IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20448

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ROBERT MONTGOMERY, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before JONES, ELROD, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Robert Montgomery appeals his conviction for failure to register as a sex 

offender in violation of the Sex Offender Registration and Notification Act 

(SORNA), 18 U.S.C. § 2250(a). Because Montgomery should have been 

classified as a tier I offender under SORNA, meaning that he was not required 

to register in 2018, we vacate the conviction.

Robert Montgomery was convicted of sexual assault in the second degree 

in New Jersey state court on October 22, 1992. He was sentenced to eight years 

in prison and released on parole on March 21, 1995. Twenty-three years later, 

around April 2, 2018, Montgomery took up residence in Texas. Although 

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2020

Lyle W. Cayce

Clerk

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Montgomery had registered as a sex offender at previous addresses, he did not 

register as a sex offender at this residence.

On November 7, 2018, the government charged Montgomery in a onecount indictment with failure to register as a sex offender in violation of 18 

U.S.C. § 2250(a). After a largely stipulated trial, the district court adjudged 

Montgomery guilty. In preparation for sentencing, the probation officer 

prepared a presentence investigation report (PSR) that recommended 

assigning Montgomery a base offense level of 16 as a tier III SORNA offender. 

Montgomery objected to the PSR, arguing that he should be classified as a tier 

I offender under SORNA because his New Jersey conviction for second degree 

sexual assault was not comparable to the federal SORNA definitions of sexual 

abuse and aggravated sexual abuse associated with tier III status. The court 

overruled the objection and sentenced Montgomery to 41 months in custody 

with five years of supervised release.

Montgomery timely appealed the judgment. He now argues that his New 

Jersey conviction for second degree sexual assault is a SORNA tier I offense, 

meaning that he was required to register for only 15 years after his release 

from custody in 1995 and had no obligation to register as a sex offender when 

he was charged with failing to do so in 2018.

Because Montgomery failed to present his sufficiency of the indictment

argument in a motion to dismiss, and instead raised it for the first time in his 

objections to the PSR, our review is for plain error.1 United States v. Fuchs, 

1 Montgomery instead moved to dismiss because he argued that SORNA was 

unconstitutional as applied to him due to SORNA’s provision authorizing the United States 

Attorney General to decide the applicability of the Act’s registration requirements to 

offenders convicted before its enactment, which he argued violated the nondelegation 

doctrine. This issue was pending at the time before the Supreme Court in Gundy v. United 

States, but the Supreme Court subsequently held that the provision did not violate the 

nondelegation doctrine. 139 S. Ct. 2116 (2019).

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467 F.3d 889, 900 (5th Cir. 2006). To show plain error, Montgomery must 

demonstrate a clear or obvious error that has not been intentionally abandoned 

and has affected his substantial rights. Rosales-Mireles v. United States, 138 

S. Ct. 1897, 1904 (2018). If he makes that showing, then the court should

exercise its discretion to correct the error, if it “seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” Id. at 1905 (citation 

omitted).

SORNA, 34 U.S.C. §§ 20901–20962, is a federal law establishing “a 

comprehensive national system for the registration” of sex offenders. Id. § 

20901. It requires qualifying offenders to register and update their registration 

upon a change in residence, with criminal penalties for knowingly failing to 

comply. Id. § 20913; 18 U.S.C. § 2250. SORNA classifies offenders into three 

tiers. 34 U.S.C. § 20911. A tier I offender must register for 15 years, a tier II 

offender must register for 25 years, and a tier III offender must register for 

life. Id. § 20915(a). 

Our court and others determine an offender’s SORNA tier by comparing 

the offense for which they were convicted with SORNA’s tier definitions using 

the categorical approach. See United States v. Escalante, 933 F.3d 395, 398 (5th 

Cir. 2019). To apply the categorical approach, courts “‘look only to the statutory 

definitions’—i.e., the elements—of [an offense], and not ‘to the particular facts 

underlying those convictions.’” Descamps v. United States, 570 U.S. 254, 261 

(2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). If the offense 

“sweeps more broadly” than the SORNA tier definition, then the offense cannot 

qualify as a predicate offense for that SORNA tier regardless of the manner in 

which the defendant actually committed the crime. Id.; United States v. Young,

872 F.3d 742, 745 (5th Cir. 2017).

A defendant must show “a realistic probability, not a theoretical 

possibility, that the State would apply its statute to conduct that falls outside 

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the generic definition of the crime.” United States v. Castillo-Rivera, 853 F.3d 

218, 222 (5th Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 

193 (2007)). Merely pointing to plausible interpretations of the statutory text 

in a vacuum is not enough. Id. A defendant must point to case law from the 

relevant state courts actually applying the law in a manner that is broader 

than the federal definition. Id.

Thus, to be a tier III sex offender under SORNA, Montgomery’s New 

Jersey conviction must be “comparable to or more severe than . . . aggravated 

sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 

18).”2 34 U.S.C. § 20911(4); see also Young, 872 F.3d at 745 (quoting United 

States v. Coleman, 681 F. App’x 413, 416–17 (5th Cir. 2017)). Because the New 

Jersey Supreme Court has interpreted the state crime of sexual assault in the 

second degree to cover conduct outside of the federal definitions given in 18 

U.S.C. §§ 2241 and 2242, Montgomery does not qualify as a tier III offender.

Aggravated sexual abuse, as defined in § 2241, requires “knowingly 

caus[ing] another person to engage in a sexual act” using force or “by 

threatening or placing that other person in fear that any person will be 

subjected to death, serious bodily injury, or kidnapping; or attempt[ing] to do 

so.” 18 U.S.C. § 2241(a). We have held that the force element required under 

this definition is “restraint sufficient to prevent the victim from escaping.” 

United States v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998); see also United 

States v. Carey, 589 F.3d 187, 195 (5th Cir. 2009). Conversely, the New Jersey 

Supreme Court has held that, although 1992 N.J. Stat. § 2C:14-2(c)(1) requires 

“physical force or coercion,” a defendant may be convicted under the statute 

upon a showing of “any touching that occurs without permission.” State in the 

2 New Jersey sexual assault does not involve kidnapping a minor or a crime that 

occurs after the offender becomes a tier II offender, which are the other definitions of a tier 

III offender. See 34 U.S.C. § 20911(4).

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Interest of M.T.S., 129 N.J. 422, 446 (1992); see also Jecrois v. Sojak, 736 F. 

App’x 343, 347 (3d Cir. 2018) (“Under New Jersey law, ‘physical force in excess 

of that inherent in the act of sexual penetration is not required for such 

penetration to be unlawful’ . . . [r]ather, the act of penetration itself, if ‘engaged 

in by the defendant without the affirmative and freely-given permission of the 

victim to the specific act of penetration,’ satisfies the physical force or coercion 

element of sexual assault.” (quoting State in the Interest of M.T.S., 129 N.J. at 

444)); United States v. Johnson, 743 F.3d 196, 201 (7th Cir. 2014) (noting that 

New Jersey has taken the position that “‘force” was present . . . because some 

force was inherently needed to perform the sexual act”). Indeed, the defendant 

in State in the Interest of M.T.S. was convicted upon a showing of 

nonconsensual conduct without an additional showing of force. 129 N.J. at 

449–50. Therefore, New Jersey courts have, in practice, applied 1992 N.J. Stat. 

§ 2C:14-2(c)(1) to conduct that falls outside of the SORNA definition of 

aggravated sexual abuse.

Similarly, a person commits sexual abuse under 18 U.S.C. § 2242 when 

he knowingly “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 engaging in a sexual act with someone who is 

mentally or physically incompetent. 18 U.S.C. § 2242. Federal courts interpret 

this threat or fear language to require more than merely a lack of consent. See, 

e.g., United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1133–34 (9th Cir. 2014) 

(holding that an Oregon sexual abuse statute penalizing penetration with a 

lack of consent was broader than § 2242); United States v. Iu, 917 F.3d 1026, 

1031 (8th Cir. 2019) (pointing to behavior “aimed at frightening [the victim] to 

the point that she acquiesced to sexual activity with him” to satisfy the fear 

requirement of § 2242); United States v. Betone, 636 F.3d 384, 388 (8th Cir. 

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2011) (relying on statements such as “[y]ou don’t want to do that, because it’s 

the worst thing you can do for yourself right here and right now,” and the 

victim’s testimony that he was afraid to resist or leave to establish fear). Courts 

also distinguish § 2242’s threats and fear from § 2241’s force element. United 

States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995) (“‘Fear’ and ‘threats’ are 

different from ‘force.’”). These interpretations render New Jersey sexual 

assault, which criminalizes non-consensual intercourse in the absence of 

threats or fear, broader than the federal definition given in 18 U.S.C. § 2242

as well.

Because Montgomery does not meet the definition of a tier III offender, 

he must be classified as a tier I offender.3 34 U.S.C. § 20911(2). As a tier I 

offender, he was required to register for only 15 years after his release in 1995. 

§ 20915(a). Because this error is clear under current law and resulted in 

Montgomery serving additional time in prison, Montgomery has shown plain 

error. Rosales-Mirales, 138 S. Ct. at 1905–08. Accordingly, Montgomery’s 

conviction for failure to register as a sex offender is VACATED.

3 The government does not argue that Montgomery meets the definition of a tier 

II sex offender, and the crimes described in that section are inapplicable to Montgomery’s 

conviction. See 34 U.S.C. § 20911(3).

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JENNIFER WALKER ELROD, Circuit Judge, joined by JONES and 

HIGGINSON, Circuit Judges, concurring: 

I fully concur in the panel opinion. “This outcome is required by faithful 

adherence to precedent.” United States v. Escalante, 933 F.3d 395, 406 (5th 

Cir. 2019). However, I write separately because this case illustrates yet 

another troubling application of the expanded and “byzantine-like” categorical 

approach. Id. “[A]dherence to the categorical approach leads to a result in this 

case that is almost certainly contrary to any plain reading of the statute.” Id.

Here, Mr. Montgomery was convicted of sexual assault in the second 

degree in 1992. The 1992 New Jersey statute defining sexual assault in the 

second degree provides that, “[a]n actor is guilty of sexual assault if he commits 

an act of sexual penetration with another person under any one of the following 

circumstances . . . [including, as relevant here,] [t]he actor uses physical force 

or coercion, but the victim does not sustain severe personal injury.” N.J. Stat. 

§ 2C:14-2(c)(1) (1992). Mr. Montgomery’s crime involved threatening an adult 

woman with a box cutter while he fondled her and put his fingers and mouth 

on her vagina. 

Despite the specific acts of Mr. Montgomery’s underlying conviction 

squarely fitting SORNA’s Tier III definition, we are compelled by the 

categorical approach to instead look only to the elements of the crime 

enumerated by the New Jersey statute: (1) an act of sexual penetration; (2) 

using force or coercion. See State v. R.P., 126 A.3d 1226, 1230 (N.J. 2015). In 

doing so, Mr. Montgomery cannot be classified as a Tier III offender; he must 

be classified as a Tier I offender and relieved of his obligation to register as a 

sex offender under SORNA. This does not comport with the statute’s text. 

Skepticism of the categorical approach is not new, but time has 

magnified the unworkability of this approach. Quarles v. United States, 139 S. 

Ct. 1872, 1881 (2019) (Thomas, J., concurring) (suggesting that the Supreme 

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Court reconsider this approach and noting that “the categorical approach 

employed today is difficult to apply and can yield dramatically different 

sentences depending on where a [crime] occurred”); Sessions v. Dimaya, 138 S. 

Ct. 1204, 1252 (2018) (Thomas, J., dissenting); Mathis v. United States, 136 S. 

Ct. 2243, 2259 (2016) (Thomas, J., concurring).1

“In the nearly three decades since its inception, the categorical approach 

has developed a reputation for crushing common sense in any area of the law 

in which its tentacles find an inroad.” Escalante, 933 F.3d at 406. “Perhaps one 

day the Supreme Court will consider revisiting the categorical approach and 

setting the federal judiciary down a doctrinal path that is easier to navigate 

and more likely to arrive at the jurisprudential destinations that a plain 

reading of our criminal statutes would suggest.” Id. at 407.

1 See also, e.g., United States v. Lewis, 720 F. App’x 111, 120 (3d Cir. 2018) (Roth, J., 

concurring in the judgment) (describing the categorical approach as “willful blindness—

which may allow violent offenders to evade accountability”); United States v. Davis, 875 F.3d 

592, 595 (11th Cir. 2017) (observing that the categorical approach carries judges “down the 

rabbit hole . . . to a realm where we must close our eyes as judges . . . . It is a pretend place 

in which a crime that the defendant committed violently is transformed into a non-violent 

one . . . . Curiouser and curiouser it has all become[.]”); United States v. Chapman, 866 F.3d 

129, 136–38 (3d Cir. 2017) (Jordan, J., concurring) (expressing dismay at the “kudzu quality 

of the categorical approach, which seems to be always enlarging its territory[,]” and which 

“often asks judges to feign amnesia,” and to “ignore facts already known and instead proceed 

with eyes shut”); United States v. Faust, 853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) 

(observing that the categorical approach “can lead courts to reach counterintuitive results, 

and ones which are not what Congress intended”); United States v. Doctor, 842 F.3d 306, 313–

15 (4th Cir. 2016) (Wilkinson, J., concurring) (stating that the categorical approach has 

caused judges to “swap[] factual inquiries for an endless gauntlet of abstract legal 

questions[,]” and recommending that the categorical approach should “loosen[] its present 

rigid grip upon criminal sentencing”).

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