an alleged

sexual assault on a minor during his unregistered period) and

concluded that a lifetime of supervised release was necessary. At

a subsequent hearing, the court reaffirmed its view on supervised

release and made clear that public safety demanded an upward

variance to the statutory maximum.

-3-
Morales timely appealed, asserting a litany of

challenges. Finding the Tier III contention to be the only

arguably meritorious claim, we requested further briefing and oral

argument solely on that issue.1

II.

We begin by setting forth the statutes at issue before

delving into the merits. SORNA classifies sex offenders into three

tiers with each category corresponding to specific, enumerated

crimes or to offenses incorporated from other federal sexual abuse

laws. The most egregious offenders are grouped into Tier III. 42

U.S.C. § 16911(4)(A). Meanwhile, Tier II of the statute captures,

inter alia, sexual offenses against victims aged 13 through 16 if

the perpetrator is four or more years older than the victim. 

§ 16911(3)(A)(iv). The final category, Tier I, serves as a catchall provision for convicted sex offenders not otherwise grouped

into Tier II or Tier III. § 16911(2). 

Most relevant for our purposes is Tier III. This tier

covers individuals who have committed crimes "comparable to or more

severe than" a number of enumerated offenses. § 16911(4)(A). 

Those offenses essentially break down into two categories. 

First, Tier III includes sexual offenses against a child

aged 12 or under. Part of section (i) in Tier III adopts the

1

 We have considered Morales's additional contentions, and

find them to be wholly unpersuasive. 

-4-
definition of "aggravated sexual abuse" from 18 U.S.C. § 2241,

which penalizes crossing state lines "with intent to engage in a

sexual act with a person who has not attained the age of 12 years,"

or actually en gaging in such conduct.

§ 16911(4)(A)(i) (incorporating § 2241). Also included in this

category, from section (ii) of Tier III, is "abusive sexual contact

. . . against a minor who has not attained the age of 13 years." 

§ 16911(4)(A)(ii) (incorporating 18 U.S.C. § 2243(a)). "Abusive

sexual contact" is defined as any sexual offense against a 12 year

old if the perpetrator is 16 years or older. Id.

Second, Tier III encompasses sex offenses that are

committed with force, result in additional harm, or are perpetrated

against particularly vulnerable victims. These offenses, also

found in section (i), incorporate other aspects of "abusive sexual

contact" from 18 U.S.C. § 2241, along with "sexual abuse" as

defined in 18 U.S.C. § 2242.2

2

 These crimes include: causing another to engage in a sexual

act "by using force . . . or by threatening that other person" with

force, § 2241(a); knowingly rendering a person unconscious or

drugging that individual and then engaging in a sexual act with him

or her, § 2241(b); or, engaging or attempting to engage in abuse

defined in § 2241(a)&(b) with a person between the ages of 12 and

15 if the perpetrator is four years older than the victim, § 2241©. 

§ 16911(4)(A)(i). This category also includes forcing "another

person to engage in a sexual act by threatening or placing that

other person in fear" or engaging in a sexual act with a victim if

such an individual is "incapable of appraising the nature of the

conduct; or physically incapable of declining participation in, or

communicating unwillingness to engage in, that sexual act." §

16911(4)(A)(i) (incorporating 18 U.S.C. § 2242).

-5-
The final statute of interest is the source of Morales's

predicate conviction. That Rhode Island law merely states, "A

person is guilty of first degree child molestation sexual assault

if he or she engages in sexual penetration with a person fourteen

(14) years of age or under." R.I. Gen. Laws. § 11-37-8.1. 

 III.

Given the lack of an objection below, the parties agree

that our review is for plain error only. This requires Morales to

show that "(1) an error occurred which was (2) clear or obvious and

which not only (3) affected his substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

the judicial proceedings." United States v. Tavares, 705 F.3d 4,

16 (1st Cir. 2013) (citation omitted). We begin by asking whether

any error occurred. 

i.

Morales contends that it was error for the district court

to enhance his offense level based on a Tier III designation, since

his Rhode Island conviction was not "comparable to or more severe

than" any offense listed in that section of SORNA. Our analysis of

this argument proceeds in two steps. First, we must ask what

analytical approach applies to this comparative inquiry. Second,

under that framework, we must then determine whether the specific

Rhode Island law that Morales was convicted under is, in fact,

"comparable to or more severe than" any offense in Tier III.

-6-
a.

The threshold question in this case is whether our

comparison of the statutes is limited to the elements of each crime

or whether we can account for Morales's specific conduct when

determining whether he is a Tier III offender. At its core, this

requires us to give some meaning to the term "offense" as it is

utilized in Tier III of the SORNA statute. The Supreme Court has

provided significant guidance on how to answer this question.

In Descamps v. United States, 133 S.Ct. 2276 (2013), the

Court described the analytical framework for comparing a state

predicate offense with the generic crimes listed in the Armed

Career Criminal Act ("ACCA"). Key to its decision was a

distinction between indivisible statutes (those not containing

alternative elements) and divisible statutes (those providing

alternative elements). For the latter set of statutes, limited

factual consideration is appropriate to determine under which

portion of the statute the offense lies. 

However, for indivisible predicate statutes, like the

Rhode Island law at issue here, the comparison must be limited

solely to the elements of the crimes. The Court emphasized three

main justifications for this. Descamps, 133 S.Ct. at 2287-89,

citing Taylor v. United States, 496 U.S. 575 (1990). First, the

text of the ACCA, using the term "convictions" rather than a phrase

such as "has committed," implied that Congress was focused on a

-7-
defendant's convictions irrespective of the underlying facts. 

Descamps, 133. S.Ct. at 2287-88; contra Nijhawan v. Holder, 557

U.S. 29 (2009) (where the statute's requirement of a loss exceeding

$10,000 called for an inquiry into the specific circumstances

leading to the offense). Second, the Court was concerned that

fact-finding on the predicate offense could run afoul of the Sixth

Amendment right to a jury trial. Descamps, 133 S.Ct. at 2288-89. 

Finally, such a categorical approach eschewed the possibility of

any mini- or collateral-trial at sentencing to probe the predicate

offense. Id. at 2289. 

At least two of these considerations strongly militate

towards adopting the same method in this context. First, the text

yields the same result. Certainly, the word "offense" itself does

not provide us the same clarity as the use of the word "conviction"

in the ACCA, see Nijhawan, 557 U.S. at 33-34; see also Black's Law

Dictionary (9th ed. 2009) (defining offense as "violation of the

law; a crime"), but we have recently ascribed meaning to that word

in the context of the sexual abuse statutory scheme. In United

States v. Jones, 748 F.3d 64 (1st Cir. 2014), a defendant

challenged his life sentence, imposed under 18 U.S.C. § 2241©

(providing the definition of aggravated sexual assault incorporated

into the Tier III statute). To determine whether an enhanced

sentence under that statute was appropriate as a result of a

predicate sexual offense, we asked whether a state law penalizing

-8-
sexual penetration with a victim under 13 (Jones's predicate crime)

"would have been an offense" under federal law (§ 2241©). Id. at

73-74. After citing Descamps, we determined that "offense" in this

context was limited to the "state court judgment and the statute of

conviction -- not at what [the defendant] did to trigger the

statute's application." Id. at 73. In other words, we adopted a

categorical approach. 

We see no reason to depart from that understanding of

"offense." It is axiomatic that when considering two statutes on

the same subject "courts construe words or phrases from a prior act

on the same subject in the same sense," Sutherland Statutory

Construction § 51:2 (7th ed.), and that "identical words used in

different parts of the same act are intended to have the same

meaning," Dep't of Revenue of Or. v. ACF Indus., Inc., 510 U.S.

332, 342 (1994) (citation omitted). Here, the SORNA statute

explicitly incorporates § 2241(c) and both sections use the term

"offense" in precisely the same way; they each mandate a comparison

of a predicate state offense with the federal law. The government,

perhaps recognizing this, does not provide any reason to avoid this

consistent reading. Instead, it merely adds a footnote in its

brief saying that "some courts have expressed doubt about whether

the so-called 'categorical approach' even applies in this setting." 

Absent any justification to find otherwise, Jones answers this

textual question. Since it limits "offense" to the elements of the

-9-
crime, this Descamps consideration implores us to follow the

categorical approach. 

The third Descamps consideration, the need to avoid

collateral trials about the factual grounding of the predicate

offense, is also directly relevant. There, relying on its previous

explanation in Taylor, the Court maintained that requiring a

district court to delve into the facts of a predicate offense could

turn into a daunting task. Indeed,

In some cases, the indictment or other

charging paper might reveal the theory or

theories of the case presented to the jury. 

In other cases, however, only the Government's

actual proof at trial would indicate whether

the defendant's conduct constituted [the

offense]. Would the Government be permitted

to introduce the trial transcript before the

sentencing court, or if no transcript is

available, present the testimony of witnesses? 

Could the defense present witnesses of its own

and argue that the jury might have returned a

guilty verdict on some theory that did not

require a finding that the defendant committed

the [generic offense]?

Taylor, 495 U.S. at 601. Relatedly, the Court observed that where

a defendant pleads to a lesser included offense of one listed in

the ACCA, this fact-intensive approach could subject a defendant to

a mini-trial on, and an enhanced punishment from, that broader

crime. Id. In effect, this could deprive him or her of the

benefit of the plea bargain. 

Not much more need be said here, as a similar concern

also points to the answer in this case. Under a fact-centric

-10-
analysis, an equally intensive investigation could be required to

determine whether a defendant's predicate actions fall within the

Tier III category. Although it is plausible that the issue could

be resolved from the plea agreement, plea colloquy, or judgment

alone, it is also conceivable that the court would need to review

the entire record. As the Court in Taylor noted, it could even

require further factual development outside of the initial trial

record. This is particularly concerning in this context where

requiring the victim to testify again could increase the likelihood

of secondary trauma. See, e.g., L. Christine Brannon, The Trauma

of Testifying in Court for Child Victims of Sexual Assault v. the

Accused's Right to Confrontation, 18 Law & Psychol. Rev. 439

(1994). Finally, depending on the nature of the defendant's plea

to the underlying offense, the approach could also render his or

her bargain meaningless.

Ultimately, limiting our analysis to the elements of

indivisible state predicate offenses, along with the generic crimes

referenced in SORNA, best comports with the Supreme Court's

considerations in Descamps. Indeed, we are not alone in reaching

this conclusion. See United States v. Backus, 550 Fed. App'x 260

(6th Cir. 2014) (applying the categorical approach to the SORNA

context); United States v. Cabrera-Gutierrez, 756 F.3d 1125 (9th

Cir. 2013) (same); see also United States v. Forster, 549 Fed.

App'x 757 (10th Cir. 2013) (casting some doubt on the approach but

-11-
applying it nonetheless); contra United States v. Gonzalez-Medina,

757 F.3d 425 (5th Cir. 2014) (applying a fact-based approach when

comparing an "age differential" distinction between a state and

federal statute). Therefore, our analysis will be limited solely

to the elements of the relevant statutes.3

b.

The heart of this case turns on whether the Rhode Island

law is "comparable to or more severe than" any of the SORNA Tier

III offenses. At its core, Tier III breaks down into two

categories: (1) offenses that apply irrespective of the victim's

age -- i.e., if the offense either includes some additional conduct

or harm, or is committed against a particularly vulnerable

individual, § 16911(4)(A)(i); and, (2) any sexual crime against a

victim 12 or under, § 16911(4)(A)(i)-(ii). We address each

category in turn. 

Initially, Tier III applies in a number of situations

irrespective of the victim's age. Specifically, it applies to

3 Despite its tepid argument against the categorical

approach, the government vigorously insists that the phrase

"comparable to" should have broad meaning. Morales, meanwhile,

argues for a narrower construction of the term, similar to that

given by two other circuits. See Backus, 550 Fed. App'x at 263

(defining "comparable" as "prohibit[ing] the same activity);

Cabrera-Guiterrez, 756 F.3d at 1133-34 (stating that a statute that

covers more activity than the federal statute is not comparable to

the federal law). We need not decide this issue. Instead, we

conclude that, no matter what the precise meaning of the term, the

Rhode Island offense in question is not "comparable to" the federal

offenses listed in Tier III. 

-12-
offenders who engage in certain, additional conduct (other than the

sexual act alone) in the course of committing the crime; who

inflict some additional harm during the offense; or who abuse a

specified victim. § 16911(4)(A)(i) (enumerating these offenses and

including: offenders who commit the crime utilizing force or the

threats of force, offenders who commit the crime against an

unconscious victim, or offenders who commit the crime against a

victim who is incapable of appraising the nature of the conduct).

The Rhode Island statute lacks analogous characteristics. 

Instead, it contains only two elements: the sexual act and the age

of the victim. It does not include additional elements such as

threats or force, nor does it narrowly protect specific classes of

victims in a comparable fashion. Quite simply, the Rhode Island

law in this case penalizes significantly broader behavior than this

category of Tier III offenses.4

Our examination continues, however, since Tier III also

encompasses any sexual act against a victim aged 12 or under. 

Specifically, section (ii) of Tier III includes offenses where the

victim is 12 years old or under and the perpetrator is at least

four years older, § 16911(4)(A)(ii), and section (i) (in addition

to the crimes previously discussed) includes offenses where the

4 We also note that other sections of Rhode Island law do

proscribe force or additional harm in this context. See, e.g.,

R.I. Gen. Laws § 11-37-2. This evidences the legislature's

capacity to target such activity when it so intends.

-13-
perpetrator crosses state lines with the intent to engage in sexual

conduct, or actually does engage in such conduct, if the individual

is under the age of 12, § 16911(4)(A)(i). Such crimes are

considered so severe that, without anything more, they warrant Tier

III designation. 

The government anchors its argument in the latter,

section (i) crime. It emphasizes that section (i) of the statute

penalizes the mere intent to sexually abuse an individual under 12

(together with the actus reus of crossing state lines), while Rhode

Island penalizes more severe conduct: an actual sexual act. The

government simply views the difference in the age cut-offs as

inconsequential.

The government's position runs head first into a

congressional judgment that lies at the core of the tiered

framework. The structure of the law makes clear that while

"comparable to" may, as the government argues, provide us some

flexibility in examining the offenses, the question of age is so

essential to the framework that the congressional cut-off must be

strictly construed. See Saysana v. Gillen, 590 F.3d 7, 13 (1st

Cir. 2009) (stating that the meaning "of a statutory provision is

often made clear not only by the words of the statute but by its

structure as well"). This is manifested by the distinctions within

section (i) of Tier III, by the interplay of section (i) and (ii),

and by the differences between Tier II and Tier III. 

-14-
First, the structure of section (i) of Tier III implies

that this congressional line-drawing was critical. At the risk of

repetition, Congress determined that the intent to abuse a victim

under 12 (or actually doing so) warrants Tier III classification. 

But, where a victim is any other age, Congress made a different

statement; although the conduct may be severe, without additional

evidence of other conduct or harm (such as threats or force), or

some other particularly vulnerable attribute about the victim (such

as being unable to comprehend what was happening), only Tier II

applies. Thus, for crimes against victims over 12, only additional

conduct, or a more vulnerable victim, renders the crime

commensurate with an offense against a victim under that age. 

Comparing the different sub-sections in Tier III yields

the same conclusion. Section (i) of Tier III already covers all

conduct where the victim is under 12. § 16911(4)(A)(i)

(incorporating 18 U.S.C. § 2241(c) ("intent to engage in . . . [or]

knowingly engages in a sexual act with another person who has not

attained the age of 12.")). Section (ii) adds only one additional

class of offenses: specified sexual abuse against 12 year old

children. § 16911(4)(A)(ii). If the age limit in section (i)

could be disregarded, as the government suggests, then a state

crime penalizing a sexual act against a 12 year old would already

be captured by section (i) of Tier III. This would leave the

second sub-section of Tier III without any purpose. See Duncan v.

-15-
Walker, 533 U.S. 167, 174 (2001) (noting the importance of giving

every word or section in a statute meaning when possible).

The differences across the tier hierarchy further

underscore the age dist i n c t i o n ' s i m p o r t a n c e . 

compare § 16911(3)(A)(iv) with § 16911(4)(A). If a person engages

in sexual conduct against a victim 16 or under and is convicted

under a state's general statutory rape law, Tier II status is

imposed. § 16911(3)(A)(iv). If the victim is 12 or under,

however, then the same exact conduct warrants Tier III

classification. In crafting this law, Congress plainly did not

envision placing every offender who violated any statutory rape law

under the Tier III umbrella. But, here, too, the government's

position would likely do just that. Indeed, it would raise the

question of whether Tier III applied to a violation of any state's

statutory rape law. By moving a significant number of Tier II

offenders into Tier III in this way, an entire section of Tier II

could thus be left without any purpose. 

Nor is the tier system the only place that Congress

emphasized this age distinction in the sexual abuse statutory

regime. See Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 2442

(2014) (noting that a provision in a statute must be read in the

broader context of the law); Robinson v. Shell Oil Co., 519 U.S.

337, 342-45 (1997) (trying to decipher the meaning of a term by

examining its usage in other provisions in the statute). For

-16-
example, Congress specifically enhanced the penalty for "offenses

involving young children." 18 U.S.C. § 2244(c). In that law,

Congress said that if a victim had not attained the age of 12 "the

maximum term of imprisonment that may be imposed for the offense

shall be twice that otherwise provided in this section." Id. The

purpose of that enhancement, Congress specifically noted, was its

concern over an increase in abuse (roughly one-third of all sexual

offenses) against children 11 and under. H.R. Rep. No. 105-557

(1998). This suggests that Congress was not setting an arbitrary

age limit, but was intentionally drawing a line at that specific

age.

Ultimately, the age of the victim is a critical component

of the tier system. Although it now sings a different tune, even

the government has acknowledged this fact. As the Department of

Justice ("DOJ") noted in its own guidelines implementing the law,

the tier designation increases requirements corresponding to a

number of factors, most prominently, "the nature and seriousness of

the offense, the age of the victim, and the extent of the

offender's recidivism." National Guidelines for Sex Offender

Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008)

(emphasis added). The DOJ seems to accept the idea, which we also

adopt, that the victim's age is one of the core elements

distinguishing the tiers in SORNA. Given that, a state law simply

-17-
does not target comparatively grave conduct when it fails to

include the same age cut-off. 

The Rhode Island law at issue here is significantly

broader than a Tier III offense, since the state law penalizes

sexual conduct alone -- without anything more -- against victims

over the congressionally-designated age of 12. Although Rhode

Island can certainly draw the line at 14 when crafting its own laws

and setting its own registration requirements, it does not

necessarily follow that specific federal requirements are

automatically triggered. Where a distinction exists on such a

foundational issue, we cannot consider the two laws comparable. 

Admittedly, this would be a different case if the Rhode Island

statute required proof of some additional harm (even if it defined

the harm differently than the federal statute) to victims over 12,

since it would then mirror Congress's judgment on this crucial

point. See, e.g., N.H. Rev. Stat. Ann. § 632-A:2(I); M.G.L. ch.

265 § 23A. It would also be a different case if Rhode Island

changed its laws to penalize sexual conduct against any individual

12 or under, as there would then be overlap with the federal

scheme. See, e.g., Me. Rev. Stat. Ann. tit. 17 § 253(1)(c); N.H.

Rev. Stat. Ann § 632-A:2(I)(l)&(II). It might even be a different

case if the Rhode Island law under which Morales was convicted

specifically sanctioned abuse against victims with a mental

capacity equivalent to a child 12 or under, as that might indicate

-18-
an attempt to regulate equivalent harm. But, in penalizing sexual

conduct alone against older victims, the law sweeps far too broadly

in terms of the severity of the offenses it covers to be a Tier III

congener.5

Accordingly, the Rhode Island law cannot be read to be

"comparable to or more severe than" any SORNA Tier III offense. 

Thus, the district court erred when it characterized Morales as a

Tier III sex offender. 

ii.

Although we find error, our analysis does not end there. 

Instead, Morales must still establish the other prongs of plain

error. First, he must show that the error was "plain." In other

words, it must be "clear" or "obvious." See United States v.

5 Although the government focuses on the section (i) intent

crime, the importance of the age distinction would apply equally

when comparing the Rhode Island statute to the offenses barred in

section (ii) of Tier III (sexual conduct against a 12 year old

child). However, we could potentially resolve that section (ii)

comparison in another way. Unlike the offenses listed in subsection (i), sub-section (ii) could either be read as a single unit

(i.e. finding that "is comparable to or more severe than" applies

to the entire section), or it could be read as two separate clauses

("is comparable to or more severe than . . . abusive sexual

contact" and is "against a minor who has not attained the age of 13

years.") Under the latter approach, the "comparable to" language

might not apply to the age limit and thus that clause could be read

as a stand-alone requirement. Courts could then engage in a

factual inquiry into the victim's actual age when considering

whether an offense matched sub-section (ii) of Tier III. Because

the victim of the underlying crimes for which Morales was convicted

was 13, we need not make that determination, since we would reach

the same result regardless of which analytical framework applied to

that one specific clause of Tier III. 

-19-
Olano, 507 U.S. 725, 734 (1993). The government contends that we

have never interpreted the SORNA tier regime in this context and

that the conclusion we reach today is far from self-evident. 

The plainness of an error is considered at the time of an

appeal, and we thus account for developments in the law even if the

district court did not have the benefit of those changes. See

Henderson v. United States, 133 S.Ct. 1121, 1124-25 (2013); United

States v. Farrell, 672 F.3d 27, 36 (1st Cir. 2012). Despite the

implication of the government's argument, the absence of a decision

directly on point does not remove the potential for a finding of

plain error. Instead, the inquiry is always whether the error is

open to doubt or question. See Henderson, 133 S.Ct. at 1130

("'[P]lain' means that lower court decisions that are questionable

but not plainly wrong . . . fall outside the Rule's scope.");

Puckett v. United States, 556 U.S. 129, 143 (2009).

Two interwoven aspects of the error here make it "plain." 

First, although the district court in this case should have

conducted some analysis given Descamps, it was our recent decision

in Jones that settled the matter definitively. With that case, one

the district court did not have the benefit of reviewing, it became

sufficiently clear that the Descamps analytical framework applied

to the tier structure at issue.

Second, with the Jones decision in place (and assuming,

arguendo, that the government's broader conception of "comparable

-20-
to" applies) all this case then required was a comparison of the

federal and state law. Although we have engaged in a thorough

examination, even a cursory review of the statutes illustrates the

importance of the age issue in the federal law and the breadth of

the Rhode Island statute in comparison. See United States v.

Dávila-Félix, 667 F.3d 47, 54-57 (1st Cir. 2011) (finding plain

error despite undertaking a significant legal analysis asking

whether a prior conviction qualified as a predicate offense for

sentencing enhancement purposes). Simply put, no faithful reading

of the elements of the statutes, as our analysis shows, could lead

one to conclude that Morales was a Tier III offender. Thus, given

the framework mandated by Jones, and the clarity with which

Congress spoke in SORNA, it was sufficiently obvious that Morales

was incorrectly classified as a Tier III offender. 

Morales must next show that the error affected his

substantial rights. In other words, it "must have been

prejudicial." Olano, 507 U.S. at 734. Here, it is important to

distinguish Morales's incarcerative sentence from his supervised

release term. As to the former, this case is somewhat analogous to

others where much is at stake (for example, when an armed career

criminal designation plays a role) and plain error is found because

the district court erroneously considered a prior conviction to be

a predicate offense. See United States v. Torres-Rosario, 658 F.3d

110, 116 (1st Cir. 2011). As we noted in Torres-Rosario, "district

-21-
courts have regained considerable discretion in sentencing but the

guidelines are still highly influential." Id. Thus, where the

guidelines are augmented because the court improperly considers a

prior conviction to be a predicate offense, we must, at a minimum,

be on alert to the presence of prejudice. 

In this case, the district court seemingly followed the

guidelines, and imposed an incarcerative sentence directly in the

middle of the range. Given the district court's focus on the

supervised release term rather than on the incarcerative sentence,

we are unable to say with sufficient confidence that the erroneous

guidelines range did not single-handedly drive the district court's

incarcerative sentencing decision. ("Now, the enhancement puts you

in a guideline range of 57 to 71 months. If you are truly a child

abuser, then the difference between 57, 60, 65, 71 months just

keeps you off the street for a few more months, and eventually

you're going to return to society. So just as important as the

prison term, it seems to me, are the terms of your release.") 

Given the apparent role that the incorrect guideline range played,

and the reasonable probability that a different sentence will be

imposed, remand is appropriate. See, e.g., United States v.

Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005) (noting with

respect to a Booker error that "[e]ven in cases where the judge was

silent, there may be cases in which the appellate panel is

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convinced by the defendant based on the facts of the case that the

sentence would, with reasonable probability, have been different"). 

Although Morales has shown that his substantial rights

were affected as to his prison term, he cannot show prejudice with

respect to his supervised release sentence. At the initial

sentencing, the district court noted that a lifetime of supervised

release was required because Morales was a recidivist and the

public needed to be protected. After the initial sentencing, the

government informed the court that it had changed it position. It

believed that the guidelines called for a maximum of five years of

supervised release even though the statute permitted the court to

vary upwards to a lifetime sentence. At a subsequent hearing, the

court again emphasized that public safety concerns mandated the

lifetime order and it thus reaffirmed that part of its decision. 

Nothing from either proceeding indicates that the tier designation

played any role in this part of the sentence, and we see no reason

to disrupt it.6

Morales must finally show that the error seriously

impaired the fairness, integrity, or reputation of the judicial

proceedings. In other words, he must show that there is "a threat

6

 Although we do not find that the plain error standard has

been met with respect to supervised release, determining the

appropriate balance of an incarcerative term and supervised release

is an exercise committed to the sound discretion of the district

court. The district judge should therefore be permitted, but not

required, to revisit the supervised release aspect of the sentence

on remand. 

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of injustice if we affirm." United States v. Rodriguez, 630 F.3d

39, 42-43 (1st Cir. 2010). Given the significant possibility that

Morales will receive a reduced sentence upon remand with a

different base-offense level, and since SORNA imposes enhanced,

lifelong requirements for Tier III offenders, such a threat does

exist without correcting this error. Nor, we note, is there any

injustice to the government from a remand. See United States v.

Ramos-Gonzales, 775 F.3d 483, 507-08 (1st Cir. 2015) ("To the

extent relevant to the plain error inquiry, the government asserts

no offsetting circumstances.") Since the error was one purely of

law, the government faced no undue prejudice in responding to the

argument for the first time on appeal. Moreover, the government

faces no significant harm moving forward, as it can still argue for

an upward variance upon remand. 

Ultimately, this is one of the rare cases in which the

plain error review standards have been satisfied and a remand to

correct the mistake of law is required.

IV.

As the district court committed plain error when it

characterized Morales as a Tier III sex offender and when it then

utilized that designation in its guidelines calculation, we vacate

the sentence with respect to Morales's prison term and remand for

proceedings consistent with this opinion.

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